RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0070p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GERALDINE A. FUHR,

Plaintiff-Appellant,

v.

HAZEL PARK SCHOOL DISTRICT,

 Defendant-Appellee.

X

-

-

-

-

>

,

-

-

N

No. 11-2288

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:08-cv-11652—Bernard A. Friedman, District Judge.

Decided and Filed: March 19, 2013 

Before: KEITH, MARTIN, and ROGERS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Mark Granzotto, MARK GRANZOTTO, P.C., Royal Oak, Michigan, for

Appellant. Timothy J. Mullins, John L. Miller, GIARMARCO, MULLINS &

HORTON, P.C., Troy, Michigan, for Appellee. Lawrence J. Joseph, Washington, D.C.,

for Amicus Curiae.

_________________

OPINION

_________________

DAMON J. KEITH, Circuit Judge. In 1999, Plaintiff-Appellant Geraldine Fuhr

filed a successful lawsuit to be instated as varsity boys basketball coach at Hazel Park

High School, where she had been employed as varsity girls basketball coach. For five

years she coached both the girls and boys varsity basketball teams. In 2006, she was

removed from her position coaching varsity girls basketball. In this action, she claims

that her dismissal as the varsity girls basketball coach and other acts of harassment are

a result of her 1999 suit. The district court granted Defendant-Appellee Hazel Park

1
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 2

School District’s motion for summary judgment, finding that Fuhr had failed to state a

prima facie case for her claims. In this appeal, Fuhr is only pursuing her retaliation

claim and has abandoned her claims for gender discrimination and hostile work

environment. For the following reasons, we AFFIRM the judgment of the district court.

FACTUAL BACKGROUND

Multiple cases are involved in the background of this case. Although the parties

dispute some of the facts, they are presented as characterized by Plaintiff Geraldine Fuhr

because at the summary judgment phase the court views all of the facts and draws all

reasonable inferences in favor of the non-moving party. Tysinger v. Police Dep’t of City

of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006).

Fuhr I

Since 1989 Fuhr has been employed as a teacher and athletic coach by Defendant

Hazel Park School District (“Hazel Park”) at Hazel Park High. In October 1999,

Plaintiff, then varsity girls basketball coach, sued Defendant in federal court. See Fuhr

v. Sch. Dist. of the City of Hazel Park, 131 F.Supp.2d 947 (E.D. Mich. 2001) (“Fuhr I”).

In that case, Fuhr alleged that Defendant had discriminated against her because of her

gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

(“Title VII”), and Michigan’s Title VII parallel, the Elliott-Larsen Civil Rights Act,

Michigan Compiled Laws § 37.2101 (“ELCRA”), by failing to hire her as the head

coach of the high school boys varsity basketball team. In August 2001, a jury found in

favor of Plaintiff. In October 2001, in response to Fuhr’s post-trial motion for equitable

relief, the court ordered that she be instated as the varsity boys basketball coach.

Per the district court’s order, Hazel Park installed Fuhr as head coach for the

boys varsity basketball team. Hazel Park also allowed her to remain coach for the girls

varsity basketball team. However, Hazel Park appealed the district court’s judgment,

and it was not made final until it was affirmed by this Court in 2004. See Fuhr v. Sch.

Dist. of Hazel Park, 364 F.3d 753 (6th Cir. 2004). Fuhr served in both positions from

2001 to 2006.
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 3

MHSAA Case

As Fuhr I continued through the courts, an unrelated case was filed in 2001 by

Michigan parents against the Michigan High School Athletic Association (“MHSAA”)

alleging in part that it violated Title IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681–1688, because the girls basketball season was not held at the same time as the

boys season. A federal district court ordered that the girls and boys seasons be realigned

so that the boys and girls played at the same time. See Cmtys. for Equity v. Michigan

High Sch. Athletic Ass’n, 178 F.Supp.2d 805 (W.D. Mich. 2001), vacated in part,

544 U.S. 1012 (2005). This order was affirmed, vacated, reheard, and affirmed again

up and down the federal courts; in April 2007 the order to realign the girls and boys

seasons was made final. See Cmtys. for Equity v. Michigan High Sch. Athletic Ass’n,

