Brammer-Hoelter v. Twin Peaks Charter Academy

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

JODY BRAM M ER-HOELTER;
LA URA KILD UFF; M ELISSA
PER RY ; A M Y SU LZB AC H;
SHELLEY CREW S; BONNIE No. 06-1186
G O U LD ,

Plaintiffs - Appellants,

v.

TW IN PEAKS CH AR TER
AC AD EM Y; ST. VR AIN V ALLEY
SCHOOL DISTRICT NO. RE-1J;
DO RO THY M AR LATT,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 99-K -1481)

John R. Olsen, Olsen & Brown, L.L.C., Niwot, Colorado, for Plaintiffs -
Appellants.

Patrick B. M ooney (and M . Brent Case, Semple, M iller, M ooney & Farrington,
P.C., with him on the briefs), Denver, Colorado, for Defendants - Appellees.

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

KELLY, Circuit Judge.
 Plaintiffs appeal from the district court’s opinion and order granting a

motion for summary judgment filed by Defendants Twin Peaks Charter Academy

(“the Academy”) and Dr. Dorothy M arlatt and its related entry of judgment for all

Defendants on all claims. Plaintiffs are former teachers of the Academy.

Plaintiffs filed suit under 42 U.S.C. § 1983 asserting that Defendants violated

their rights under the First, Fifth, and Fourteenth Amendments to the United

States Constitution. Specifically, Plaintiffs alleged that Defendants retaliated

against them for exercising their freedom of speech and freedom of association

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

of association, and deprived them of procedural due process. Plaintiffs also

asserted pendent claims for breach of contract and promissory estoppel under

Colorado law. In its opinion and order, the district court discussed the freedom of

speech retaliation claim, the due process claim, and the pendent state law claims

for breach of contract and promissory estoppel. It then entered a related judgment

in favor of all Defendants on all claims. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm in part, reverse in part, and remand.

Background

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

chartered by, and operates within the boundaries of, the St. Vrain Valley School

District (“the District”). Dr. Dorothy M arlatt was the principal of the Academy

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when Plaintiffs w ere employed there as teachers. The events giving rise to this

case occurred from the fall of 1998 to the spring of 1999 and ultimately

culminated in Plaintiffs’ resignations. 1

The A cademy first opened its doors in the fall of 1997. Plaintiffs were

employed as teachers pursuant to written contracts with the Academy. The

Plaintiffs allege that they were told the Academy “was founded upon, and would

operate pursuant to, open discussions and communications, including among

teachers and parents, regarding school activities and functions.” Aplt. App. at

202. Plaintiffs were also informed of the Academy’s grievance procedure, which

stated that “[t]he Board of D irectors, Administrator, and instructional and support

staff . . . welcome constructive criticism and input motivated by a sincere desire

to enhance the A cademy’s educational program, improve its working conditions,

or provide additional opportunities for parental involvement.” Id. at 321.

Plaintiffs received satisfactory performance reviews in their 1997-98 school

year evaluations and each accepted a renewed contract for the 1998-99 school

year. By the fall of 1998, however, Plaintiffs developed a number of concerns or

grievances about the operation, management, and mission of the Academy. They

began to meet off-campus and after hours at restaurants, in each others’ homes,

and at least once at a church to discuss these concerns. In response, Dr. M arlatt

1
As discussed infra, the parties dispute w hether Plaintiffs voluntarily
resigned, were constructively discharged, or w ere fired.

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issued a series of directives indicating Plaintiffs were not to discuss Academy

matters outside of work with any person, including each other, ostensibly to keep

personnel and student information confidential. One such order was made during

a mandatory faculty meeting. Dr. M arlatt also told Plaintiffs she would prefer

they not even associate with each other outside of school.

Nevertheless, Plaintiffs continued to meet off campus for the purpose of

discussing various A cademy matters. Some meetings w ere attended by parents

and other members of the public. There were approximately twenty to twenty-

five meetings in all. At some point, all of the Plaintiffs made their concerns and

grievances known to the Twin Peaks Academy Board of D irectors (“the Board”),

after the Board invited them to communicate without fear of retaliation. Id. at

206-07. Plaintiffs contend that their grievances, expressed in writing and orally,

were ignored.

A critical point in this case is whether the concerns and grievances

discussed by Plaintiffs were matters of public concern. Plaintiffs note dozens of

matters that were discussed at the various meetings and it would be cumbersome

to discuss them all in this opinion. As explained below, the vast majority of the

matters related to Plaintiffs’ duties as teachers and/or addressed internal

personnel and workplace disputes. A handful of the matters discussed, however,

were unrelated to Plaintiffs’ employment duties and constituted matters of public

concern.

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 Dr. M arlatt informed the Board about Plaintiffs’ meetings. She also

compiled a list of suspected participants in the meetings and showed it to the

Board. Sometime thereafter, Plaintiffs contend that they received less favorable

performance review s by Dr. M arlatt. W hen Plaintiff Kilduff asked Dr. M arlatt

why she had received the less favorable review, Dr. M arlatt told her that “the

gossip has got to stop,” and that it was up to Plaintiff Kilduff to prove she was

not gossiping. Id. at 1436. Defendants admit in their answer that no Plaintiff

violated any Academy policies, codes, or procedures. Id. at 1444.

