Cypert v. Independent School District

FILED
United States Court of Appeals
Tenth Circuit

August 15, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

LOUANNE CYPERT,

Plaintiff-Appellant,

v. No. 10-5122
(D.C. No. 4:09-CV-00803-CVE-FHM)
INDEPENDENT SCHOOL DISTRICT (N.D. Okla.)
NO. I-050 OF OSAGE COUNTY,
a/k/a Prue Public Schools; RON
MEADOWS; GERALD JACKSON;
VALERIE TRASTER; SYLVIA
HENDRIX,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.

Bringing suit under 42 U.S.C. § 1983 and anti-discrimination statutes,

Louanne Cypert alleged defendants’ failure to renew her employment contracts

with the Prue, Oklahoma, public school district (the District) violated her First

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
and Fourteenth Amendment rights and was due to gender and age discrimination.

She appeals from a summary judgment rejecting her claims, in which the district

court determined (1) her non-renewal hearing satisfied her due-process rights,

(2) she failed to show her speech was a motivating factor for the decision not to

renew her full-time contract, and (3) she failed to show defendants’ reason for not

renewing her part-time contract resulted from discrimination. We affirm. 1

Background

Defendants are the District and four individuals who were members of the

Prue Board of Education (the Board). The District is small, with a total of

approximately 310 students. Cypert was the high school secretary with a

full-time support-employee contract, which included employment security

provisions. She also had an extra-duty contract for a part-time job as concession

director. She does not claim the extra-duty contract contained any employment

security provisions.

In February 2008, defendant Ron Meadows was elected to the Board with a

campaign calling for change, including the dismissals of some staff. According to

testimony of Melvina Prather, the Interim Superintendent from April to June,

2008, when she met with Meadows on several occasions, he spoke about firing

certain employees, including Cypert, because he did not think they could do their

jobs. Another Board member, defendant Gerald Jackson, was present with

1
Our jurisdiction derives from 28 U.S.C. § 1291.

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Meadows on one of those occasions. 2 Jackson also said he wanted those

employees fired. Prather refused to dismiss the employees. In the summer of

2008, the Board renewed Cypert’s full-time contract for 2008-2009, but declined

to renew the extra-duty contract, instead awarding it to two teachers.

In the fall of 2008, the Board became concerned about the District’s

finances. It initiated a financial investigation and, in November, terminated the

treasurer’s employment. 3 In December, it hired Douglas Jones to be the new

assistant treasurer. At the January 2009 Board meeting, Jones advised the Board

it was in a financial crisis. By May, he calculated the District would have

$161,000 to carry into 2009-2010, more than he had earlier predicted, but still

less than the recommended minimum of $250,000. He was “cautiously

optimistic,” but continued to believe the District “was still in financial

difficulties.” Aplee. Supp. App. at 204. He expected state aid money to decrease,

and he “was advising all the schools that [he was] work[ing] with to hold all

expenses to the absolute minimum going into [the next school] year.” Id. at 205.

2
Plaintiffs submitted both an affidavit and deposition testimony from
Prather. The two were not consistent, as the affidavit stated Jackson several times
asked her to fire the employees, but the deposition testimony identified only one
meeting involving Jackson. We rely on the deposition testimony because the
deposition gave Prather the opportunity to explain the statements in the affidavit.
3
The termination of the treasurer’s employment is the subject of another
appeal before this court. See Bunch v. Indep. Sch. Dist. No. I-050, No. 10-5109.
An appeal also was brought by another employee whose employment was
terminated during the 2008-2009 school year. See James v. Indep. Sch. Dist.
No. I-050, No. 10-5124.

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 The Board decided to notify eleven support employees that their contracts

may not be renewed for the 2009-2010 school year due to the District’s finances.

Cypert was the only employee who requested and went through a pre-non-renewal

due-process hearing, which took place on June 8, 2009. Jones did not attend.

The new Superintendent, Phyllis Tarrant, testified to the District “making some

recovery but, not enough that we would have an adequate fund to carry over for

the 2009-2010 school year.” Id. at 139. No decisions had been made regarding

cost reductions, but she planned to present various alternatives, which might

include dividing the duties of the high school secretary among other personnel.

Under cross-examination, Tarrant admitted they did not yet know how much the

District would receive from the state for the next year, and without that

information the Board could not make any decisions about how to structure the

school system and which support staff to re-employ. Cypert testified to having

performed her job without problems for years; she called no other witnesses.

After an executive-session discussion, which Tarrant also attended, the

Board found the District was facing a financial crisis and needed to cut expenses

for 2009-2010. A sufficient response to the problem, it concluded, required

reductions in personnel, and reorganization of the District’s schools might reduce

the number of office staff needed. It voted not to renew Cypert’s contract as a

cost saving measure. A few weeks later, the District ended the school year with a

carryover of $330,000. During the summer of 2009, the Board decided to renew

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the contracts of every support employee who had been notified of possible

non-renewal in May 2009. It also kept the position of high school secretary but

did not offer to employ Cypert to fill it. It hired another person instead.

Cypert claimed the non-renewal hearing did not satisfy her right to due

process. She also alleged the failure to renew her contract was in retaliation for

her exercise of free speech rights because, in the fall of 2008, she had signed a

state-court petition calling for a grand jury investigation into the activities of

Board members. She also alleged the non-renewal of her extra-duty contract

violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the

Age Discrimination in Employment Act, 29 U.S.C. § 623. Cypert appeals from

the summary judgment. 4

Analysis

“We review de novo a grant of summary judgment, applying the same

standard that governs the district court.” Lauck v. Campbell Cnty., 627 F.3d 805,

809 (10th Cir. 2010). We view “the evidence in the light most favorable to the

appellant.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004).

Summary judgment is appropriate when “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).

4
Cypert does not appeal from the dismissal of her state-law claims. The
district court declined to exercise supplemental jurisdiction over them after
rejecting the federal claims.

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I. Due Process

No defendant contends Cypert did not have a protected property interest in

her employment or was not entitled to due process in connection with the

non-renewal of her contract. Cypert, on the other hand, does not now contend her

employment could not be terminated for legitimate fiscal reasons. Instead, she

alleges four procedural due-process violations: (1) a biased tribunal; (2) Tarrant

attended the executive session; (3) she was not allowed to confront or

cross-examine Jones, even though his financial calculations were the asserted

basis for not continuing her employment; and (4) the hearing was a sham because

there was no financial crisis. 5

A. Impartial Tribunal

Cypert argues the four individual defendants were biased, thus depriving

her of an impartial tribunal. As the district court noted, however, defendant

Meadows was not a member of the Board on June 8, 2009, and he took no part in

the Board’s decision not to renew Cypert’s contract. Because he was not a

decisionmaker, his impartiality is irrelevant to Cypert’s hearing. Therefore, we

focus on defendants Jackson, Traster, and Hendrix.

5
Before the district court, Cypert alleged both procedural and substantive
due process violations. The trial court decided the allegations did not rise to the
level of a substantive due process violation. Her brief mentions substantive due
process only in passing. She has waived our review of that issue. See Therrien v.
Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010).

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 “Impartiality of the tribunal is an essential element of due process.”

Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009). Impartiality may be

affected by a “personal or financial stake” in the outcome or “personal

animosity.” Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,

426 U.S. 482, 491-92 (1976). But because “a person claiming bias on the part of

an administrative tribunal must overcome a presumption of honesty and integrity

in those serving as adjudicators,” a “substantial showing of personal bias is

required to disqualify a hearing officer or tribunal.” Riggins, 572 F.3d at 1112

(quotation omitted); see also Hicks v. City of Watonga, 942 F.2d 737, 746-47

(10th Cir. 1991) (“[T]here must be some substantial countervailing reason to

conclude that a decisionmaker is actually biased with respect to factual issues

being adjudicated.” (emphasis added) (quotation omitted)).

In assessing the bias issue the district court concluded the only probative

evidence of the Board’s bias was Prather’s testimony. Prather recalled speaking

to Jackson on one occasion in spring 2008 about firing Cypert along with other

employees. Cypert asserts the court ignored the deposition testimony of Prather’s

successor, Randy Cottrell, and a fifth Board member not named as a defendant,

Donald Horton. But Cottrell’s testimony is irrelevant because it did not involve

Cypert. And Horton’s testimony does not help her. Horton recalled Board

members discussing Cypert in executive sessions, but their discussion focused

only on her job performance. Horton did, however, offer an opinion, to wit.

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Meadows and Jackson had formed a plan to dismiss the targeted employees, and

Traster and Hendrix went along. The problem is his opinion testimony is

unsupported by facts. “Unsubstantiated allegations carry no probative weight in

summary judgment proceedings. To defeat a motion for summary judgment,

evidence, including testimony, must be based on more than mere speculation,

conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875

(10th Cir. 2004) (citation omitted). Horton’s testimony cannot stand in the way

of summary judgment.

Thus, as the district court concluded, the only admissible evidence of

Jackson’s bias is one statement to Prather, about a year before the hearing. That

is not a substantial showing of actual bias with regard to the issue facing the

Board, i.e., whether, in early June, 2009, the District’s financial situation

cautioned against renewal of Cypert’s contract. Nothing in this record points to

personal animosity or other bias against Cypert by Traster and Hendrix, beyond

their association with Meadows and Jackson. Association alone does not suggest

disqualifying bias. See Hicks, 942 F.2d at 748.

B. Non-Board Member Attending Executive Session

Addressing Tarrant’s attendance at the executive session, Cypert asserts,

without citation, “Having the very person submitting a recommendation attend the

executive session where the decision is discussed without the Plaintiff does not

meet the test of a ‘fair’ hearing.” Aplt. Opening Br. at 23.

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 It does not appear this circuit has decided whether an administrator’s

presence during a school board’s deliberation is a due-process violation. The

question arose in Ambus v. Granite Board of Education, 975 F.2d 1555, 1569

(10th Cir. 1992), modified on reh’g on other grounds, 995 F.2d 992 (10th Cir.

1993) (en banc), but was not decided because the plaintiff’s appellate argument

was “based on evidence not before the district court.” Other courts have

concluded an administrator’s mere attendance in a board’s executive session does

not violate due process. See Newsome v. Batavia Local Sch. Dist., 842 F.2d 920,

926-27 (6th Cir. 1988); Gorman v. Univ. of R.I., 837 F.2d 7, 10, 15 (1st Cir.

1988); Lamb v. Panhandle Cmty. Unit Sch. Dist. No. 2, 826 F.2d 526, 529

(7th Cir. 1987). Because there is no evidence of anything beyond the

Superintendent’s presence, we see no due-process violation.

C. Confrontation/Cross-Examination

Cypert was able to confront and cross-examine Tarrant at the hearing, but

Jones did not appear. She argues due process demanded an opportunity for her to

confront and cross-examine Jones because his financial analysis was at the heart

of the decision-making process. However, she has not shown an unsuccessful

attempt to seek his attendance. Where a plaintiff was not “inhibited or restricted

from” calling a missing witness, we have held, she cannot complain about her

inability to confront the witness at a due-process hearing. West v. Grand Cnty.,

967 F.2d 362, 369 (10th Cir. 1992).

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 D. Sham Hearing

Finally, Cypert argues the entire hearing was a sham because, in actuality,

the District was not facing a financial crisis. Indeed, the District ended the year

with a carryover of $330,000, well in excess of the recommended minimum, and

every other employee targeted for possible reduction in force for the 2009-2010

school year was retained. Her analysis, however, relies heavily on hindsight. The

District’s financial situation had been an issue of concern to the Board since the

late fall of 2008. At the time of the hearing in June 2009, Jones had told the

Superintendent the District likely would have insufficient carryover funds for the

2009-2010 school year. Nothing of record even remotely suggests Jones harbored

a bias against Cypert or deliberately manipulated his figures to support a

nonexistent financial crisis. At most, his analysis turned out to be wrong, but

“errors, by themselves, do not show that the hearings were shams.” Salas v. Wis.

Dep’t of Corr., 493 F.3d 913, 928 (7th Cir. 2007).

Cypert notes the Board did not offer to re-hire her in the high school

secretary position even though it ultimately kept the position. This fact is

somewhat troubling. But it stands alone, with the record containing little to no

evidence regarding the decision-making process. Thus, it is insufficient to create

a genuine issue of material fact as to whether the hearing was a sham. Cypert

also relies on Tarrant’s admission that her contract was not renewed because she

availed herself of her right to a hearing, thus requiring the Board to make a

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decision before it had all the necessary information. Because this admission

simply states an inference evident from the hearing testimony, it does not create a

genuine issue of material fact as to a sham hearing, either alone or in combination

with the later failure to re-hire.

II. Free Speech

Cypert next quarrels with the district court’s resolution of her retaliation

claim, i.e., she was non-re-employed for exercising her First Amendment rights.

We apply the five-step framework established by the Supreme Court in Garcetti v.

Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education, 391 U.S.

563 (1968):

(1) whether the speech was made pursuant to an employee’s official
duties; (2) whether the speech was on a matter of public concern;
(3) whether the government’s interests, as employer, in promoting
the efficiency of the public service are sufficient to outweigh the
plaintiff’s free speech interests; (4) whether the protected speech was
a motivating factor in the adverse employment action; and
(5) whether the defendant would have reached the same employment
decision in the absence of the protected conduct.

Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010)

(quotation omitted). “The first three steps . . . are issues of law to be resolved by

the district court, while the last two are ordinarily for the trier of fact.” Id.

(quotation omitted).

One basis for Cypert’s First Amendment claim was her signature on the

petition for a state-court grand jury investigation and, relatedly, the two weekends

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she spent soliciting signatures for the petition. Another was her involvement in

an investigation of defendant Meadows’ son for a theft, which occurred at some

unspecified time before the hearing. The district court concluded her allegations

were insufficient to show protected speech. The only evidence she offered of a

specific public statement was her signature on the petition. With regard to that,

the court decided she satisfied the first three Garcetti/Pickering steps but failed to

establish her signature on or involvement with the petition was a motivating

factor behind the non-re-employment.

Cypert tells us she “has produced sufficient evidence of statements and

actions that she engaged in as a citizen relating to matters of public concern.”

Aplt. Br. at 28. But with regard to her involvement in the investigation, the

record contains only general allegations failing to identify with particularity any

statements or actions sufficient to satisfy her burden to identify the specific

instances of speech underlying her claim. See Craven v. Univ. of Colo. Hosp.

Auth., 260 F.3d 1218, 1226 (10th Cir. 2001) (discussing inadequate identification

of speech in appellate argument). She did not establish the occurrence and/or the

content of the speech regarding the investigation sufficiently for the court to even

begin the Garcetti/Pickering analysis.

With respect to the grand jury petition, Cypert argues the fourth factor is

ordinarily a jury question. She is generally correct, but summary judgment is

appropriate when “there simply is no evidence in the record from which a trier of

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fact could reasonably conclude the [protected speech] was a motivating factor in

[the plaintiff’s] termination.” Rohrbough, 596 F.3d at 750; see also Maestas v.

Segura, 416 F.3d 1182, 1188-92 (10th Cir. 2005) (affirming a grant of summary

judgment because plaintiffs failed to present sufficient evidence of causation).

Cypert relies on temporal evidence – her non-re-employment came in June

2009, some eight months after the filing of the petition in September 2008. But a

time lapse exceeding three months is insufficient to establish causation by

temporal proximity alone, see Lauck, 627 F.3d at 815-16; Meiners, 359 F.3d at

1231, and Cypert failed to shoulder her burden to offer additional evidence of

causation. She showed the Board was aware of the grand jury petition, but failed

to show that any Board member was aware of her signature on or involvement

with it. She admitted to never speaking to any Board member about the petition

or making any statements supporting the petition in the presence of a Board

member. In addition, intervening circumstances “tend to undermine any inference

of retaliatory motive and weaken the causal link.” Maestas, 416 F.3d at 1189.

The Board’s investigation of the District’s finances and the resulting financial

uncertainty at the time of Cypert’s due-process hearing were such events.

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III. Discrimination Claims

Cypert does not claim a protected property right in her extra-duty

concession director contract and makes no due process argument with respect to

the Board’s failure to renew it. She makes only discrimination claims. She

appeals from the summary judgment with respect to them. The district court

decided she failed to establish a prima facie case of sex or age discrimination, and

even if she had, she failed to produce any evidence that defendants’ asserted

reason for non-renewal of the contract was a pretext for the type of discrimination

addressed by Title VII and the ADEA. See Timmerman v. U.S. Bank, N.A.,

483 F.3d 1106, 1113 (10th Cir. 2007) (describing the three-part burden-shifting

analysis applicable to gender and age discrimination claims based on

circumstantial evidence). Cypert relies on an apparent contradiction. The Board

did not renew her concession director contract because only certified staff

(teachers) could hold such contracts. Yet it gave a younger male support

employee an extra-duty contract as a sports coach only weeks later (an undisputed

fact).

For purposes of our analysis, we assume Cypert established a prima facie

case. Defendants assert they denied Cypert a contract renewal because the

negotiated agreement for 2008-2009 requires extra-duty contracts to be given to

teachers. Their contractual interpretation is wrong. The negotiated agreement

permitted teachers to enter into extra-duty contracts, but nothing in the extra-duty

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section (the only section defendants cite) required the District to limit such

contracts to teachers. But that does not end the discussion.

Cypert failed to establish defendants’ proffered reason for not renewing her

contract was a pretext for gender or age discrimination. The record reveals little

about renewal preference for extra-duty contracts, but it appears the only

preference was for teachers over support employees. In her deposition Cypert

acknowledged that it had been the District’s practice to offer extra-duty contracts

first to teachers; only if no teacher applied would the contracts be offered to

support employees. In the summer of 2008, Cypert was told she would not be

awarded the contract for 2008-2009. Instead, the contract was awarded to

teachers. Even if defendants were mistaken in relying on the Negotiated

Agreement to deprive Cypert of the concession director contract, they acted

consistently with the District’s general, non-discriminatory practice of giving

teachers priority in awarding extra-duty assignments. And since the contract was

awarded to two female teachers whose ages are not revealed by the record Cypert

has not established pretext.

Admittedly, a younger male support employee was given an extra-duty

contract, but the record indicates the Board members mistakenly believed he was

certified to teach when they initially offered him the contract. “[A] challenge of

pretext requires us to look at the facts as they appear to the person making the

decision to terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

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1220, 1231 (10th Cir. 2000). “Even a mistaken belief can be a legitimate,

non-pretextual reason for an employment decision.” Piercy v. Maketa, 480 F.3d

1192, 1200 (10th Cir. 2007).

AFFIRMED. 6

Entered for the Court

Terrence L. O’Brien
Circuit Judge

6
Because the district court declared certain materials stricken and Cypert has
not appealed that ruling, we have not considered those materials in making our
decision. Defendants’ motion to strike is DENIED.

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