Reinhardt v. ALBUQUERQUE PUBLIC SCHOOLS BD.

FILED
United States Court of Appeals
Tenth Circuit

February 16, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANET REINHARDT,

Plaintiff - Appellant,
No. 09-2005
v.

ALBUQUERQUE PUBLIC SCHOOLS
BOARD OF EDUCATION; LINDA
DUNSTAN, in her official and
personal capacity; JANICE
QUINTANA, in her official and
personal capacity; ISABEL
TRUJILLO, in her official and
personal capacity,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 07-CV-00563)

Gail Stewart (and Laurel Nesbitt of Steven Granberg, Attorney at Law, on the
briefs), Albuquerque, New Mexico, for Plaintiff - Appellant.

Alex Walker of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New
Mexico, for Defendants - Appellees.

Before TACHA, HOLLOWAY, and KELLY, Circuit Judges.

KELLY, Circuit Judge.
 Plaintiff-Appellant Janet Reinhardt appeals from the grant of summary

judgment on both her Rehabilitation Act and First Amendment retaliation

claims. On appeal, Ms. Reinhardt makes three major claims which, she argues,

require reversal of the district court’s orders. Ms. Reinhardt contends that: (1)

the district court incorrectly ruled that her protected speech—filing a state level

complaint—was made pursuant to her official job duties rather than as a private

citizen; (2) the district court erred in finding that she had not shown a

materially adverse employment action; and (3) the district court erred in

concluding that Defendant met its burden in coming forth with a legitimate,

nondiscriminatory reason for its action or that Ms. Reinhardt had not met her

burden in establishing a genuine issue as to pretext. Our jurisdiction arises

under 28 U.S.C. § 1291, and we reverse.

Background

Ms. Reinhardt has been employed as a speech-language pathologist

(SLP) by Defendant-Appellee Albuquerque Public Schools Board of Education

(APS) since 1996. Aplt. App. 85. During the time relevant to this action, she

worked full-time at Rio Grande High School. Aplt. App. 85. SLPs with a full-

time caseload receive a 1.0 contract (“standard contract”). APS grants a 0.2

contract increase if an SLP’s caseload supports such an increase (“extended

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contract”).

Starting in 1998, Ms. Reinhardt regularly complained to APS

administrators that she was not receiving accurate and timely caseload lists of

students. Aplt. App. 153, 170 (Oct. 13, 2004 letter), 199-200. She believed the

inaccurate lists were leading to qualified special education students not

receiving speech and language services. Aplt. App. 199-200. Inaccurate lists

also had the potential to affect SLPs’ contract status and salaries. Aplt. App.

202-203. As she was unable to get APS to respond to her repeated complaints

about the inaccurate caseload lists and corresponding deprivation of services to

qualified students, Ms. Reinhardt consulted an attorney and filed an Individuals

with Disabilities Education Act (IDEA) complaint with the New Mexico Public

Education Department (NMPED) against APS on October 3, 2005 (“state

complaint”). Aplt. App. 100-07, 204. The state conducted an investigation and

ordered APS to take corrective action. Aplt. App. 106-07.

In addition to complaining about APS’s failure to deliver services to

special education students at Rio Grande High and filing the state complaint,

Ms. Reinhardt also advocated for the rights of a particular high school student

(“John Doe”). During the 2000-2001 school year, Ms. Reinhardt began

advocating for him to receive a neuropsychological evaluation. Aplt. App. 199.

He did not receive the evaluation until summer of 2003. Aplt. App. 18. After

the evaluation, she advocated for him to receive specialized reading instruction

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during the 2003-2004 school year. Aplt. App. 148, 199, 203.

Before the 2004-2005 school year, Ms. Reinhardt previously had

received extended contracts. Aplt. App. 150. On August 17, 2004, Ms.

Reinhardt was again granted an extended contract for the upcoming school year

“based on the belief that she would be serving more than a full caseload.”

Aplt. App. 160, 304. On August 24, 2004, the assistant principal at Rio Grande

High assigned Ms. Reinhardt to work with only 9th grade students for the 2004-

2005 school year. Aplt. App. 163, 200. The remainder of the students were

divided between the other two SLPs at Rio Grande High. Aplt. App. 163. Ms.

Reinhardt’s initial caseload list comprised only six students, well below a full-

time caseload. Aplt. App. 170, 282. Ms. Reinhardt believed that 25 to 30 9th

grade students should have been receiving services. Aplt. App. 201. On

September 28, 2004, APS reduced her to a standard contract because her

caseload did not support an extended contract. Aplt. App. 168, 305. Ms.

