Pignanelli v. Pueblo School District No. 60

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH September 10, 2008
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

ROXANNE MOFFITT PIGNANELLI,

Plaintiff-Appellant,
v. No. 07-1251
PUEBLO SCHOOL DISTRICT NO.
60, DR. JOYCE F. BALES,
individually and in her capacity as
Superintendent of Pueblo School
District No. 60, and KATHLEEN
KENNEDY, individually and in her
capacity as President of Pueblo School
District No. 60’s Board of Education,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:05-CV-01682-RPM-CBS)

James A. Carleo, Pueblo, Colorado, for the Plaintiff-Appellant.

Elliot J. Scott (Sonja S. McKenzie with him on the brief), Senter Goldfarb &
Rice, L.L.C., Denver, Colorado, for the Defendants-Appellees.

Before KELLY, TYMKOVICH, Circuit Judges, and FRIZZELL, District
Judge. *

*
Honorable Gregory K. Frizzell, United States District Court, Northern
District of Oklahoma, sitting by designation.
TYMKOVICH, Circuit Judge.

Roxanne Moffitt Pignanelli ran for the Pueblo School District Board of

Education in 2003 but lost the election. A middle school drama teacher at the

time, she blamed her employer, Pueblo School District No. 60, for her loss, and

sued under 42 U.S.C. § 1983 for alleged violations of her constitutional rights.

Pignanelli claimed the school district and its representatives, including the

superintendent of schools, violated the First Amendment, Equal Protection

Clause, and Due Process Clause by causing her to lose the school board election

and then failing to renew her one-year teaching contract.

The district court granted summary judgment in favor of the Defendants on

all claims, and Pignanelli appealed. We agree with the district court that the

Defendants are entitled to summary judgment. Exercising jurisdiction under 28

U.S.C. § 1291, we therefore AFFIRM.

I. Factual Background

Viewed in the light most favorable to Plaintiff-Appellant Pignanelli, see

Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997), the facts as alleged

establish the following.

The school district hired Pignanelli in August 2002, to serve as a middle

school drama teacher under a one-year contract. District Deputy Superintendent

John Musso negotiated with Pignanelli for her salary and benefits package, and

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ultimately placed Pignanelli into a higher pay grade than her educational

qualifications and teaching experience supported at the time. Despite this

discrepancy, the contract was approved by the school board and Pignanelli began

her tenure as a part-time teacher in the district. In August 2003, Pignanelli was

rehired, again under a one-year contract, to continue in the same position.

A week after her rehiring, Pignanelli announced her candidacy for the

upcoming school board election. One of the issues that developed in the

campaign was whether District Superintendent Joyce Bales should be removed.

Pignanelli was perceived by some, including Bales, as a Bales-opponent—and

someone who would vote for Bales’s removal. Because of this perception, Bales

sought to discredit Pignanelli’s candidacy and cause her to lose the election.

Bales did this by combing through Pignanelli’s personnel file, and then initiating

a school board review of her salary and qualifications. On September 23, 2003, at

a confidential executive session of the board, Pignanelli’s salary was reduced to

the level her experience and education supported.

Soon after the executive session, The Pueblo Chieftain, a local newspaper,

reported Pignanelli’s salary reduction. One of the reporters for the Chieftain

made a request under Colorado’s Open Records Act for Pignanelli’s personnel

records, which were duly handed over by the board. These records were then

made public through publication in the Chieftain. At the same time, both

Pignanelli and Superintendent Bales were interviewed by the newspaper for

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additional, related stories. The controversy over Pignanelli’s salary and her

concomitant candidacy for the school board fed into several stories in the local

media up through the election day in November 2003. At the election, the voters

chose not to elect Pignanelli.

Despite her election defeat, Pignanelli maintained her position as a part-

time teacher through the end of the 2003–2004 school year. At the end of the

year, Pignanelli’s part-time drama spot was changed to a full-time language arts,

speech, and drama position. Pignanelli was not qualified for this new position,

and was not hired for it. As she had been working under a one-year contract, the

district had no contractual obligation to rehire her.

Based on her failure to obtain office and the loss of her part-time teaching

position, Pignanelli determined her constitutional rights had been violated. She

therefore brought suit under § 1983 against the school district, Superintendent

Bales, and the president of the school board. The district court granted summary

judgment to all three Defendants.

II. Discussion

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

Seegmiller v. LaVerkin City, 528 F.3d 762, 766 (10th Cir. 2008). Summary

judgment should only be granted where, taking the facts in the light most

favorable to the non-moving party, there is no genuine issue of material fact, and

the moving party is entitled to judgment as a matter of law. Id.; Fed. R. Civ. P.

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56(c). Although the burden is on the moving party, the non-movant “may not rest

on its pleadings,” but rather must “set forth specific facts showing that there is a

genuine issue for trial as to those dispositive matters for which it carries the

burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912

F.2d 1238, 1241 (10th Cir. 1990).

Pignanelli appeals the district court’s grant of summary judgment in favor

of Defendants on all the claims she raised in the district court. Interpreting her

briefing as best we can, Pignanelli alleges she can overcome the summary

judgment hurdle on her claims alleging (1) violations of due process, (2) First

Amendment employment retaliation, and (3) violations of equal protection. We

conclude Pignanelli has waived review of her due process claim by failing to cite

any legal authority for the claim in her appellate brief, waived review of her First

Amendment retaliation claim by failing to argue it in the district court, and cannot

obtain relief on her equal protection claim because it fails on the merits.

A. Due Process

Pignanelli has waived appellate review of any due process claim she may

have alleged against the Defendants in the district court. Although Pignanelli

asks us to reverse the grant of summary judgment in favor of Defendants, she

must do more than simply request reversal for us to consider the merits of her

claim. See Fed. R. App. P. 28(a); Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th

Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is

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deemed waived.”). Rule 28(a) of the Federal Rules of Appellate Procedure

requires the appellant to set forth “appellant’s contentions and reasons for them,

with citations to the authorities and part of the record on which the appellant

relies.” Fed. R. App. P. 28(a)(9)(A). Because Pignanelli has not directed us to

any legal authority or record evidence supporting a claim for relief under the Due

Process Clause of the Fourteenth Amendment, her appeal on this ground must

fail.

B. First Amendment Employment Retaliation

As with her due process claim, we will not consider the merits of

Pignanelli’s First Amendment employment retaliation claim. Pignanelli argues

for the first time on appeal that she meets the four-step analysis, set forth in Dill

v. City of Edmond, for public employees asserting a claim of retaliation for

exercising their First Amendment rights. See Dill v. City of Edmond, 155 F.3d

1193, 1201–03 (10th Cir. 1998) (citing Connick v. Myers, 461 U.S. 138 (1983);

Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). Under Dill, if the public

employee’s speech involves a matter of public concern, we must balance his or

her interest in commenting on such matters against the interest of the government

employer in an effective, non-disruptive work environment. Id.

By failing to argue Dill in the district court, however, Pignanelli has

waived review of the issue in this court. We do not review claims on appeal that

were not presented below. Wolfe v. Barnhart, 446 F.3d 1096, 1103 (10th Cir.

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2006); Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163,

1167 (10th Cir. 2005). Pignanelli failed to allege the requirements for a First

Amendment employment retaliation claim in her district court complaint,

summary judgment briefing in the district court, or at the hearing held by the

district court. In fact, as Pignanelli made clear in her summary judgment

briefing, the basis of her First Amendment challenge was her election loss—not

employment retaliation. See Supp. App. at 35 (Pl.’s Resp. Br. at 1) (“This is a

First Amendment case about the Defendants’ hijacking a school board election.”);

id. at 66 (Pl.’s Resp. Br. at 32) (“Plaintiff’s First Amendment claim revolves

around her status as a candidate running for the D-60 board of education. Her

claim is that the Defendants disclosed confidential information about her to the

media, sabotaging and destroying her candidacy.”).

