Peterson v. Sweetwater County

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 27 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

KAREN S. PETERSON,

Plaintiff-Appellant,

v. No. 96-8026
(D.C. No. 95-CV-101)
SWEETWATER COUNTY SCHOOL (D. Wyo.)
DISTRICT NO. 1; GRANT
CHRISTENSEN; MARY HAY
CHANT; KAY MARSCHALK;
TERRY McMANUS; ROBERT
RAMSEY; KITTY SMITH; NORMA
STENSAAS; DON BAUMBERGER;
ROBERT WALLENDORFF; FRANK
PREVEDEL; ARNIE LANG;
THELENE SCARBOROUGH; ALAN
GREEN; MARK THORNBERG, each
individually and in their capacity as
School Board Member/Administrator/
Employee of Sweetwater County
School District No. 1,

Defendants-Appellees.

ORDER AND JUDGMENT *

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff-appellant Karen S. Peterson, appearing pro se, 1 brought suit under

41 U.S.C. § 1983 and Wyoming common law against defendants-appellees,

Sweetwater County School District No. 1 (the district), individual employees of

the district, and members of the district’s board of trustees, alleging that her due

process and free speech interests were violated when she was constructively

discharged from her position as school psychologist. 2 We affirm the district

court’s grant of summary judgment in favor of defendants.

1
Ms. Peterson is an attorney, admitted to the practice of law in Utah and
Wyoming.
2
Just prior to entry of summary judgment against her, Ms. Peterson moved to
amend her complaint to include claims of age discrimination, see 29 U.S.C.
§§ 621 to 634, and sex discrimination, see 42 U.S.C. § 2000e to 2000e-17. The
district court denied the motion and Ms. Peterson has not pursued these theories
on appeal.

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 FACTUAL BACKGROUND

Ms. Peterson began working for the district in the 1981-82 school year.

Her differences with defendants first surfaced during the 1983-84 school year,

when she felt that the district had overburdened her with clerical work and had

hired another psychologist who was incompetent and unethical. Ms. Peterson

filed one unsuccessful grievance in 1985, alleging unfairness in the application of

the district’s policy concerning travel to out-of-state conferences, and another in

1990, alleging an overload in work responsibilities. Throughout her employment,

she took issue with occasionally critical evaluations, suggestions, and comments

from supervisors whom she considered unqualified judges of her performance.

She also gave her disparaging views on certain district practices and personnel in

many settings, including university classes that she was teaching and attending.

Ms. Peterson attempted to transfer to different positions in the district, but her

requests were denied.

On three occasions, Ms. Peterson’s supervisors took the disciplinary step of

placing her on a Performance Improvement Plan (PIP). Ms. Peterson asserts that

these plans exemplified the defendants’ efforts to “create the illusion of charges

of improprieties and poor work performance in order to keep her busy and

primarily keep her from complaining.” Brief of appellant at 6-7. The first PIP,

imposed in the spring of 1984, required Ms. Peterson to observe the rules of

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confidentiality, reduce her use of technical jargon during conferences with parents

and in written reports to other professionals, and submit any concerns about her

colleagues in writing to the director of special services. The provisions of the

second PIP, for the 1985-86 school year, were similar. The third PIP was

imposed during the summer of 1991, at the conclusion of a suspension with pay. 3

The suspension occurred after Ms. Peterson acted outside her authority by

canceling scheduled counseling sessions for students. Although a Wyoming

statute requires a hearing for suspension of continuing contract teachers, see

Wyo. Stat. Ann. § 21-7-110(c), no hearing was held in connection with Ms.

Peterson’s suspension.

By June of 1991, Ms. Peterson had decided to resign, because she felt that

defendants had harassed her, deprived her of clerical support and proper

equipment, denied her professional development opportunities, and violated her

First and Fifth Amendment rights. However, she resolved to continue her

employment for one more year, in the belief that she would be entitled to receive

early retirement benefits after the 1991-92 school year. On September 11, 1991,

she submitted her resignation, effective at the end of the school year. The

remainder of the school year went relatively smoothly. Ms. Peterson received

favorable evaluations and an offer of continuing employment for the 1992-93

3
The record on appeal does not include the third PIP.

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school year. Although she was denied early retirement benefits, 4 she did not

return to the district the following year.

DISCUSSION

On appeal, we review the record de novo, see David v. City & County of

Denver, 101 F.3d 1344, 1355 (10th Cir. 1996), and construe the factual record

and all reasonable inferences in the light most favorable to Ms. Peterson, see id.

Summary judgment is appropriate if the record shows that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. See Watson v. University of Utah Med. Ctr., 75 F.3d 569, 574

(10th Cir. 1996).

