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

### JUL 28 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RON LANCASTER,

Plaintiff - Appellant,

v. INDEPENDENT SCHOOL DISTRICT NO. 5, also known as Jenks Public Schools, Tulsa County, Oklahoma, separately and Kirby Lehman in his official capacity as superintendent and Terri Almon, Mark Sharp, Mike Baab and Ben Maples as members of the Jenks Public Schools Board of Education; KIRBY LEHMAN, individually; BILLIE MILLS, individually; TERRI ALMON, individually; MARK SHARP, individually; MIKE BAAB, individually; BEN MAPLES, individually and in their official capacities as members of the Jenks Public Schools Board of Education, Defendants - Appellees. Nos. 97-5063 & 97-5208

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D. Ct. No. 96-C-337-BU )* After examining the briefs and the appellate record , this three-judge panel

has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. 2 Submitted on the briefs: * Stephen L. Andrew and D. Kevin Ikenberry, Stephen L . Andrew & Associates, Tulsa, Oklahoma, for Plaintiff-Appellant. J. Douglas Mann and Jerry A. Richardson, Rosenstein , Fist & Ringold, Tulsa Oklahoma, and William S. Leach, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Oklahoma, for Defendants-Appellees.

Before PORFILIO , McKAY , and TACHA , Circuit Judges.

TACHA , Circuit Judge.

Plaintiff brought an action under 42 U.S.C. § 1983, alleging a violation of his rights under the First and Fourteenth Amendment s in connection with his suspension as head football coach of the Jenks HighSchool football team and the subsequent nonrenewal of his coaching contract. OnFebruary 25, 1997, the Northern District of Oklahoma granted defendants’ m otion for summary judgment on all claims. On March 13, 1997, defendants filed for attorney’s fees under Fed. R. Civ. P. 37. Defendants were awarded $3,773 for attorney’s fees on August 11, 1997, after plaintiff filed his notice of appeal. Plaintiff appeals the district court’s ruling on summary judgment and the award of attorney’s fees. We take3

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. B ACKGROUND Plaintiff Ron Lancaster was employed with the Jenks School District in Oklahoma for over five years, beginning in January 1991. Each year, plaintiff executed a standard teacher’s contract and a separate extra duty assignment contract. Under the extra duty contract, plaintiff was compensated additionally for acting as the head coach of the Jenks High Scho ol football team and supervising a summer football camp. The extra duty assignment contract recited that there was no “tenure” for the assignment, the assignment was subject to termination at any time without a reason or a heari ng, the assignment was completely severable from plaintiff’s teaching cont ract, and the assignment was for a one year term with no assurances that it woul d be renewed in subsequent
years. On September 8, 1995, although the Jenks High Schoo l football team was ahead 17-7 against its opponent, plaintiff decided to talk to the team to prevent another unexpected loss such as one the team had experienced the previous year. Plaintiff asked everyone except the football player s to leave the locker room and shut the door behind them. Plaintiff asked the sta rters to come forward. When three starters disobeyed the request, plaintiff grabbed the players by their jerseys and/or shoulder pads and brought them forward. In his deposition, plaintiff4

admitted he yelled in a very loud voice, he may hav e cussed at the starters, and his face was red with veins popping out on his neck . Plaintiff claims his conduct was “an act” intended to motivate the team. After the football game, Dr. Kirby Lehman, Superint endent of the Jenks School District, heard rumors through his daughter, a Jenks High School band member, that “something bad” had happened in the lo cker room. Dr. Lehman contacted Mike Means, Jenks High School Principal, to investigate the situation. Teachers and parents of players reported statements made by players regarding the halftime incident. Those statements accused the pl aintiff of yelling, using profanity, grabbing players, and kicking equipment during his halftime speech. In mid-September 1995, Dr. Lehman suspended Lancast er from his coaching position pending further investigation of the alleged incident. The suspension did not affect plaintiff’s regular teaching duties or his income. After a few days of investigation, plaintiff was reinstatedcontingent upon his agreement to abide by certain terms designed to prevent any r epetition of the alleged conduct. At the reinstatement meeting, Dr. Lehman advised plaintiff of complaints against him regarding his treatment of f ootball players, including the halftime incident. Dr. Lehman then wrote Mr. Lanca ster a letter summarizing the reinstatement meeting, reviewing the allegations ag ainst him, and formally reprimanding him for his behavior. Following the m eeting, the Jenks School5

