* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

KAREN S. PETERSON,

Plaintiff-Appellant,

v. SWEETWATER COUNTY SCHOOL DISTRICT NO. 1; GRANT CHRISTENSEN; MARY HAY CHANT; KAY MARSCHALK; TERRY McMANUS; ROBERT RAMSEY; KITTY SMITH; NORMA STENSAAS; DON BAUMBERGER; ROBERT WALLENDORFF; FRANK PREVEDEL; ARNIE LANG; THELENE SCARBOROUGH; ALAN GREEN; MARK THORNBERG, each individually and in their capacity as School Board Member/Administrator/ Employee of Sweetwater County School District No. 1,

Defendants-Appellees. No. 96-8026 (D.C. No. 95-CV-101) (D. Wyo.)

ORDER AND JUDGMENT *1 Ms. Peterson is an attorney, admitted to the practi ce of law in Utah and

Wyoming.

2 Just prior to entry of summary judgment against her , Ms. Peterson moved to amend her complaint to include claims of age discri mination, see 29 U.S.C. §§ 621 to 634, and sex discrimination, see 42 U.S.C. § 2000e to 2000e-17. The district court denied the motion and Ms. Peterson h as not pursued these theories on appeal. -2- Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Karen S. Peterson, appearing pr o se, 1 brought suit under 41 U.S.C. § 1983 and Wyoming common law against def endants-appellees, Sweetwater County School District No. 1 (the distri ct), individual employees of the district, and members of the district’s board o f trustees, alleging that her due process and free speech interests were violated whe n she was constructively discharged from her position as school psychologist

. 2 We affirm the district court’s grant of summary judgment in favor of defen dants.-3- FACTUAL BACKGROUND Ms. Peterson began working for the district in the 1981-82 school year. Her differences with defendants first surfaced duri ng the 1983-84 school year, when she felt that the district had overburdened he r with clerical work and had hired another psychologist who was incompetent and unethical. Ms. Peterson filed one unsuccessful grievance in 1985, alleging unfairness in the application of the district’s policy concerning travel to out-of-s tate conferences, and another in 1990, alleging an overload in work responsibilities . Throughout her employment, she took issue with occasionally critical evaluatio ns, suggestions, and comments from supervisors whom she considered unqualified ju dges of her performance. She also gave her disparaging views on certain district practices and personnel in many settings, including university classes that sh e was teaching and attending. Ms. Peterson attempted to transfer to different pos itions in the district, but her requests were denied. On three occasions, Ms. Peterson’s supervisors tookthe disciplinary step of placing her on a Performance Improvement Plan (PIP) . Ms. Peterson asserts that these plans exemplified the defendants’ efforts to “create the illusion of charges of improprieties and poor work performance in orderto keep her busy and primarily keep her from complaining.” Brief of app ellant at 6-7. The first PIP, imposed in the spring of 1984, required Ms. Peterso n to observe the rules of3 The record on appeal does not include the third PIP

. -4- confidentiality, reduce her use of technical jargon during conferences with parents and in written reports to other professionals, and submit any concerns about her colleagues in writing to the director of special se rvices. The provisions of the second PIP, for the 1985-86 school year, were simil ar. The third PIP was imposed during the summer of 1991, at the conclusio n of a suspension with pay. 3 The suspension occurred after Ms. Peterson acted outside her authority by canceling scheduled counseling sessions for student s. Although a Wyoming statute requires a hearing for suspension of contin uing contract teachers, see Wyo. Stat. Ann. § 21-7-110(c), no hearing was held in connection with Ms. Peterson’s suspension. By June of 1991, Ms. Peterson had decided to resign , because she felt that defendants had harassed her, deprived her of cleric al support and proper equipment, denied her professional development oppo rtunities, and violated her First and Fifth Amendment rights. However, she res olved to continue her employment for one more year, in the belief that sh e would be entitled to receive early retirement benefits after the 1991-92 school year. On September 11, 1991, she submitted her resignation, effective at the end of the school year. The remainder of the school year went relatively smooth ly. Ms. Peterson received favorable evaluations and an offer of continuing employment for the 1992-934 In state court, Ms. Peterson filed an unsuccessful lawsuit concerning the

