UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

KENA UTTER; AUBREE HOLSAPPLE; 

DARA CAMPBELL, 

 Plaintiffs - Appellants,

v.

AMIE ROSE COLCLAZIER; JACK

CADENHEAD; MICKEY UPTON; 

INDEPENDENT SCHOOL DISTRICT 

1-01 OF SEMINOLE COUNTY, STATE 

OF OKLAHOMA, a/k/a SEMINOLE 

SCHOOL DISTRICT, 

 Defendants - Appellees.

No. 17-7002

(D.C. No. 6:16-CV-00182-RAW)

(E.D. Okla.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.

_________________________________

Plaintiffs Kena Utter, Aubree Holsapple, and Dara Campbell (collectively, the 

Teachers) appeal the district court’s dismissal of their numerous federal and state 

claims against the Seminole School District (District), which is governed by the 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

November 6, 2017

Elisabeth A. Shumaker

Clerk of Court
2

Seminole Board of Education (the Board), and three of the Board’s five members, 

Amie Rose Colclazier, Jack Cadenhead, and Mickey Upton (collectively, the Board 

Members).

1

 We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and 

reverse in part.

BACKGROUND

The Teachers worked for Seminole, Oklahoma, schools under temporary 

contracts that expired at the end of the 2014-15 school year. They were also covered 

by a collective bargaining agreement between the Seminole Association of 

Classroom Teachers, the District, and the Board (the CBA). Ms. Campbell was an 

agriculture education teacher at the high school; Ms. Holsapple was a special 

education counselor at the elementary school; and Ms. Utter was a first-grade teacher 

at the elementary school. All of the Teachers received excellent ratings on their 

evaluations and their principals recommended the Board rehire them for the 2015-16 

school year. School Superintendent, Jeff Pritchard, concurred with these

recommendations. All of the Teachers were included on a slate of teachers submitted 

to the Board for approval to be rehired at its June 11, 2015, meeting (the Board 

Meeting). 

 1 The Teachers sued the individual Board Members in their official and 

individual capacities. The district court dismissed the official-capacity claims 

against the Board Members, which the Teachers do not challenge on appeal.
3

A week before the Board Meeting, Ms. Colclazier called Mr. Pritchard and 

informed him that she was inclined to join Mr. Cadenhead and Mr. Upton in voting 

against rehiring the Teachers. Mr. Pritchard told Ms. Colclazier he was baffled by 

this because he had never had any complaints against the Teachers and all had 

received excellent evaluations. Ms. Colclazier said Ms. Utter was late every day, 

Ms. Holsapple did not care about special education, and Ms. Campbell was 

disorganized. Ms. Colclazier said she planned to vote against a fourth teacher, Caleb 

Gordon, because he had supported students who had protested in favor of a school 

bond issue.2

 

Ms. Colclazier told Mr. Pritchard to tell the Teachers’ principals to remove 

their names from the slate of teachers they were recommending the Board rehire. 

Four days later, Mr. Cadenhead went to Mr. Pritchard’s office and asked if he was 

going to remove the Teachers from the rehire list. Mr. Pritchard said he was not. 

Ms. Colclazier called Mr. Pritchard later that day to say she was going to vote against 

rehiring the Teachers, and that he should have the Teachers’ names removed from the 

rehire list. That evening, Mr. Upton contacted Mr. Pritchard and stated he too was 

going to vote against rehiring the Teachers.

At the Board Meeting, the Board Members voted to rehire all of the 

recommended slate of temporary teachers except the Teachers. The two other board 

 2 The Board Members ultimately voted to rehire Mr. Gordon and he is not a 

party to this action.
4

members, Mr. Levy and Ms. Willis, voted to rehire the Teachers. Mr. Pritchard 

resigned as Superintendent after 32 years with the District to protest the Board 

Members’ vote against the Teachers. He later testified that the Board Members had 

violated the CBA, which required, among other things, that teachers be evaluated 

only by principals and only while they are performing their job functions. Mr. Levy 

and Ms. Willis testified the Board Members had improperly evaluated the Teachers 

and interfered with the administrative functions of the school. 

The Teachers filed a complaint in state court, which was removed to federal 

court by the Defendants. The Teachers’ complaint included these eight claims: (I)

the Defendants breached the contractual obligations set forth in the CBA; (II) the 

Defendants failed to comply with the Teacher Due Process Act, Okla. Stat. tit. 70, §§ 

6-101.20 to .32 (TDPA); (III) the Board Members violated Oklahoma’s Open 

Meeting Act; (IV and V) the Board Members violated their constitutional due process 

liberty interest rights and due process property interest rights in violation of 

42 U.S.C. § 1983; (VI) the Board Members violated Ms. Campbell’s First 

Amendment free speech rights in violation of § 1983; (VII) the Board Members 

retaliated against Ms. Utter for taking leave in violation of her rights under the 

Family and Medical Leave Act, 29 U.S.C. § 2615(a)(2) (FMLA); (VIII) the Board 

Members intentionally interfered with the Teachers’ prospective business interests 

with the District.
5

The Defendants moved to dismiss Counts I, II, IV, and V under Fed. R. Civ. P. 

12(b)(6) for failure to state a claim. The district court granted the motion. It first 

dismissed Count II, ruling that the TDPA expressly excludes temporary contract 

teachers from coverage. See Okla. Stat. tit. 70, § 6-101.23(A)(3) (stating the TDPA 

“shall not apply to . . . [t]eachers who are employed on temporary contracts”). The 

court then dismissed Count I, the CBA breach of contract claim, ruling that there was 

no breach of the CBA because the Teachers were not covered by the TDPA. Aplt. 

App., Vol. I, at 84-85. The court dismissed Count V, ruling that temporary contract 

teachers have no due process property interest in any continuing contract, and 

dismissed Count IV, ruling the alleged remarks by the Board Members did not 

infringe on the Teachers’ liberty interests in their good names and reputations.

The Teachers moved for reconsideration and clarification of the dismissal of 

their Count I breach of contract claim because the district court failed to address the 

CBA provisions that were unrelated to the TDPA. The district court denied the 

motion. The Teachers also requested leave to amend their complaint, which the 

district court denied as futile.

The district court ultimately granted the Defendants’ motion for summary 

judgment on all of the remaining federal claims, dismissing Ms. Campbell’s § 1983 

First Amendment claim, and Ms. Utter’s FMLA claim. The district court then 

remanded to state court the Oklahoma Open Meeting Act claim and the claim for 

intentional interference with business interest.
6

DISCUSSION

The Teachers raise four issues on appeal, challenging the district court’s Rule 

12(b)(6) dismissal of their CBA breach of contract claim, its grant of summary 

judgment in favor of the Defendants on Ms. Campbell’s § 1983 First Amendment 

claim and Ms. Utter’s FMLA claim, and the denial of their motion for leave to amend 

their complaint. 

We review de novo a district court’s dismissal of claims under Fed. R. Civ. P. 

12(b)(6) and its grant of summary judgment under Fed. R. Civ. P. 56(a). Schrock v. 

Wyeth, Inc., 727 F.3d 1273, 1279-80 (10th Cir. 2013). To withstand a motion to 

dismiss, a complaint must allege “‘enough facts to state a claim to relief that is 

plausible on its face.’” Id. at 1280 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). We assume the truth of “all well-pleaded factual allegations in a

complaint and view these allegations in the light most favorable to the plaintiff[s].” 

Id. (internal quotation marks omitted). “Summary judgment is appropriate only if 

‘there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.’” Id. at 1279 (quoting Fed. R. Civ. P. 56(a)). Under 

this standard, we view the evidence in the light most favorable to the nonmovant. Id. 