District issued a press release describing plaintif f’s suspension as an “internal personnel issue” that was being resolved cooperativ ely. The press release stated plaintiff would return to his head football coachin g position. On September 19, 1995, the Tulsa World reported plaintiff’s reinstatement. The plaintiff was quoted as saying that he had been told there was “no conclusive evidence” to warrant his suspension and “[t]here wa s no formal complaint against me and really nothing that came out of this of any kind.” In November 1995, plaintiff was quoted again in the Tulsa World as saying “no one has ever given us an explanation (for the one-game suspension). Ther e is still a stigma attached to what happened.” On January 16, 1996, plaintiff met with Mr. Means and Tommy Burns, then athletic director, to discuss his request for a mutual press release exonerating him of any wrongdoing. The parties could not agree on the content of a mutual press release and none was issued. On February 15, 1996, plaintiff was informed by Mr. Means and Mr. Burns of their recommendation that the Jenks Board of Edu cation not renew plaintiff’s extra duty contract for the 1996-97 school year. M r. Means supported his written recommendation to the Board with attachments detail ing Lancaster’s inappropriate behavior and failure to follow school rules on a number of occasions dating back to early 1992. At a February19, 1996 Board meeting,6

which the plaintiff attended, the Board unanimouslyvoted not to renew plaintiff’s extra duty coaching contract. At a later meeting, the Board voted to continue employing plaintiff in his teaching capacity for th e 1996-97 school year. The plaintiff resigned his employment from the Jenks Sc hool District on July 29, 1996. In a thorough opinion, the district court granted d efendant’s motion for summary judgment as to plaintiff’s section 1983 cla ims and dismissed the remaining state law claims. See Lancaster v. Independent Sch. Dist. No. 5 , No. 96-C-337-BU, slip op. (N.D. Okla. Feb. 26, 1997). On appeal , plaintiff contends summary judgment should have been denied on the sec tion 1983 claims because the record reveals genuine issues of material fact. Plaintiff also appeals the dismissal of his state law claims. Finally, plaint iff appeals the district court’s award of attorney’s fees to the defendants. For th e reasons set forth below, we affirm the decision of the district court on each o f the issues raised by the plaintiff.
D ISCUSSION I. Section 1983 Claims We review the grant or denial of summary judgment d e novo, applying the same legal standard used by the district court. See Wolf v. Prudential Ins. Co. of America , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is appropriate if7

there are no genuine issues of material fact and th e moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A. First Amendment Claim Lancaster contends the school board violated his Fi rst Amendment rights by terminating him as a result of his constitutionally protected remarks to the Tulsa World . We affirm the district court on the basis that L ancaster’s speeches were not matters of public concern. Whether a public employer’s action in response to an employee’s speech violates the employee’s First Amendment rights depe nds on whether the speech was related to a matter of public concern, or simpl y related to internal office affairs. See Connick v. Myers , 461 U.S. 138, 143-49 (1983). The pertinent inquiry is whether plaintiff spoke as a citizen or an employee. See Schalk v. Gallemore , 906 F.2d 491, 495 (10th Cir. 1990) (per curiam). [W]hen a public employee speaks not as a citizen up on matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumst ances, a federal court is not the appropriate forum in which to revi ew the wisdom of a personnel decision taken by a public agency alleged ly in reaction to the employee’s behavior. Connick , 461 U.S. at 147; see also Bishop v. Wood , 426 U.S. 341, 349 (1976). Whether speech relates only to personal matters as an employee as opposed to public matters as a citizen depends on the “content , form, and context of a given statement, as revealed by the whole record.” Connick , 461 U.S. at 147-48. If the8

