dissenting:
I would affirm the district court. In my view, the trial court was correct in granting the school district’s motion for a directed verdict and in granting Superintendent Geil’s motion for judgment notwithstanding the verdict. This is a case where this court has substituted its outcome-oriented objectives for the district court’s considered findings/conclusions.
I.
The district court was fully aware of the rigid standards governing the grant of a judgment n.o.v., i.e., that the court cannot reweigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. See, Opinion and Order of December 20, 1985, pp. 2-3. When the trial court denied Geil’s motion for a directed verdict, it observed that the evidence favoring Ware was “razor thin.” Thereafter, the trial court concluded that the overwhelming weight of the evidence supported Geil’s contention that the school board terminated Ware for legitimate reasons which had no relationship to the bond issue. There was no inconsistency on the trial court’s part in denying the motion for directed verdict made by defendant Geil even though the court thereafter, based on the same evidence, granted Geil’s motion for judgment notwithstanding the verdict. In Wright and Miller, Federal Practice and Procedure: Civil § 2533, p. 586, it is observed:
*915Even at the close of all the evidence it may be desirable to refrain from directing a verdict though it would be possible to do so. If a verdict is directed and the appellate court holds that the evidence was in fact sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is greatly expedited. If the jury agrees with the court’s appraisal of the evidence, and returns a verdict for the party who moved for a directed verdict, the case is at an end. If the jury brings in a different verdict, the trial court can grant judgment notwithstanding the verdict. Then if the appellate court holds that the the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. For this reason the appellate courts have repeatedly said that it is usually desirable to take a verdict, and then pass on the sufficiency of the evidence on a post-verdict motion, (footnote omitted).
The record simply does not support the proposition that the school board members terminated Ware in order to punish her for her opposition to the bond issue. The district court observed, and I agree, that “[t]he overwhelming weight of the evidence supports ... [the] ... interpretation that Geil’s recommendation was prompted entirely by permissible concerns. Geil, Banks and even Ware testified to conflict in Geil’s and Ware’s relationship predating the bond issue.” Opinion and Order of December 20, 1985, at p. 9. The court pointed to Geil’s testimony that Ware “resisted typing, taking directions,” etc. Id. at 4. Significantly, the court pointed out that Marguerite Banks, who worked both with Geil and Ware, as well as Neil Wheeler, the school principal (who was called as an adverse witness by Ware) confirmed and corroborated Geil’s testimony that the working relationship between Geil and Ware had worsened long before the bond issue developed. Id. Thus, in my view, the district court properly concluded that Ware failed to establish by a preponderance of the evidence that her activity in relation to the bond issue was a substantial or motivating factor in Geil’s recommendation that she be terminated. The district court found/concluded:
Ware and her attorney, O.J. Connell, were present at the board meeting on April 8, 1980. Board members testified that the reasons Geil presented to the Board for his recommendation that Ware be terminated included the strained work atmosphere and Ware’s resistance to Geil’s policy decision. [Specifically, resistance to typing and installation of the mini computers]. Although Ware was given an opportunity to respond, the bond issue was not mentioned by anyone. Board members asked Ware and Geil whether they thought they could work together in the future. Ware responded with a qualified “yes;” Geil answered “no.” The Board voted 4-3 to accept Geil’s recommendation that Ware be discharged. All of the board members who voted to terminate Ware testified at trial that the bond issue did not enter into their decision.
Id. at 6-7.
I agree with the district court’s finding that on the record made, the jurors could not have reasonably inferred that Ware’s opposition to the bond issue was a substantial or motivating factor in either Geil’s recommendation for termination or the board’s 4-3 vote in support thereof.' One of the board members who voted to retain Ware was Dale Remsburg. At trial, Rems-burg testified that he recalled board member Patton mentioning the bond issue as the reason for Ware’s termination. However, Mr. Patton testified that he had no recollection of having made any such remarks to Remsburg. (R., Vol. IY, pp. 155-56). Other than Ware’s own self-serving testimony, Remsburg’s “recollection” is the only evidence connecting the bond issue matter to Ware’s termination. It is less than “razor thin!” Undaunted, the majority has found “evidence” to support Ware’s “claim that even if the board retained its decision-making power, it acted with delib*916erate indifference to Ware’s First Amendment rights in approving her termination.” (Majority Opinion, p. 913) (italizing supplied).
The revised majority opinion, in accord with my previous revised dissent, properly relies on Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) for the standard governing the grant of motions for directed verdict and j.n.o.v. The majority thus recognizes that if the party bearing the burden of proof has presented only a scintilla of evidence (as did plaintiff Ware) in contrast to the compelling evidence presented by the defendants (see district court’s findings/conclusions, Opinion and Order of December 20, 1985, at pp. 4, 6-7, 9), there would not be any evidence “[u]pon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. at 2511. On the other hand, the trial judge must direct a verdict if there can be but one reasonable conclusion as to the verdict. A directed verdict is “[appropriate only if the proof weighs so overwhelmingly in favor of the movant as to permit no other rational conclusion.” Koch v. City of Hutchinson, 814 F.2d 1489, 1495 (10th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988). The trial court applied this standard. See, Opinion and Order of December 20, 1985, p. 9 (the “overwhelming weight of the evidence supports _”).
Plaintiff Ware was legally obligated to prove that her protected speech (opposition to the bond issue) was the substantial or motivating factor for Geil’s recommendation that she be terminated or that Geil’s preferred explanations for her termination were pretextual. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Franklin v. Atkins, 562 F.2d 1188, 1190 (10th Cir.1977). See also EEOC v. Prudential Federal Savings and Loan Association, 763 F.2d 1166 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985). She plainly failed to make the grade. The district court was on solid ground in finding/concluding that plaintiff Ware failed to carry her burden of persuasion.
II.
The majority opinion is in absolute contradiction to the district court’s findings/conclusions relative to the district court’s grant of the school board’s motion for a directed verdict.
The district court, in granting the school board’s motion for directed verdict found/concluded:
The undisputed evidence convincingly demonstrates that the bond issue played no part whatsoever in the Board’s decision to terminate Ware. The bond issue was not raised at the board meeting and the board members testified that the issue was not considered by them. Ware presented no testimony to the contrary.
(R., Yol. I, Doc. 64, p. 11).
The majority disagrees with this “assessment of the record” because (1) Geil’s action in locking Ware out of her office the day after he told her that he was going to recommend her termination shows that the Board delegated to Geil the ultimate authority in the matter, and (2) there is evidence to support Ware’s claim that even if the board had retained its decision-making power, it acted with deliberate indifference to Ware’s First Amendment rights in approving her termination. Both of these “findings” by the majority are based on rank assumptions, speculations and “indications.”
The very vote on the issue of whether to accept Geil’s recommendation that Ware’s contract be terminated, 4-3, speaks louder than words that the board did not “rubber stamp” or routinely approve Geil’s recommendations. Furthermore, the majority apparently discounts the testimony of all of the board members that they retained the power and authority to hire and fire employees of the school district. This evidence was not disputed.
I would affirm the district court.