459 F.3d 676 (6th Cir. 2006), cert. denied, 549 U.S. 1322 (2007).

Retaliatory Acts

As both Fuhr I and the MHSAA case made their way through the courts, the

atmosphere at Fuhr’s workplace, Hazel Park High, was quite contentious. Fuhr had a

rocky relationship with a number of her colleagues, superiors, and the parents of team

members. The following acts occurred:

• Defendant disciplined some of Plaintiff’s best players, suspending

them from team participation. Defendant submitted evidence justifying

the disciplinary action.

• The school’s booster club bought an ice machine and decided to

place the machine in the football coach’s office, an area only accessible

by males. Hazel Park High’s athletic director and Plaintiff’s supervisor,

Tom Pratt, did not tell Plaintiff of the existence of the booster club’s ice

machine when the school’s main ice machine malfunctioned.

• Defendant denied the varsity boys basketball team permission to

use the football locker room, which is the locker room closest to the main

gym.

• Hazel Park High’s athletic director and Plaintiff’s supervisor,

Tom Pratt, ordered the varsity boys basketball team’s custom uniforms

late, causing the uniforms to arrive after the basketball season began.

Pratt has been late ordering uniforms for other school teams as well.
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 4

• One of Plaintiff’s teams was denied the use of the school gym

because the City Recreation Center had already reserved the gym for the

time Plaintiff wanted.

• Defendant denied Plaintiff’s request for funds to pay an athletic

trainer to do injury evaluation of the varsity basketball players during

basketball practice. Due to the denial, Plaintiff had to secure a trainer

through funds from a basketball account. For budgeting reasons, this

policy applies to all sports.

• Pratt did not comply with his responsibility as athletic director to

evaluate all of Hazel Park High’s coaches on an annual basis. Pratt

evaluated Plaintiff only once in the five years she was coach for both

varsity basketball teams.

• Clint Adkins, the school board president, set up a room for

community members to complain about Fuhr at the city’s community

center. Additionally, Tom Pratt did not inform Fuhr about a petition

circulated by parents which called for her removal as varsity boys

basketball coach, even though he was aware of the petition.

In one November 2005 conversation Don Vogt, the principal of Hazel Park High,

spoke with Fuhr, saying “this is a good old boys network. They are doing this to you to

get even, you know. . . They are doing this to you to get even because you stood up for

your rights. They are doing this to you to get back at you for winning the lawsuit.” R.

96-4 at 417.

After Fuhr I became final in 2004, but before the MHSAA case became final in

2007, Defendant removed Plaintiff as the coach of the girls varsity basketball team on

June 1, 2006. Plaintiff remained varsity boys basketball coach. Given the ongoing

litigation in the MHSAA case at the time, Hazel Park defended Plaintiff’s removal as an

effort to be proactive should the boys and girls seasons need to be realigned pursuant to

a court order. Hazel Park reasoned that one coach would have difficulty overseeing two

teams that played simultaneously.

In February 2007 Fuhr filed a charge of discrimination with the Michigan

Department of Civil Rights (“MDCR”), alleging “[s]ince I won a gender-based lawsuit

against the employer, I have been harassed, a varsity girls’ basketball job has been taken

away from me, my authority has been undermined, and I have not been supported.”
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 5

1

The protected activity alleged under the Title VII retaliation claim is Plaintiff’s “prior lawsuit

and her internal complaint against discrimination” and her “current lawsuit and EEOC complaints.” R.

41 ¶¶ 27–28. The protected activity alleged under the ELCRA retaliation claim is Plaintiff’s “prior lawsuit

and her internal complaint against discrimination.” R. 41 ¶ 42. No protected activity is alleged under

Plaintiff’s Title IX retaliation claim; rather, she alleges that “Defendant’s actions, as described more

specifically in the Common Allegations, constituted retaliation because plaintiff complained of sex

discrimination . . . .” R. 41 ¶ 56.