Reinhardt requested a contract increase based on her caseload on January 18,

2006 and was denied. Aplt. App. 171.

In June 2007, Ms. Reinhardt brought suit against APS for, inter alia, First

Amendment retaliation pursuant to 42 U.S.C. § 1983 and for retaliation in

violation of § 504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794, based on

her advocacy for the rights of disabled students. The district court granted

APS’s motion for summary judgment on Ms. Reinhardt’s § 504 retaliation

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claim. Aplt. App. 333-34. The court concluded that she had not met her

burden in establishing a prima facie case of retaliation because she failed to

show that APS subjected her to any materially adverse action. Aplt. App. 333.

The court further found that even if Ms. Reinhardt had established a prima

facie case, APS provided legitimate, non-discriminatory reasons for the actions

at issue, and Ms. Reinhardt failed to demonstrate that APS’s reasons were

pretextual. Aplt. App. 333. The district court also granted APS summary

judgment on Ms. Reinhardt’s First Amendment retaliation claim. Aplt. App.

239. Applying Garcetti v. Ceballos, 547 U.S. 410, 421 (2005), the court held

that Plaintiff’s communications were made pursuant to her official duties and

were therefore not protected by the First Amendment. Aplt. App. 238-39.

Discussion

We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court. See Jarvis v. Potter, 500 F.3d

1113, 1120 (10th Cir. 2007). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

“Unsupported conclusory allegations do not create a genuine issue of fact.”

L&M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir.

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2000). With respect to the § 504 claim, we review the establishment of a prima

facie case of retaliation de novo. In First Amendment cases, 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.” Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist.

No. 22, 473 F.3d 1271, 1276 (10th Cir. 2007) (internal quotation marks and

citations omitted).

A. Section 504 Retaliation Claim

The standard for retaliation claims under the Rehabilitation Act is the

same as the standard for retaliation claims under the Americans with

Disabilities Act (ADA). Jarvis, 500 F.3d at 1125. In the absence of direct

evidence, Ms. Reinhardt may rely upon the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). She can

establish a prima facie case by showing: (1) that she engaged in protected

activity; (2) that she suffered a materially adverse action by APS either after or

contemporaneous with her protected activity; and (3) a causal connection

between the protected activity and the adverse action. Proctor v. UPS, 502

F.3d 1200, 1208 (10th Cir. 2007) (applying Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53 (2006), in the context of ADA retaliation claims); Jarvis,

500 F.3d at 1125. Thereafter, APS may produce evidence of a legitimate,

nonretaliatory reason for the adverse action. Jarvis, 500 F.3d at 1125 (internal

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citation omitted). If APS does so, the burden of production shifts back to Ms.

Reinhardt to show that the proffered reason is pretextual. Id.

1. Protected Activity

At the summary judgment stage, Ms. Reinhardt presented three types of

protected activity: (1) her advocacy for John Doe; (2) her longstanding

complaints about APS’s failure to deliver services to special education students

at Rio Grande High by failing to provide SLPs with timely and accurate

caseload lists; and (3) filing the state complaint. Aplt. App. 187-88. APS did

not dispute that Ms. Reinhardt engaged in protected activity when she

advocated for John Doe beginning in 2001, Aplt. App. 125, but APS argued

that Plaintiff’s internal complaints about inaccurate caseload lists and her state

complaint relate to her First Amendment retaliation claim and not her § 504

claim. Aplt. App. 207-08. The district court recognized the factual dispute

between the parties regarding the time frame of the protected activity, but it did

not resolve the issue, nor did it address which activities were protected. Aplt.

App. 333. APS does not further address the issue of Ms. Reinhardt’s protected

activities in its brief.

