F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 27 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ORLA LYBROOK,
Plaintiff-Appellant,
v.
THE MEMBERS OF THE
FARMINGTON MUNICIPAL
SCHOOLS BOARD OF EDUCATION,
GENA BAKER, JAKE VALDEZ,
No. 98-2326
GAYLE DEAN, JAMES GIPSON and
GEORGE SHARPE, CANDACE K.
YOUNG, Principal, TOM SULLIVAN,
Superintendent, DR. ANNETTE
MOOREHEAD, Director of Elementary
Education, FLOYD KURLEY, Director of
Personnel, in their official and individual
capacities,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-97-1280-LH/DJS)
Donna L. Dagnall, (Brian A. Thomas with her on the Briefs) Dagnall, Rames & Thomas
LLC, Albuquerque, New Mexico, for the Appellant.
Terrill E. Pierce, (Daniel P. Ulibarri and Elizabeth L. German on the Brief) of Brown and
German, Albuquerque, New Mexico, for the Appellees.
Before KELLY, HOLLOWAY and BRISCOE, Circuit Judges.
HOLLOWAY, Circuit Judge.
Plaintiff/appellant Orla Lybrook, a teacher, brought this action against various
school officials of the Farmington Municipal Schools (“the School”). Ms. Lybrook
alleges that the School (1) retaliated against her because she exercised her right to free
speech under the First Amendment, and (2) denied her procedural due process. The
School moved for dismissal and summary judgment, arguing that it was entitled to
qualified immunity. The district court dismissed the action and all claims with prejudice
and therefore denied the motion for summary judgment as moot. I App. 193-196. This
timely appeal ensued. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I
Ms. Lybrook’s complaint alleges that from March 1984 until May 30, 1997, she
was a teacher with the Farmington Municipal Schools. She avers that she resigned then
due to a constructive discharge. See I App. at 7. She claims to have been active in her
union and to have “acted on behalf of other teachers within the District who had
complaints and grievances against the District.” Id. at 8. In addition when Paula McGee,
another teacher, brought an action against the School, Ms. Lybrook agreed to testify on
her behalf and appeared on her witness list. Ms. McGee’s case against the School settled
before Ms. Lybrook could testify, however. See id.
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On January 24, 1997 Defendant Candace Young, the principal at Ms. Lybrook’s
school, was alleged to have issued a Professional Development Plan for Ms. Lybrook.1 I
App. at 7, 9. That plan required Ms. Lybrook to “[s]trive to create an atmosphere that
will nurture collaboration with all colleagues.” Id. at 9. The plan also required her to
“conduct affairs with a conscious concern for the highest standards of professional
commitment.” Id.
On March 14, 1997, Ms. Lybrook filed a grievance challenging the Professional
Development Plan. See id. at 9. Ms. Young allegedly refused to consider the grievance
and the Executive Director of Personnel for Farmington Municipal Schools, Defendant
Floyd Kurley, informed Ms. Lybrook that her complaint was not a “grievable matter.” Id.
Ms. Lybrook then appealed the decision to the schools’ superintendent, Defendant Tom
Sullivan, who denied the grievance on April 17, 1997. See id. On May 30, 1997, Ms.
Lybrook resigned from her position, allegedly because of what she considered to be the
School’s retaliation and harassment. See, e.g., id. at 7.
On September 29, 1997, Ms. Lybrook filed this action in the federal district court
for the District of New Mexico, alleging that the School violated her rights of free speech
and due process. On April 16, 1998, the School filed a motion to dismiss and a motion
for summary judgment, both asserting qualified immunity as a defense. Appendix at 26,
In her complaint, Ms. Lybrook refers to this document as a “Corrective Action
1
Plan.” However, as is made clear by a review of the record, the document is properly
termed a “Professional Development Plan.”
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83. The district court issued an order granting the School’s motion to dismiss and
denying as moot the motion for summary judgment. Id. at 193-94. Ms. Lybrook then
filed this appeal.
II
This court reviews de novo the district court’s dismissal of an action pursuant to
Fed. R. Civ. P. 12(b)(6). See Pelt v. Utah, 104 F.3d 1534, 1540 (10th Cir. 1996). When
qualified immunity is raised in a Fed. R. Civ. P. 12(b)(6) motion, the plaintiff must carry
the burden of establishing that the defendant violated clearly established law.
Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir. 1997). Thus, the plaintiff must
“identify a clearly established statutory or constitutional right of which a reasonable
person would have known, and then allege facts to show that the defendant’s conduct
violated that right.” Id.
III
The first issue in this appeal is whether the district court erred by dismissing Ms.
Lybrook’s complaint on the ground that the School was entitled to qualified immunity. As
we have held, “[u]nder the doctrine of qualified immunity, government officials
performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established . . . constitutional rights of
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which a reasonable person would have known.” Prager v. LaFaver, 180 F.3d 1185, 1190
(10th Cir. 1999) (citation and internal quotation marks omitted) (alteration in original).
We scrutinize a dismissal on qualified immunity grounds using a two-step process.
First, we examine whether the plaintiff has met its burden of “coming forward with
sufficient facts to show that the defendant’s actions violated a federal constitutional or
statutory right.” Baptiste v. J.C. Penny Co., Inc., 147 F.3d 1252, 1255 (10th Cir. 1998).
Only when the plaintiff has satisfied this initial inquiry do we ask whether the right was
clearly established at the time of the alleged conduct at issue. Id. at 1255 n.6; see also
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to
resolving cases in which the defense of qualified immunity is raised is to determine first
whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it
is only then that a court should ask whether the right allegedly implicated was clearly
established at the time of the events in question.”).
When making the second determination, deciding whether the right was clearly
established at the critical time, we look to see if there was “a Supreme Court or other
Tenth Circuit decision on point, or the clearly established weight of authority from other
circuits must have found the law to be as the plaintiff maintains.” Murrell v. School Dist.
No. 1, Denver, 186 F.3d 1238, 1251 (10th Cir. 1999) (citations and internal quotation
marks omitted); see also Medina v. City and County of Denver, 960 F.2d 1493, 1498
(10th Cir.1992). However, for a right to be “clearly established,” there need not be
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binding precedent on “all fours” with the current case; instead, the unlawfulness must
have been apparent in light of pre-existing precedent. As the Supreme Court held in
Anderson v. Creighton, 483 U.S. 635, 640 (1987):
The right the official is alleged to have violated must have been “clearly
established” in a more particularized, and hence more relevant, sense: The
contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say
that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful; but it is to say that in
the light of pre-existing law the unlawfulness must be apparent.
Thus, to survive the School’s motion to dismiss, Ms. Lybrook must, as an initial
matter, establish a constitutional or statutory violation, and only then will we consider
whether the rule was clearly established at the time in question. In this case, Ms. Lybrook
alleges that the School violated her right under the First Amendment to be free from
retaliation for exercising her right to freedom of speech. We disagree and hold that her
complaint, viewed charitably is insufficient to demonstrate such a violation.
A
A government employer cannot “condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression.”
Connick v. Meyers, 461 U.S. 138, 142 (1983). Thus, it is firmly established that “a public
employer cannot retaliate against an employee for exercising [her] constitutionally
protected right of free speech.” Dill v. City of Edmond, 155 F.3d 1193, 1202 (10th Cir.
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1998).
In determining whether a plaintiff has stated a First Amendment retaliation claim,
we apply a four-part test. First, “we must determine whether the employee’s speech
involves a matter of public concern.” Dill, 155 F.3d at 1201. If that is found to be the
case, “we then balance the employee’s interest in commenting upon matters of public
concern ‘against the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.’” Id. (quoting Pickering v. Board of
Education, 391 U.S. 563, 568 (1968)). Third, if the balance “tips in favor of the
employee, the employee must then show that the speech was a ‘substantial factor or a
motivating factor in the detrimental employment decision.’” Id. (quoting Gardetto v.
Mason, 100 F.3d 803, 811 (10th Cir. 1996)). Fourth, if the plaintiff establishes that
speech was such a factor, “the employer may demonstrate that it would have taken the
same action against the employee even in the absence of the protected speech.” Id.
Ms. Lybrook alleges in her complaint that she exercised her First Amendment right
to speak in three ways: (1) by acting on behalf of union members who filed grievances
against the School; (2) by complaining to supervisors about the Professional Development
Plan; and (3) by being listed as a witness in Paula McGee’s action against the School. I
App. at 8.
The parties vigorously dispute whether Ms. Lybrook’s speech implicates a public
concern, as required by the first prong of the test. We, however, need not resolve this
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question here. Assuming, without deciding, that the speech alleged in Ms. Lybrook’s
complaint does involve public concern, we nonetheless conclude that she has failed to
satisfy the requirement that she was subjected to an adverse or detrimental employment
decision.
B
Ms. Lybrook contends that the Defendant Young’s January 24, 1997 act of placing
her on a Professional Development Plan, which required her to “[s]trive to create an
atmosphere that will nurture collaboration with all colleagues” and to “conduct affairs
with a conscious concern for the highest standards of professional commitment,”
constitutes an “adverse employment action.” She argues that in retaliation for her speech,
the School harassed her “through the mechanism of the [Professional Development
Plan].” I App. at 10. Plaintiff Lybrook’s complaint also avers, id. at 9, that on March 31,
1997 Defendant Young required Plaintiff to begin meeting with her every Monday
morning and told Plaintiff that 4 teachers, unnamed, had complained about Lybrook. We
conclude, however, based on our review of the complaint, that these acts are insufficient
to demonstrate adverse employment action as is required to establish a First Amendment
retaliation violation.
Our most recent decision on point is Schuler v. City of Boulder, 189 F.3d 1304,
1309-10 (10th Cir. 1999). In that opinion we upheld a denial of summary judgment for
the defendant City and supervisors of a recreation center employee. That employee,
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Schuler, had become concerned about whether a janitor was spying on women from a
crawl space above the women’s locker room. One supervisor was told by Schuler about
this problem, and the supervisor called the police. That supervisor instructed Schuler not
to discuss her suspicions with anyone else, including Schuler’s supervisor, Quiller.
Charges were not filed against the janitor, although a police investigation continued.
Schuler expressed concern over Quiller’s objectiveness in handling the investigation
because of Quiller’s personal friendship with the janitor.
Although the janitor was suspended for two weeks without pay, Schuler expressed
dissatisfaction with the handling of the janitor’s conduct in a seven page memorandum.
Schuler also discussed the incident concerning the janitor with other employees of the
center at a farewell party. Following the party, Schuler received a written reprimand and
other allegedly retaliatory actions were taken against Schuler by removing job duties from
Schuler, specifically important payroll functions; by giving Schuler a low score on her
performance evaluation, below that received by the janitor while he was suspended; and
by involuntarily transferring Schuler to another recreation center.
After analyzing Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), and Dill
v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998), we upheld the denial of summary
judgment for the defendant City and supervisors of Schuler. We held that Schuler’s free
speech right under the First Amendment was sufficiently established that qualified
immunity was not available. We noted that Rutan and Dill had made clear that there were
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deprivations less harsh than dismissal which nevertheless violated a public employee’s
rights under the First Amendment.2 Schuler, 189 F.3d at 1309. We were convinced that
the defendants’ alleged conduct in retaliation for Schuler’s protected speech was
actionable and that the qualified immunity defense had been properly denied.
In the instant case, we are persuaded that the personnel action taken against Ms.
Lybrook did not rise to the level of an adverse personnel action such as that found to exist
in Schuler. Although Schuler held that employers’ acts short of dismissal may be
actionable as First Amendment violations, we have never ruled that all such acts, no
2
In Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990), the Supreme
Court rejected the Seventh Circuit’s position that the First Amendment is only violated in
cases where employment decisions are the “substantial equivalent of a dismissal.” This is
because “there are deprivations less harsh than dismissal that nevertheless press state
employees and applicants to conform their beliefs and associations to some state-selected
orthodoxy.” Id.
Although the Court stated that the First Amendment protects an employee from
“an act of retaliation as trivial as failing to hold a birthday party for a public employee,”
id. at 76, n.8, this has been interpreted as non-controlling dicta. See, e.g., Acosta-Orozco
v. Rodriguez de Rivera, 132 F.3d 97, 101 n.5 (1st Cir. 1997) (holding that Rutan’s
footnote 8 is “colorful rhetoric” that does not foreclose rules that allow public employers
to take actions which fall short of demotions or transfers); Pierce v. Texas Dep’t of
Criminal Justice, Institutional Div., 37 F.3d 1146, 1150 n.1 (5th Cir. 1994) (“We choose
not to read the Supreme Court’s dicta literally; rather, we apply the main analysis of
Rutan to retaliation claims and require more than a trivial act to establish constitutional
harm.”); see also Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (holding that it
“would trivialize the First Amendment to hold that harassment for exercising the right of
free speech was always actionable no matter how unlikely to deter a person of ordinary
firmness from that exercise. . .”) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.
1982)). But see Tao v. Freeh, 27 F.3d 634, 639 (D.C. Cir. 1994) (holding that “the First
Amendment protects government employees from even an act as trivial as failing to hold
a birthday party for a public employee . . . when intended to punish her for exercising her
free speech rights”) (internal quotation omitted and alteration in original).
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matter how trivial, are sufficient to support a retaliation claim. In other words, Schuler
left open the possibility that “there may be some minor adverse actions that would not
constitute First Amendment violations.” Colson v. Grohman, 174 F.3d 498, 511 (5th Cir.
1999); see also Suppan, 203 F.3d at 235.
We believe that this is the case here. The only retaliatory actions that Ms. Lybrook
has alleged in her complaint are that Defendant Young on January 24, 1997 issued a
Corrective Action Plan [Professional Development Plan] which required Plaintiff to
“[s]trive to create an atmosphere that will nurture collaboration with all colleagues” and
to “conduct affairs with a conscious concern for the highest standards of professional
commitment,” Complaint, ¶17, I App. at 9, and that on March 31, 1997 “Defendant
Young required Plaintiff to begin meeting with her every Monday morning and advised
Plaintiff that four teachers had complained about Plaintiff. Defendant Young again
refused to identify the accusers or the nature of the problems alleged.” Complaint, ¶18, I
App. at 9.3
Unlike in Schuler, where our review of the record revealed that the defendant-
3
In the Appellant’s Brief in Chief at 24 it is stated that: “As for the adverse
employment action, both parties have agreed that the adverse employment action in
question is the ‘PDP’ given to the Plaintiff by Defendant Young.” In light of the
additional allegation about the Monday morning meetings required of Plaintiff Lybrook,
noted above, we will consider the actions of Defendant Young both in connection with
the PDP and the Monday meetings. Nevertheless we are satisfied that even taken
together, the showing in Plaintiff’s allegations in her complaint fails to demonstrate
adverse personnel actions cognizable as a First Amendment violation.
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employer took serious actions against its employee, albeit ones falling short of full
termination (removing important job responsibilities from the plaintiff, issuing a formal
written reprimand that referred to her speech, giving a low score on her performance
evaluation, and involuntarily transferring her to a different facility) here our review of
Ms. Lybrook’s complaint reveals allegations that are manifestly less grievous in nature.
Thus, while the Professional Development Plan and the Monday morning meetings may
have been unwelcomed to Plaintiff Lybrook, we conclude that they are of insufficient
gravity to premise a First Amendment violation.