Because Pignanelli failed to argue her First Amendment employment

retaliation claim below, the district court did not have an opportunity to address

the claim and we will not consider it for the first time on appeal.

C. Equal Protection

Finally, Pignanelli—essentially repackaging a First Amendment speech

right claim—argues two distinct harms were inflicted upon her in violation of the

Equal Protection Clause. She complains of (1) her loss in the school board

election in November 2003, and (2) her loss of salary and position as a teacher at

Pueblo School District No. 60 after the 2003–2004 school year. Both harms, she

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asserts, result from the Defendants’ “intentional or purposeful discrimination . . .

design[ed] to favor one individual or class over another.” Aplt. Br. 30. To put it

another way, Pignanelli asserts the Defendants violated the Equal Protection

Clause by treating her differently than similarly situated individuals (presumably

other district employees) during her run for elected office and in her position as a

teacher in the district.

After carefully considering the applicable law, we reject both of the

separate, but overlapping grounds Pignanelli says support her equal protection

cause of action. First, the three cases she cites in the context of her election loss

are so factually distinguishable as to provide no support for a cause of action tied

to the loss. Second, clear Supreme Court precedent precludes a public employee

from making out an equal protection claim on the sole basis that she was treated

differently by her employer.

1. Election Loss

Pignanelli alleges the Defendants violated the Constitution because they

“engaged in an effort to defeat her.” Aplt. Br. 29. She complains that

Superintendent Bales leaked information to The Pueblo Chieftain in a manner that

“suggested an improper, if not salacious, relationship” between her and Deputy

Superintendent Musser and “destroyed Ms. Pignanelli’s candidacy.” Aplt. Br. 20,

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8. 1 Because of Bales’s opposition to her candidacy, Pignanelli argues, she did not

have a fair chance of winning the election.

A review of the three election cases Pignanelli cites reveals the obvious

deficiency in her claim. In fact, the cases she relies upon—Snowden v. Hughes,

321 U.S. 1 (1944); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973) (per curiam);

Shakman v. Democrat Org. of Cook County, 435 F.2d 267 (7th Cir. 1970)—are

not even in the same factual universe. While each of those cases dealt with

election irregularities perpetrated by state election officials, here we have a case

dealing only with public school officials opposing Pignanelli’s candidacy.

In Snowden v. Hughes, for example, the facts painted a picture of violations

of state election law by the officials charged with administering it. There,

petitioner alleged “members of the [Illinois] State Primary Canvassing Board,

acting as such but in violation of state law, have . . . deprived petitioner of

nomination and election as representative in the state assembly.” 321 U.S. at 5.

The petitioner argued the defendants, “by failing to certify petitioner as a duly

elected nominee, ha[d] denied to him a right conferred by state law and ha[d]

thereby denied to him the equal protection of the laws secured by the Fourteenth

Amendment.” Id. at 8. The case was about access to the ballot, the right to a

1
Despite her characterization of Defendants’ conduct, Pignanelli did not
bring state law claims of libel, defamation, or invasion of privacy against them.

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meaningful vote, and the legitimacy of an election that was administered by state

election officials in violation of state law.

The Seventh Circuit cases relied upon by Pignanelli were also based upon

alleged misdeeds by state officials that called into question the legitimacy of an

election. See Smith, 489 F.2d at 1102–03 (reversing grant of motion to dismiss

where an alleged conspiracy by Illinois Democratic committeemen to run a sham

candidate “debased the rights of all voters in the election”); Shakman, 435 F.2d at

268 (reversing grant of motion to dismiss where city and county officials

allegedly “require[d] city and county employees, as a condition of holding their

jobs . . . , to furnish votes, campaign work, and money to elect candidates chosen

by the regular democratic organization”).

The factual differences between the election cases cited by Pignanelli and

her own case are vast—and illustrate the weakness of her legal theory. First, the

school district Defendants were not election officials in control of an election;

they were public school employees. The Defendants had no control over who got

on the ballot or who received votes in the election. Second, Pignanelli was not

prevented from actually running for office or receiving votes in an election. She

persevered during the campaign, remaining on the ballot and receiving some share

of the votes at the polls. Third, Pignanelli makes no allegation of election

irregularities or illegalities. The school board election, by all accounts, was fairly

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run, and voters had a real choice between real candidates. Cf. Smith, 489 F.2d at

1103 (reversing motion to dismiss because of a “sham candidacy”).

Finally, any injury suffered by Pignanelli resulted from the voters not

electing her rather than the Defendants’ alleged misdeeds in trying to defeat her.

The school district voters—not the Defendants—directly caused Pignanelli’s

election loss. Cf. Habecker v. Estes Park, 518 F.3d 1217, 1224 (10th Cir. 2008)

(concluding plaintiff-appellant Habecker lacked standing to sue public officials in

Estes Park because he “cannot show the existence of a case or controversy. His

loss of elected office, although an injury in fact, was the result of an intervening

cause—the electorate—and is not fairly traceable to the defendants.”).

Pignanelli argues for the adoption of a rule that would subject public

employees to liability whenever they speak in favor of or against a candidate for

office. But this rule has no basis in the Equal Protection Clause; and further, runs

directly contrary to the intent of the First Amendment. See, e.g., Connick, 461

U.S. at 145 (“The First Amendment was fashioned to assure unfettered

interchange of ideas for the bringing about of political and social changes desired

by the people.” (internal quotation marks omitted)). The Constitution cannot be

used to completely muzzle public employees during elections, nor to entirely

protect them, when they become candidates, from the rough-and-tumble of the

political arena. See generally Ivan E. Bodensteiner and Rosalie Berger Levinson,

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1 State and Local Gov’t Civ. Rights Liab. § 1:10 (Apr. 2008) (collecting cases).

After all, “[p]olitics ain’t bean bag.” 2

Finally, it is worth noting all the information disclosed by the Defendants

to The Pueblo Chieftain was public information. The only documents disclosed

were Pignanelli’s resume, job application, and a memorandum written by Musso

calculating her salary. At oral argument, Pignanelli conceded that under Colorado

law the school board was required to disclose these documents upon request. See

Colorado Open Records Act, Colo. Rev. Stat. § 24-72-201, et seq. (2003). Board

members were similarly free to give the newspaper certain information stemming

from their executive session. Although Colorado law says the record of executive

sessions is not open to public inspection, it goes no further than that. See Colo.

Rev. Stat. § 24-6-402(2)(d.5)(I)(D) (2003). In short, Pignanelli has failed to show

the Defendants acted in contravention of any state law when they released certain

information to the Chieftain. Any alleged leak of sensitive information to the

newspaper therefore provides no basis for her equal protection claim.

2. Job Loss

Separate and apart from her claim based on her loss of the election,

Pignanelli also complains of her loss of employment with the school district.

Given the Supreme Court’s recent holding in Engquist v. Oregon Department of

Agriculture, however, her claim based on a “class-of-one” equal protection theory

2
A colloquialism coined by Finley Peter Dunne.

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must fail. See Engquist v. Oregon Dept. of Agric., __ U.S. __, 128 S. Ct. 2146

(2008). First, just like the plaintiff in Engquist, Pignanelli sought to bring an

equal protection claim against a public employer based on allegations the

employer treated her differently than others similarly situated. As the Court made

clear in Engquist, this is not a legally cognizable cause of action. Second,

Pignanelli has failed to rebut the Defendants’ evidentiary showing that she was

not qualified for the new position.

In Engquist, an Oregon state employee brought an equal protection claim

against the state after she was laid off, alleging she lost her job because of

“arbitrary, vindictive, and malicious reasons” directed only at her. 128 S. Ct. at

2149. The plaintiff did not get along with one of her co-workers and repeatedly

complained about the co-worker to her supervisor. Id. Based on instructions

given by the district court, a jury found the plaintiff had been intentionally treated

“differently than others similarly situated with respect to the denial of her

promotion, termination of her employment, or denial of bumping rights without

any rational basis . . . .” Id. Although the jury rejected the plaintiff’s equal

protection claims based on race, sex, and national origin, the jury awarded

damages on her class-of-one claim.

The court of appeals reversed in relevant part, holding the class-of-one

theory of equal protection did not apply in the public employment arena. The

court reasoned that allowing such suits to proceed would “completely invalidate

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the practice of public at-will employment.” Engquist v. Oregon Dept. of Agric.,

478 F.3d 985, 995 (9th Cir. 2007) (quoted in Engquist, 128 S. Ct. at 2150). The

Supreme Court affirmed the decision of the court of appeals. It too rejected the

plaintiff’s claim, unequivocally holding that the class-of-one equal protection

theory, whatever its contours, “does not apply in the public employment context.”

Engquist, 128 S. Ct. at 2151. A public employee-turned-plaintiff must be a

member of an identifiable class to bring an equal protection claim. Id.

The Supreme Court has long recognized “a crucial difference, with respect

to constitutional analysis, between the government exercising ‘the power to

regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to

manage [its] internal operation.’” Id. at 2151 (quoting Cafeteria & Restaurant

Workers v. McElroy, 367 U.S. 886, 896 (1961)). The Court has repeatedly sought

to reaffirm the common-sense notion “government offices could not function if

every employment decision became a constitutional matter.” Id. (quotation

omitted). Therefore, the Court has held “the government as employer . . . has far

broader powers than does the government as sovereign.” Id. (quotation omitted);

see also Connick v. Myers, 461 U.S. 138, 147 (1983) (“[A]bsent the most unusual

circumstances, a federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency allegedly in reaction to

the employee’s behavior.”).

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 The Equal Protection Clause is concerned with governmental classifications

that “affect some groups of citizens differently than others,” especially those in

“an identifiable group.” Engquist, 128 S. Ct. at 2152 (quotations omitted). “To

treat employees differently is not to classify them in a way that raises equal

protection concerns. Rather, it is simply to exercise the broad discretion that

typically characterizes the employer-employee relationship.” Id. at 2155.

Following the clear commands of Engquist, it is obvious the equal

protection theory Pignanelli relies on to challenge the non-renewal of her

employment contract must fail. The board’s decision to allow her contract to

lapse rather than rehire her into a position for which she was unqualified does not

raise constitutional concerns. Even if the “unequal treatment was not rationally

related to a legitimate government purpose,” the board’s decision—acting in its

role as proprietor and employer—does not constitute a violation of equal

protection. See id. at 2157. In fact, the Supreme Court has “never found the

Equal Protection Clause implicated in the specific circumstance where, as here,

government employers are alleged to have made an individualized, subjective

personnel decision in a seemingly arbitrary or irrational manner.” Id. at 2155; see

also id. at 2156 (noting “recognition of a class-of-one theory of equal protection

in the public employment context . . . is simply contrary to the concept of at-will

employment”). In accordance with the Supreme Court’s precedent, we must

reject Pignanelli’s theory of unequal treatment.

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 It is true, as Pignanelli points out, one of our previous decisions has already

analyzed the class-of-one equal protection theory in the public employment

context. See Bartell v. Aurora Pub. Schs., 263 F.3d 1143, 1148–49 (10th Cir.

2001). 3 In Bartell, a public school teacher facing accusations of sexual

harassment sued the school district after being placed on administrative leave.

263 F.3d at 1145–46. The teacher brought an equal protection claim alleging he

was the victim of “selective, purposeful discrimination by government officials

who harbor animosity towards [him].” Id. at 1148. We framed the legal issue as

“not whether [plaintiff’s] equal protection theory is well established, but simply

whether it is a viable legal theory.” Id. We concluded the plaintiff’s class-of-one

equal protection theory based on governmental animosity was viable. Id. at

1148–49.

To the extent Bartell conflicts with Engquist, it no longer represents the

law. In Engquist, the Supreme Court resolved a circuit split involving the scope

of the class-of-one theory—and Bartell was on the losing side. See Engquist, 478

3
Tenth Circuit cases have dealt with the class-of-one equal protection
theory in other contexts, as well. See, e.g., Bruner v. Baker, 506 F.3d 1021, 1029
(10th Cir. 2007) (tax commission investigations); Mimics, Inc. v. Vill. of Angel
Fire, 394 F.3d 836, 848 (10th Cir. 2005) (building inspections); Jennings v. City
of Stillwater, 383 F.3d 1199, 1210 (10th Cir. 2004) (law enforcement). Given the
nature of these class-of-one claims, we must always proceed with great caution.
See Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir.
2006) (noting this and other circuits “have proceeded cautiously in applying the
[class-of-one] theory, sensitive to Justice Breyer’s warning against turning even
quotidian exercises of government discretion into constitutional causes”).

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F.3d at 993 (9th Cir.) (recognizing split and disagreeing with Bartell and other

circuit cases applying the class-of-one theory to public employment). “Public

employees typically have a variety of protections from just the sort of personnel

actions about which [Pignanelli] complains, but the Equal Protection Clause is not

one of them.” Engquist, 128 S. Ct. at 2157. 4 To the extent Bartell recognized a

public employee’s class-of-one equal protection theory, Bartell conflicts with

Engquist and we overrule it. 5

In laying down this rule, we join several other circuits that have already

recognized the implications of Engquist. See, e.g., Appel v. Spiridon, 531 F.3d

138, 139 (2d Cir. 2008) (“The Supreme Court recently held that the Equal

Protection Clause does not apply to a public employee asserting a violation of the

Clause based on a ‘class of one’ theory of liability.”); Wilson v. Libby, __ F.3d

__, No. 07-5257, 2008 WL 3287701, at *20 (D.C. Cir. 2008) (“Under Engquist

. . . the class-of-one theory of equal protection does not apply in the public

employment context.” (citation omitted)); see also Skrutski v. Marut, Nos. 07-

2828 & 07-2848, 2008 WL 2787434, at *6 (3d Cir. July 18, 2008) (slip copy).

4
For example, based on the facts she alleges, Pignanelli may have made
out a traditional claim of First Amendment employment retaliation. See, e.g.,
Deschenie v. Bd. of Ed. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271, 1276
(10th Cir. 2007) (analyzing four-factor test laid out in Dill).
5
The text of this opinion has been circulated to all of the active judges of
the court and there is no objection.

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 Finally, even assuming she could have pleaded a valid cause of action,

Pignanelli has failed to develop disputed material facts sufficient to survive

summary judgment. During the 2002–2003 and 2003–2004 school years,

Pignanelli was employed as a part-time drama teacher in one of the district’s

middle schools. Responding to changes in federal law, however, the part-time

position was eliminated and a new full-time position, covering a wider range of

subjects, was created. The Defendants presented evidence in the district court,

which Pignanelli failed to rebut, showing Pignanelli was not qualified for the new

position. Therefore, quite apart from her school board candidacy playing a role in

her not receiving the new job, she did not get the job because she was not

qualified for it. Given these undisputed facts, Pignanelli has failed to tie the loss

of her job to an equal protection violation.

***

In sum, the equal protection claims Pignanelli brought against the

Defendants based upon her election loss and her job loss cannot withstand

summary judgment.

III. Conclusion

For the reasons set forth above, we AFFIRM. 6

6
Defendants also argued they were entitled to summary judgment based on
qualified immunity. Because we conclude Defendants did not violate the
Constitution, we need not resolve this question. See Saucier v. Katz, 533 U.S.
194, 201 (2001) (“If no constitutional right would have been violated were the
(continued...)

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 6
(...continued)
allegations established, there is no necessity for further inquiries concerning
qualified immunity.”).

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