UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARCIA MUHAMMAD, 

 Plaintiff - Appellant, 

v. 

MYLISSA HALL, in her individual 

capacity, 

 Defendant - Appellee. 

No. 16-6046 

(D.C. No. 5:15-CV-00059-R) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges. 

_________________________________ 

Marcia Muhammad appeals from the district court’s Fed. R. Civ. P. 12(b)(6) 

dismissal of her civil rights lawsuit concerning her non-selection for a teaching 

position. She also appeals from the district court’s denials of her post-judgment 

motions to reopen and to amend her complaint. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm. 

 *

 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 

January 4, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

After losing her job as an assistant principal, Ms. Muhammad raised 

allegations of academic fraud and sued the school district. Later, she applied for a 

teaching position at another school in the same district, whose principal was 

Mylissa Hall. Ms. Hall was not the final decision-maker regarding employment of 

teachers at her school, but she submitted hiring recommendations to her superiors. 

Ms. Muhammad and a former school board member, Angela Monson, met with 

Ms. Hall before Ms. Muhammad submitted her application. At the meeting, 

Ms. Muhammad disclosed her history with the school district, including the fraud 

allegations and the litigation. Ms. Muhammad was advised that there was no 

problem in hiring her, and she submitted her application and was interviewed. 

Ms. Hall then offered her the position, recommending to her superiors that 

Ms. Muhammad be hired. But Ms. Hall’s immediate superior, Karl Springer, 

informed Ms. Monson that Ms. Muhammad would not be hired, and Ms. Hall 

admitted to Ms. Monson that she (Ms. Hall) was told that she could not hire 

Ms. Muhammad due to her history with the school district. Ms. Hall withdrew her 

recommendation regarding Ms. Muhammad and filled the position with another 

candidate. 

Ms. Muhammad sued the school district and Ms. Hall in state court, alleging 

that they violated the Oklahoma Constitution by retaliating against her for exercising 

her right to free speech. When she amended her original complaint to add claims 

(1) under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, and 
3 

(2) under 42 U.S.C. § 1985(2) for conspiracy to injure a party or witness on account 

of having attended or testified before a federal court, the defendants removed the 

action to federal court. Ms. Muhammad then filed her second amended complaint, 

bringing the same federal and state claims against only Ms. Hall in her individual 

capacity. 

The district court granted Ms. Hall’s Rule 12(b)(6) motion and dismissed the 

second amended complaint. It held that Ms. Muhammad had not adequately pleaded 

a § 1983 claim for First Amendment retaliation because she failed to include 

sufficient facts to satisfy the elements for non-employer retaliation set forth in 

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). It further held that she had 

not adequately pleaded a claim under § 1985(2) because “[a]lthough two or more 

persons may have conspired to withdraw [Ms. Muhammad]’s offer of employment, 

there is no allegation of a meeting of the minds or agreement involving [Ms. Hall].” 

Aplt. App. at 245. And it held that the claim under the Oklahoma Constitution was 

precluded by the employee-immunity provision of Oklahoma’s Governmental Tort 

Claims Act (GTCA), Okla. Stat. tit. 51, § 163(C). Ms. Muhammad filed a Rule 59(e) 

motion, as well as a motion to amend accompanied by a proposed third amended 

complaint. After the district court denied both of those motions, Ms. Muhammad 

appealed. 
4 

DISCUSSION

I. Rule 12(b)(6) Dismissal 

 Ms. Muhammad first challenges the dismissal of the second amended 

complaint. We review a Rule 12(b)(6) dismissal de novo. See Mocek v. City of 

Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Id. This standard “is not akin to a 

probability requirement, but it asks for more than a sheer possibility that a defendant 

has acted unlawfully.” Id. (internal quotation marks omitted). “[W]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged—but it has not shown—that the pleader is 

entitled to relief.” Id. at 679 (brackets and internal quotation marks omitted). 

