PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

DONNA MEYERS, 

 Plaintiff–Appellant, 

 v. No. 13-6302 

EASTERN OKLAHOMA COUNTY 

TECHNOLOGY CENTER, a 

political subdivision of the State of 

Oklahoma; TERRY UNDERWOOD, 

Superintendent of EOC in his 

official and individual capacity; 

ERIK REYNOLDS, Assistant 

Superintendent of EOC in his 

official and individual capacity, 

 Defendants –Appellees. 

LARRY STEPHENS; RODNEY 

ALBEE; DENNIS DELANO; GARY 

HOWARD; AND MIKE O’BOYLE, 

 Defendants.

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:10-CV-01058-F) 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 28, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Guinise Marie Marshall, Marshall Law Office, Oklahoma City, Oklahoma, 

for Plaintiff-Appellant. 

Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma (Karen 

L. Long, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, with him on the 

briefs), for Defendants-Appellees. 

Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges. 

BACHARACH, Circuit Judge. 

 This case grew out of Ms. Donna Meyers’s employment at the 

Eastern Oklahoma County Technology Center. During her employment, 

Ms. Meyers had a disagreement with a subordinate who taught at the 

school. When the school superintendent learned of the situation, he 

instructed Ms. Meyers to consult another supervisor before taking any 

action against the subordinate. Four days later, Ms. Meyers violated this 

instruction by taking away two of the subordinate’s classes. The school 

superintendent viewed this violation as insubordination and recommended 

the firing of Ms. Meyers. She sued the school and the superintendent, 

alleging retaliation for engaging in protected speech and deprivation of 

procedural due process. The district court granted summary judgment to 

the defendants, and Ms. Meyers appealed. 

To decide her appeal, we ask two questions: 

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1. Can a reasonable trier of fact conclude that school 

 administrators retaliated against the plaintiff when she directly 

 disobeyed instructions? 

2. Can a reasonable trier of fact infer denial of due process, in the 

 absence of a liberty or property interest, based on inadmissible 

 hearsay? 

We conclude that no reasonable trier of fact could find retaliation or denial 

of due process. As a result, we affirm. 

I. Standard of Review 

 “We review the district court’s grant of summary judgment de novo, 

employing the same legal standard applicable in the district court.” 

Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1311 (10th Cir. 2009). 

Summary judgment is appropriate only if there is no genuine dispute of 

material fact and the movant is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(a). 

II. The Termination of Ms. Meyers 

 To analyze Ms. Meyers’s claims, we must understand what she did 

and why. We derive our understanding from the summary judgment record, 

viewed in the light most favorable to Ms. Meyers. See Finstuen v. 

Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007). 

 A. The Tuberculosis Testing 

 The Eastern Oklahoma County Technology Center is a public career 

and technology education center, which employed Ms. Meyers as the adult 

education coordinator in the EMT program. She supervised Ms. Lisa 

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Gonzales-Palmer, an instructor at the school who also worked for Air Evac, 

a company providing air ambulance services. 

Students had to submit proof of tuberculosis testing before taking 

EMT classes. About six students submitted documentation of their tests, 

but the school lost the documents. Rather than requiring the students to 

assume the cost of obtaining a new test, Ms. Gonzales-Palmer agreed to 

retest the students. 

Ms. Gonzales-Palmer began to do so, removing a vial of purified 

protein derivative (PPD) from her Air Evac jumpsuit and telling Ms. 

Meyers that she was going to perform tuberculosis skin tests on the 

students. Ms. Meyers told Ms. Gonzales-Palmer not to perform the tests, 

believing she was unqualified and suspecting she had stolen the PPD from 

Air Evac. 

Ms. Meyers later found “PPD Administration/Reporting” forms in six 

students’ education records. These forms showed that Ms. GonzalesPalmer had administered the tests in disregard of Ms. Meyers’s 

instructions. 

 B. Unauthorized Termination of Ms. Gonzales-Palmer 

Seeking guidance about how to handle Ms. Gonzales-Palmer’s 

actions, Ms. Meyers called Mr. Ron Feller, an Air Evac manager who had 

previously worked for the Oklahoma State Department of Health. 

Ms. Meyers did not mention Ms. Gonzales-Palmer, but Mr. Feller inferred 

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from their discussion that Ms. Gonzales-Palmer was the person who had 

administered the tests. Mr. Feller told Ms. Meyers to speak with Ms. Judy 

Dyke, who was Ms. Gonzales-Palmer’s manager at Air Evac and had 

recently said that a vial of PPD was missing. Ms. Dyke contacted 

Ms. Meyers and asked her to cooperate in an investigation by Air Evac. 

Ms. Meyers met with Ms. Gonzales-Palmer to discuss the testing. 

Ms. Gonzales-Palmer explained that she had performed the tests at the 

direction of three Technology Center instructors. Dissatisfied with this 

explanation, Ms. Meyers terminated Ms. Gonzales-Palmer’s employment. 

 C. Warning to Ms. Meyers 

Ms. Gonzales-Palmer informed the school’s administration of her 

termination. Shortly thereafter, the school superintendent met with 

Ms. Meyers, telling her that she lacked authority to terminate employees 

and that Ms. Gonzales-Palmer would be reinstated. The superintendent 

warned Ms. Meyers that she was not to retaliate against Ms. GonzalesPalmer or talk to anyone about Ms. Gonzales-Palmer’s testing of the 

students. A short time later, Ms. Meyers informed Ms. Dyke of the 

termination of Ms. Gonzales-Palmer and the lot number of the PPD used in 

the tests. 

The superintendent learned of Ms. Meyers’s communication with Air 

Evac and was not pleased. He admonished Ms. Meyers, telling her that she 

could be fired if she retaliated against Ms. Gonzales-Palmer, continued to 

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take unauthorized action, or failed to comply with other directives. The 

superintendent added that “[t]o the extent [Ms. Meyers] believe[d] that the 

hiring, termination (or other adverse action) of an employee [was] in the 

best interest of [the Technology Center] [she] should promptly meet with 

Mr. O’Boyle.” Applt. App. Vol. 1, pt. 1 at 135. 

Four days after the meeting, Ms. Meyers submitted an “Amendment 

to Course Authorization Request Form” for two courses in the EMT 

program without receiving approval from Mr. O’Boyle. See Applt. App. 

Vol. 1, pt. 1 at 143 (stating that Mr. O’Boyle discovered the change the 

day after it was made). In this form, Ms. Meyers removed Ms. GonzalesPalmer as co-instructor for the two courses. Mr. O’Boyle discovered the 

amendment and reported to the superintendent that Ms. Meyers had taken 

action against Ms. Gonzales-Palmer. 

 D. Suspension of Ms. Meyers 

Upon learning of this incident, the superintendent arranged a meeting 

with Mr. O’Boyle and Ms. Meyers. At the end of the meeting, the 

superintendent notified Ms. Meyers that she was suspended with pay. The 

next day, the superintendent learned that Ms. Meyers had failed to renew 

the school’s certification as an EMT training site. 

The superintendent advised Ms. Meyers that he was recommending 

her termination. The same day, Ms. Meyers made a written complaint to 

the Oklahoma State Department of Health about the tuberculosis testing. 

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Two days later, the superintendent sent Ms. Meyers a letter, saying he had 

recommended termination because she 

 provided Air Evac with confidential employee records and 

emailed confidential records to her home computer, 

 failed to communicate with supervisors regarding contact with 

Air Evac despite warnings about her duty to communicate with 

supervisors, 

 failed to respond candidly to questions about Ms. GonzalesPalmer, 

 retaliated against Ms. Gonzales-Palmer after being told not to 

retaliate, and 

 allowed expiration of the Technology Center’s certification as 

a training site. 

 E. Ms. Meyers’s Hearing and Termination 

 The superintendent told Ms. Meyers that he would allow her to 

appeal his decision, though she had no right to an appeal. She took 

advantage of this opportunity and appeared with counsel at a hearing 

before the school’s board. The board voted to terminate Ms. Meyers, 

finding that 

 Ms. Meyers had repeatedly failed to communicate with 

supervisors despite warnings to communicate, 

 Ms. Meyers had not been candid in her meeting with the 

superintendent, 

 Ms. Meyers had retaliated toward another employee and 

violated the superintendent’s instructions, and 

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 the superintendent’s firing had been based on Ms. Meyers’s 

consistent failure to report important EMT matters. 

With this action by the board, Ms. Meyers lost her job. 

III. Section 1983 Claims and the Ruling in District Court 

 Ms. Meyers sued under § 1983, alleging 

 denial of the right to free speech because she was suspended 

and terminated for reporting the illegal administration of 

tuberculosis testing, and 

 deprivation of procedural due process based on bias of the 

board in her termination hearing. 

The district court granted summary judgment to the school and the 

superintendent. 

IV. Retaliation Claims Involving Violation of the First Amendment 

Generally, public employees cannot be terminated for engaging in 

protected speech. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Dill v. 

City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir. 1998). Ms. Meyers 

claims retaliation for protected speech involving discussion of the tests 

with the Oklahoma State Board of Health and Air Evac. The district court 

acknowledged that these discussions involved protected speech, but 

concluded they did not cause Ms. Meyers’s termination. We agree that the 

termination did not result from protected speech. 

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A. The Five-Pronged Test 

The claims trigger the five-pronged Garcetti-Pickering test. Trant v. 

Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014). Under this test, Ms. 

Meyers can prevail only if 

1. her speech was not made pursuant to official job duties, 

2. her speech involved a matter of public concern, 

3. her free speech interests were not outweighed by the 

defendants’ interest in promoting workplace efficiency, 

4. the speech was a motivating factor in the suspension and 

termination, and 

5. the defendants would not have reached the same employment 

decision without the protected speech. 

Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th 

Cir. 2007). 

B. The District Court’s Reasoning 

The district court held that Ms. Meyers had satisfied the first three 

prongs, establishing constitutional protection as a matter of law. See 

Connick v. Myers ̧ 461 U.S. 138, 148 n.7 (1983) (explaining that the 

existence of protected speech is a question of law). For the sake of 

argument, we assume that the district court was correct. See Trant v. 

Oklahoma, 754 F.3d 1158, 1166 (10th Cir. 2014) (assuming satisfaction of 

the first four prongs when the defendant was entitled to summary judgment 

based on the fifth prong). The court held that 

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● the claim failed on the fourth prong with respect to 

 communications with the Board of Health, and 

● the claim failed on the fifth prong with respect to 

 communications with Air Evac. 

C. The Burden of Proof 

 Ms. Meyers bears the burden of proof on the fourth prong. 

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 

(1977). The fifth prong involves an affirmative defense, and the 

defendants bear the burden of proof. Trant v. Oklahoma, 754 F.3d 1158, 

1167 (10th Cir. 2014). 

 D. Communication with the Oklahoma State Board of Health 

The district court concluded that Ms. Meyers had failed to create a 

material factual dispute on retaliation for her communications with the 

Oklahoma State Board of Health. On this claim, the court determined that 

the communication was not a motivating factor for the termination (fourth 

prong) because the school superintendent had not known about Ms. 

Meyers’s communication to the Board of Health when he recommended 

termination. Because the superintendent could not have relied on 

something he did not know about, the court concluded that Ms. Meyers’s 

conversation with the Board of Health was not a motivating factor in the 

suspension or termination. 

Ms. Meyers did not address this issue in her briefs. Although she did 

so in oral argument, we need not consider “[a]n argument made for the first 

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time at oral argument.” Corder v. Lewis Palmer Sch. Dist. No. 38 ̧ 566 

F.3d 1219, 1235 n.8 (10th Cir. 2009). In the absence of briefing, we 

decline to consider Ms. Meyers’s argument on the fourth prong. 

E. Communication with Air Evac 

The district court relied on the fifth prong in rejecting Ms. Meyers’s 

claim involving her conversation with Air Evac personnel. 

A district court’s grant of summary judgment based on the fifth 

prong is appropriate only if “‘any reasonable jury would [have found] that 

[the plaintiff] would have been terminated even absent any desire on the 

Defendants’ part to punish [her] in retaliation for his allegedly protected 

speech.’” Trant v. Oklahoma, 754 F.3d 1158, 1167 (10th Cir. 2014) 

(quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 117 (2d Cir. 

2011)). As a result, summary judgment was appropriate only if any 

reasonable jury would have found that the superintendent would have 

recommended the firing of Ms. Meyers even without the protected speech. 

Under this standard, the defendants are entitled to judgment, for they have 

proven that the superintendent would have recommended the firing even if 

Ms. Meyers had not continued her discussions with Air Evac. 

After the Technology Center rehired Ms. Gonzales-Palmer, the 

superintendent cautioned Ms. Meyers that any retaliation against Ms. 