We also review de novo a court’s denial of leave to amend on the basis that 

amendment would be futile. Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 

2010).
7

1. Breach of Contract Claim. The Teachers allege in Count I that the

Defendants breached the contractual obligations in the CBA by failing to comply 

with provisions requiring the Board to: (a) evaluate teachers based on actual 

observation and knowledge while the teacher is performing her job function; 

(b) follow state laws and regulations regarding interference with school 

administration and the Open Meeting Act; and (c) not suspend, demote, or terminate 

any teacher without due process. As to the CBA’s requirement that the Board follow 

state laws and regulations, some, but not all, of the state laws referenced by the 

Teachers in their complaint were provisions of the TDPA. 

The Teachers argue on appeal the district court mischaracterized their breach

of contract claim as asserting only that the CBA required compliance with the state 

laws related to TDPA, and thus failed to address those provisions of the CBA 

unrelated to the TDPA that the Defendants allegedly breached. When the Teachers 

moved for clarification explaining that the district court had too narrowly construed 

the scope of their CBA claim, the district court denied their motion on the basis that 

“an Oklahoma teacher on a temporary contract has no expectation of a continuing 

contract status.” Aplt. App., Vol. III at 600 (footnote omitted). Thus, the court again 

failed to address all of their CBA claims. They also argue the district court failed to 

accept as true their allegation that the actions constituting alleged breaches of the 
8

CBA occurred while they were still employed under the temporary contract. We 

agree with the Teachers’ claims of error.

3

 

The Teachers’ complaint quoted several CBA provisions that they allege the 

Defendants breached. Notably, however, no party ever provided the district court 

with a copy of either the CBA or the Teachers’ temporary contracts. Accordingly, 

the district court could evaluate the terms and provisions of the CBA only as it was 

described in the complaint. The Teachers contend, and the Defendants do not 

dispute, that the terms and provisions of the CBA apply to them, even though they 

are temporary teachers, because the CBA applies to all teachers, regardless of the 

duration of any teacher’s contract. 

But the Defendants argue, as they did in their Motion to Dismiss, that any 

rights the Teachers had under the CBA expired when their temporary contracts 

expired—at the end of the 2014-15 school year—which was prior to the June 11 

Board Meeting. From this, they argue their actions at the Board Meeting could not 

have breached the CBA. Their argument rests on flawed assumptions: Even if the 

Teachers’ rights under the CBA did expire when their temporary contracts expired—

an assertion we cannot confirm without reviewing the CBA or the temporary 

 3 The Teachers also contend they presented genuine issues of material fact that 

would preclude summary judgment on their CBA breach of contract claim. The 

breach of contract claim was dismissed under Rule 12(b)(6), prior to the Defendants’ 

summary judgment motion, and we express no opinion in the first instance on how 

their breach of contract claim would fare were the Defendants to challenge it in a 

summary judgment motion.
9

contracts—the Teachers’ allegations are not limited to the Defendants’ actions taken 

at the Board Meeting. The Teachers’ allege the Defendants breached the terms of the 

CBA by evaluating them, interfering with school administration, and discussing 

matters prior to the Board Meeting in violation of the Open Meeting Act. There is no 

basis in the complaint to conclude these actions occurred only after the CBA expired. 

Viewing the factual allegations in the light most favorable to the Teachers, they are 

covered by the CBA and at least some of the Defendants’ actions occurred while the 

Teachers were protected by the CBA.

Contrary to the district court’s characterization of the breach of contract claim, 

the Teachers’ complaint alleged the Defendants breached the CBA in several ways 

unrelated to the TDPA. We conclude the Teachers plausibly alleged facts suggesting 

the Defendants breached the CBA in two such ways. 