R. 96-8. Plaintiff indicated she was alleging discrimination based on sex and in

retaliation for Fuhr I. She reported that the earliest instance of retaliation occurred on

April 27, 2006. Plaintiff went on to file two more charges with the MDCR for sex

discrimination and retaliation in December 2008 and July 2009. The Equal Employment

Opportunity Commission (“EEOC”) attempted to mediate the lawsuit. After mediation

between the parties failed, the EEOC issued Fuhr a right to sue letter.

PROCEDURAL BACKGROUND

On April 18, 2008, Fuhr filed the present action in district court. In her amended

complaint, filed in August 2009, Plaintiff alleged that ever since she prevailed at the first

trial, Defendant has discriminated and retaliated against her in various ways.

Specifically, she argued that Defendant dismissed her as the girls varsity coach in

retaliation for winning the first trial. She also alleged that “because of her sex,” or

“because of her complaints” regarding her unfair treatment, Defendant conducted a

biased internal investigation, has treated her differently than male coaches, and has

demeaned and belittled her by, among other things, unfairly disciplining her team

members, failing to provide her with “all resources she needs and accusing her of failing

to comply with departmental regulations.” R. 41 ¶ 11 (A)–(H).

Based on these allegations, Plaintiff asserted discrimination and retaliation claims

under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments

of 1972, and ELCRA. On October 15, 2010, Hazel Park filed a motion for summary

judgment. The essence of Plaintiff’s retaliation claims was that Defendant’s

mistreatment of her is in retaliation for her current and prior lawsuits, her complaints

with the EEOC and MDCR, and her “internal complaint against discrimination.”1

Plaintiff filed a response to which Defendant replied. The district court issued an
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 6

2

ELCRA and Title IX retaliation claims are analyzed using the same standards as Title VII.

See Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004) (“Cases brought pursuant to ELCRA are

analyzed under the same evidentiary framework used in Title VII cases.”); Nelson v. Christian Bros. Univ., 226 F. App’x 448, 454 (6th Cir. 2007) (“Generally, courts have looked to Title VII, 42 U.S.C. §§ 2000e,

as an analog for the legal standards in both Title IX discrimination and retaliation claims.”). Therefore,

it suffices to state the standards articulated in Title VII cases.

Opinion and Order granting Hazel Park’s motion for summary judgment on all claims

on September 19, 2011. Fuhr filed a Notice of Appeal on October 17, 2011. Plaintiff

limits her appeal to the grant of summary judgment on her retaliation claims. Appellant

Br. at 2.

STANDARD OF REVIEW

We review an order granting summary judgment de novo. Tysinger, 463 F.3d

at 572. Under Federal Rule of Civil Procedure 56(a), summary judgment is proper if

“the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This requires

us to view the evidence and draw all reasonable inferences in favor of the non-moving

party. Tysinger, 463 F.3d at 572. A genuine dispute concerns evidence “upon which a

reasonable jury could return a verdict in favor of the non-moving party.” Id. A factual

dispute is material only if it could affect the outcome of the suit under the governing law.

Id.

ANALYSIS

Fuhr argues that Hazel Park removed her as the girls varsity basketball coach and

subjected her to various forms of harassment in retaliation for prevailing in Fuhr I. A

de novo review shows that the district court properly granted summary judgment in favor

of Hazel Park because Fuhr has not established a prima facie case under Title VII.

Anti-Retaliation Provisions

Plaintiff brings anti-retaliation claims under Title VII of the Civil Rights Act of

1964, Title IX of the Education Amendments of 1972, and ELCRA. The same legal

framework applies to all three claims. Thus, the standards articulated by Title VII cases

are sufficient to establish the applicable legal framework here.2
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 7

Title VII of the Civil Rights Act of 1964 contains a potent anti-retaliation

provision. The statute provides in relevant part: “It shall be an unlawful employment

practice for an employer to discriminate against any of his employees . . . because [the

employee] has opposed any practice made an unlawful employment practice by this

subchapter.” 42 U.S.C. § 2000e-3(a). A retaliation claim can be established either

through direct evidence of retaliation or circumstantial evidence that would support an

inference of retaliation. Spengler v. Worthington Cyclinders, 615 F.3d 481, 491 (6th Cir.

2010).

I. Direct Evidence

Direct evidence “requires no inferences to conclude that unlawful retaliation was

a motivating factor in the employer’s action.” Imwalle v. Reliance Med. Prods., Inc.,

515 F.3d 531, 544 (6th Cir. 2008). It also “requires the conclusion that unlawful

retaliation was a motivating factor in the employer’s action.” Abbott v. Crown Motor

Co., 348 F.3d 537, 542 (6th Cir. 2003) (emphasis in original).

Fuhr submits the following statement by the principal of Hazel Park High, Don

Vogt, from a November 2005 conversation in which she recalls him telling her: “this is

a good old boys network. They are doing this to you to get even, you know. . . They are

doing this to you to get even because you stood up for your rights. They are doing this

to you to get back at you for winning the lawsuit.”

Fuhr argues that this statement unambiguously reveals that the school district

took specific actions against her with retaliatory intent because:

Mr. Vogt referred to the “good old boys network” that existed in Hazel

Park. Moreover, the statement made by Mr. Vogt specifically referred

to what these “good old boys” were doing to Ms. Fuhr. No inference of

any kind is needed to conclude that the “they” that Mr. Vogt was

referring to were the “good old boys” within the district who were doing
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 8

to Ms. Fuhr the various adverse acts that she has challenged in this case

. . . .

Appellant Br. at 47 (emphasis in original).

Contrary to Fuhr’s argument, inferences are needed to conclude that she has been

unlawfully retaliated against. Though the statement clearly refers to a good old boys

network, it is unclear who is a part of that network. Nor is it clear what acts Vogt refers

to as retaliatory. He could be referring to all of the collective acts that occurred prior to

her removal as the varsity girls coach or only some of those acts or only her removal as

varsity girls coach or her removal and some combination of the other acts. These

ambiguities do not require a conclusion that these unspecified acts by unspecified people

were based on unlawfully retaliatory motives. See Minadeo v. ICI Paints, 398 F.3d 751,

764 (6th Cir. 2005) (holding that plaintiff failed to offer direct evidence where “[w]e

could not possibly conclude that the comments and circumstances pointed to by

[plaintiff] show a discriminatory motive on the part of [defendant] without drawing

undue inferences”).

Accordingly, Fuhr cannot prevail unless she presents circumstantial evidence of

unlawful retaliation. 

II. Circumstantial Evidence

Retaliation claims supported by circumstantial evidence are examined using the

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981). Spengler, 615 F.3d at 491.

A. McDonnell Douglas/Burdine Framework

Under the McDonnell Douglas/Burdine framework, a plaintiff has the initial

burden to establish a prima facie case of retaliation. The prima facie case consists of

four elements: (1) the plaintiff engaged in activity protected under Title VII;

(2) plaintiff’s exercise of her protected rights was known to defendant; (3) an adverse

employment action was subsequently taken against the employee or the employee was
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 9

subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was

a causal connection between the protected activity and the adverse employment action

or harassment. Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir.

2009).

Should the plaintiff establish a prima facie case, a presumption of unlawful

retaliation arises and the burden of production shifts to the defendant to rebut the

presumption by “articulat[ing] some legitimate, nondiscriminatory reason for its action.”

Spengler, 615 F.3d at 492 (quoting McDonnell Douglas, 411 U.S. at 802).

If a defendant successfully produces such a legitimate reason, then the burden

of production returns to the plaintiff to demonstrate by a preponderance of the evidence

that the proffered reason was a mere pretext for discrimination. Abbott, 348 F.3d at 542.