matter is of public concern, the court must balance plaintiff’s interest as a citizen against the state’s interest “in promoting the effi ciency of the public services it performs through its employees.” Pickering v. Board of Ed. , 391 U.S. 563, 568 (1968). Lancaster’s comments in the Tulsa World do not constitute matters of “public concern.” Media publicity of a dispute is not determinative of whether a public employee’s speech was a matter of public concern. See Koch v. City of Hutchinson , 847 F.2d 1436, 1448 (10th Cir. 1988) (en banc). In analyzing whether speech is of public concern, “many courts h ave particularly focused on the extent to which the content of the employee spe ech was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the conduct of their official duties.” Id. at 1445; see also Wulf v. City of Wichita , 883 F.2d 842, 857 (10th Cir. 1989) (finding lette r written by police officer dealt with matter of public concern because it alleged, inter alia, misuse of public funds). Lancaster’s statements were self-se rving. The comments were not intended to disclose evidence of wrongdoing, ineffi ciency, or malfeasance on the part of the defendants. Because plaintiff’s grieva nces related to an internal personnel dispute, the content was only of private concern. See Vukadinovich v. Bartels , 853 F.2d 1387 (7th Cir. 1988) (holding that plaintiff’s published comments regarding school district’s decision to de cline renewal of coaching9

contract were an expression of plaintiff’s private dissatisfaction with his termination and not an issue of public concern). C onsidering the context and content of the speeches, we hold Lancaster’s speechwas of a personal nature and thus was not protected by the First Amendment. Our finding that the speech was not of public conce rn makes it unnecessary for the court to address whether the interests of the defendant outweighed the plaintiff’s interests, whether plaintiff’s speech w as knowingly false, and whether plaintiff’s speech was a motivating or a substantia l factor for the Board’s employment decision. See Wulf , 883 F.2d at 856-57 (noting these are factors to be considered if speech is found to be of public co ncern). B. Property Interest Claim Lancaster also alleged that his termination violate d the Fourteenth Amendment. According to the plaintiff, the board d enied him due process of law required by Oklahoma’s Teacher Due Process Act of 1990 (“TDPA”), O KLA
. S TAT . tit. 70, §§ 6-101.20-.30 (West 1998). The distri ct court found that the plaintiff’s extra assignment contract did not granthim a property interest in the head coaching position for the purposes of due proc ess. We agree. In reviewing a plaintiff’s claim that he was depriv ed of property without due process of law, we must first determine whetherplaintiff possessed a protected property interest such that due process p rotections are applicable. If so,10

then we decide whether plaintiff was afforded an ap propriate level of process. See Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir. 1994). The question of whether Lancaster possesses a protectedproperty interest in his coaching position must be determined in reference to state law. See Casias v. City of Raton , 738 F.2d 393, 394 (10th Cir. 1984). The TDPA is a statutory scheme governing the employ ment of public school teachers in Oklahoma. The statute creates p roperty interests in employment, which merit constitutional protection. See , e.g., Parker v. Independent Sch. Dist. No. I-003 , 82 F.3d 952, 953 (10th Cir. 1996); Short v. Kiamichi Area Vocational-Technical Sch. Dist. No. 7 , 761 P.2d 472, 475-77 (Okla. 1988). The Oklahoma Supreme Court has held that “extra duty assignments are too far removed from . . . prim ary teaching responsibilities . . . to be protected under the [TDPA].” Parker , 82 F.3d at 954 (quoting Maupin v. Independent Sch. Dist. No. 26 , 632 P.2d 396, 399 (Okla. 1981)) (alteration in original). Plaintiff argues that despite the fact that his coa ching contract was labeled an “extra duty” contract, coaching football was notan extra duty for him but rather his primary teaching responsibility. The di strict court found that coaching was not part of plaintiff’s primary teaching duties at Jenks High School, and we agree. Plaintiff’s evidentiary support that footb all players received grades for1 After the parties filed their briefs in this appeal , the Oklahoma Court of

Appeals ruled in Lancaster’s companion state court action and confirmed that Lancaster’s extra duty coaching assignment is not subject to the TDPA. See Lancaster v. Independent Sch. Dist. No. 5 , No. 89,450, slip op. at 4 (Okla. Ct. App. Sept. 16, 1997). The Oklahoma Supreme Court s ubsequently denied certiorari. 11 performance and that plaintiff’s teaching evaluatio ns reflected his coaching ability does not convince us otherwise. In short, plaintiff’s extra duty coaching assignment is not covered by the TDPA. 1 Further, tenured teachers have a protected interestonly in continued employment, not in a particular position. See Maupin , 632 P.2d at 399. Plaintiff retained his teaching job. Therefore, even if the extra duty assignment were covered by the TDPA, the nonrenewal of plaintiff’s extra duty assignment would not have deprived plaintiff of a property interest. In his reply brief, Lancaster raises a theory of co nstructive discharge in association with his due process claim. We conside r that issue waived due to “the general rule that appellate courts will not enterta in issues raised for the first time on appeal in an appellant’s reply.” Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1277-78 (10th Cir. 1994).

C. Liberty Interest Claim Lancaster also alleges that the defendants’ actions deprived him of liberty2 In violation of Rule 28(a)(6) of the Federal Rules of Appellate Procedure,

plaintiff fails to provide a single citation to aut hority in support of his liberty interest argument. Losing arguments are not excus ed from the briefing requirements of Rule 28 simply because they are mor e difficult to support. 12 without due process of law. Lancaster contends the defendants, by failing to provide the public with an explanation for his susp ension and leaving people to speculate, publicly stigmatized him and consequently damaged his reputation. 2 Injury to reputation alone, however, is not a depri vation of a liberty interest. See Siegert v. Gilley , 500 U.S. 226, 233-34 (1991); Paul v. Davis , 424 U.S. 693, 709 (1976). To invoke the procedural pro tection of the due process clause through a claim of injury to a liberty inter est, a discharged public employee must allege, for example, that defendants imposed a“stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities .” Board of Regents of State Colleges v. Roth , 408 U.S. 564, 573 (1972) (emphasis added). Lancaster does not make s uch a claim. At any rate, in light of the fact that Lancaster fairly quickly obt ained a teaching/coaching position for the next school year, such a claim wou ld be weak. Also fatal to plaintiff’s liberty interest claim is the fact that the defendants made no public statements disparaging Lancaster or harming his standing or associations in the community. The Supreme Court h as “rejected the theory that the mere fact of dismissal, absent some publicizing of the reasons for the action ,3 Because we affirm the dismissal of plaintiff’s state law claims, see infra ,

we express no opinion regarding the merits of his s tate “false light” claim. 13 could amount to a stigma infringing one’s liberty.” Board of Curators v. Horowitz , 435 U.S. 78, 83 (1978) (citing Bishop v. Wood , 426 U.S. 341 (1976)); see also Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 547 n.13 (1985) (noting that “the failure to allege that the reason s for the dismissal were published dooms” plaintiff’s liberty interest claim); Dickeson v. Quarberg , 844 F.2d 1435, 1440 (10th Cir. 1988) (“A liberty interest is not v iolated when one is discharged without public disclosure of the reasons for the di scharge.”). Thus, speculative rumors circulating in the community as a result of defendants’ failure to publish do not establish a deprivation of a liberty interes t. While the injury to reputation asserted by the plai ntiff may be actionable under state tort law 3 , it falls far short of a constitutional violation. See Paul , 424 U.S. at 697-99 (holding that conduct actionable as state claim for defamation does not rise to level of liberty deprivation simply bec ause government officials are involved). Accordingly, we affirm the district cou rt’s entry of summary judgment for the defendants. D. Religious Discrimination Claim Plaintiff’s final constitutional claim is a religio us discrimination claim. It is not clear from plaintiff’s submissions to this c ourt or to the court below14

whether he is relying on the First Amendment or on an equal protection theory. Regardless, the only evidence that plaintiff presen ts in support of his claim is his own deposition testimony in which he provides hears ay information, passed on to him by third parties, that school board members sai d the next coach hired would have a “strong Christian background.” “Rule 56 precludes the use of inadmissible hearsay testimony in depositions submitted . . . in opposition to, summary judgment.” Starr v. Pearle Vision, Inc. , 54 F.3d 1548, 1555 (10th Cir. 1995). Were the th ird parties themselves to testify regarding the statements they allegedly ove rheard, there would not be a problem “because the statement would not be offeredfor its truth, but instead for the mere fact it was said.” Id. ; see Fed. R. Evid. 801(c). But here, plaintiff offers his own testimony for the truth of what the third p arties said to him, i.e., that board members made statements about the next coach’ s religious background. No exceptions to the hearsay rule apply here to make t he evidence admissible. Because we cannot consider the plaintiff’s hearsay evidence, plaintiff fails to prove a genuine issue of material fact exists to de feat summary judgment. We affirm the district court. II. Dismissal of State Law Claims The preceding analysis effectively disposes of all of Lancaster’s claims arising under federal law. Thus, the bases for fed eral subject matter jurisdiction15

have been extinguished. Under these circumstances, the district court may decline to exercise continuing “pendent” or supplem ental jurisdiction over plaintiff’s state claims. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs , 383 U.S. 715, 725-26 (1966) (“[I]f the federal cl aims are dismissed before trial, . . . the state claims should be dismissed a s well.”). We affirm the district court’s decision to dismiss without prejudice plaintiff’s state law claims for the torts of false light and outrage, tortious interfer ence with employment contract, and breach of contract. III. Attorney’s Fees Finally, the plaintiff appeals the award of attorne y’s fees to the defendants. The facts relevant to that award are as follows. I n November 1997, Mr. Lancaster failed to appear for his scheduled deposition and f iled a motion for a protective order to prevent the defendants from taking his dep osition. In response, the defendants moved for a protective order to prevent plaintiff from obtaining discovery from the defendants until he submitted hi mself for a deposition. The magistrate overseeing discovery granted the defendants’ request and denied the plaintiff’s motion in a minute order issued Novembe r 18, 1996. The minute order also stated that the court would consider an applic ation for attorney’s fees from the defendants based on Mr. Lancaster’s failure to appear at his deposition. On March 13, 1997 (about two weeks after the court granted defendants’ motion for16

summary judgment on the section 1983 claims), the d efendants filed a motion for attorney’s fees based on the time spent appearing f or Mr. Lancaster’s no-show deposition and addressing the subsequent motions. On August 11, 1997, the magistrate granted defendants’ motion and awarded them $3,773 in attorney’s fees. The magistrate explained that the award was justified by Fed. R. Civ. P. 26(c) and 37(a)(4)(A), which govern fee awards asso ciated with motions for protective orders, and by Rule 37(d), which provide s for attorney’s fees when a party fails to appear for a deposition. Although he does not contest the underlying justifi cation for the attorney’s fees awards, plaintiff alleges the award is invalid for four reasons: (1) defendants’ motion for attorney’s fees was untimely and therefo re waived; (2) plaintiff’s notice of appeal divested the district court of jur isdiction, leaving it powerless to award attorney’s fees in August; and (3) the scope of the award exceeded limits allegedly set by the magistrate’s initial order, an d (4) the amount of the award is unreasonable. We review the district court’s decis ion to award attorney’s fees under Rule 37 for abuse of discretion. See Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1555 (10th Cir.), cert. denied , 117 S. Ct. 297 (1996). A. Timeliness of Motion for Attorney’s Fees The plaintiff argues that the attorney’s fees award was in error because the right to Rule 37 fees is waived upon entry of judgm ent. The text of Rule 3717

itself contains no time limitations on motions, andthere are no cases on point in this circuit. Nonetheless, the plaintiff cites sev eral cases from other circuits in support of his position that Rule 37 motions must b e filed before entry of judgment. See , e.g. , Mercy v. County of Suffolk , 748 F.2d 52, 55-56 (2d Cir. 1984). In the absence of Tenth Circuit precedent o r a clear directive from Rule 37 itself, we decline to impose a flat prohibition on Rule 37 motions after entry of judgment. However, a Rule 37 motion for sanctio ns should be filed without unreasonable delay. Cf. Brandt v. Vulcan , 30 F.3d 752, 756 (7th Cir. 1994) (party bringing motion for sanctions under Rule 37( b)(2) must do so without unreasonable delay). Defendants filed their motionabout two weeks after summary judgment was entered and within four months after the notice by the judge that he would entertain such a motion. The p laintiff has not alleged prejudice as a result of the timing of the motion. Under these circumstances, we find no unreasonable delay. B. Jurisdiction The plaintiff alleges next that after he filed his notice of appeal, the district court was deprived of jurisdiction and the refore possessed no power to grant the Rule 37 motion. This argument lacks meri t. Although filing notice of appeal generally divests the district court of juri sdiction over the issues on appeal, see Marrese v. American Academy of Orthopaedic Surgeons , 470 U.S.18

373, 379 (1985), the district court retains jurisdi ction over “collateral matters not involved in the appeal,” Garcia v. Burlington N. R.R. Co. , 818 F.2d 713, 721 (10th Cir. 1987). Attorney’s fees awards are collateral matters over which the district court retains jurisdiction. See id. (“[E]ven after a timely notice of appeal is filed, a district court may retain jurisdiction to determine the propriety and amount of attorney’s fees.”); Smith v. Phillips , 881 F.2d 902, 905 n. 9 (10th Cir. 1989) (“Even after an appeal has been taken the dis trict court may consider applications for attorneys’ fees because they are c onsidered wholly collateral to the merits . . . .”) (citing, inter alia , Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 200 (1988)). While the cases typically d iscuss attorney’s fees awards in the context of statutory grants of attorney’s fees to the prevailing party, see , e.g. , Budinich , 486 U.S. at 197, we see no basis to distinguish those cases from one like the present case in which fee awards are g ranted as sanctions. In either context, the award is collateral to the merits of t he underlying action. Accordingly, we conclude the district court had jur isdiction to grant the Rule 37 motion. C. Scope of Award Plaintiff argues that the November 18 minute order issued by the magistrate limited any potential attorney’s fees aw ard to the time involved in attending the aborted deposition and did not extendto fees related to the motions19

for protective orders. Addressing this argument be low, the magistrate stated that “it was not the Court’s intention to impose such a limitation.” We defer to the magistrate’s interpretation of his own words. At any rate, a plain reading of the November 18 order reveals no limitation. While the order does note that the court would consider a Rule 37 motion relating to d efendants’ appearance for plaintiff’s no-show deposition, it is silent as to any other possible fee awards. Thus, the district court did not abuse its discreti on by awarding attorney’s fees incurred for preparing and responding to motions fo r protective orders, which were directly related to plaintiff’s failure to coo perate in discovery. D. Amount of Attorney’s Fees Award We review the amount of attorney’s fees awarded by the district court for abuse of discretion; underlying factual findings are reviewed for clear error. See Public Serv. Co. v. Continental Cas. Co. , 26 F.3d 1508, 1520 (10th Cir. 1994). Plaintiff contends “the amount of time the Defendan ts’ attorneys claim to have spent . . . was clearly excessive and unreasona ble.” Plaintiff does not support this conclusory assertion with any evidence or argu ment. The attorney’s fee of $3,773 for defendant’s efforts to obtain plaintiff’ s deposition is supported by defendant’s documentation. The district court did not abuse its discretion in awarding that amount. C ONCLUSION20

Based upon the foregoing conclusions, we cannot fin d error in the district court’s grant of summary judgment on plaintiff’s fe deral claims, the dismissal of the state law claims, or the award of attorney’s fe es. Therefore, we AFFIRM the decisions of the district court.