First, the Teachers allege the CBA requires that “‘[e]ach [teacher] evaluation 

shall be based upon the evaluator’s actual observation and knowledge of the teacher 

evaluated while performing his/her job function,’” and that “‘[t]eachers will be 

evaluated by principals, as required by law.’” Aplt. App., Vol. I at 10 (quoting CBA 

Art. XI, § 11.2). The Teachers plausibly allege in their Complaint that the 

Defendants breached this provision because they evaluated the Teachers’ 

performance without any actual observation or knowledge, not as the Teachers’ 

principals, and not while the Teachers were performing their jobs. 
10

Second, the Teachers allege the CBA provides in relevant part that “‘[t]he 

Board . . . agree[s] to abide by all state and federal statutes, rulings, and 

regulations,’” Id. at 21 (quoting CBA Art. II, § 2.1). One such regulation cited by the 

Teachers, unrelated to the TDPA, provides that “‘[t]he local board and its individual 

members shall refrain from involvement in or interference with administrative 

functions of the school.’” Id. at 12 (quoting Okla. Admin. Code

§ 210:35-3-48(a)(3)). The Teachers plausibly allege that the Board Members 

violated this regulation—and thus the CBA—by evaluating the Teachers based on 

hearsay from persons other than their principals, directing Mr. Pritchard and the 

principals to remove their recommendations to rehire the Teachers, and taking 

positions regarding rehiring the Teachers that were directly at odds with the 

evaluation and recommendations of the principals and Mr. Pritchard, thereby 

involving themselves and interfering with the schools’ administrative functions. 

Another state law cited by the Teachers, also unrelated to the TDPA, is Oklahoma’s 

Open Meeting Act, which prohibits secretive meetings of public bodies. The 

Teachers plausibly allege the Defendants breached the Open Meeting Act—and thus 

the CBA—when the Board Members privately discussed among themselves prior to, 

and outside of, the public Board Meeting, their intentions and decisions to vote 

against rehiring the Teachers.

The Teachers allege the district court erred in not addressing a third breach of 

the CBA, which they sought to assert more clearly in their motion for leave to amend, 
11

namely that the CBA includes an express due process provision. According to the 

complaint, the CBA states that “‘[n]o teacher shall be suspended, demoted, or 

terminated without due process,’” Id. at 10 (quoting CBA Art. IX, § 9.3 and Art. XI, 

§ 11.2). The Teachers allege this CBA provision provided them due process rights 

with respect to the process by which their contracts were not renewed. We conclude 

this is not a plausible claim. 

The plain language of the CBA as related by the Teachers in their complaint 

states that teachers are entitled to due process protection only for a suspension, 

demotion, or termination decision. See id. And it is clear from the complaint that the 

Teachers were not “suspended, demoted, or terminated,” id., but rather that their 

temporary teaching contracts expired at the end of the school year, and the Board did 

not vote to hire them under a new contract. As the district court explained, under 

Oklahoma law, temporary contract teachers do not have any due process right to a 

continuing contract. See DeHart v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 259 P.3d 

877, 883 (Okla. Civ. App. 2011). Thus, the Teachers did not plausibly allege facts 

demonstrating a breach of the CBA’s due process provision.

To summarize, the Teachers alleged facts sufficient to give rise to plausible 

breach of contract claims under the CBA’s evaluation provision, Art. XI, § 11.2, and 

compliance-with-state-laws provision, Art. II, § 2.1, with respect to laws unrelated to 

the TDPA. Thus, the Rule 12(b)(6) dismissal of those claims was inappropriate. But 
12

the Teachers failed to present a plausible claim that the Defendants breached the 

CBA’s due process provision. 

2. Leave to Amend. The Teachers challenge the district court’s denial of their 

request to file a second amended complaint. They sought to more clearly articulate

their claim that the Defendants breached the due process provision in the CBA, as 

described above. They also sought to more clearly articulate their claim that they 

were entitled to due process under Oklahoma’s Constitution. And they sought to add 

a claim that they have a due process property interest in the renewal of their contracts 

based on the custom and practice of the District, which was that throughout the 

District’s history, the Board always voted to rehire a teacher if the teacher’s principal 

and superintendent recommended the teacher be rehired, absent financial concerns or 

a program change not present here. The district court denied leave, ruling further 

amendment would be futile.

“A proposed amendment is futile if the complaint, as amended, would be 

subject to dismissal.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 

(10th Cir. 2013) (internal quotation marks omitted). As stated above, the Teachers 

have not plausibly alleged a breach of the CBA’s due process provision because the 

Defendants’ decision not to rehire them after their temporary contracts expired was 

not a suspension, demotion, or termination decision under the plain language of the 

CBA. The Teachers’ due process claim under Oklahoma’s Constitution is similarly 

flawed. They rely upon an Oklahoma Supreme Court case holding “that Article 2, 
13

Section 7 of the Oklahoma Constitution affords minimal procedural protection to 

persons who by contract or law have a limited right to hold their jobs or to be free 

from discipline ‘unless good cause is shown.’” Umholtz v. City of Tulsa, 565 P.2d 

15, 24 (Okla. 1977) (emphasis added). But as we have held, the Teachers have not 

plausibly alleged, or presented any evidence, that they had any limited property right 

under any contract.

The Teachers’ proposed amendment asserted that they have a limited right to 

hold their job by law, however. They claim a property interest in renewal of their 

contracts based on the custom and practice of the Board, that is, that the Board’s 

custom was to rehire temporary contract teachers when that was the recommendation 

of their principal.

4

 Oklahoma courts have held that “[t]eachers working under 

temporary contracts are not afforded the due process protections of career teachers.” 

DeHart, 259 P.3d at 883 (rejecting teacher’s claim that the school district’s conduct 

and custom of offering her consecutive temporary contracts created a contract of 

 4 The Defendants assert, as they did before the district court, that the 

temporary contracts and the CBA “clearly state that there is no expectation to 

continued employment,” which negates the possibility of any contrary custom and 

practice. Aplt. App., Vol. I at 76 (emphasis omitted); see also Aplee. Br. at 4, 15-16. 

The district court appears to have accepted that statement as true, holding it was not 

plausible that the District negated its “written policy” for an unwritten custom and 

practice. Aplt. App., Vol. III at 600. But neither the CBA nor the temporary 

contracts were ever made part of the record, and nothing in the record confirms that 

the temporary contracts or the CBA “expressly state that there is no expectation of 

continued employment.” Aplee. Br. at 16.
14

continuing employment). The Teachers cite cases generally holding that the issue of 

whether an implied employment contract creates a property interest is generally a fact 

issue for a jury. But under Oklahoma law, which is the relevant law here, as a matter 

of law, an implied employment contract does not exist “if the alleged promises are 

nothing more than vague assurances.” Hayes v. Eateries, Inc., 905 P.2d 778, 783 

(Okla. 1995). In order to create an implied employment contract in Oklahoma, “the 

promises must be definite: Only when the promises are definite and, thus, of the sort 

which may be reasonably or justifiably relied on by the employee, will a contract 

claim be viable.” Bourke v. W. Bus. Prods., Inc., 120 P.3d 876, 887 (Okla. Civ. App. 

2005) (brackets and internal quotation marks omitted). “[V]ague assurances of 

continued employment will not support a finding of an implied employment 

agreement.” Id.

Here, the Teachers have not even alleged vague assurances of continuing 

employment, let alone any definite promise. They have merely alleged that the 

Board has historically rehired temporary teachers when their principals so 

recommended. We conclude the Teachers did not plead facts sufficient to establish 

the formation of an implied employment contract, and thus, have not established any 

protectable property interest to support a due process claim. We affirm the district 

court’s dismissal of their request for leave to file a second amended complaint.

3. FMLA Claim. Ms. Utter has an autistic son, and she obtained permission 

from her principal to take intermittent leave on those mornings when her son’s 
15

condition required her to care for him. Ms. Utter claims the Defendants retaliated 

against her for exercising her FMLA rights.

The district court dismissed this claim, ruling Ms. Utter failed to state a prima 

facie FMLA retaliation claim. The parties do not dispute that the leave Ms. Utter’s 

principal allowed her to take to care for her autistic son qualified as permissible 

FMLA leave. And it is undisputed that at least Ms. Colclazier voted not to rehire 

Ms. Utter because she came in late some mornings as a result of taking FMLA leave. 

But it is also undisputed that neither Ms. Colclazier nor any of the Board Members 

were aware of Ms. Utter’s leave agreement with her principal. Because none of the 

Board Members knew she was taking FMLA leave, the district court ruled Ms. Utter

failed to present any evidence the Board Members’ actions were motivated by the 

exercise of her FMLA rights, a necessary element of a prima facie FMLA retaliation 

claim. We agree the Defendants were entitled to summary judgment on Ms. Utter’s 

FMLA claim.

“To make out a prima facie retaliation claim, [Ms. Utter] must show that: 

(1) she engaged in a protected activity; (2) [the Defendants] took an action that a 

reasonable employee would have found materially adverse; and (3) there exists a 

causal connection between the protected activity and the adverse action.” Campbell

v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (internal quotation 

marks omitted). “We have characterized the showing required to satisfy the third 

prong under a retaliation theory to be a showing of bad intent or ‘retaliatory motive’
16

on the part of the employer.” Id. The district court ruled Ms. Utter met the first two

prongs, but failed to present evidence that satisfied the third prong—a causal 

connection between her FMLA leave and the Board Members’ decision to not to 

rehire her—because it is undisputed they were unaware she was taking FMLA leave.

5 

 “A causal connection is established where the plaintiff presents evidence of 

circumstances that justify an inference of retaliatory motive. . . .” Garrett v. 

Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (internal quotation marks 

omitted). We have held that a plaintiff cannot prove a causal connection when the 

decision maker took the challenged employment action without knowledge that the 

plaintiff was taking FMLA leave. Sabourin v. Univ. of Utah, 676 F.3d 950, 958-59 

(10th Cir. 2012); see also Didier v. Abbott Labs., 614 F. App’x 366, 378 (10th Cir. 

2015) (upholding summary judgment dismissal of FMLA retaliation claim because 

the plaintiff did not present evidence that the persons responsible for terminating her 

knew she was taking FMLA leave). If knowledge is lacking, then the protected 

activity cannot be said to have caused the adverse employment action. Jones v. 

United Parcel Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007) (holding, in an 

 5 Alternatively, the district court ruled that even if Ms. Utter’s evidence that 

Board Members did not rehire her because she came in late was sufficient to satisfy 

this third prong, the Board Members presented legitimate, non-discriminatory reasons 

for not rehiring her, namely that she often left her students without prepared lesson 

plans for the substitute teachers. It ruled Ms. Utter failed to present any evidence this 

proferred reason was pretext for FMLA retaliation. Because we agree Ms. Utter did 

not establish a prima facie claim, we need not reach this alternative basis for granting 

summary judgment.
17

Americans with Disability Act retaliation action, that “[u]nless an employer knows 

that an employee is engaging in protected activity, it cannot retaliate against that 

employee because of the protected conduct”).

Ms. Utter argues an employer can be liable for violating FMLA even if it did 

not know FMLA was involved. But all of the cases she relies upon are from outside 

our circuit, and all but one involve FMLA interference claims, not FMLA retaliation 

claims, which is what she alleges.

6 The difference between an interference claim 

and a retaliation claim is that the latter requires evidence of discriminatory or 

retaliatory intent, while the former does not. See Brown v. ScriptPro, LLC, 700 F.3d 

1222, 1226-27, 1230 (10th Cir. 2012) (explaining that in an interference claim, “[a]

deprivation of [an employee’s FMLA] rights is a violation regardless of the 

employer’s intent,” but in a retaliation claim, the employee must present 

“circumstantial evidence of retaliatory motive”). Ms. Utter does not cite to any 

Tenth Circuit case in which we have held a prima facie FMLA retaliation claim was 

established even though the decision maker was unaware of the plaintiff’s protected 

FMLA activity. We affirm the dismissal of Ms. Utter’s FMLA claim. 

 6 Ms. Utter also relies upon Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 

2009), which held that an employer’s notice of an FMLA-related need for leave was 

sufficient notice to expose the employer to liability for an FMLA retaliation claim. 

But unlike the facts in Dotson, Ms. Utter presented no evidence that the Board 

Members were aware she was taking any approved leave, let alone were aware she 

had any need for FMLA-related leave.
18

4. First Amendment Section 1983 Claim. Ms. Campbell alleges the Board 

Members retaliated against her for exercising her First Amendment free speech rights 

by voting not to rehire her because she spoke out publicly in favor of the bond issue. 

The bond issue was a divisive topic in Seminole; those in favor of the bond issue 

wanted a new high school built, those opposed wanted the existing high school 

remodeled. Mr. Cadenhead, Ms. Colclazier, and Mr. Upton opposed the bond issue; 

Mr. Pritchard and the other two board members, Mr. Levy and Ms. Willis, supported

it. Ms. Campbell also supported the bond issue, and it is undisputed the Board 

Members were aware of her support because she appeared at board meetings in favor 

of it, posted her support on Facebook, and was a vocal community activist. She 

contends the Board Members voted not to rehire her because she spoke out in favor 

of the bond issue, in violation of her First Amendment rights.

It is clearly established that a public employer “cannot condition public 

employment on a basis that infringes the employee’s constitutionally protected 

interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). 

Adverse employment actions considered serious enough to inflict constitutional 

injury include refusals to renew a contract, Board of Cty. Comm’rs, Wabaunsee Cty. 

v. Umbehr, 518 U.S. 668, 685 (1996) or to rehire an employee, Rutan v. Republican 

Party of Illinois, 497 U.S. 62, 76 (1990).
19

To balance the interests of a public employer’s need for some control over an 

employee’s words and actions with the employee’s free speech rights, we employ the 

familiar Garcetti/Pickering balancing test, which consists of five factors:

(1) whether the speech was made pursuant to an employee’s official duties; 

(2) whether the speech was on a matter of public concern; (3) whether the 

government’s interests, as employer, in promoting the efficiency of the 

public service are sufficient to outweigh the plaintiff’s free speech interests; 

(4) whether the protected speech was a motivating factor in the adverse 

employment action; and (5) whether the defendant would have reached the 

same employment decision in the absence of the protected conduct.

Trant v. Oklahoma, 754 F. 3d 1158, 1165 (10th Cir. 2014) (internal quotation marks 

omitted).

The first three factors favor Ms. Campbell, as the Defendants do not dispute 

that Ms. Campbell’s speech in favor of the bond issue was made pursuant to her 

official duties, related to a matter of public concern, and the Board’s interests as 

employer did not outweigh her free speech interests. But the district court ruled that 

Ms. Campbell failed to establish the fourth factor, that her speech was a motivating 

factor in the Board Members’ decision not to rehire her. It cited the Defendants’

assertions that they voted not to rehire her because they heard she was disorganized, 

was unsupportive of Future Farmers of America and 4-H programs, and made 

negative comments on social media about being an agricultural teacher. The district

court did not reach the fifth factor—whether the Defendants showed they would have 

taken the same action absent Ms. Campbell’s bond issue speech.
20

 Ms. Campbell argues the district court failed to view the evidence in the light 

most favorable to her and instead erroneously viewed the evidence in the light most

favorable to the Defendants and, indeed, improperly weighed the evidence itself. She 

argues she presented sufficient genuine issues of material fact to present a jury 

question as to whether the Defendants were motivated by her protected speech. We 

agree.

Ms. Campbell presented evidence that Mr. Cadenhead directly communicated 

with her to challenge her comments and Facebook posts in favor of the bond issue. 

He told Ms. Campbell her information was wrong or incorrect, and he admitted he 

spoke to Ms. Campbell about the bond issue to try to convince her to oppose it. 

Ms. Campbell testified she felt intimidated by these personal communications from a 

Board Member. Mr. Cadenhead admitted it was inappropriate for him to 

communicate directly with Ms. Campbell but did so in order to convince her to 

oppose the bond issue. 

Mr. Pritchard testified that he believed Ms. Campbell’s support for the bond 

issue played a role in the Board Members’ vote not to rehire her and that there was 

no other reason for their vote. He also testified that Ms. Colclazier wanted to vote 

against another teacher, Caleb Gordon, because he had supported students who 

protested in favor of the bond issue. Ms. Campbell presented evidence from the two 

other Board Members, Mr. Levy and Ms. Willis, that they believed the Board 

Members opposed rehiring Ms. Campbell because she vocally supported the bond 
21

issue. She presented evidence that both Mr. Cadenhead and Ms. Colclazier told her 

prior to her support for the bond issue that she was doing an excellent job, which 

contradicts their subsequent statements that they voted against rehiring her because 

of job performance issues. She also presented evidence that it was highly unusual for 

the Board Members to go against the Superintendent’s and principals’ 

recommendation to rehire a teacher, presenting evidence that throughout its history, 

the Board always accepted these rehire recommendations in the absence of financial 

concerns or program changes. 

Viewing this evidence in the light most favorable to Ms. Campbell, we 

conclude that she presented sufficient evidence for a reasonable fact finder to infer 

that her comments were a motivating factor in the Board Members’ decision not to 

rehire her. The question of whether a public employee’s speech was a motivating 

factor behind the employer’s decision to take an adverse employment action against 

the employee is a question of fact for a jury to decide. Thomas v. City of Blanchard, 

548 F.3d 1317, 1327 (10th Cir. 2008); Baca v. Sklar, 398 F.3d 1210, 1218-19 

(10th Cir. 2005). We disagree with the district court’s conclusion that there was no

evidence that Ms. Campbell’s speech about the bond issue was a factor in the Board 

Members’ decision not to rehire her. We agree with Ms. Campbell that the district 

court improperly weighed the disputed issues of fact, accepting as true the 

Defendants’ assertions, and failing to credit any of her evidence.
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The district court also ruled the Board Members were entitled to qualified 

immunity from Ms. Campbell’s First Amendment claim both because she did not 

establish a First Amendment violation and because she “cited no authority showing 

she has a clearly established constitutional right that would prevent [the Board 

Members] from voting on whether to rehire her” based on her support for the bond 

issue. Aplt. App., Vol. III at 609. 

For purposes of qualified immunity, we resolve all factual disputes in favor of 

the party asserting the injury. Estate of Booker v. Gomez, 745 F.3d 405, 411 

(10th Cir. 2014). As noted, Ms. Campbell has presented evidence sufficient to 

establish her First Amendment rights were violated. Having rejected the district 

court’s first reason to deny qualified immunity, we also reject the latter. 

Ms. Campbell cited to Pickering v. Board of Education, which clearly established 

that “a teacher’s exercise of [her] right to speak on issues of public importance may

not furnish the basis for [her] dismissal from public employment” by members of the 

Board of Education who have the right to vote on that teacher’s employment. 

391 U.S. 563, 574 (1968). Fifty years ago, the Supreme Court held that public 

teachers have a First Amendment right to be free from retaliation for commenting on 

matters of public concern, even when the employment decision is made by members 

of the local Board of Education. Id. at 571-72. In Pickering, members of the Board 

of Education voted to discharge a public school teacher because he spoke in 

opposition to a bond issue they supported. The Court held that the school board 
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violated the teachers’ First Amendment right to free speech by dismissing him in 

retaliation for his public criticism. Id. at 574-75. Although Ms. Campbell was not 

terminated, as in Pickering, it is clearly established that failure to renew a contract or 

to rehire an employee constitutes adverse action to support a First Amendment 

retaliation claim. See Umbehr, 518 U.S. at 685; Rutan, 497 U.S. at 76.

In sum, we affirm in part, and reverse in part, and remand. We reverse the 

district court’s dismissal of the Teachers’ CBA breach of contract claim as to the 

evaluation provision and the requirement that the Board follow state laws and 

regulations unrelated to the TDPA. We also reverse the dismissal of Ms. Campbell’s 

§ 1983 First Amendment claim. As regards the remainder of the issues raised, we 

affirm.

Entered for the Court

Mary Beck Briscoe

Circuit Judge