While the burden of production shifts throughout the McDonnell Douglas/Burdine

framework, the burden of persuasion always remains with the plaintiff. Id.

The parties do not dispute that the first two prongs of Fuhr’s prima facie case

have been met: Fuhr’s 1999 discrimination suit was protected activity under Title VII

and Defendant knew that Fuhr engaged in this protected activity. Therefore, the crux of

this case rests on whether Fuhr can establish: (1) that a causal connection exists between

her suit and the retaliatory acts and (2) that the retaliatory acts constitute an adverse

employment action.

B. Causal Connection Between the Protected Activity and Retaliatory

Acts

Fuhr argues that the district court erred in its analysis of whether there was a

causal connection between the district court’s judgment in 2001 and her removal as girls

varsity coach in 2006. She claims that the relevant timeline is between her installation

as boys varsity coach and various retaliatory actions taken against her prior to her

2006 removal as the varsity girls coach. Yet even with this shortened timeline, Fuhr is

unable to establish that there was a causal connection between her instatement as varsity

boys coach and the actions taken prior to her removal as varsity girls coach.
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 10

A causal connection is established when a plaintiff proffers “evidence sufficient

to raise the inference that her protected activity was the likely reason for the adverse

action.” Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009) (quoting EEOC

v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997)). Temporal proximity alone

cannot establish a causal connection. Spengler, 615 F.3d at 494. However, temporal

proximity always plays a role in establishing a causal connection; its significance

depends on the context. 

Where an adverse employment action occurs very close in time after an

employer learns of a protected activity, such temporal proximity between

the events is significant enough to constitute evidence of a causal

connection for the purposes of satisfying a prima facie case of retaliation.

But where some time elapses between when the employer learns of a

protected activity and the subsequent adverse employment action, the

employee must couple temporal proximity with other evidence of

retaliatory conduct to establish causality.

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (citation omitted).

Fuhr brought her discrimination case in 1999. It was not until 2001, however,

that the district court ordered Defendant to make Plaintiff the varsity boys coach; and it

was March 2004 by the time the district court’s 2001 judgment was affirmed on appeal.

See Fuhr I, 364 F.3d 753 (6th Cir. 2004). The earliest date on which Fuhr asserts a

retaliatory act took place is April 27, 2006. Even when taking March 2004 as the date

in which Fuhr engaged in protected activity [i.e. fully litigating the discriminatory denial

of the boys varsity coach position] and April 2006 as the date of the earliest act of

retaliation, this leaves a gap of two years between her protected activity and the first

reported retaliatory act.

This multi-year gap proves fatal to Fuhr’s assertion that there is a causal

connection. Our review of the law shows that multiyear gaps between the protected

conduct and the first retaliatory act have been insufficient to establish the requisite

causal connection. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)

(holding that an adverse “[a]ction taken (as here) 20 months later suggests, by itself, no

causality at all”); Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007) (noting that the
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 11

plaintiff was unable to “point to any authority holding that a causal connection exists

where there has been a gap of multiple years . . . between the protected activity and the

adverse employment action”). Therefore, while temporal proximity alone cannot

establish a causal connection, a lack of temporal proximity alone can be fatal to an

attempt to establish a causal connection under circumstances such as these.

Because the prima facie case for retaliation requires that all four elements be

satisfied, the failure to find one element all but resolves this case. Nevertheless, even

if Fuhr could establish a causal connection, she would be unable to establish that

Defendant took an adverse employment action against her.

C. Adverse Employment Action

Fuhr argues that the district court was incomplete in its analysis of her prima

facie case. One element of the prima facie case can be met by establishing that either:

(1) an adverse employment action was taken against the employee subsequent to

engaging in protected activity or (2) the employee was subjected to severe or pervasive

retaliatory harassment by a supervisor. Garner, 554 F.3d at 639. Fuhr claims that the

district court only analyzed whether she was subjected to severe or pervasive retaliatory

harassment and failed to address whether Defendant took an adverse employment action

against her.