IV
Ms. Lybrook argues that the district court erred by dismissing her procedural due
process claim. I App. at 11. We disagree. A procedural due process claim must be based
on a showing that the state deprived the plaintiff of a protected property or liberty interest.
Workman v. Jordan, 32 F.3d 475, 479-80 (10th Cir. 1994). Review of Ms. Lybrook’s
complaint reveals no such showing; the complaint neither shows that the School deprived
her of an interest in continued employment, nor that it damaged her reputation through
stigmatization. Id. Consequently, we find no error in the district court’s dismissal of her
procedural due process claim.
V
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Ms. Lybrook argues that the parties attached documents to the Fed. R. Civ. P.
12(b)(6) moving papers and therefore the district court erred by not converting the Fed. R.
Civ. P. 12(b)(6) motion into a summary judgment motion. See Appellant’s Brief in Chief
33-34. According to Ms. Lybrook, the error warrants reversal because the district court
referred to those documents during the hearing on the motion to dismiss. See id. at 34,
36-37. Ms. Lybrook also argues that the district court abused its discretion by dismissing
the action with prejudice since in her estimation this court’s precedent dictates that when
a defendant asserts a qualified immunity defense, dismissal without prejudice is ordinarily
warranted. See id. at 34-35 (citing Breidenbach, 126 F.3d at 1293).
We review the district court’s procedural rulings to determine if the district court
abused its discretion. See, e.g., Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1377
(10th Cir. 1996); see also United States v. Pina, 974 F.2d 1241, 1243 (10th Cir. 1992)
(“We review the dismissal with prejudice under an abuse of discretion standard.”).
We do not agree with Ms. Lybrook’s assessment. Contrary to her assertion that the
district court abused its discretion by failing to convert the Fed. R. Civ. P. 12(b)(6)
motion into a summary judgment motion when the parties attached documents to their
motions, district courts have discretion to accept or reject attached documents. Lowe v.
Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (“[C]ourts have broad discretion
in determining whether or not to accept materials beyond the pleadings.”); see also Prager
v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999) (“Here, the district court acted well
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within its discretion in declining to consider the documents attached to Mr. LaFaver's
motion to dismiss.”). Therefore, the mere fact that the parties provided documents to the
district court did not require the district court to rely on those documents.
Ms. Lybrook argues, however, that the district court referenced the documents
during the hearing on the motion to dismiss. See Appellant’s Brief in Chief at 37.
Although she is correct that the district court did read those documents, see II App. at
215-16 (citing Defendants’ affidavit), she has nonetheless failed to demonstrate that the
district court relied on them when ruling on the motion. Lowe, 143 F.3d at 1381
(“Defendants have not demonstrated that the district court relied on matters outside of the
pleadings when ruling on the motion to dismiss.”). In the circumstances, we cannot say
that the district court abused its discretion.
Nor is Ms. Lybrook aided by reliance on our decision in Breidenbach. Contrary to
her suggestion, we did not there hold that dismissal with prejudice may not be warranted
when a defendant asserts a qualified immunity defense. See, e.g., Lutz v. Weld County
School Dist. No. 6, 784 F.2d 340, 342 (10th Cir. 1986) (“The Harlow Court clearly
intended to create limits for qualified immunity that would promote a decision about
availability of the defense in a very early stage of most lawsuits.”); see also Migneault v.
Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (“Qualified immunity is an immunity from
suit rather than a mere defense to liability. The doctrine allows courts to expeditiously
weed out suits against government officials which fail to establish a violation of a clearly
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established right prior to imposing the burdens of discovery and litigation.”) (citation and
internal quotation marks omitted). In sum, we are not persuaded that Plaintiff Lybrook
has shown an abuse of discretion in the dismissal with prejudice, particularly in light of
the fact that “both parties have agreed that the adverse employment action in question is
the ‘PDP’ given to the Plaintiff by Defendant Young.” Appellant’s Brief in Chief at 24.
Accordingly, the district court’s dismissal of the action with prejudice is
AFFIRMED.
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