denial of early retirement benefits. See Peterson v. Sweetwater County Sch. Dist. No. One , 929 P.2d 525 (Wyo. 1996) (affirming entry of summ ary judgment on breach of contract, promissory estoppel, age discri mination, due process, and equal protection claims). -5- school year. Although she was denied early retirem ent benefits, 4 she did not return to the district the following year.
DISCUSSION On appeal, we review the record de novo, see David v. City & County of
Denver , 101 F.3d 1344, 1355 (10th Cir. 1996), and constru e the factual record and all reasonable inferences in the light most fav orable to Ms. Peterson, see id. Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law. See Watson v. University of Utah Med. Ctr. , 75 F.3d 569, 574 (10th Cir. 1996). Ms. Peterson’s allegations of constructive discharg e form the basis of her Wyoming state law claim, see Employment Sec. Comm’n v. Western Gas Processors, Ltd. , 786 P.2d 866, 871 (Wyo. 1990) (recognizing the co ncept of constructive discharge), and part of her § 1983 fre e speech and due process claims, see Gardetto v. Mason , 100 F.3d 803, 812-14 (10th Cir. 1996) (assessing the § 1983 free speech claim of a suspended teacher ); Woodward v. City of Worland , 977 F.2d 1392, 1401 (10th Cir. 1992) (recognizing that “constructive-6-

discharge from employment as to which an employee h as a protectable property or liberty interest may be actionable under § 1983”) ( footnote omitted). Constructive discharge occurs when “a reasonable [p erson] in the employee’s position would view the working conditio ns as intolerable and when the working conditions [are] so difficult that a re asonable person would feel compelled to resign.” Id. (quotations omitted). Essentially, a plaintiff mu st show that she was “forced to quit.” Reynolds v. School Dist. No. One , 69 F.3d 1523, 1534 (10th Cir. 1995). After deciding to resign, Ms. Peterson stayed with the district for an entire school year. During the last year of her employmen t, conditions improved rather than worsened. Under these circumstances, there can be no reasonable inference of intolerable working conditions. We agree with the trial court that the evidence does not rise to the level necessary to establish agenuine dispute of fact as to constructive discharge. Ms. Peterson has also alleged that defendants violated her First Amendment right to freedom of speech by: (1) criticizing and restricting her use of technical language in diagnostic reports and discussions; (2) cautioning her not to make public evaluative comments on the professional perf ormance of district personnel; and (3) retaliating against her for speaking out onthe deficiencies of district policies and personnel. In assessing the free spee ch claim of a public employee,-7-

the initial issue is “whether the employee has spo ken ‘as a citizen upon matters of public concern’ or ‘merely as an employee upon m atters only of personal interest.’” Gardetto , 100 F.3d at 812 (quoting Connick v. Myers , 461 U.S. 138, 147 (1983). This inquiry is a question of law for the court. Gardetto , 100 F.3d at
811-12. Determining whether speech addresses a matter of pu blic concern, as opposed to matters related only to personal interes t, depends on the “content, form, and context of a given statement, as revealed by the whole record.” Connick , 461 U.S. at 147-48. “To be protected speech, the expression must sufficiently inform the issue as to be helpful to t he public in evaluating the conduct of government.” Withiam v. Baptist Health Care of Okla., Inc. , 98 F.3d 581, 583 (10th Cir. 1996) (quotation and emphasis o mitted). In deciding how to classify particular speech, courts consider the mot ive of the speaker and whether the speech was calculated to redress personal griev ances or whether it addressed a broader public purpose. See Gardetto , 100 F.3d at 812. That is, the court must evaluate whether the plaintiff “spoke out based on the same motivation that would move the public to speak out.” Id. Applying these standards, we conclude upon a review of the record that Ms. Peterson spoke from p ersonal motives in order to air her own grievances on matters which do not meet Con nickstandards.5 Because we conclude that the district court was correct in entering

summary judgment on the grounds that there were no genuine issues of contested fact concerning the substance of Ms. Peterson’s cla ims, we do not reach the other issues addressed by the district court and argued o n appeal. These issues include the application of qualified immunity, the expirati on of the appropriate statutes of limitations, and the failure to file a timely notic e of claim. -8- The final aspect of Ms. Peterson’s § 1983 claim inv olves alleged violations of procedural due process in the district’s handlin g of her suspension and grievances. “To assess whether an individual was d enied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protec tions were applicable; and, if so, then (2) was the individual afforded an appropr iate level of process.” Watson , 75 F.3d at 577 (internal quotations and citations o mitted). We have previously held that suspension with pay do es not infringe any measurable property interest and, therefore, does n ot raise due process concerns. Hicks v. City of Watonga , 942 F.2d 737, 746 n.4 (10th Cir. 1991). Ms. Pete rson’s suspension was brief and with pay. Moreover, even assuming that Ms. Peterson had a property interest in the subject matter of he r grievances, the record demonstrates that the district followed its policie s in affording Ms. Peterson an opportunity to pursue grievances. After a careful review of the record and the argume nts of the parties, 5 we AFFIRM the judgment of the United States District C ourt for the District of-9-

Wyoming. We grant Ms. Peterson’s motion to withdraw her motion for sanctions and deny defendants’ request for sanctions. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge