Casey v. West Las Vegas Ind. School Dist.

• Decision Date: 24 January 2007
• Docket Number: No. 06-2054.,06-2054.
• Citation: 473 F.3d 1323
• Parties: Barbara Perea CASEY and Frank Casey, Plaintiffs-Appellees, v. WEST LAS VEGAS INDEPENDENT SCHOOL DISTRICT, and Walter Adams, Ambrose Castellano, Patrick Marquez, Ralph Garcia, Michael Vigil, and Arturo Gurule, in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1323

473 F.3d 1323

Barbara Perea CASEY and Frank Casey, Plaintiffs-Appellees, v. WEST LAS VEGAS INDEPENDENT SCHOOL DISTRICT, and Walter Adams, Ambrose Castellano, Patrick Marquez, Ralph Garcia, Michael Vigil, and Arturo Gurule, in their individual capacities, Defendants-Appellants.

No. 06-2054.

United States Court of Appeals, Tenth Circuit.

January 24, 2007.

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Kevin M. Brown (Daniel J. Macke with him on the briefs), of Brown & German, Albuquerque, NM, for Defendants-Appellants.

Daniel Yohalem, Santa Fe, NM, for Plaintiffs-Appellees.

Before TACHA, Chief Judge, TYMKOVICH, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Barbara Casey, a longtime New Mexico public servant, seeks damages from the West Las Vegas Independent School District and various of its officials, alleging that they demoted and eventually fired her in retaliation for exercising her First Amendment rights. Having moved unsuccessfully for summary judgment in the district court, defendants appeal to us. While this case awaited oral argument, the Supreme Court issued Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which profoundly alters how courts review First Amendment retaliation claims. Ms. Casey now concedes that a portion of one claim is barred by Garcetti. We agree and find certain other portions also precluded by the Supreme Court's recent ruling. Still, we find that at least one aspect of one of Ms. Casey's claims survives to trial.

I

A former New Mexico state legislator and school teacher, Ms. Casey served as Superintendent of the West Las Vegas Independent School District ("District") from January 2002 until April 2003. Viewing the facts in the light most favorable to her as the party opposing summary judgment, she fairly establishes the following:

Upon becoming Superintendent, Ms. Casey assumed responsibility for serving as the Chief Executive Officer ("CEO") of the District's Head Start program, a federally funded initiative aimed at providing educational opportunities, meals, and health care services to low-income children between three and five years of age. The District's Head Start program traditionally received approximately $2.5 million annually from the federal government, but prior to the 2001-02 school year, federal authorities determined that the District's Head Start program had 61 major deficiencies and threatened to suspend its funding. Appellants' App. at 131 ¶ 5.

To help address these problems, in June 2002, the District hired Jacqueline Padilla (at Ms. Casey's recommendation) to manage the Head Start program. Ms. Padilla became the District's Head Start director, reported to Ms. Casey, and made a number of changes aimed at bringing the District's program into compliance with federal regulations and ensuring its continued funding. Id. at 131 ¶ 6. By the winter of 2002-03, a federal oversight agency determined that the District's program had indeed achieved substantial compliance with federal mandates. Id.

Sometime during the period December 2002-January 2003, Ms. Padilla informed Ms. Casey that her staff had begun to uncover evidence that as many as 50% of the families enrolled in the District's Head Start program appeared to have incomes that were too high for them to qualify for participation. Ms. Casey learned that some families had intentionally omitted family income information or inflated the size of their family in order to enroll their children in the program. Worried that these problems threatened the District's progress and risked its future funding, Ms. Casey reported them to Walter Adams, the West Las Vegas School Board's ("Board") president and one of the defendants before us. Mr. Adams allegedly responded that Ms. Casey should not worry about the issue. Several more times between January and April 2003, Ms. Casey raised the issue with Mr. Adams and, in executive sessions of the Board, the other individual defendants. Each time, she was told variously not to worry about it, to leave it alone, or not to go there. See id. at 55 [51:20-51:24], 59 [60:12-60:21].

Ms. Casey became concerned that, given the Board's inaction, "she had a duty as Head Start's executive director to report this wrong doing [sic] to federal authorities." See Appellees' Br. at 5, 39; see also Appellants' App. at 138 [51:25-52:3]. Ms. Casey thus instructed her subordinate, Ms. Padilla, to approach the federal Head Start regional office in Dallas and relay her findings. This Ms. Padilla did. Eventually, on August 8, 2003, the United States Department of Health & Human Services ("HHS") determined that certain enrollments in the District's Head Start program were indeed improper and ordered the repayment of more than half a million dollars in federal aid.

During the 2002-03 school year, Ms. Casey also informed the Board that it was violating the New Mexico Open Meetings Act by making personnel and other decisions in executive session without proper notice and meeting agendas. Because defendants apparently ignored her warnings, on approximately March 17, 2003, Ms. Casey filed a written complaint with the New Mexico Attorney General's office. On March 25, 2003, the Attorney General's office wrote to Mr. Adams outlining the particulars of Ms. Casey's complaint, enclosing a copy of the complaint, and requesting a response. After receiving the Board's response and completing its review of the matter, the Attorney General's office determined that the Board had in fact violated the Open Meetings Act and ordered corrective action.

Finally, Ms. Casey brought to the Board's attention a number of other issues during the 2002-03 school year regarding the District's operations that, she believed, violated federal or state laws. These included, by way of example, an allegation that the District hired employees without advertising vacancies or conducting a review process, and that it improperly handled a case where a teacher and school principal were carrying on an affair.

On April 10, 2003, the Board demoted Ms. Casey to Assistant Superintendent. While there is some lack of clarity regarding exactly when the school board further decided not to renew Ms. Casey's contract for the 2003-04 school year, the facts before us suggest that this may have occurred as early as April 10 or as late as May 8, 2003. See Appellants' App. at 130-31 ¶ 3 ("I was demoted by Defendants to the position of Associate Superintendent on April 10, 2003. On May 8, 2003 Defendants voted not to renew my contract of employment for any position in the school district."); id. at 73 (Minutes, Regular Board Meeting, April 10, 2003) (Board unanimously voted "not to renew the employment contract with Barbara Casey as Superintendent" and "to immediately reassign Ms. Casey from her present position to the position of Assistant Superintendent through the remainder of the fiscal year"); id. at 174 (letter from Superintendent Arturo Gurule to Ms. Casey) ("I regret to inform you that on [sic] the May 8, 2003 West Las Vegas [School District] board meeting, you[r] employment contract for the 2003-2004 school year was not renewed.").

Following her termination, Ms. Casey filed an action against the District, the new Superintendent, and individual members of the Board alleging, inter alia, that she was dismissed in retaliation for exercising her First Amendment rights. The defendants unsuccessfully sought summary judgment in the District Court with respect to Ms. Casey's First Amendment claims based on qualified immunity and now pursue this appeal raising the same defense.¹ Immediately prior to Appellants' submission of their reply brief, the Supreme Court handed down Garcetti and, accordingly, we sought and received supplemental briefing from the parties to help us in assessing the impact of the Supreme Court's new guidance.

II

We review the district court's denial of summary judgment de novo. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a "heavy two-part burden," id. (internal quotation marks omitted), demonstrating, first, that the defendant's actions violated a constitutional or statutory right and, second, that the right at issue was clearly established at the time of the defendant's allegedly unlawful conduct. In assessing whether the right was clearly established, we ask whether the right was sufficiently clear that a reasonable government officer in the defendant's shoes would understand that what he or she did violated that right. If the plaintiff fails to satisfy either part of the two-part inquiry, we must grant the defendant qualified immunity.

In analyzing a public employee's First Amendment retaliation claim, the Supreme Court has instructed that we must first decide whether the speech at issue touches on a matter of public concern and, if so, we must then proceed to ask whether the employee's interest in commenting on the issue "outweighs" the interest of the state as employer. See Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir. 1998) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). "The problem in any case," the Supreme Court observed, "is to arrive at a balance between the interests of the [employee], as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. How exactly we are to "weigh" and "balance" the radically incommensurate interests at stake in Pickering's second prong is a matter of great debate and little certainty.²

The Supreme Court last Term in Garcetti did revisit Pickering's first prong, however, and added some clarity to the question when a public employee...