Indeed, the district court only addressed whether Fuhr was subjected to severe

or pervasive retaliatory harassment by her supervisor, Hazel Park High’s athletic

director, Tom Pratt. The district court did this because, even though Fuhr correctly

identified both ways of establishing the element, she only argued that she was subjected

to severe and pervasive retaliatory harassment. Fuhr argued that “Defendants created

a hostile work environment” through retaliatory acts and that “her supervisor, Tom Pratt,

did engage in pervasive retaliatory harassment”; she concluded “that the retaliation was

severe and pervasive and at the hands of her superiors.” R. 98 at 34–35. Because Fuhr

failed to argue to the district court that Defendant took an adverse employment action

against her, she is precluded from raising such an argument on appeal. “This court will

not decide issues or claims not litigated before the district court. . . . ‘[W]e review the
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 12

3

We also note that on appeal Fuhr has not briefed the district court’s finding that she was not

subjected to severe or pervasive retaliatory harassment. We therefore conclude that she does not appeal

this finding.

case presented to the district court rather than a better case fashioned after the district

court’s order.’” White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990)

(citations omitted).3

D. Defendant’s Legitimate Nondiscriminatory Explanation of Actions

Even if we were to assume that Fuhr met her initial burden of establishing her

prima facie case so that unlawful retaliation would be presumed, Defendant would

successfully rebut the presumption of unlawful retaliation. Defendant has articulated

legitimate nondiscriminatory reasons for the actions that Fuhr alleges collectively

constituted an adverse employment action. A sampling of these actions, and

Defendant’s reasons for them, are as follows:

Defendant submits that Fuhr’s removal as varsity girls basketball coach in June

2006 was in response to the ongoing litigation in the MHSAA case. Defendant sought

to proactively make sure coaches were in place should the seasons need to be realigned.

Fuhr argues that because the judgment in MHSAA did not become final until the

Supreme Court’s final denial of certiorari in 2007, Defendant had no legitimate reason

to remove her as coach of both teams in 2006. Defendant’s action was legitimate,

however, because it would have been impractical for one coach to head both teams

simultaneously if both the girls and boys seasons would indeed be played in the winter.

Fuhr’s complaints regarding the placement of the ice machine in the football

coach’s office and the denial of permission to allow the varsity boys basketball team

access to the football locker room are complaints about decisions that affected all nonfootball sports teams equally.

Fuhr’s complaints that Defendant refused to pay for an athletic trainer to attend

basketball practice and the denial of access to the gym at a specific time are acts that

affected all of Hazel Park High’s sports teams equally—Defendant provides trainers only
No. 11-2288 Fuhr v. Hazel Park Sch. Dist. Page 13

at games for budgetary reasons and all teams were denied access to the gym at Plaintiff’s

desired time because the City Recreation Center had already reserved the gym for that

time.

Fuhr asserts Defendant inappropriately disciplined her best players. However,

Defendant submitted evidence supporting the reasons behind the disciplinary actions.

Tom Pratt’s lackadaisical completion of his duties—the untimely submission of

the the order for the varsity boys basketball uniforms and irregular job evaluations—has

affected all of Hazel Park High’s teams and coaches. Defendant submits that Pratt has

ordered uniforms late for other teams as well, such as the wrestling team. Defendant

also concedes that although Pratt is supposed to evaluate all coaches under his

supervision annually, he has been sporadic in his evaluation of all coaches, not just Fuhr.

Therefore, these problems are not unique to Fuhr. 

Finally, Fuhr grieves that Clint Adkins, the school board president, set up a room

for community members to complain about her at the city’s community center and that

Tom Pratt did not inform her about a petition circulated by parents which called for her

removal as varsity boys basketball coach. These complaints are meritless because

Defendant could not suppress community members’ free speech without raising First

Amendment concerns with respect to impermissible viewpoint discrimination. 

CONCLUSION

Because Plaintiff is unable to meet her initial burden, we decline to address

whether she would successfully shoulder her ultimate burden of proving pretext. The

district court judgment is AFFIRMED.