Plaintiffs contend that after they received their performance reviews, Dr.

M arlatt began to ignore them when she passed them in the halls. Id. at 869.

Plaintiffs testified that Dr. M arlatt slam med doors in their presence and generally

behaved in a hostile manner toward them. Id. at 983-84. Plaintiffs testified that

this treatment caused them various forms of severe distress.

Plaintiffs each drafted resignation letters which w ere dated either February

28 or M arch 1 of 1999. It appears that Plaintiffs placed the letters in the school

mailboxes of each Board member and Dr. M arlatt. The letters specified that

Plaintiffs’ last day of work would be M arch 12, 1999. The Board met on M arch

2, 1999 to discuss the resignations. At the meeting, Board member Lorraine

Baxter observed that Plaintiffs’ resignations w ere likely related to their

dissatisfaction with Dr. M arlatt. This prompted Dr. M arlatt to stand up and hand

a written resignation to the Board president. Dr. M arlatt then immediately left the

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meeting. On M arch 4, 1999, the Board met again to discuss finding replacements

for Plaintiffs and Dr. M arlatt.

On M arch 5, 1999, Plaintiffs each submitted a letter attempting to “rescind”

their resignations. 2 On M arch 6, 1999, the Board met again and announced the

resignations of Plaintiffs and Dr. M arlatt. The Board then sent each Plaintiff a

letter confirming that their last day of work would be M arch 12, 1999. On M arch

11, 1999, the Board met again. Board member K athy Seitz made a motion to

retain Plaintiffs, but the motion failed.

On M arch 12, 1999, Plaintiffs gathered their belongings and turned over

their keys. Before leaving the Academy, however, at approximately 6:30 p.m.,

each Plaintiff handed the Academy’s acting administrator a letter stating:

Please be informed that, because no action has been taken on your
part, I consider my resignation to be rescinded, as per my letter dated
M arch 6, 2006. I continue to be an employee of Twin Peaks Charter
Academy, and intend to report for work as usual on M arch 15, 1999.

Id. at 480. Plaintiffs also submitted a written grievance with the letter stating,

inter alia:

The Board of Directors has acted in bad faith in refusing to
acknowledge or accept my letter dated M arch 6, 1999, in which I
rescinded my resignation. . . .

The administrator, with the full knowledge of the Board, acted in a
manner which violated my 1st amendment rights under the U.S.
Constitution.

2
Although the record is unclear, it appears that Dr. M arlatt’s resignation
prompted Plaintiffs’ change of heart.

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 . . . The semester evaluation which I received on February 25, 1999,
did not accurately reflect the oral conference I had with Dr. M arlatt
following her observation in January.

Id. at 484. In response, the Board immediately issued Plaintiffs a letter warning

that they were neither expected nor permitted to report for work on M arch 15,

1999. Id. at 482. On M ay 18, 1999 the Board sent Plaintiffs a letter formally

rejecting their grievances. The letter stated, inter alia: “Your grievance was not

timely filed,” and “[i]t is neither appropriate nor prudent for this Board to respond

in this grievance to claims and issues which are likely to be the subject of your

lawsuit against the School and this Board.” Id. at 1425.

All Plaintiffs except M elissa Perry then re-applied for teaching positions

with the Academy. The Academy had a procedure of sending response letters to

all persons applying for a teaching position. An Academy clerk testified that such

letters were prepared for Plaintiffs and given to the acting administrator and

Board for transmitting. Plaintiffs never received the letters, however, prompting

them to argue that they were “blacklisted” from future employment at the

Academy because of the events involving Dr. M arlatt. Defendants contend that

the Board had already made most of its hiring decisions by the time Plaintiffs

submitted their applications and that it had legitimate concerns about the

Plaintiffs’ intent to serve for an entire school year given their prior resignations.

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 Procedural H istory

Plaintiffs filed their lawsuit on July 30, 1999. All Defendants filed motions

for summary judgment on October 23, 2000. Over five years later, on M arch 28,

2006, the district court issued an eighteen-page order granting the summary

judgment motion filed by the A cademy and Dr. M arlatt and denying the D istrict’s

motion as moot. 3 See Brammer-Hoelter v. Twin Peaks Charter Acad., No. Civ.

99-K-1481, 2006 W L 827410 (D. Colo. M ar. 28, 2006). Addressing the freedom

of speech retaliation claim, the district court held that the matters discussed by

Plaintiffs were not matters of public concern and that Plaintiffs had failed to show

an adverse employment action as a result of their speech. Id. at *3-5. W ith

regard to Plaintiffs’ procedural due process claim, the district court assumed that

Plaintiffs had an interest in continued employment (at least until they resigned),

but it found that they had failed to prove constructive discharge. Id. at *6. The

district court then rejected Plaintiffs’ contract and promissory estoppel claims

under state law based on its determination that Plaintiffs had voluntarily resigned

and that their resignations were effective. Id. at *7-8. The district court then

entered judgment for all D efendants on all claims.

3
The District argued that Plaintiffs had failed to show a policy or custom
on its part sufficient to create liability under § 1983 and that the District had no
contract with Plaintiffs and made no representations to them. See Aplt. App. at
255-65. The district court considered these arguments moot given that it had
already disposed of Plaintiffs’ claims on the merits in granting the Academy and
Dr. M arlatt’s motion for summary judgment.

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 On appeal, Plaintiffs argue that the district court erred in determining that

the matters they discussed w ere not matters of public concern. Plaintiffs also

argue that the retaliatory actions taken by Dr. M arlatt were sufficient to constitute

adverse employment actions. Consequently, they argue that both their freedom of

speech and freedom of association retaliation claims should survive summary

judgment. Plaintiffs further argue that Dr. M arlatt’s actions constituted an illegal

prior restraint, which the district court ignored. They argue that the district court

erred in rejecting their procedural due process claim both because it wrongly

determined that they had voluntarily resigned and could not show constructive

discharge and because it wrongly determined that the Academy’s internal

grievance policy did not create a protected property interest. Finally, Plaintiffs

argue that the district court erred by dismissing their pendent state law claims

because it ignored evidence of the Academy’s course of dealing and prior

assurances made to them.

Discussion

I. Standard of Review

W e review a district court’s grant of summary judgment de novo, applying

the same standard as the district court. Hackworth v. Progressive Cas. Ins. Co.,

468 F.3d 722, 725 (10th Cir. 2006), cert. denied, – U.S.–, 75 U.S.L.W . 3521

(2007). Summary judgment is proper only if the record shows “that there is no

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genuine issue as to any material fact and that the moving 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

Plaintiffs advance three discrete claims under the First Amendment. The

first is that they were retaliated against for exercising their freedom of speech.

The second is that they were retaliated against for exercising their freedom of

association. The third is that Dr. M arlatt’s blanket prohibition on Plaintiffs

discussing Academy matters in public and her statement that she would prefer

Plaintiffs not meet together in public constituted an illegal prior restraint on

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 A ss’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

“W hen a citizen enters government service, the citizen by necessity must

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accept certain limitations on his or her freedom.” G arcetti v. Ceballos, 126 S. Ct.

1951, 1958 (2006). At the same time, “[t]he First A mendment limits the ability

of a public employer to leverage the employment relationship to restrict,

incidentally or intentionally, the liberties employees enjoy in their capacities as

private citizens.” Id. Consequently, when government employees speak on

matters of public concern, “they must face only those speech restrictions that are

necessary for their employers to operate efficiently and effectively.” Id.; see also

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

After the Supreme Court’s recent decision in Garcetti, it is apparent that the

“Pickering” analysis of freedom of speech retaliation claims is a five step inquiry

which we now refer to as the “Garcetti/Pickering” analysis. 4 First, the court must

determine whether the employee speaks “pursuant to [his] official duties.”

Garcetti, 126 S. Ct. at 1960; see also M ills, 452 F.3d at 647 (“Garcetti . . . holds

that before asking whether the subject-matter of particular speech is a topic of

4
Prior to Garcetti, w e described the inquiry as a four-part test. See, e.g.,
Lybrook v. M embers of Farmington M un. Schs. Bd. of Educ., 232 F.3d 1334,
1338 (10th Cir. 2000). Our initial cases after G arcetti also described the inquiry
as a four-part test by simply combining the first two elements. See, e.g., W eaver
v. Chavez, 458 F.3d 1096, 1099 (10th Cir. 2006) (noting that “the First
Amendment protects a public employee’s right, in certain circumstances, to speak
as a citizen addressing matters of public concern”). Nevertheless, Garcetti made
clear that the first step is to determine whether the employee speaks pursuant to
his official duties. See M ills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.
2006). Thus, Garcetti added an additional step to the analysis. District courts
remain free, however, to skip the Garcetti analysis and dismiss or grant summary
judgment on the basis of the traditional Pickering analysis when a claim clearly
fails because the matters discussed are not matters of public concern.

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public concern, the court must decide whether the plaintiff w as speaking ‘as a

citizen’ . . . .”). If the employee speaks pursuant to his official duties, then there

is no constitutional protection because the restriction on speech “simply reflects

the exercise of employer control over what the employer itself has commissioned

or created.” Garcetti, 126 S. Ct. at 1960. Second, if an employee does not speak

pursuant to his official duties, but instead speaks as a citizen, the court must

determine whether the subject of the speech is a matter of public concern. See

Green v. Bd. of County Commr’s, 472 F.3d 794, 798 (10th Cir. 2007); M ills, 452

F.3d at 647-48. If the speech is not a matter of public concern, then the speech is

unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a

matter of public concern, the court must determine “whether the employee’s

interest in commenting on the issue outweighs the interest of the state as

employer.” C asey v. W . Las V egas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th

Cir. 2007). Fourth, assuming the employee’s interest outweighs that of the

employer, the employee must show that his speech was a “substantial factor or a

motivating factor in [a] detrimental employment decision.” Lybrook, 232 F.3d at

1338 (internal quotation marks omitted). Finally, if the employee establishes that

his 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. at 1339 (internal quotation marks omitted). The first three steps are

to be resolved by the district court, while the last two are ordinarily for the trier

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of fact. See Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998).

1. Speech Pursuant to O fficial Duties

In Garcetti, the Supreme Court declined to articulate a formula for

determining when a government employee speaks pursuant to his official duties.

See 126 S. Ct. at 1961. However, cases interpreting Garcetti have made clear that

speech relating to tasks within an employee’s uncontested employment

responsibilities is not protected from regulation. See, e.g., Casey, 473 F.3d at

1329 (noting that when the speech concerns a matter w ithin the employee’s

“portfolio” it is made “pursuant to her official duties”); see also W ilburn v.

Robinson, 480 F.3d 1140, 1151 (D.C. Cir. 2007) (same). This may be true even

though the speech concerns an unusual aspect of an employee’s job that is not

part of his everyday functions. See Battle v. Bd. of Regents, 468 F.3d 755, 761

n.6 (11th Cir. 2006) (per curiam). Indeed, we have stated that speech is made

pursuant to official duties if it is generally consistent with “the type of activities

[the employee] w as paid to do.” Green, 472 F.3d at 801.

An employee’s official job description is not dispositive, however, because

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. The

ultimate question is whether the employee speaks as a citizen or instead as a

government employee–an individual acting “in his or her professional capacity.”

See Garcetti, 126 S. Ct. at 1960. Consequently, if an employee engages in speech

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during the course of performing an official duty and the 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. See W illiams v. Dallas

Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007) (per curiam). 5 At the same

time, not all speech that occurs at work is made pursuant to an employee’s

official duties. See Garcetti, 126 S. Ct. at 1959 (“Employees in some cases may

receive First Amendment protection for expressions made at work.”). N or is all

speech about the subject matter of an employee’s work necessarily made pursuant

to the employee’s official duties. Id. at 1959 (“The First A mendment protects

some expressions related to the speaker’s job.”). Instead, we must take a

practical view of all the facts and circumstances surrounding the speech and the

employment relationship. Id. at 1961 (“The proper inquiry is a practical one.”).

5
In W illiams, an athletic director wrote memoranda to an office manager
and principal alleging financial improprieties regarding certain athletic accounts.
The school district conceded that the athletic director w as not required to write
letters to the principal concerning athletic accounts. After noting that the speech
in the memoranda focused on the athletic director’s daily operations, the Fifth
Circuit stated:

Simply because W illiams wrote memoranda, which were not
demanded of him, does not mean he was not acting within the course
of performing his job. He needed account information so that he
could properly execute his duties as Athletic Director, namely, taking
the students to tournaments and paying their entry fees. The
memoranda were not written from W illiams’s perspective as a
“father” and “taxpayer.”

W illiams, 480 F.3d at 694. W e agree with the Fifth Circuit’s interpretation and
application of Garcetti.

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 Pursuant to their contracts, Plaintiffs were all hired as school teachers. By

entering into the contracts, Plaintiffs agreed to “support the philosophy and

curriculum of the Academy without reservation.” Aplt. App. at 1359. Plaintiffs

also agreed that their duties and responsibilities would be “consistent with the

Charter Contract and Charter Application as approved by the District Board of

Education.” Id. Although the record indicates that Plaintiffs w ere encouraged to

present their view s to improve the Academy and did so in the form of complaints

and grievances to the Board, we cannot deem such a generalized grievance policy

to be an official duty without eviscerating Garcetti and the general constitutional

principle that “public employees do not surrender all their First A mendment rights

by reason of their employment.” Garcetti, 126 S. Ct. at 1957; see id. at 1961

(“W e reject . . . the suggestion that employers can restrict employees’ rights by

creating excessively broad job descriptions.”).

Nearly all of the matters Plaintiffs claim they discussed were made

pursuant to their duties as teachers. 6 For example, Plaintiffs allege that they

discussed the Academy’s expectations regarding student behavior. Aplt. App. at

823. Ostensibly, as teachers, Plaintiffs were expected to regulate the behavior of

6
There are twenty-nine such matters listed in Plaintiffs’ brief and forty-
four such matters listed in Defendants’ brief. W e have considered all of these
matters, along with the parties’ corresponding citations to Plaintiffs’ deposition
testimony. Aside from the twelve matters listed below, all of the remaining
matters were either unsupported in the record or w ere clearly made pursuant to
Plaintiffs’ duties as teachers. Consequently the vast majority of the matters
discussed fail to pass the first step of the Garcetti/Pickering analysis.

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their students. Likewise Plaintiffs discussed the Academy’s curriculum and

pedagogy. Id. at 822, 957. Of course, as teachers, Plaintiffs were paid to execute

the A cademy’s curriculum and utilize an effective pedagogy. Plaintiffs also

complained that the A cademy should spend more money on instructional aids,

furniture, and classroom computers. Id. at 903. These complaints were made

pursuant to Plaintiffs’ inherent duty as teachers to ensure they had adequate

materials to educate their students. Consequently, statements regarding all of

these and similar matters were made pursuant to Plaintiffs’ official duties and

could be freely regulated by the Academy. 7

Nevertheless, viewing the evidence in the light most favorable to the them,

Plaintiffs’ speech regarding some of the matters was not made pursuant to their

official duties. These matters are: (1) the resignations of other teachers, (2)

whether the Academy Code of Conduct could restrict Plaintiffs’ freedom of

speech, (3) staffing levels, (4) the Academy’s spending on teacher salaries and

bonuses, (5) criticisms of the school board, (6) the visibility of Dr. M arlatt and

the Board at important events, (7) the lack of support, trust, feedback and

comm unication with Dr. M arlatt, (8) Dr. M arlatt’s restrictions on speech and

association, (9) the treatment of parents by the B oard, (10) Dr. M arlatt’s

favoritism, (11) whether the Academy charter would be renewed, and (12) the

7
The district court’s opinion and order w as issued prior to Garcetti.
Consequently, it did not analyze the matters discussed to determine whether they
were related to Plaintiffs’ employment duties.

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upcoming Board elections. As teachers, Plaintiffs had no supervisory

responsibility and no duty to report with regard to any of the problems being

discussed, nor does it appear that Plaintiffs’ discussion of these matters occurred

during the performance of their official duties because the discussions occurred

after hours and outside of the Academy. Furthermore, the discussions included

ordinary citizens and parents who were not employed by the Academy.

Consequently, these twelve matters discussed by Plaintiffs pass the first step of

the G arcetti/Pickering analysis.

2. M atters of Public Concern

M atters of public concern are “those of interest to the community, whether

for social, political, or other reasons.” Lighton v. Univ. of Utah, 209 F.3d 1213,

1224 (10th Cir. 2000). In determining whether speech pertains to a matter of

public concern, the court may consider “the motive of the speaker and whether

the speech is calculated to disclose misconduct or merely deals with personal

disputes and grievances unrelated to the public’s interest.” Id. Statements

revealing official impropriety usually involve matters of public concern. Id.

Conversely, speech that simply airs “grievances of a purely personal nature”

typically does not involve matters of public concern. Id. at 1225. In deciding

what is a matter of public concern, we are required to consider “the content, form,

and context of a given statement, as revealed by the whole record.” Connick v.

M yers, 461 U.S. 138, 147-48 (1983).

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 Courts have held that political speech regarding a public election is

undoubtedly a matter of public concern. See Bass v. Richards, 308 F.3d 1081,

1089 (10th Cir. 2002) (holding that speech relating to the viability of a potential

candidate and the merits of candidates for office “is at the core of protected

speech”). In contrast, we have held that the following are not matters of public

concern: speech regarding grievances about internal departmental affairs, Hom v.

Squire, 81 F.3d 969, 974 (10th Cir. 1996), disputes over the term of employment,

Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1233-34 (10th Cir. 1998),

and workplace frustration, M cEvoy v. Showmaker, 882 F.2d 463, 466 (10th Cir.

1989).

In some cases, a pattern of speech may be considered as a unitary whole for

determining whether it addresses matters of public concern. Johnsen v. Indep.

Sch. Dist. No. 3, 891 F.2d 1485, 1491 (10th Cir. 1989). The determination of

whether such a unitary analysis is appropriate is “fact sensitive and depends on

how interrelated are the different aspects of the speech.” Id. at 1492. Relevant

factors include “the time frame in which the speech occurred, the different

audiences to which the speech may have been directed, the continuity of the

speech, and the degree to which the different aspects of speech built upon each

other to create a cumulative impact on the state employer.” Id. W e have

indicated that it is appropriate to conduct such a unitary analysis when “the

speech involves one instance but multiple distinct subjects or the speech involves

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multiple instances but only one subject.” Id. Here, such a unitary analysis is

inappropriate because Plaintiffs’ speech involved multiple instances and multiple,

unrelated subjects. Consequently, we must analyze separately each of the twelve

matters that passed the first step of the Garcetti/Pickering analysis to determine

whether they constitute matters of public concern.

Eight of the matters are clearly not matters of public concern because they

are “internal in scope and personal in nature.” Bunger v. Univ. of Okla., 95 F.3d

987, 992 (10th Cir. 1996); see also Lighton, 209 F.3d at 1225. These matters are:

(1) the resignations of other teachers, (2) staffing levels, (3) Academy spending

on teacher salaries and bonuses, (4) criticisms of the Board, (5) the visibility of

Dr. M arlatt and the Board at important Academy events, (6) the lack of support,

trust, feedback, and communication with Dr. M arlatt, (7) Dr. M arlatt’s favoritism,

and (8) the treatment of parents by the Board.

From our review of the record, it is clear that Plaintiffs’ discussion of the

resignations of other teachers relates to how Dr. M arlatt and the Board handled

those resignations. See Aplt. App. at 1040. These comments reflect Plaintiffs’

dissatisfaction with their supervisors’ performance and are not matters of public

concern. See Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 188 (5th Cir. 2005)

(noting that criticisms of a “supervisors’ job performance” are typically not

matters of public concern). Plaintiffs’ complaints about staffing levels, including

a lack of aides, inherently relate to the amount of work Plaintiffs had to perform

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individually, and so they are matters of personal, rather than public concern.

Plaintiffs’ complaints about their ow n salaries and bonuses are similarly matters

of personal concern. See Kurtz v. Vickrey, 855 F.2d 723, 729 (11th Cir. 1988).

Plaintiffs’ complaints about the Board’s apparent support for Dr. M arlatt, Dr.

M arlatt and the Board’s absence from important events, and Dr. M arlatt’s lack of

support, trust, feedback, and communication, and her alleged favoritism, all

constitute complaints about a superior’s job performance or management style.

They do not address matters of public concern.

Plaintiffs’ discussion regarding the treatment of parents by the B oard

concerns two aspects. Plaintiffs apparently enlisted the aid of some parents who

complained to the Board about how Plaintiffs were disgruntled. See Aplt. App. at

719. Plaintiffs also expressed concern that the Board did not defer to the majority

of parents (and apparently Plaintiffs as well) who opposed reverting to a self-

contained classroom for the sixth grade. Id. at 719, 723. After reviewing the

entire record, it is apparent that Plaintiffs’ discussion regarding the B oard’s

treatment of the parents is inherently related to Plaintiffs’ personal complaints

and is not a matter of public concern.

However, four remaining matters discussed by Plaintiffs are matters of

public concern. These matters include: (1) whether the Academy’s code of

conduct could restrict Plaintiffs’ freedom of speech, (2) Dr. M arlatt’s restrictions

on speech and association, (3) whether the Academy charter would be renewed,

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and (4) the upcoming Board elections. Speech concerning potential illegal

conduct by government officials is inherently a matter of public concern.

See Sexton v. M artin, 210 F.3d 905, 910 (8th Cir. 2000). Consequently, whether

the Academy’s code of conduct could legally limit Plaintiffs’ freedom of speech

and whether Dr. M arlatt’s attempts to do so violated the First Amendment are

clearly matters of public concern. Furthermore, the prospect that the A cademy’s

charter might not be renewed is of public concern, particularly to the Academy

community. Finally, Plaintiffs’ political speech regarding upcoming Board

elections is undoubtedly a matter of public concern. See Bass, 308 F.3d at 1089;

Cragg, 143 F.3d at 1346. Consequently, we continue with the

Garcetti/Pickering analysis, but only with regard to the four remaining matters.

3. The Balancing of Interests

“[T]here is no easy formula for ‘weighing’ an employee’s First Amendment

speech against an employer’s interest in an efficient and disciplined work

environment.” Casey, 473 F.3d at 1333. Nevertheless, the question is whether

the employer “has an efficiency interest which would justify it in restricting the

particular speech at issue.” Cragg, 143 F.3d at 1346. “In performing the

balancing, the statement will not be considered in a vacuum; the manner, time,

and place of the employee’s expression are relevant, as is the context in which the

dispute arose.” Rankin v. M cPherson, 483 U.S. 378, 388 (1987). Pertinent

considerations include “whether the statement impairs discipline by superiors or

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harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes

the performance of the speaker’s duties or interferes with the regular operation of

the enterprise.” Id. Arguably, “the only public employer interest that can

outweigh a public employee’s recognized speech rights is the interest in avoiding

direct disruption, by the speech itself, of the public employer’s internal operations

and employment relationships.” Flanagan v. M unger, 890 F.2d 1557, 1566 (10th

Cir. 1989).

In its opinion and order, the district court stated: “M oreover, the Teachers

have presented no evidence to prove . . . that the employee’s interest in engaging

in the speech outweighed the employer’s interest . . . .” Brammer-Hoelter, 2006

W L 827410, at *5 n.4. A pparently, this statement is premised on an error of law ,

as the employer bears the burden of justifying its regulation of the employee’s

speech. See Connick, 461 U.S. at 150. Defendants made no argument regarding

their interest as employers either in their motion for summary judgment or in their

appellate brief. Accordingly, we cannot affirm summary judgment on this basis

and must assume that Plaintiffs’ interests in speaking on the four remaining

matters outweighed Defendants’ interests in managing the work environment. See

Tran v. Tr. of State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004)

(“Issues not raised in the opening brief are deemed abandoned or waived.”).

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 4. Substantial Factor in M otivating An A dverse Em ployment
Action

Plaintiffs bear the burden of showing that their speech on the four

remaining matters was a motivating factor in an adverse employment action. See

Cragg, 143 F.3d at 1346. First Amendment retaliation claims do not depend on a

property interest in continued employment. See M t. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U .S. 274, 283-84 (1977) (noting that a plaintiff’s First

Amendment retaliation claims are not defeated “[e]ven though he could have been

discharged for no reason whatever, and had no constitutional right to a hearing

prior to the decision not to rehire him”). Consequently, we have stated that

“[a]ctions short of an actual or constructive employment decision can in certain

circumstances violate the First Amendment.” M orfin v. Albuquerque Pub. Schs.,

906 F.2d 1434, 1437 n.3 (10th Cir. 1990). Although we have never established a

general rule for determining w hat adverse employment actions may suffice, w e

have noted that “‘promotions, transfers, and recalls after layoffs based on political

affiliation or support are an impermissible infringement on the First Amendment

rights of public employees.’” Schuler v. City of Boulder, 189 F.3d 1304, 1309

(10th Cir. 1999) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 75

(1990)). Indeed, in M orfin, we implied that “substantial harassment and abuse”

could be a sufficient adverse employment action for First A mendment purposes.

See 906 F.2d at 1437; see also Schuler, 189 F.3d at 1309 (analyzing M orfin). W e

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have also held that First Amendment retaliation claims can be based on removing

job duties from an employee’s portfolio or giving an employee a written

reprimand or a poor performance rating. Id. at 1310; see also Baca v. Sklar, 398

F.3d 1210, 1220-21 (10th Cir. 2005) (noting that a First Amendment retaliation

claim may be based on “repercussions that would not be actionable under Title

VII”).

In this case, viewing the evidence in the light most favorable to Plaintiffs,

there is sufficient evidence to support the finding of an adverse employment

action resulting from Plaintiffs’ speech and association. For example, Plaintiffs

contend that they received poor performance evaluations (that differed materially

from their prior evaluations) during the period in w hich they exercised their First

Amendment rights. See Aplt. App. at 1334-57. They contend that their actual

performance did not change and that the decline was due to the result of

“gossiping.” See Aplt. Br. at 14-15 (citing multiple parts of the record). It also

appears that Dr. M arlatt imposed increasingly strict prohibitions on speaking

outside of school as a result of Plaintiffs’ speech. For example, D r. M arlatt

eventually forbade Plaintiffs to speak with parents about school matters. Id.

Additionally, Plaintiffs testified that they were ignored by Dr. M arlatt and that

Dr. M arlatt treated them w ith a “hostile demeanor, slamming doors and chairs.”

Id. at 16. Finally, Plaintiffs suggest that they were blacklisted from future

employment at the Academy because of their speech. Id. at 54-55.

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 W hile a supervisor’s surly attitude would probably not deter a reasonable

person from exercising his or her First Amendment rights, it is clear that poor

performance ratings certainly could, especially for non-tenured teachers.

Additionally, increased restrictions on protected speech and association and

blacklisting are also sufficient to satisfy the standard. Based on the facts before

us, there is enough evidence to create a genuine dispute about whether these

adverse actions occurred and whether they were motivated by Plaintiffs’ speech

and association. Accordingly, summary judgment for Defendants on this ground

is improper.

5. Alternative Reason for the Adverse Employment Action

If a plaintiff establishes that protected speech was a motivating factor in an

adverse employment action, an employer may nonetheless “demonstrate that it

would have taken the same action against the employee even in the absence of the

protected speech.” Lybrook, 232 F.3d at 1338-39. Here, Defendants have not

proffered an alternative reason for their actions against Plaintiffs, much less

brought forth evidence sufficient to prove by a preponderance that they were in

fact motivated by such an alternative reason. Therefore, this step of the analysis

is not a proper basis for summary judgment in favor of the Defendants. See

Cragg, 143 F.3d at 1347. Accordingly, contrary to the holding of the district

court, Plaintiffs’ free speech retaliation claim survives summary judgment at this

point, but only with regard to the four specified remaining matters.

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 B. Freedom of Association Retaliation Claim

Plaintiffs also raise a separate freedom of association retaliation claim,

arguing that they suffered adverse employment actions for meeting with one

another. See Dickeson, 844 F.2d at 1440. The district court failed to discuss this

claim in its opinion and order. W hile we would typically remand the claim, w e

note that Plaintiffs were clearly associating for the purpose of discussing the very

speech that supports their freedom of speech retaliation claim, some of which

addresses matters of public concern. Thus, although the freedom of speech and

freedom of association retaliation claims remain independent, their analysis is

effectively indistinguishable. Accordingly, Plaintiffs’ freedom of association

retaliation claim survives summary judgment to the same extent as does their free

speech retaliation claim.

C. Prior Restraint Claim

Plaintiffs raise a prior restraint claim that is separate and distinct from their

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

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

happens.” Id. (quoting United States v. Nat’l Treasury Employees Union

(“NTEU”), 513 U .S. 454, 468 (1995)). The district court failed to address

Plaintiffs’ prior restraint claim in its opinion and order. Accordingly, we remand

this matter to the district court for a determination under NTEU and our related

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precedent.

III. The D ue Process C laims

Plaintiffs also assert that they were constructively discharged or fired as a

result of their speech in violation of their procedural due process rights under the

Fourteenth Amendment. “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 quotations 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 Equal. & Reform, 431 U.S. 816, 848 (1977).

In general, we look to state law to determine whether a property interest in

employment exists. Lighton, 209 F.3d at 1221. 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). Here, the district court assumed that Plaintiffs had a

continued interest in employment based on ambiguous language in their

employment contracts. It held, however, that Plaintiffs voluntarily resigned their

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positions and thus could not show a constructive discharge.

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, 711-12 (Colo. 1987); Holland v. Bd. of

County Comm’rs, 883 P.2d 500, 505 (Colo. Ct. App. 1994). Each Plaintiff signed

a one-year employment contract. The contracts are arguably ambiguous as to

whether Plaintiffs are “at-will” employees. For example, the contracts state: “The

Teacher shall serve under a renewable year-to-year contract.” Aplt. A pp. at 1359.

The contracts also state: “Notwithstanding the Effective Period of this agreement,

the Teacher may be terminated by the Academy Board, provided just cause is

given.” Id. (emphasis added). Yet, the contracts contain a contrary provision

stating that: “The Teacher is considered an at-will employee in the sense that this

agreement may be terminated at any time by either of the Parties, provided that a

minimum of two (2) w eek’s [sic] w ritten notice is given.” Id. at 1362.

However, Defendants point to a particular clause in the contracts that they

argue is decisive. The clause reads:

In [the] event any provision of this agreement is later discovered to
be incompatible with one or more provisions of the Charter Contract
or any District policy which has not been waived, that provision shall
be null and void.

Id. The charter contract states that the Academy “shall not have the authority, by

virtue of its policies or procedures or other action of the Academy Board to

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change the ‘at-will’ nature of the employment relationship.” Id. at 294.

Consequently, Defendants argue that if any provision in Plaintiffs’ contracts

altered the “at-will” relationship, such a provision is void.

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

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 (holding that the school district could not be bound by an administrator’s

promise to buy-out an employee’s salary). Thus, because the charter contract in

this case clearly states that the Academy cannot alter the at-will employment

relationship, the clause cited by Defendants removes any ambiguity–Plaintiffs

were at-will employees, and they had no property right in continued employment.

See Cont’l Airlines, 731 P.2d at 711-12. Consequently, they cannot sustain a

procedural due process claim based on constructive discharge or termination.

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 Plaintiffs also allege that their procedural due process rights were violated

when the Academy failed to process their grievance claims filed on M arch 12.

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”), cert. dismissed, 473

U.S. 901 (1985).

IV. Breach of Contract and Estoppel Claims

Plaintiffs assert pendent state law causes of action for breach of contract

and promissory estoppel. They argue that their employment contracts and

promises made by the Academy gave them a right to rescind their resignations

and that the failure of the Board to accept those rescisions w as a breach of their

contracts. The district court rejected these claims after it determined Plaintiffs’

resignations were effective upon receipt by the Board.

On this point, Plaintiffs’ employment contracts are unambiguous. The

contacts state “this agreement may be terminated at any time by either of the

Parties, provided that a minimum of tw o (2) w eek’s [sic] w ritten notice is given,”

Aplt. App. at 1362, which clearly indicates that the right to terminate is a

unilateral one, not requiring acceptance. Indeed, Plaintiffs’ resignation letters

were dated M arch 1, 1999, and all stated that their final day of work would be

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M arch 12, 1999, exactly ten working days (or two work weeks) in the future.

Two of the letters even noted that the M arch 12 end date w as “in accordance with

the terms of my contract,” id. at 351, 357, and a third stated “[i]n accordance with

my contract, it is my intention to continue teaching for two weeks,” id. at 356.

Consequently, the Academy was not required to accept Plaintiffs’ resignations to

make them effective, nor was the Academy required, as a matter of contract, to

accept Plaintiffs’ attempts to rescind their contracts. 8

Plaintiffs nonetheless claim that, pursuant to its course of dealing, the

Academy had established that resignations were not effective until acted upon by

the Board. However it is “[o]nly where the terms of an agreement are ambiguous

or are used in some special or technical sense not apparent from the contractual

document itself that the court may look beyond the four corners of the agreement

in order to determine the meaning intended by the parties.” Pepcol M fg. Co. v.

Denver Union Corp., 687 P.2d 1310, 1314 (Colo. 1984). Consequently, if the

relevant contract provision is unambiguous, the course of dealing may not

override the document’s plain meaning. See Richard A. Lord, W illiston on

Contracts § 34:7 (4th ed. 1990) (“[C]ustom can only supply incidents to a contract

where the contract is ambiguous on the point to which the party seeks to apply the

8
Indeed, given that Plaintiffs were at-will employees, it makes no sense
that the A cademy would have a contractual obligation to accept Plaintiffs’
attempts to rescind their resignations w hen the Academy could terminate
Plaintiffs unilaterally.

- 31 -
custom.”). Here, the contracts unambiguously state that Plaintiffs had the

unilateral power to terminate their contract provided two-weeks’ notice was

given. Evidence of the Academy’s course of dealing may not be used to

contradict this unambiguous term.

Plaintiffs also claim breach of contract and estoppel based on the

Academy’s failure to process their M arch 12 grievance complaints in a timely

manner. Because Plaintiffs voluntarily resigned their positions, and the internal

grievance procedure was aimed at addressing the grievances of employees, these

claims are moot. See Comm. for First Amendment v. Campbell, 962 F.2d 1517,

1524 (10th Cir. 1992) (noting that a claim becomes moot “w hen no reasonable

expectation exists that the alleged violation will recur and interim . . . events have

eliminated the effects of the alleged violation”). In any event, Plaintiffs’

grievances were processed and denied in writing by the Board on M ay 18, 1999.

See Aplt. A pp. at 368.

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 Plaintiffs of their

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

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constitutional deprivation(s). 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 opinion and 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.

VI. Dr. M arlatt’s Q ualified Immunity

In Defendants’ motion for summary judgment, Dr. M arlatt asserted a

qualified immunity defense. The district court did not address this argument in

its opinion and order, and Dr. M arlatt did not cross-appeal. Once a defendant

raises a qualified immunity defense, the plaintiff must show: “(1) that the

defendant’s actions violated a constitutional or statutory right, and (2) that the

rights alleged to be violated were clearly established at the time of the conduct at

issue.” Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006) (citing Saucier v.

K atz, 533 U .S. 194, 201 (2001)). As already discussed, Plaintiffs have shown

that a jury could find that Dr. M arlatt violated their constitutional rights under the

First Amendment by retaliating against them for exercising their freedom of

speech and association. Conversely, Plaintiffs have failed to show that Dr.

M arlatt violated their procedural due process rights under the Fourteenth

Amendment. On remand, the district court should consider these holdings (and

how we have refined the surviving claims) in addressing Dr. M arlatt’s motion for

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qualified immunity.

VII. 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 Plaintiffs’ claims failed on the merits. As

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 opinion and order as well as any

additional defenses that may exist.

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