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 distri ct court’s Fed. R. Civ. P. 12(b)(6) dismissal of her civil rights lawsuit c oncerning her non-sele ction for a teaching position. She also appeals from the district court’s de nials of her post-judgment motions to reopen and to amend her co mplaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 BACKGROUND After losing her job as an assistan t principal, Ms. Muhammad raised allegations of academic fraud and sued the school district. Late r, she applied for a teaching position at another school in th e 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 hiri ng recommendations to her superiors. Ms. Muhammad and a former school boa rd 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. M uhammad 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 superi or, Karl Springer, informed Ms. Monson that Ms. Muhammad would not be hired, and Ms. Hall admitted to Ms. Monson that she (Ms. Ha ll) was told that she could not hire Ms. Muhammad due to her history with th e 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 Ok lahoma Constitution by retaliati ng against her for exercising her right to free speech. When she amende d her original compla int to add claims (1) under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, and3 (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 a nd 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 retali ation because she fa iled to include sufficient facts to satisfy the elements for non-employe r 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 § 1 985(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 me eting of the minds or agreem ent involving [Ms. Hall].” Aplt. App. at 245. And it held that the claim under the Oklahoma Constitution was precluded by the employee-immunity provis ion 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 moti on to amend accompanied by a proposed third amended complaint. After the dist rict court denied both of those motions, Ms. Muhammad appealed.4 DISCUSSION I. Rule 12(b)(6) Dismissal Ms. Muhammad first challenges th e 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 sufficien t factual matter, accepted as true, to state a claim to relief that is plau sible 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 a llows 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 as ks 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 th an 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 al leged that Ms. Hall, a non-final decisionmaker, retaliated agai nst her in violation of he r First Amendment right to free speech. Under Worrell , a plaintiff alleging retali ation 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 suffe r an injury that would chill a person of ordinary firmne ss from continuing to engage in that5 activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plai ntiff’s exercise of constitutionally protected conduct. 219 F.3d at 1212 (internal quotation marks omitted). Focusing on the second and third elements, the district c ourt held that Ms. Muhammad failed to present sufficient facts to plausibly allege th at Ms. Hall’s actions caused he r not to be hired or that Ms. Hall was substantially motivated by Ms. Muhammad’s prot ected activity. We agree with the district court. Assuming (without deciding) that Ms. Muhammad’s reports and prior litigati on qualified as constitutionally protected activity, the facts set forth in the second amended compla int show that Ms. Hall was ready and willing to hire Ms. Muhammad, but was prev ented from doing so by her superior. Thus, the second amended comp laint does not plausibly establish that Ms. Hall caused Ms. Muhamma d to suffer an injury or that Ms. Hall was motivated to do so by retaliation. This court has not yet decided whethe r a subordinate employee can be liable for First Amendment retaliati on 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 retaliat ion claims” and declining to decide the issue). 1 Further, the other circui ts 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 be tween 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 instructi ons of a superior will be liab le along with their superior if they knew or should have known th at the adverse action was unlawful.”), with Johnson v. Louisiana , 369 F.3d 826, 831 (5th Ci r. 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 d ecide 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 prot ection of qualified immunity on this claim. 2
See Clark v. Wilson , 625 F.3d 686, 690 (10t h Cir. 2010) (“Ordinarily, in order for the law to be clearly establis hed, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly establishe d weight of authority from other courts must have found the law to be as the pl aintiff maintains.” (internal quotation marks omitted)).

Ms. Muhammad also argues that Trant cannot supplant earlier circuit decisions recognizing that a subordinate ma y 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 cont rast, this case involves the re verse situation, in which an allegedly retaliating superior acted through a subordinate . This court has not yet addressed whether the subordina te can be liable in a “rever se cat’s paw” situation. 2 The district court did not decide Ms. Hall’s entitlement to qualified immunity, even though the Ms. Hall briefed th e 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 a dvance their arguments.” Worrell , 219 F.3d at 1215.7 B. Section 1985(2) Claim The district court dismissed Ms. Muha mmad’s § 1985(2) conspiracy claim on the ground that “[a]lthough two or more persons may have cons pired to withdraw [Ms. Muhammad]’s offer of employment, th ere 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 th e 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 atte ndance 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 firs t element, a conspiracy, requi res the combination of two or more persons acting in concert. A pl aintiff must allege, either by direct or circumstantial evidence, a meeting of the minds or agreement am ong the defendants. The conspiracy must be one that has th e 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 distri ct court that the allegati ons 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 th e § 1983 claim, the allegations indicate that Ms . Hall had no intention of retaliating; she offered8 Ms. Muhammad the job, and withdrew her recommendation only at the insistence of her supervisor. These facts do not plausibl y show a § 1985(2) conspiracy involving Ms. Hall. Further, it does not appear to be clearly esta blished that merely following her superior’s directive would make Ms. Hall a conspirator in viol ation of § 1985(2). Accordingly, Ms. Hall would also be entitl ed to qualified immunity on this claim. C. Oklahoma Constitutional Claim The district court dismissed Ms. M uhammad’s state constitutional claim under the GTCA’s employee-immunity provision, wh ich states, “[i]n no instance shall an employee of the state or political subdivision acting w ithin 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 plausi ble factual allega tions supporting Ms. Muhammad’s conclusory assertions th at Ms. Hall was acting in bad faith when she withdrew the employment recommendation. “An employee whose acts are malicious, will ful, 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 complain t, however, does not supply any facts to support a plausible inference that Ms. Ha ll acted maliciously, w illfully, wantonly or otherwise so as to place he r conduct outside the scope of her employment. And as for lesser conduct, the Supreme Court of Oklahoma recently clarif ied that reckless9 disregard “is distinguishable from acts that clearly show malice or bad faith” and “do[es] not automatically rise to a le vel constituting malice or bad faith.” Gowens v.
Barstow , 364 P.3d 644, 652 (Okla. 2015). Ev en if the facts described could perhaps reach the level of reckless disregard, th e second amended comp laint does not supply any facts that plausibly show reckless disreg ard rising to the level of bad faith. Further, the Oklahoma courts have he ld that governmental employees who made termination decisions in violation of law or polic y 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 government al employers ratified the employees’ actions, thereby esta blishing 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 decisi ons violated law or policy did not bring the employees outside the scope of their employment and di d 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 usi ng poor judgment are not mutu ally 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 ratifi cation of Ms. Hall’s conduct, thereby establishing that she acted with in the scope of her employment. See10 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 immun ity under the GTCA. II. Motion to Amend After the district court dismisse d 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 deni al of reopening and denial of amendment fo r 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) (moti on to amend), we review a determination of futility de novo, Jones , 809 F.3d at 579. Ms. Muhammad’s proposed third am ended complaint principally added allegations that when the current litigation was in st ate court, Ms. Hall was questioned and denied that Ms. Muhammad was offered a position, denied that Ms. Hall was aware of Ms. Muhammad’s repor ts of academic fraud, and denied that Ms. Hall acted at the directi on 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 retaliat e against Ms. Muhammad and to ok affirmative actions to11 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 te net that a court must accept as true all of the allegations containe d in a complaint is in applicable to legal conclusions.”). “[O]nly a comp laint that states a plausibl e claim for relie f survives a motion to dismiss.” Id. at 679. As Iqbal explains, “[t]he plau sibility standard . . . asks for more than a sheer possibility that a defendant ha s acted unlawfully. Where a complaint pleads fact s that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plau sibility of entitleme nt 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 possibili ty 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