All three forms of Ms. Reinhardt’s advocacy on behalf of disabled

students constitute protected activity under the Rehabilitation Act. Section 504

and the ADA prohibit discrimination against any individual “because such

individual has opposed any act or practice made unlawful by this Act or

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because such individual made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this Act.” 42

U.S.C. § 12203(a) (incorporated by reference by 29 U.S.C. § 794(d)). The

school is required to provide a “free appropriate public education” by providing

education and related services that “are designed meet individual educational

needs of handicapped persons as adequately as the needs of nonhandicapped

persons.” 34 C.F.R. § 104.33(a) & (b)(1) (2003); Sweet v. Tigard-Tualatin

Sch. Dist., 124 F. App’x 482, 485 n.1 (9th Cir. 2005) (holding that a public

school psychologist’s complaints regarding potential IDEA violations were

protected from retaliation under § 504); see also Barker v. Riverside County

Office of Educ., 584 F.3d 821, 824-26 (9th Cir. 2009) (holding that a teacher

has standing to sue the County Office of Education for retaliation under § 504

where she alleged that she was constructively discharged after advocating for

the rights of disabled students). The Third Circuit has noted that protected

activity must go beyond merely assisting special education students but that

“affirmative action in advocating for, or protesting discrimination related to,

unlawful conduct by others” falls within protected activity. Montanye v.

Wissahickon Sch. Dist., 218 F. App’x 126, 131 (3rd Cir. 2007). We agree with

the Ninth and Third Circuits that attempting to protect the rights of special

education students constitutes protected activity under the Rehabilitation Act.

It is apparent from the undisputed facts that Ms. Reinhardt engaged in protected

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activity for the purposes of § 504 through at least October 3, 2005 when she

filed the state complaint.

2. Materially Adverse Action

On appeal, Ms. Reinhardt limits her argument to four actions that were

briefed below to establish a materially adverse action: (1) the reduction of her

salary in September 2004 when APS reduced her extended contract to a

standard contract; (2) APS’s refusal to increase her standard contract to an

extended contract despite her requests through March 16, 2006; (3) APS

assigning her only 9th grade students beginning in the 2004-2005 school year;

and (4) APS telling NMPED in 2005 that a police report had been filed against

her in 2004. Aplt. Br. 29-30; Aplee. Br. 23.

Ms. Reinhardt argues that any loss of salary is a materially adverse job

action. Aplt. Br. 30. APS counters that Ms. Reinhardt has never explained

why being assigned to serve all of the 9th grade students was materially

adverse. Aplee. Br. 26. It notes that Ms. Reinhardt’s reduction to a standard

contract was not materially adverse because she was still employed under a

full-time contract with the same benefits and was not entitled to an extended

contract. Aplee. Br. 31. Ms. Reinhardt argues that being assigned to serve

only 9th grade students, which reduced her workload, and the resulting

reduction of her extended contract to a standard contract cost her the salary that

she was accustomed to receiving under her usual extended contract. Aplt. App.

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182. She also alleges that APS deliberately maintained inaccurate caseload

lists that artificially reduced her workload to reduce her salary and refused to

extended her contract once her caseload increased. Aplt. App. 182-85.

The Supreme Court has held that an “adverse action” for purposes of a

retaliation under Title VII of the Civil Rights Act of 1964, “is not limited to

discriminatory actions that affect the terms and conditions of employment.”

Burlington Northern, 548 U.S. at 64. To establish an adverse action, “a

plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. at 68 (internal quotation marks and citation omitted). We

have applied this same standard to retaliation claims under the ADA, and ADA

standards apply to § 504 claims. See, e.g., Jones v. U.P.S., Inc., 502 F.3d

1176, 1193 (10th Cir. 2007) (ADA claims); Jarvis, 500 F.3d at 1125 (Section

504 claims). We construe the phrase “adverse employment action” liberally

and do not limit it to “monetary losses in the form of wages or benefits.”

Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004) (quotation marks

and citation omitted). Acts that carry “a significant risk of humiliation, damage

to reputation, and a concomitant harm to future employment prospects” may be

considered adverse actions, although “‘a mere inconvenience or an alteration of

job responsibilities’ will not suffice.” Id. (citation omitted).

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 Contrary to APS’s assertion, being assigned to serve only 9th grade

students was not merely “an alteration in job responsibilities.” Aplee. Br. 31.

The changed assignment directly led to a reduction in compensation because

Ms. Reinhardt no longer qualified for an extended contract. When her caseload

increased, APS did not grant her an extended contract, and this also affected

her salary. In fact, because Ms. Reinhardt’s original 2004-2005 caseload list

only included six students, Rio Grande High’s assistant principal acknowledged

that it “would . . . be reasonable that [Ms. Reinhardt] would be fearful for her

job.” Aplt. App. 295. This is not to say that a denial of overtime opportunity

is always a materially adverse action, 1 but under these facts, we think a

reasonable employee might have been dissuaded from advocating for special

education students knowing that her workload and salary would be reduced.