Ms. Peterson’s allegations of constructive discharge form the basis of her

Wyoming state law claim, see Employment Sec. Comm’n v. Western Gas

Processors, Ltd., 786 P.2d 866, 871 (Wyo. 1990) (recognizing the concept of

constructive discharge), and part of her § 1983 free speech and due process

claims, see Gardetto v. Mason, 100 F.3d 803, 812-14 (10th Cir. 1996) (assessing

the § 1983 free speech claim of a suspended teacher); Woodward v. City of

Worland, 977 F.2d 1392, 1401 (10th Cir. 1992) (recognizing that “constructive

4
In state court, Ms. Peterson filed an unsuccessful lawsuit concerning the
denial of early retirement benefits. See Peterson v. Sweetwater County Sch. Dist.
No. One, 929 P.2d 525 (Wyo. 1996) (affirming entry of summary judgment on
breach of contract, promissory estoppel, age discrimination, due process, and
equal protection claims).

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discharge from employment as to which an employee has a protectable property or

liberty interest may be actionable under § 1983”) (footnote omitted).

Constructive discharge occurs when “a reasonable [person] in the

employee’s position would view the working conditions as intolerable and when

the working conditions [are] so difficult that a reasonable person would feel

compelled to resign.” Id. (quotations omitted). Essentially, a plaintiff must show

that she was “forced to quit.” Reynolds v. School Dist. No. One, 69 F.3d 1523,

1534 (10th Cir. 1995).

After deciding to resign, Ms. Peterson stayed with the district for an entire

school year. During the last year of her employment, conditions improved rather

than worsened. Under these circumstances, there can be no reasonable inference

of intolerable working conditions. We agree with the trial court that the evidence

does not rise to the level necessary to establish a genuine dispute of fact as to

constructive discharge.

Ms. Peterson has also alleged that defendants violated her First Amendment

right to freedom of speech by: (1) criticizing and restricting her use of technical

language in diagnostic reports and discussions; (2) cautioning her not to make

public evaluative comments on the professional performance of district personnel;

and (3) retaliating against her for speaking out on the deficiencies of district

policies and personnel. In assessing the free speech claim of a public employee,

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the initial issue is “whether the employee has spoken ‘as a citizen upon matters

of public concern’ or ‘merely as an employee upon matters only of personal

interest.’” Gardetto, 100 F.3d at 812 (quoting Connick v. Myers, 461 U.S. 138,

147 (1983). This inquiry is a question of law for the court. Gardetto, 100 F.3d at

811-12.

Determining whether speech addresses a matter of public concern, as

opposed to matters related only to personal interest, depends on the “content,

form, and context of a given statement, as revealed by the whole record.”

Connick, 461 U.S. at 147-48. “To be protected speech, the expression must

sufficiently inform the issue as to be helpful to the public in evaluating the

conduct of government.” Withiam v. Baptist Health Care of Okla., Inc., 98 F.3d

581, 583 (10th Cir. 1996) (quotation and emphasis omitted). In deciding how to

classify particular speech, courts consider the motive of the speaker and whether

the speech was calculated to redress personal grievances or whether it addressed a

broader public purpose. See Gardetto, 100 F.3d at 812. That is, the court must

evaluate whether the plaintiff “spoke out based on the same motivation that would

move the public to speak out.” Id. Applying these standards, we conclude upon a

review of the record that Ms. Peterson spoke from personal motives in order to air

her own grievances on matters which do not meet Connick standards.

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 The final aspect of Ms. Peterson’s § 1983 claim involves alleged violations

of procedural due process in the district’s handling of her suspension and

grievances. “To assess whether an individual was denied procedural due process,

courts must engage in a two-step inquiry: (1) did the individual possess a

protected interest such that the due process protections were applicable; and, if

so, then (2) was the individual afforded an appropriate level of process.” Watson,

75 F.3d at 577 (internal quotations and citations omitted).

We have previously held that suspension with pay does not infringe any

measurable property interest and, therefore, does not raise due process concerns.

Hicks v. City of Watonga, 942 F.2d 737, 746 n.4 (10th Cir. 1991). Ms. Peterson’s

suspension was brief and with pay. Moreover, even assuming that Ms. Peterson

had a property interest in the subject matter of her grievances, the record

demonstrates that the district followed its policies in affording Ms. Peterson an

opportunity to pursue grievances.

After a careful review of the record and the arguments of the parties, 5 we

AFFIRM the judgment of the United States District Court for the District of

5
Because we conclude that the district court was correct in entering
summary judgment on the grounds that there were no genuine issues of contested
fact concerning the substance of Ms. Peterson’s claims, we do not reach the other
issues addressed by the district court and argued on appeal. These issues include
the application of qualified immunity, the expiration of the appropriate statutes of
limitations, and the failure to file a timely notice of claim.

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Wyoming. We grant Ms. Peterson’s motion to withdraw her motion for sanctions

and deny defendants’ request for sanctions. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett
Senior Circuit Judge

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