Dillon v. Twin Peaks Charter

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 12, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

D A W N DILLO N ,

Plaintiff - Appellant,
No. 06-1189
v. (D.C. No. 99-cv-2462-JLK)
(D . Colo.)
TW IN PEAKS CH AR TER
ACADEM Y; and ST. VRAIN
V A LLEY SC HO O L D ISTR IC T NO.
RE-1J,

Defendants - Appellees.

OR D ER AND JUDGM ENT *

Before KELLY, B AL DOC K , and GORSUCH, Circuit Judges.

Plaintiff-Appellant Dawn Dillon appeals from the district court’s order

granting Defendant-Appellee Twin Peaks Charter Academy’s (“the Academy”)

motion for summary judgment and its related entry of judgment for the Academy

and St. Vrain V alley School District No. RE-1J (“the D istrict”) on all claims. M s.

Dillon was formerly a paraprofessional at the Academy. She filed suit under 42

U.S.C. § 1983 asserting that Defendants violated her rights under the First, Fifth,

*
This order and judgment is not binding precedent, except under the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.
and Fourteenth Amendments to the U.S. Constitution. Her claims stem from the

non-renew al of her employment relationship w ith the Academy. Specifically, M s.

Dillon alleged that Defendants retaliated against her for exercising her freedom of

speech and freedom of association rights, imposed an illegal prior restraint on her

freedom of speech and freedom of association, and deprived her of procedural due

process in determining not to renew her employment and by infringing a liberty

interest in issuing a performance evaluation that adversely affected her chances

for future employment. She also asserted pendent claims for breach of contract

and estoppel under Colorado law. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we affirm in part, reverse in part, and remand.

Background 1

The Academy is a K-8 charter school in Longmont, Colorado. It is

chartered by, and operates within the boundaries of, the District. Dr. Dorothy

M arlatt was the principal of the Academy when M s. Dillon was employed there as

a paraprofessional. The events giving rise to this case occurred from the fall of

1998 to the spring of 1999 and ultimately culminated in M s. Dillon being non-

1
This case is closely connected with the facts and claims arising in
Brammer-Hoelter v. Twin Peaks Charter Academy, No. 06-1186, (10th Cir. 2007),
a case brought by six former teachers of the Academy who resigned their
positions in M arch 1999. Throughout this opinion, we refer to relevant holdings
reached in that case.

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renewed in June 1999.

M s. Dillon began working for the Academy as a paraprofessional in the

fall of 1997. She had no written employment contract. Her initial performance

evaluations w ere satisfactory. During the summer of 1998, M s. Dillon met with

Dr. M arlatt to discuss her duties for the upcoming school year. Her primary

assignment was to work in the Academy’s “resource room” where she and another

paraprofessional were to provide literacy instruction, tutoring, and testing and to

assist in the preparation of Individualized Learning Plans. During this meeting,

Dr. M arlatt also warned M s. Dillon not to “gossip.”

By the fall of 1998, the six teacher plaintiffs in Brammer-Hoelter had

developed a number of concerns about the operation, management, and mission of

the Academy. They began to meet off-campus and after hours at local

restaurants, in each others’ homes, and in a church to discuss these concerns. In

response, Dr. M arlatt issued a series of orders directing the teachers not to discuss

Academy matters outside of work with any person, including each other. One

such order was made during a mandatory faculty meeting. Dr. M arlatt also told

the teachers she would prefer that they not even associate with each other outside

of school.

M s. Dillon was a friend of the six teachers and participated in the off-

campus meetings. Although she never heard Dr. M arlatt’s orders personally, one

of the six teachers related them to M s. Dillon. M s. Dillon contends that during

3
those gatherings, she and the teachers discussed dozens of topics ranging from

unfair enforcement of the Academy’s code of conduct to criticisms of the

Academy’s Board of Directors (“the Board”). See Aplt. Br. 3-4. At a December

10, 1998 meeting between the Board and Academy faculty and staff, M s. Dillon

complained that “middle school teachers did not have adequate help from

paraprofessionals,” and that employees would “find out things from memos

instead of being told verbally.” Aplt. A pp. at 152.

Despite D r. M arlatt’s orders, M s. Dillon and the six teachers continued to

meet off campus for the purpose of discussing various Academy matters.

Eventually, the six teachers received less favorable performance reviews by Dr.

M arlatt. The six teachers eventually submitted resignations on M arch 1, 1999.

Dr. M arlatt then resigned on M arch 2, 1999. The Board subsequently offered M s.

Dillon the opportunity to move into one of the vacated teaching positions, but she

declined the assignment. On April 15, 1999, the six teachers informed the

Academ y of their intent to sue, alleging numerous federal and state claims.

In M ay 1999, Ivan Adams, the A cademy’s interim administrator,

recommended to the Board that M s. Dillon and David Hardy, the other resource

room paraprofessional, be non-renew ed for the next school year. M r. Adams also

delivered a written evaluation of M s. Dillon to the Board. M s. Dillon received

mediocre ratings in several categories. M r. Adams concluded his evaluation by

stating:

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 I am concerned that Dawn has been vocal and demonstrative against
Board policies, practices and the actual operation of the school. She
has also taken issue with staff meetings that has helped to bring
about a divisiveness among staff members. These actions are hurtful
to the environment of a school.

Id. at 145. In an executive session, the B oard accepted M r. Adams’s

recommendation and voted not to renew M s. Dillon’s employment. In an

affidavit, Board member Kathy Seitz testified that several Board members spoke

up to affirm that M s. Dillon should be non-renewed because she had associated

with the six teachers and had been attending the off-campus meetings. Id. at 431-

34.

In an evaluation conference on June 4, 1999, M r. Adams informed M s.

Dillon that he recommended her non-renewal. Id. at 154. According to M s.

Dillon, M r. Adams told her that he made the recommendation because she

“associat[ed] with the six teachers who had left in M arch” and that she had a

disruptive relationship with the other resource room paraprofessional, M r. H ardy.

Id. at 387. M s. Dillon then complained that her non-renewal was unfair, and she

demanded an explanation. Shortly thereafter, she gave notice of her intent to sue.

Procedural H istory

M s. Dillon filed her lawsuit on December 27, 1999. Both Defendants filed

motions for summary judgment on August 31, 2000. Over five years later, on

M arch 28, 2006, the district court issued a seven-page order granting the summary

5
judgment motion filed by the Academy and dismissing the District’s motion as

moot. 2 See Dillon v. Twin Peaks Charter Acad., No. Civ. 99-K-2462, 2006 W L

827311 (D. Colo. M ar. 28, 2006). Addressing the freedom of speech and freedom

of association retaliation claims, the district court held that the matters discussed

by M s. Dillon and the six teachers were not matters of public concern and that

M s. Dillon had failed to show an adverse employment action as a result of her

speech or association. Id. at *2-3. The district court further held that M s. Dillon

had no protected property interest in continued employment and so could not

sustain a procedural due process claim based on her non-renewal. Id. at *3. W ith

regard to her liberty interest claim, the district court held that the Academy had

never even published a false statement about M s. Dillon. Id. Regarding her

contract and promissory estoppel claims, the district court held that the claims

failed because M s. Dillon was an at-will employee with no contract of continued

employment and because the A cademy’s informal grievance policy did not form

an ongoing employment contract. Id. The district court then entered judgment

for both Defendants on all claims.

On appeal, M s. Dillon argues that the district court erred in determining

2
The District argued that M s. Dillon had failed to show a policy or custom
on its part sufficient to create liability under § 1983 and that it had no contract
with M s. Dillon and made no representations to her. See Aplt. A pp. at 43-52.
The district court considered these arguments moot given that it had already
disposed of M s. Dillon’s claims on the merits in granting the Academy’s motion
for summary judgment.

6
that the matters she discussed with the teachers w ere not matters of public

concern. She also argues that the retaliatory measures taken by the Academy

were sufficient to constitute adverse employment actions. Consequently, she

argues that both her freedom of speech and freedom of association retaliation

claims should survive summary judgment. M s. Dillon further argues that the

Academy’s actions constituted an illegal prior restraint, which the district court

ignored. She argues that the district court erred in rejecting her procedural due

process claims because it wrongly determined that certain promises made to her

by the Academy did not create a protected property interest. Additionally, with

regard to her liberty interest claim, M s. Dillon argues that statements made by the

Academy in her performance evaluation were published to the District and

hindered her ability to obtain future employment. Finally, she argues that the

district court erred in dismissing her pendent state law claims because it ignored

evidence of the A cademy’s course of dealing and prior assurances.

Discussion

I. Standard of Review

This court reviews a district court’s grant of summary judgment de novo,

applying the same standard as the district court. Timmerman v. U.S. Bank, 483

F.3d 1106, 1112 (10th Cir. 2007). Summary judgment is proper only if the record

shows “that there is no genuine issue as to any material fact and that the moving

7
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Furthermore, because this case involves the First Amendment, we have “an

obligation to make an independent examination of the whole record in order to

make sure that the judgment does not constitute a forbidden intrusion on the field

of free expression.” Citizens for Peace in Space v. City of Colo. Springs, 477

F.3d 1212, 1219 (10th Cir. 2007).

II. The First A mendment C laim s

M s. Dillon advances three discrete claims under the First Amendment. The

first is that she was retaliated against for exercising her freedom of speech. The

second is that she was retaliated against for exercising her freedom of association.

The third is that Dr. M arlatt’s blanket prohibition against discussing Academy

matters in public and her statement to the six teachers encouraging them not to

meet together in public constituted an illegal prior restraint on her speech and

association. These are distinct claims. See Shrum v. City of Coweta, 449 F.3d

1132, 1138 (10th Cir. 2006) (distinguishing between freedom of speech and

freedom of association retaliation claims); M ilwaukee Police Ass’n v. Jones, 192

F.3d 742, 749-50 (7th Cir. 1999) (distinguishing between freedom of speech

retaliation claims and prior restraint claims).

A. Freedom of Speech Retaliation Claim s

The district court rejected M s. Dillon’s freedom of speech retaliation claim

on the legal grounds that the matters she and the six teachers discussed were not

8
matters of public concern and because she had not suffered an adverse

employment action. As discussed in Brammer-Hoelter, while many of the matters

discussed by M s. Dillon and the six teachers either related to their employment

duties or were not matters of public concern, 3 some of the matters discussed pass

the combined Garcetti/Pickering analysis for freedom of speech retaliation claims.

No. 06-1186, at 13-21; see G arcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006);

Pickering v. Bd. of Educ., 391 U .S. 563, 568 (1968). Furthermore, if M s.

Dillon’s employment was not renewed because of her protected speech, such

action is sufficient to constitute an adverse employment action for a First

Amendment retaliation claim. See M t. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 283-84 (1977) (noting that First Amendment retaliation

claims do not depend on a property interest in continued employment); Smith v.

Losee, 485 F.2d 334, 340 (10th Cir. 1973) (“It is now established that the

nonrenewal of a nontenured public school teacher’s one-year contract may not be

3
M s. Dillon argues that because many of the matters she discussed related
to teachers and other paraprofessionals, the matters necessarily extended beyond
her personal concerns and constituted matters of public concern. Aplt. Br. at 4-5;
Aplt. Reply Br. at 4-5. W e disagree. The fact that M s. Dillon was supportive of
the teachers and other paraprofessionals does not mean that her discussion
regarding, inter alia, the lack of classroom supplies, internal personnel disputes,
and her supervisor’s performance constituted discussion on matters of public
concern. Furthermore, because M s. Dillon was effectively a “teacher’s aide,” see
Aplt. Br. at 3, her official duties overlapped substantially with those of the
teachers, rendering our Garcetti analysis in Brammer-H oelter applicable to this
case. See No. 06-1186, at 13-17.

9
predicated on his exercise of First and Fourteenth Amendment rights.” (internal

quotation marks omitted)). Consequently, M s. Dillon’s freedom of speech

retaliation claim survives summary judgment to the same extent as do the

teachers’ similar claims. See Brammer-Hoelter, No. 06-1186, at 25.

B. Freedom of Association Retaliation Claim

M s. Dillon also raises a separate freedom of association retaliation claim,

arguing that she suffered an adverse employment action for associating with the

six teachers. The district court included this claim in its discussion of M s.

Dillon’s freedom of speech retaliation claim, determining that the claim failed

because she was not associating for the purpose of discussing matters of public

concern and because she did not suffer an adverse employment action. M s. Dillon

was clearly associating for the purpose of discussing some matters of public

concern. See id. at 20-21. Furthermore, as already discussed, her non-renewal is

an adverse employment action sufficient to support a First Amendment retaliation

claim. Accordingly, M s. Dillon’s freedom of association retaliation claim

survives summary judgment to the same extent as her freedom of speech

retaliation claim.

C. Prior Restraint Claim

M s. Dillon raises a prior restraint claim that is separate and distinct from

her freedom of speech and freedom of association retaliation theories. Arndt v.

Koby, 309 F.3d 1247, 1251 (10th Cir. 2002). “[U]nlike an adverse action taken in

10
response to actual speech, [a prior restraint] chills potential speech before it

happens.” Id. (citing United States v. Nat’l Treas. Employees Union (“N TEU”),

513 U.S. 454, 468 (1995)). The district court failed to address M s. Dillon’s prior

restraint claim in its order. Accordingly, we remand this matter to the district

court for a determination under NTEU and our related precedent.

III. The Procedural Due Process Claim

M s. Dillon argues that the A cademy deprived her of procedural due process

by terminating her employment without “just cause” and by failing to provide her

with a statement of the reasons for her termination. “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.” M ontgomery v. City of Ardmore, 365

F.3d 926, 935 (10th Cir. 2004). “The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a meaningful manner.”

M athews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks

omitted). For this reason, a hearing is generally required before a person may be

deprived of a protected interest. Smith v. Org. of Foster Families for Equality

and Reform, 431 U.S. 816, 848 (1977).

W e look to state law to determine whether a property interest in

employment exists. Lighton v. Univ. of Utah, 209 F.3d 1213, 1221 (10th Cir.

11
2000). Such an interest can arise from “state statutes, regulations, municipal

ordinances, university rules, and even express or implied contracts.” Anglemyer

v. Hamilton County Hosp., 58 F.3d 533, 536 (10th Cir. 1995). Absent some

specific enactment to the contrary, an “at-will” employee has no property right in

continued employment under Colorado law. See Cont’l Air Lines, Inc. v. Keenan,

731 P.2d 708, 711 (Colo. 1987); Holland v. Bd. of County Comm’rs, 883 P.2d

500, 505 (Colo. Ct. App. 1994).

As noted, M s. Dillon had no written contract with the academy. Under

Colorado law, she is therefore presumed to be an “at-will” employee. See

Fremont Re-1 Sch. Dist. v. Jacobs, 737 P.2d 816, 820-21 (Colo. 1987). Indeed,

the Academy’s charter clearly states that “all persons who perform services for

the Academy shall be considered ‘at-will’ employees or volunteers of the

Academy.” A plt. App. at 102. The charter further states: “The Academy shall

not have the authority, by virtue of its policies or procedures or other action of

the Academy Board, to change the ‘at-will’ nature of the employment

relationship.” Id. at 103.

In Colorado, “a government entity’s power to enter into contractual

obligations is circumscribed by statute and ordinances.” Kirkland v. St. Vrain

Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1190 (10th Cir. 2006). Such

restrictions are incorporated into any contract the government entity makes. Id.

Thus, any party contracting with a government entity is charged with constructive

12
knowledge of those restrictions and cannot claim justifiable reliance on

statements to the contrary. Id.; see also Keeling v. City of Grand Junction, 689

P.2d 679, 680 (Colo. Ct. App. 1984) (imparting constructive knowledge that a

city council could only act pursuant to the authority granted to it by the city’s

charter). W e have applied this rule in a case concerning a school district policy

requiring school board approval of certain expenditures. See Kirkland, 464 F.3d

at 1190-91 (holding that the school district could not be bound by an

administrator’s promise to buy-out an employee’s salary). Because the

Academy’s charter clearly states that the Academy cannot alter the at-will

employment relationship, M s. Dillon was an at-will employee and cannot claim

justifiable reliance on promises or assurances to the contrary. Accordingly, any

procedural due process claim based on her non-renewal must fail.

M s. Dillon also claims that her procedural due process rights were violated

when the Academy failed to process certain grievances she lodged. This claim

fails because the Academy’s grievance policy itself did not create a property

interest. See W ells v. Hico Indep. Sch. Dist., 736 F.2d 243, 254 (5th Cir. 1984)

(noting that a general grievance policy does not create a property interest because

it “allows a means for employees . . . to voice their complaints [but] says nothing

about either discharge or nonrenewal . . .”).

Finally, M s. Dillon claims that her rights were violated when M r. Adams

wrote in her performance evaluation that she was “vocal and demonstrative

13
against Board policies, practices, and the actual operations of the School . . . [and

that her actions were] hurtful to the environment of a school.” Aplt. A pp. at 409.

She argues that these statements stigmatized her and prevented her from obtaining

future employment with the District. Thus, she claims the statements amounted to

a deprivation of a protected liberty interest in future employment without

procedural due process.

“[W]hen a public employer takes action to terminate an employee based

upon a public statement of unfounded charges of dishonesty or immorality that

might seriously damage the employee’s standing or associations in the community

and foreclose the employee’s freedom to take advantage of future employment

opportunities, a claim for relief is created.” W atson v. Univ. of Utah M ed. Ctr.,

75 F.3d 569, 578 (10th Cir. 1996). To be actionable, such a statement must

“impugn the good name, reputation, honor, or integrity of the employee.” Id. at

579. The statement must also be false and “occur in the course of terminating the

employee or must foreclose other employment opportunities.” Id. Finally, the

statement must be published. Id.

The district court determined that M s. Dillon had failed to show the

statements written by M r. Adams were made public. See Bishop v. W ood, 426

U.S. 341, 348 (1976). She argues that because M r. Adams w rote the statements

on a St. Vrain Valley School District Evaluation Report for

Secretaries/Clerks/M edia Technicians/Aids, it is self-evident that M r. Adams

14
published the statements to the District. W e agree with the district court. M s.

Dillon presented no evidence that M r. Adams, the Board, or any other employee

of the Academy communicated the reasons for her non-renewal to anyone, much

less the District. She presented no evidence that M r. Adams submitted the

evaluation to the District or anyone working there. Because M s. Dillon has failed

to show any evidence of publication, her liberty interest claim based on M r.

Adams’s statements fails.

IV . Breach of C ontract and E stoppel Claim s

M s. Dillon premises her breach of contract claim on the A cademy’s

supposed failure to follow its internal grievance policy. Specifically, she argues

that the Academy was required to process and respond to any grievance or

concern, written or oral, by a “super-majority of at least five members.” Aplt.

App. at 396. On the day she was informed of her non-renewal, M s. Dillon

complained orally to M r. Adams and then complained to the Board. Because the

Board never responded to this “grievance,” argues M s. Dillon, the Academy

breached a contract with her.

As previously noted, M s. Dillon was an at-will employee under Colorado

law. So far as contract law is concerned, the Academy was free to terminate her

employment at any time for any reason. Consequently, the Board was not

obligated to explain the reason for its decision not to renew her employment. To

hold otherw ise would conflict with the at-will nature of M s. Dillon’s employment.

15
 M s. Dillon premises her estoppel claim on the fact that she voiced concerns

at a Board meeting based upon an express promise that she would not be

retaliated against for doing so, but that she was retaliated against anyway. Id. at

383-84. She devotes only two sentences of argument in her appellate brief to this

issue, with no citation to authority whatsoever. See Aplt. Br. at 53.

Consequently, we deem the claim waived. Garrett v. Selby Connor M addux &

Janer, 425 F.3d 836, 841 (10th Cir. 2005).

V. The Academy’s Liability Based on Policy or C ustom

The Academy argued below that it should not be liable under § 1983

because there was no institutional policy or custom depriving M s. Dillon of her

rights. See M onell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). It is true

that § 1983 liability for an entity cannot be predicated on respondeat superior.

See City of Canton v. Harris, 489 U.S. 378, 385 (1989). Instead, it is necessary

to show a direct causal link between the acts of the entity and the alleged

constitutional deprivations. W are v. Unified Sch. Dist. No. 492, 881 F.2d 906,

912-13 (10th Cir. 1989). Under appropriate circumstances, a single decision by

policymakers can be sufficient to create liability under § 1983. Pembaur v. City

of Cincinnati, 475 U.S. 469, 480 (1986). In its order, the district court never

addressed the Academy’s argument regarding the lack of a policy or custom, and

the Academy is free to reassert it on remand.

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VI. The District’s M otion for Summary Judgment

The district court dismissed the District’s motion for summary judgment as

m oot based on its determination that M s. Dillon’s claims failed on the merits. A s

we have decided otherwise, the District is free to reassert this motion on remand.

W e AFFIRM the district court’s grant of summary judgment on the

procedural due process, contract, and estoppel claims. W e REVERSE in part its

grant of summary judgment on the freedom of speech and freedom of association

retaliation claims. W e REM AND the prior restraint claim for further proceedings

consistent with this opinion. On remand, Defendants are free to assert those

defenses not addressed by the district court in its order as well as any additional

defenses that may exist.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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