Gonzales-Palmer could result in Ms. Meyers’s termination. In the written 

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admonishment, the superintendent told Ms. Meyers that she was to consult 

Mr. O’Boyle before taking any adverse action against an employee. 

Only four days after receiving this admonishment, Ms. Meyers 

admittedly took further action against Ms. Gonzales-Palmer without 

contacting Mr. O’Boyle. Ms. Meyers contacted the Oklahoma Health 

Board to have Ms. Gonzales-Palmer’s name removed as an instructor for 

two courses. When the board voted to terminate Ms. Meyers, it cited this 

retaliation against Ms. Gonzales-Palmer as a direct violation of the 

superintendent’s instructions. 

The district court concluded that regardless of Ms. Meyers’s 

continued discussions with Air Evac, the superintendent would have 

recommended the firing based on insubordination. We agree. 

Ms. Meyers argues that the district court erred because 

● she did not act with retaliatory intent when she removed 

 Ms. Gonzales-Palmer as an approved instructor, and 

● her removal of Ms. Gonzales-Palmer constituted protected 

 speech because of its relationship with protected speech. 

We reject both arguments. 

We reject the first argument. Ms. Meyers asserts that she had Ms. 

Gonzales-Palmer removed as an instructor for the classes not to retaliate, 

but to “‘protect the welfare first of the students and next of the facility.’” 

Appellant’s Opening Br. at 18 (quoting Applt. App. Vol. 2, pt. 1 at 90). 

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With these intentions, Ms. Meyers denies insubordination. But, the fifth 

prong relates to the superintendent’s intent, not Ms. Meyers’s. 

When Ms. Meyers took that action, the superintendent would 

undoubtedly have recommended the firing based on insubordination even if 

Ms. Meyers had good intentions in taking away Ms. Gonzales-Palmer’s two 

classes.1

 See Trant v. Oklahoma, 754 F.3d 1158, 1169 (10th Cir. 2014) 

(holding that the defendants were entitled to summary judgment on a 

retaliation claim because any impermissible motive would have been 

minimal in light of the employee’s “inappropriate comments, 

insubordination, and other serious reasons for termination”); accord 

Graber v. Clarke, 763 F.3d 888, 892, 899-900 (7th Cir. 2014) (holding that 

no causal link existed between an employee’s protected speech and an 

adverse employment action because of the employee’s insubordinate 

manner of speaking to a supervisory employee). The superintendent told 

Ms. Meyers to consult Mr. O’Boyle before taking any action against an 

employee. Only four days later, Ms. Meyers removed Ms. GonzalesPalmer’s name as an instructor on two courses without contacting Mr. 

O’Boyle. From the superintendent’s perspective, Ms. Meyers’s 

insubordination was quick and unequivocal. 

 

1 Ms. Meyers does not question an employer’s right to terminate an 

employee for insubordination. Indeed, Ms. Meyers states that she 

terminated Ms. Gonzales-Palmer’s employment based in part on 

insubordination. Appellant’s Opening Br. at 12 ¶ 6.

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We also reject Ms. Meyers’s second argument, concluding that her 

conduct does not trigger constitutional protection simply because the 

situation had grown out of the exercise of protected speech. 

Ms. Meyers suggests that the situation arose only because she had 

engaged in protected speech with Air Evac. For the sake of argument, we 

assume Ms. Meyers is correct. If Ms. Meyers had not spoken to Air Evac, 

the superintendent might never have prohibited Ms. Meyers from taking 

action against Ms. Gonzales-Palmer. But, that is the situation that existed. 

Facing that situation, Ms. Meyers could have complied without any 

risk of compromising her right to free speech. Instead, she disobeyed the 

superintendent’s instruction. Her prior exercise of free speech did not 

handcuff the school in dealing with that act of disobedience. See Mt. 

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977) 

(stating that an employer can decline to renew an employee’s contract 

based on his performance even if his exercise of protected conduct had 

made the employer “more certain of the correctness of its decision”). 

That act of disobedience was not constitutionally protected, for it 

involved conduct rather than speech. See Rumsfeld v. Forum for Academic 

& Inst’l Rights, Inc., 547 U.S. 47, 65 (2006) (“[W]e have extended First 

Amendment protection only to conduct that is inherently expressive.”). 

This action would have been constitutionally protected only if Ms. Meyers 

was intending to convey a particularized message and the Oklahoma State 

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Department of Health was likely to understand that message. Texas v. 