A. Section 1983 Claim 

 Ms. Muhammad’s § 1983 claim alleged that Ms. Hall, a non-final 

decisionmaker, retaliated against her in violation of her First Amendment right to 

free speech. Under Worrell, a plaintiff alleging retaliation by a non-employer must 

show the following elements: 

(1) that the plaintiff was engaged in constitutionally protected activity; 

(2) that the defendant’s actions caused the plaintiff to suffer an injury that 

would chill a person of ordinary firmness from continuing to engage in that 
5 

activity; and (3) that the defendant’s adverse action was substantially 

motivated as a response to the plaintiff’s exercise of constitutionally 

protected conduct. 

219 F.3d at 1212 (internal quotation marks omitted). Focusing on the second and 

third elements, the district court held that Ms. Muhammad failed to present sufficient 

facts to plausibly allege that Ms. Hall’s actions caused her not to be hired or that 

Ms. Hall was substantially motivated by Ms. Muhammad’s protected activity. 

We agree with the district court. Assuming (without deciding) that 

Ms. Muhammad’s reports and prior litigation qualified as constitutionally protected 

activity, the facts set forth in the second amended complaint show that Ms. Hall was 

ready and willing to hire Ms. Muhammad, but was prevented from doing so by her 

superior. Thus, the second amended complaint does not plausibly establish that 

Ms. Hall caused Ms. Muhammad to suffer an injury or that Ms. Hall was motivated 

to do so by retaliation. 

This court has not yet decided whether a subordinate employee can be liable 

for First Amendment retaliation when he or she merely acts at the direction of a 

superior who desires to retaliate. See Trant v. Oklahoma, 754 F.3d 1158, 1170 n.5 

(10th Cir. 2014) (stating that “[w]e have never held that true subordinate employees 

may be liable for First Amendment retaliation claims” and declining to decide the 

issue).1

 Further, the other circuits are not of one mind. Compare King v. Zamiara, 

 1

 Ms. Muhammad argues that Trant’s dicta is inapplicable because it refers to 

“true subordinates,” 754 F.3d at 1170 n.5, and Ms. Hall would be Ms. Muhammad’s 

superior rather than her subordinate. In the relationship between Ms. Hall and 

Mr. Springer, however, Ms. Hall is the subordinate. 
6 

680 F.3d 686, 696 (6th Cir. 2012) (“Individuals who aid in the implementation of an 

adverse action at the instructions of a superior will be liable along with their superior 

if they knew or should have known that the adverse action was unlawful.”), with 

Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004) (“[O]nly final 

decision-makers may be held liable for First Amendment retaliation employment 

discrimination under § 1983.”). Because Ms. Muhammad did not establish the 

Worrell elements, we need not decide the question here. See Trant, 754 F.3d at 1170 

n.5. 

But this lack of precedent also means that the law is not clearly established, so 

that Ms. Hall would be entitled to the protection of qualified immunity on this claim.2

 

See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (“Ordinarily, in order for the 

law to be clearly established, there must be a Supreme Court or Tenth Circuit 

decision on point, or the clearly established weight of authority from other courts 

must have found the law to be as the plaintiff maintains.” (internal quotation marks 

omitted)). 

 

Ms. Muhammad also argues that Trant cannot supplant earlier circuit decisions 

recognizing that a subordinate may be liable for retaliation. See, e.g., Maestas v. 

Segura, 416 F.3d 1182, 1191 (10th Cir. 2005). But the cases she relies on involve a 

“cat’s paw” theory, where a subordinate engages in retaliation by influencing a 

superior’s decision. In contrast, this case involves the reverse situation, in which an 

allegedly retaliating superior acted through a subordinate. This court has not yet 

addressed whether the subordinate can be liable in a “reverse cat’s paw” situation. 