Cf. Bergeron v. Cabral, 560 F.3d 1, 9-10 (1st Cir. 2009) (denial of overtime

opportunities may constitute an adverse employment action).

As for Ms. Reinhardt’s allegation that APS falsely told NMPED in 2005

that a police report had been filed against Plaintiff in 2004, such an action

could be materially adverse because it could damage her reputation and harm

future employment prospects. See Annett, 371 F.3d at 1239; Berry v.

Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) (false report).

1
We in no way imply that an employer is required to provide overtime
opportunities lacking any work or business justification.

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However, the record does not support that APS told NMPED that it had filed a

police report against Plaintiff. Ms. Reinhardt states that she has “never seen

the police report which was allegedly made against me in 2004; it was

mentioned in two or three statements that were sent to the New Mexico Public

Education Department in response to the state complaint I filed in the fall of

2005.” Aplt. App. 201. Neither APS’s NMPED responses that allegedly

mention the police report nor the actual police report appear in the record. See

Fed. R. Civ. P. 56(e).

3. Causal Connection

We are persuaded that Ms. Reinhardt has shown sufficient facts to

establish a causal connection between her advocacy for disabled students and

the adverse employment actions taken against her. Causal connection may be

established by producing “evidence of circumstances that justify an inference

of retaliatory motive, such as protected conduct closely followed by adverse

action.” Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir.

2006) (quotation marks and citation omitted). Ms. Reinhardt continuously

complained about inaccurate caseload lists, and it is undisputed that she

advocated for John Doe through the 2003-2004 school year. She was assigned

to teach only 9th grade students on August 24, 2004, and on September 28,

2004, APS reduced her to a standard contract. Given the normal summer break

in the school year (May-August), the adverse actions closely followed Ms.

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Reinhardt’s protected activity as they occurred at the beginning of the next

school term. And while the denial of her January 18, 2006 request for an

extended contract based on her increased caseload occurred well after her

advocacy for John Doe, APS’s refusal may be part of the original pay reduction

action and occurred shortly after Ms. Reinhardt filed the state complaint in

October 2005.

4. APS’s Legitimate, Nondiscriminatory Reason for the Adverse
Employment Action and Ms. Reinhardt’s Showing of Pretext

To establish a genuine issue of material fact as to pretext, Ms. Reinhardt

must demonstrate that APS’s “proffered non-discriminatory reason is unworthy

of belief.” Pinkerton v. Colo. Dept. of Transp., 563 F.3d 1052, 1065 (10th Cir.

2009) (internal quotation marks and citations omitted). Ms. Reinhardt can meet

this standard by producing evidence of “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally

find them unworthy of credence and hence infer that the employer did not act

for the asserted non-discriminatory reasons.” Id. (internal quotation marks and

citations omitted). If a plaintiff advances evidence upon which a factfinder

could conclude that the defendant’s allegedly nondiscriminatory reasons for the

employment decisions are pretextual, the court should deny summary judgment.

APS states that it assigned Ms. Reinhardt only 9th grade students for the

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2004-2005 school year because she had experience transitioning middle school

students to high school through her work during the previous school year.

Aplee. Br. 28; Aplt. App. 163. Ms. Reinhardt notes that at least one of the

other two SLPs at Rio Grande High had also previously worked with 9th grade

students. Aplt. App. 153. There is also no explanation in the record why Ms.

Reinhardt could not be assigned other students in addition to the 9th graders.

Being assigned to serve only 9th grade students resulted in such a low original

caseload that it “would . . . be reasonable that [Ms. Reinhardt] would be fearful

for her job.” Aplt. App. 295.

As for reducing Ms. Reinhardt’s pay in September 2004, and refusing to

extend her contract in January 2006, APS argues that it was unnecessary to give

her an extended contract because her schedule did not warrant one. Aplt. App.

160, 165. However, Ms. Reinhardt argues that APS deliberately maintained

inaccurate caseload lists that artificially reduced her workload to reduce her

salary. Aplt. App. 182-85. The state investigation concluded that APS was

maintaining inaccurate lists, which resulted in qualified special education

students not obtaining services. Aplt. App. 204. Furthermore, there is a factual

dispute as to how APS actually calculates “extended contracts” and whether

Ms. Reinhardt qualified for such a contract during 2004-2006. Aplt. App. 285.

APS has stated that an SLP must have 48 students to qualify for an extended

contract. Aplt. App. 325. At other times APS has said 35 to 40 students is a

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full-time caseload. Aplt. App. 315. Yet at other times, APS maintains that

number of students is just one factor in determining caseload because some

students require more intensive services. Aplt. App. 312. While APS has

provided data about the hourly pay rate for SLPs, Aplt. App. 285, it has

provided no information about how SLP caseloads or salaries are determined at

Rio Grande High. Without expressing any opinion on the merits, we think Ms.

Reinhardt has offered sufficient evidence of pretext to withstand summary

judgment on her § 504 retaliation claim.

B. First Amendment Retaliation Claim

In determining whether APS impermissibly retaliated against Ms.

Reinhardt in violation of her First Amendment rights, we apply the test from

Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and Connick v.

Myers, 461 U.S. 138, 147 (1983). Deschenie, 473 F.3d at 1276. Our inquiry in

this case is limited to whether Ms. Reinhardt spoke as a citizen or as a public

employee. We express no opinion on whether Ms. Reinhardt can meet the

other elements of a claim for protected speech, including whether the speech

was on a matter of public concern.

Garcetti v. Ceballos sets the boundaries of “protected” employee speech,

and the parties agree that this is the controlling law. Aplt. App. 237. Garcetti

recognized that employee speech made pursuant to the employee’s professional

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duties is not afforded First Amendment protection. 547 U.S. at 421. We have

noted that “[t]he question under Garcetti is not whether the speech was made

during the employee’s work hours, or whether it concerned the subject matter

of his employment.” Thomas v. City of Blanchard, 548 F.3d 1317, 1323 (10th

Cir. 2008). The key is “whether the speech was made pursuant to the

employee’s job duties or, in other words, whether the speech was

commissioned by the employer.” Id. (internal quotation marks and citation

omitted). Rather than defining a comprehensive framework for defining the

scope of an employee’s duties, the Supreme Court emphasized that the inquiry

is “a practical one,” noting that “formal job descriptions often bear little

resemblance to the duties an employee actually is expected to perform.”

Garcetti, 547 U.S. at 424-25. Post Garcetti, this court has generally identified

two factors that suggest an employee was speaking as a private citizen rather

than pursuant to her job responsibilities: (1) the employee’s job responsibilities

did not relate to reporting wrongdoing and (2) the employee went outside the

chain of command when reporting the wrongdoing. See Thomas, 548 F.3d at

1324-25; Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1204-

05 (10th Cir. 2007); Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323,

1330-33 (10th Cir. 2007). 2 Ms. Reinhardt’s speech—filing the state

2
For a review of circuit cases post-Garcetti, see Robert J. Tepper & Craig
G. White, Speak No Evil: Academic Freedom and the Application of Garcetti v.

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complaint—satisfies both of these factors.

In Brammer-Hoelter, we indicated that “speech may be made pursuant to

an employee’s official duties even if it deals with activities that the employee is

not expressly required to perform.” 492 F.3d at 1203. Thus the fact that it was

not expressly Ms. Reinhardt’s duty to report IDEA violations to NMPED is not

dispositive on whether she was acting “pursuant” to her duties. While we have

held that if speech “reasonably contributes to or facilitates the employee’s

performance of the official duty, the speech is made pursuant to the employee’s

official duties,” id., “it would be going too far to hold that every time a public

employee discovers alleged wrongdoing related to his job and brings it to the

attention of law enforcement or other outside parties, the speech is

unprotected,” Thomas, 548 F.3d at 1324. After all, “[e]mployees who make

public statements outside the course of performing their official duties retain

some possibility of First Amendment protection because that is the kind of

activity engaged in by citizens who do not work for the government.” Garcetti,

547 U.S. at 423.

Ms. Reinhardt was not hired to ensure IDEA compliance at Albuquerque

public schools. She was hired to provide speech and language services to

special education students. Ms. Reinhardt’s consulting an attorney and filing

Ceballos to Public University Faculty, 59 Cath. U.L. Rev. 125, 168 & n.284-85
(2009).

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the state complaint went well beyond her official responsibilities. APS argues

that “involving an attorney in the process does not somehow transform

otherwise unprotected speech into protected speech.” Aplee. Br. 16. While

APS is correct that attorney involvement is not dispositive, involving counsel

under these facts suggests that Ms. Reinhardt was acting beyond her job duties.

We discussed the line between “official” and “unofficial” duties in

Casey, 473 F.3d at 1323. Ms. Casey, the Chief Executive Officer of a Head

Start program in New Mexico, discovered that the school board had been

violating the Open Meetings Act. Id. at 1326. After her warnings were ignored

by the Board, she filed a complaint with the New Mexico Attorney General’s

office. Id. We held that Ms. Casey was not acting within her job duties when

she reported the Board’s alleged violation of the Act to the New Mexico

Attorney General. Id. at 1332. We distinguished the complaint to the attorney

general from an incident where Ms. Casey ordered a subordinate to report the

Board’s noncompliance to federal Head Start officials. Id. at 1329. Because

the Board had committed the Head Start program to Ms. Casey’s care, and she

had independent responsibilities to the federal government to report fraud, we

held that reporting the noncompliance to federal authorities was part of her job

duties. Id. at 1329-32.

We think Ms. Reinhardt’s decision to file the state complaint is akin to

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the claims we allowed to proceed in Casey and Thomas. Ms. Reinhardt’s

repeated attempts to use internal mechanisms to remedy the problem of

inaccurate caseload lists proved futile, and she took her concerns beyond that

realm. Likewise, when both Mr. Thomas and Ms. Casey went beyond their

supervisors and reported to someone outside the chain of command about

matters that were not committed to their care, we found that such speech was

protected by the First Amendment. Thomas, 548 F.3d at 1324-25; Casey, 473

F.3d at 1332-33. Thus, when Ms. Reinhardt went beyond complaining to

administrators at Rio Grande High and filed the IDEA state complaint with

NMPED—an agency outside her direct chain of command—her speech was not

pursuant to official duties, but rather was the speech of a private citizen.

Thomas, 548 F.3d at 1325.

Following Casey and Thomas, we must also consider whether Ms.

Reinhardt had an underlying legal obligation to report APS’s IDEA violations.

In Casey, the plaintiff had an obligation under federal statute to report fraud.

473 F.3d at 1330. We distinguished Ms. Casey’s statutorily required duties

from Mr. Thomas’s case. Mr. Thomas believed he had an obligation to report

wrongdoing, and the district court relied on this ground in granting summary

judgment for the defendants. Thomas, 548 F.3d at 1325. Reversing, we noted

Mr. Thomas was employed by the city, not by the state—the entity to which he

reported the wrongdoing. Also, unlike Ms. Casey, “[h]e was not given

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‘primary responsibility’ for [reporting]. More importantly, perhaps, it cannot

be the case that a criminal liability statute aimed at every public official should

somehow become part of every public official’s job description.” Id. at 1326.

We concluded that such a reading “would effectively make the obligation to

report and seek the prosecution of fraud part of every employee’s job.” Id.

Similarly, Ms. Reinhardt felt that she had a duty to report the denial of services

to special education students as part of her professional obligations, and the

district court found this to be conclusive that Ms. Reinhardt was speaking as an

employee and not as a private citizen. Aplt. App. 238. APS argues that Ms.

Reinhardt had a duty imposed by New Mexico statute that all licensed school

employees “enforce all laws and rules applicable to his public school and

school district” and “furnish reports as required.” N.M. Stat. § 22-10A-3;

Aplee. Br. 13. APS also points to NMPED’s Code of Ethical Responsibility as

a source of legal obligation. Aplee. Br. 13; N.M.A.C. §6.60.9.8(B)(4). Ms.

Reinhardt repeatedly complained to administrators at Rio Grande High about

the inaccurate caseload lists. She also used the internal grievance procedures.

Aplt. App. 204. These acts probably fulfilled her obligations under the state

statute. To go beyond this, and to consult an attorney to prepare and file an

IDEA complaint with NMPED, was beyond her professional responsibilities as

an SLP.

Exercising de novo review of the legal question of whether Ms.

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Reinhardt’s speech was made pursuant to her official duties, we conclude that it

was not. Because APS’s motion for summary judgment and the district court’s

order was limited to this question, Aplt. App. 76-77, 237-39, we do not

consider whether her speech was on a matter of public concern, whether it was

a motivating factor in the adverse actions taken against her, and whether APS’s

interest in regulating her speech was greater than Ms. Reinhardt’s interest in

making it. See, e.g., Deschenie, 473 F.3d at 1276; see also Davis v. McKinney,

518 F.3d 304, 316-17 (5th Cir. 2008) (remanding for a determination of

whether statements made as a citizen raise matters of public concern).

REVERSED.

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