Johnson, 491 U.S. 397, 404 (1989). No fact-finder could have reasonably 

expected the Department of Health to understand a particularized message 

when told to remove Ms. Gonzales-Palmer’s name as an instructor. Thus, 

the constitution would not have prevented the superintendent from 

recommending Ms. Meyers’s firing based on her conduct with the 

Department of Health. 

In these circumstances, we reject Ms. Meyers’s two arguments. The 

district court correctly rejected the claim because the superintendent would 

have recommended the firing based on Ms. Meyers’s insubordination. 

V. Claims Involving Deprivation of Procedural Due Process 

 Ms. Meyers also claims that she was not afforded procedural due 

process because the board hearing was inadequate. This claim fails as a 

matter of law. 

 Courts engage in a two-step inquiry to determine if an individual was 

denied procedural due process: 

1. Did the individual have a protected interest that would trigger 

the right to due process? 

2. If the individual had a protected interest, was the process 

adequate? 

Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1209 (10th 

Cir. 2007). 

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Ms. Meyers has not alleged a protected interest that would trigger the 

constitutional right to due process (the first prong). The district court 

noted this failure, and Ms. Meyers failed to address the issue in her 

appellate briefs.2

 We cannot assess whether the hearing was sufficient 

without identifying the protected interest. 

Even if Ms. Meyers was entitled to a hearing, the claim would fail. 

She relies solely on a combination of out-of-court statements by Mr. 

O’Boyle and the superintendent: 

● Mr. O’Boyle told her (the first out-of-court statement) that 

● the superintendent had admitted rigging the hearing (the second 

 out-of-court statement). 

 

2

 In her opening brief on this issue, Ms. Meyers misquoted a section of 

the district court’s opinion. She quoted: “‘Although defendants have 

addressed both prongs of the two-step inquiry in their motion, Meyers 

argues, in her briefing, that she was not afforded a meaningful opportunity 

to be heard.’” Appellant’s Opening Br. at 19. In fact, the district court 

said: “Although defendants have addressed both prongs of the two-step 

inquiry in their motion, Meyers only argues, in her briefing, that she was 

not afforded a meaningful opportunity to be heard.” Applt. App. Vol. 3 at 

50 (emphasis added). The district court added: “Even if Meyers were able 

to satisfy the first prong of the two-step inquiry, which she has not 

addressed, the court finds that Meyers has failed to raise a genuine issue of 

material fact to avoid summary judgment in regard to the second step of 

the two-step inquiry.” Id.

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What the superintendent said is arguably an admission of a party opponent. 

See Fed. R. Evid. 801(d)(2). But what Mr. O’Boyle said to Ms. Meyers is 

not.3

 Ms. Meyers asserts that Mr. O’Boyle’s remark falls under the state of 

mind exception to the hearsay rule. See Fed. R. Evid. 803(3). But, this 

exception would cover Mr. O’Boyle’s state of mind, not the 

superintendent’s. See United States v. Joe, 8 F.3d 1488, 1493 n.4 (10th 

Cir. 1993) (“An out-of-court statement relating a third party’s state of 

mind falls outside the scope of the hearsay exception because such a 

statement necessarily is one of memory or belief.”). 

 Mr. O’Boyle’s state of mind is irrelevant: The rigging was allegedly 

done by the superintendent, not Mr. O’Boyle. Thus, the state of mind 

exception would not support the admissibility of Mr. O’Boyle’s alleged 

remark. Because Mr. O’Boyle’s alleged remark is not admissible, it could 

not be considered as evidence of bias by the superintendent or the board. 

See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) 

(holding “that [Fed. R. Civ. P.] 56 precludes the use of inadmissible 

hearsay testimony in depositions submitted in support of, or in opposition 

to, summary judgment”). 

 

3 When Mr. O’Boyle allegedly made the statement, he was no longer 

an employee of the school. See Appellant’s Opening Br. at 14 ¶ 15. Thus, 

Mr. O’Boyle’s statement could not constitute an admission of an opponent. 

See Fed. R. Evid. 801(d)(2)(D).

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VI. Conclusion 

We affirm the district court’s award of summary judgment. Viewing 

the evidence favorably to Ms. Meyers, the fact-finder could not reasonably 

infer retaliation for protected speech or deprivation of procedural due 

process. 

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