2

 The district court did not decide Ms. Hall’s entitlement to qualified 

immunity, even though the Ms. Hall briefed the issue in her motion to dismiss. “Our 

precedent allows us to reach the qualified immunity issue if the parties have had an 

adequate opportunity to advance their arguments.” Worrell, 219 F.3d at 1215. 
7 

B. Section 1985(2) Claim 

 The district court dismissed Ms. Muhammad’s § 1985(2) conspiracy claim on 

the ground that “[a]lthough two or more persons may have conspired to withdraw 

[Ms. Muhammad]’s offer of employment, there is no allegation of a meeting of the 

minds or agreement involving [Ms. Hall].” Aplt. App. at 245. Ms. Muhammad 

argues that “it would appear that when the District Court exonerated Ms. Hall on one 

hand for ‘just following orders’, it implicitly recognized ‘a meeting of the minds’.” 

Aplt. Br. at 13. 

 “To establish a conspiracy claim under 42 U.S.C. § 1985(2), a plaintiff must 

prove three elements: (1) a conspiracy, (2) to deter attendance in court or testimony 

by force or intimidation or to injure a witness for having appeared in court or 

testified, and (3) injury to the plaintiff.” Hogan v. Winder, 762 F.3d 1096, 1113 

(10th Cir. 2014). “The first element, a conspiracy, requires the combination of two 

or more persons acting in concert. A plaintiff must allege, either by direct or 

circumstantial evidence, a meeting of the minds or agreement among the defendants. 

The conspiracy must be one that has the requisite statutory purpose . . . .” Brever v. 

Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994) (brackets, citations, and 

internal quotation marks omitted). 

 We agree with the district court that the allegations of the second amended 

complaint do not plausibly show that Ms. Hall was involved in a “meeting of the 

minds” for the purpose of retaliation. Rather, as with the § 1983 claim, the 

allegations indicate that Ms. Hall had no intention of retaliating; she offered 
8 

Ms. Muhammad the job, and withdrew her recommendation only at the insistence of 

her supervisor. These facts do not plausibly show a § 1985(2) conspiracy involving 

Ms. Hall. Further, it does not appear to be clearly established that merely following 

her superior’s directive would make Ms. Hall a conspirator in violation of § 1985(2). 

Accordingly, Ms. Hall would also be entitled to qualified immunity on this claim. 

C. Oklahoma Constitutional Claim 

 The district court dismissed Ms. Muhammad’s state constitutional claim under 

the GTCA’s employee-immunity provision, which states, “[i]n no instance shall an 

employee of the state or political subdivision acting within the scope of [her] 

employment be named as defendant.” Okla. Stat. tit. 51, § 163(C). “Scope of 

employment” is defined as “performance by an employee acting in good faith within 

the duties of the employee’s office or employment.” Id. § 152(12). The district court 

concluded that there were no plausible factual allegations supporting 

Ms. Muhammad’s conclusory assertions that Ms. Hall was acting in bad faith when 

she withdrew the employment recommendation. 

“An employee whose acts are malicious, willful, wanton and in bad faith is not 

acting in the scope of his employment.” Mustain v. Grand River Dam Auth., 68 P.3d 

991, 999 (Okla. 2003); see also Benshoof v. Niles, 380 P.3d 902, 907 (Okla. Civ. 

App. 2016). The second amended complaint, however, does not supply any facts to 

support a plausible inference that Ms. Hall acted maliciously, willfully, wantonly or 

otherwise so as to place her conduct outside the scope of her employment. And as 

for lesser conduct, the Supreme Court of Oklahoma recently clarified that reckless 
9 

disregard “is distinguishable from acts that clearly show malice or bad faith” and 

“do[es] not automatically rise to a level constituting malice or bad faith.” Gowens v. 

Barstow, 364 P.3d 644, 652 (Okla. 2015). Even if the facts described could perhaps

reach the level of reckless disregard, the second amended complaint does not supply 

any facts that plausibly show reckless disregard rising to the level of bad faith. 

Further, the Oklahoma courts have held that governmental employees who 

made termination decisions in violation of law or policy were nevertheless acting 

within the scope of their employment. See Shepard v. Compsource Okla., 209 P.3d 

288, 293-94 (Okla. 2009); Wilson v. City of Tulsa, 91 P.3d 673, 679 (Okla. Civ. App. 

2004). Both Shepard and Wilson noted that the governmental employers ratified the 

employees’ actions, thereby establishing that the employees acted within the scope of 

their employment. Shepard, 209 P.3d at 290, 293; Wilson, 91 P.3d at 678. The fact 

that the termination decisions violated law or policy did not bring the employees 

outside the scope of their employment and did not alone establish that the employees 

acted with malicious intent. Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679. 

“Acting in good faith and using poor judgment are not mutually exclusive and the use 

of poor judgment does not, without more, exceed the scope of employment.” Wilson, 

91 P.3d at 679. 

Here, in moving to dismiss the first amended complaint, the school district 

(who was then a defendant) asserted that Ms. Hall was acting within the scope of her 

employment. Aplt. App. at 134-35. This appears to be a ratification of Ms. Hall’s 

conduct, thereby establishing that she acted within the scope of her employment. See
10 

Shepard, 209 P.3d at 293-94; Wilson, 91 P.3d at 678. And, as discussed, the second 

amended complaint does not allege any facts that would plausibly establish malice. 

See Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679. In short, Shepard and Wilson

support affording Ms. Hall immunity under the GTCA. 

II. Motion to Amend 

 After the district court dismissed the second amended complaint, 

Ms. Muhammad filed a Rule 59(e) motion to reopen that would allow her to amend 

her complaint. She concurrently filed a motion to reopen that attached a proposed 

third amended complaint. The district court denied the motions, concluding that 

amendment would be futile. Although we generally review denial of reopening and 

denial of amendment for abuse of discretion, Etherton v. Owners Ins. Co., 829 F.3d 

1209, 1228 (10th Cir. 2016) (Rule 59(e) motion); Jones v. Norton, 809 F.3d 564, 579 

(10th Cir. 2015), cert. denied, 137 S. Ct. 197 (2016) (motion to amend), we review a 

determination of futility de novo, Jones, 809 F.3d at 579. 

 Ms. Muhammad’s proposed third amended complaint principally added 

allegations that when the current litigation was in state court, Ms. Hall was 

questioned and denied that Ms. Muhammad was offered a position, denied that 

Ms. Hall was aware of Ms. Muhammad’s reports of academic fraud, and denied that 

Ms. Hall acted at the direction or suggestion of any other school official. It further 

averred that these denials could lead to inferences that Ms. Hall entered into a 

meeting of minds to retaliate against Ms. Muhammad and took affirmative actions to 
11 

join a conspiracy against Ms. Muhammad, both by withdrawing the offer and by 

attempting to cover up the conspiracy. 

 We consider only the additional facts, not the averments about possible legal 

inferences therefrom. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must 

accept as true all of the allegations contained in a complaint is inapplicable to legal 

conclusions.”). “[O]nly a complaint that states a plausible claim for relief survives a 

motion to dismiss.” Id. at 679. As Iqbal explains, “[t]he plausibility standard . . . 

asks for more than a sheer possibility that a defendant has acted unlawfully. Where a 

complaint pleads facts that are merely consistent with a defendant’s liability, it stops 

short of the line between possibility and plausibility of entitlement to relief.” Id. at 

678 (citation and internal quotation marks omitted). At best, Ms. Muhammad’s 

additional facts are merely consistent with liability. They therefore stop short of 

showing a plausible claim for relief against Ms. Hall. And “where the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct,” 

dismissal is appropriate because the plaintiff has failed to show entitlement to relief. 

Id. at 679. The district court did not err in denying Ms. Muhammad leave to reopen 

and to file her third amended complaint. 
12 

CONCLUSION 

 The district court’s judgment is affirmed. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge