Holub v. Gdowski et al

Filing 86

MEMORANDUM OPINION AND ORDER: Defendants' Motion for Summary Judgment 55 is granted. The clerk shall enter judgment for Defendants, dismissing this civil action and awarding costs, by Judge Richard P. Matsch on 9/12/2014. (jsmit)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 13-cv-0363-RPM
GINA HOLUB,
Plaintiff,
v.
CHRIS GDOWSKI, SHELLEY BECKER, MARK HINSON, NORM JENNINGS, and
ADAMS 12 FIVE STAR SCHOOLS,
Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Gina Holub is a former employee of Defendant Adams 12 Five Star School
District (“the School District” or “the District”) whose employment was terminated in
October 2012. The individual Defendants are Chris Gdowski, superintendent of the School
District; Shelly Becker, chief financial officer of the School District; Mark Hinson, the
School District’s assistant-superintendent of human resources; and Norm Jennings, a
member of the School District’s Board of Education (“School Board” or “Board”). In her
Second Amended Complaint, Holub brought the following claims against all Defendants
except Norm Jennings: (1) First Amendment retaliation under 42 U.S.C. § 1983; (2) breach
of contract; (3) intentional interference with a contractual relationship; and (4) wrongful
discharge in violation of public policy. Holub also asserted a defamation claim against
Superintendent Gdowski and Jennings.

In her Response to Defendants’ Motion for

Summary Judgment, Holub agreed to dismiss Chief HR Officer Hinson and Norm Jennings
from the case. [Doc. 57 at 2.]
FACTUAL BACKGROUND
The following facts are material and not in genuine dispute. The School District hired
Gina Holub as its Internal Auditor and she began work in January of 2007. Holub’s contract
with the District provided that she could be terminated for “cause.” [Doc. 55, Ex. B ¶ 9.]
Holub’s job duties required her to, inter alia:
Analyze data for internal audit. Determine the adequacy and effectiveness of the
district’s systems of internal accounting and operating controls. Review the reliability
and integrity of financial information and the means used to identify, measure, classify
and report such information.
...
Report to those members of management who should be informed or who should take
corrective action, the results of audit examinations, the audit opinions formed, and the
recommendations made.
...
Communicate results of internal audit to stakeholders.
[Doc. 55, Ex. C at 2.]
Holub reported to the School District’s CFO. When Holub was hired, Becky Samborski
was the District’s CFO. During Ms. Samborski’s tenure, the District had a recurring problem
with underspending budgeted amounts in areas that could not be identified. [Doc. 55, Ex. D
¶ 2.] Samborski left the School District in October 2011.
Shelley Becker was hired as the District’s new CFO in December of 2011. CFO Becker
immediately identified a number of issues with the District’s prior budgeting practices, and
within the first few months of her employment she began the process of converting the
District to line-item budgeting to allow the District to more accurately compare budgeted

2

funds to actual expenditures. One of the goals of this conversion was to identify the areas of
underspending so future budgets would be more accurate. [Id. ¶¶ 3-4; Doc. 55, Ex. E ¶ 1.]
In mid-April 2012, CFO Becker asked Tracey Cantrell, the fiscal manager for the
District’s student support services department, to perform an analysis of the District’s fulltime equivalent employees (“FTEs”). [Doc. 57, Ex. 1 ¶ 3.] Cantrell determined that there
was at least $12 million in unverifiable FTE salary expenses built into the District’s budget,
which she reported to CFO Becker.
In June 2012, Gina Holub expressed concern to Superintendent Gdowski that reporting to
CFO Becker was a conflict of interest, and stated that the Internal Auditor should instead
report to the Superintendent.

[Doc. 55, Ex. F at 72:13-18; 76:17-22.] Superintendent

Gdowski asked Holub to research the proper reporting structure for an internal auditor and
get back to him. [Id. at 72:19-24; 76:17-22.] Holub responded to Superintendent Gdowski
by e-mail on July 12, 2012. She sent him the Attribute Standards from the Institute of
Internal Auditors’ website and quoted the following specific provisions:
1100 – Independency & Objectivity
‘To achieve the degree of Independence necessary to effectively carry out the
responsibilities of the internal audit activity, the chief audit executive has direct and
unrestricted access to senior management and the board. This can be achieved
through a dual-reporting relationship.’
1110 – Organizational Independence
‘The chief audit executive must report to a level within the organization that allows
the internal audit activity to fulfill its responsibilities. The chief audit executive must
confirm to the board, at least annually, the organizational independence of the
internal audit activity.’ ‘Organizational independence is effectively achieved when the
chief audit executive reports functionally to the board.’
1111 – Direct Interaction with the Board
3

‘The chief audit executive must communicate and interact directly with the
board.’
...
2060 – Reporting to Senior Management and the Board
‘The chief audit executive must report periodically to senior management and the
board on the internal audit activities purpose, authority, responsibility, and
performance relative to its plan. Reporting must also include significant risk
exposures and control issues, including fraud risks, governance issues, and other
matters needed or requested by senior management and the board.’
[Doc. 55, Ex. G (emphasis added).] Holub noted in her e-mail that the position of “chief
audit executive” in the Attribute Standards appeared to match her job as the School District’s
Internal Auditor.
In June 2012, Holub analyzed the fiscal year 2012-2013 budget.

Holub contacted

Superintendent Gdowski and expressed her concerns that the budget contained $17 million in
excess salary expenses and that improper “plugs” might have been used to balance the
budget. [Doc. 34 ¶5; Doc. 55, Ex. D ¶ 6]. In response, Superintendent Gdowski encouraged
CFO Becker to meet with the finance department to work through Holub’s issues. [Doc. 55,
Ex. D ¶ 6].
Superintendent Gdowski e-mailed Holub on June 21 and said that he wanted her to meet
the School Board at the Board’s August meeting so they could learn more about her work
and have her as a resource if they had any issues with himself or with CFO Becker in the
future. [Doc. 55, Ex. H.] Superintendent Gdowski stated that he wanted Holub to get to
know the Board so she could contact them if she believed he was violating laws or District
policies or that he was failing to respond to allegations of noncompliance by other District
staff members. [Doc. 55, Ex. D ¶ 8].

4

After Holub sent Superintendent Gdowski a list of specific questions about various
budget issues, he arranged a meeting with Holub, CFO Becker, Chief HR Officer Mark
Hinson, and General Counsel Cheryl Karstaedt; and invited CFO Becker to bring the
District’s consultant, Vickie Lisco, the Budget Manager, Rose Ann Barranco, or anyone else
from her staff who might be able to assist in answering Ms. Holub’s questions. [Doc. 55, Ex.
D ¶ 7.] The meeting was held on July 24, 2012. Holub was not satisfied with the answers
CFO Becker and Ms. Lisco provided and came out of the meeting with additional questions
in her mind regarding the School District’s budget practices.
During three more meetings with Holub, CFO Becker and other members of the budget
and finance teams, as well as Chief HR Officer Hinson, attempted to address Holub’s
concerns and explain how the figures that made up the 2012-2013 fiscal year budget were
derived from financial records. [Doc. 55, Ex. D ¶ 9; Ex. E ¶¶ 3-4; Ex. W ¶ 2; Ex. I at 7-8.]
Aware that the District was negotiating with the teachers’ union at the time, Holub expressed
concern during the meetings that the District was using the alleged excess expenses as an
improper reason to cut or slow the growth of teacher salaries. [Doc. 34 ¶ 8.]
Superintendent Gdowski was satisfied with the explanations provided by CFO Becker
and her staff at the meetings and believed that Holub’s claim of inflated salary expenditures
was incorrect. [Doc. 55, Ex. D ¶ 10]. Holub was not satisfied.
On August 13, 2012, Holub contacted Mark Clark, President of the School Board, and
told him she believed there were inflated salary expenses in the budget; she asked to present
her “findings” to the Board. [Doc. 55, Ex. I at 8.] Holub stated that she was concerned about
retaliation but Clark assured her that she should not worry about retaliation because she was
“doing what they hired [her] to do.” [Id.]
5

Superintendent Gdowski introduced Holub to the Board on August 15. [Doc. 55, Ex. I at
8; Ex. D ¶ 8.] Superintendent Gdowski informed the Board in Holub’s presence that he
believed the Internal Auditor should be permitted to approach the Board if she believed he
was violating laws or District policies concerning finances or that he was not responding
adequately to concerns about other School District managers. [Doc. 55, Ex. D ¶ 8.]
Superintendent Gdowski wrote to Holub on August 17 to indicate that he was planning to
schedule a meeting with her and School Board President Clark to talk about the 2012-2013
budget. [Doc. 55, Ex. J.] That day, Holub renewed her employment contract for the period
from July 1, 2012, to June 30, 2013. [Doc. 55, Ex. B.]
On August 19, 2012, Holub responded to Superintendent Gdowski’s e-mail, stating that
she wanted to present her “findings and concerns” to the Board, and asked School Board
President Clark’s assistant to verify that the “appropriate people are invited and attend the
meeting.” [Doc. 55, Ex. K.] Superintendent Gdowski responded that while he did not
believe Holub had raised valid concerns regarding the 2012-2013 budget and would not
recommend that the Board hear her concerns in a public meeting, he would see if School
Board President Clark wanted to meet with just the three of them, have a colleague on the
Board join him, or have the entire Board hear her concerns in a public meeting. [Doc. 55,
Ex. L.]
On August 21, Holub sent Superintendent Gdowski a memo in which she claimed that
the District was acting illegally and unethically by using inflated salary figures to achieve a
fund balance of 10% of expenditures, citing various statutes and accounting standards she
believed were implicated. [Doc. 34 ¶ 10; Doc. 55, Ex. I at 8; Doc. 55, Ex. D ¶ 11.] School
Board policy required the District to budget to a 10% fund balance. Superintendent Gdowski
6

did not believe that Holub’s claim was supported by any information he had seen during the
four earlier meetings. [Doc. 55, Ex. D ¶ 11.] Because Holub was specifically accusing the
District of illegal and unethical conduct, Superintendent Gdowski decided to bring in an
independent expert in school budget and finance to review the matter. He directed General
Counsel Karstaedt to retain the independent expert, investigate Holub’s claims along with the
expert, and report back to the School Board. [Doc. 34 ¶10; Doc. 55, Ex. D ¶ 12.]
The School District hired Vody Herrmann, a former Assistant Commissioner for Public
School Finance with the Colorado Department of Education and a well-known and wellrespected figure in the field of school budget and finance, to serve as the independent expert
in the investigation. [Doc. 55, Ex. D ¶ 13; Doc. 55, Ex. E ¶ 6.] Herrmann met with Holub
and reviewed Holub’s supporting documents; met separately with CFO Becker and Budget
Consultant Lisco and reviewed the documents they had used while preparing the budget and
responding to Holub’s inquiries; and also looked at prior years’ financials to determine
whether any issues were new or were ongoing from the previous administration. In total,
Herrmann spent about 70 hours on her review. [Doc. 55, Ex. D ¶ 13; Doc. 55, Ex. E ¶ 6.]
On August 29, 2012, before Ms. Herrmann had completed her review, Holub e-mailed
Superintendent Gdowski and stated that, regardless of what conclusions Herrmann reached,
she (Holub) still wanted to present her own findings to the Board of Education. Holub
stated: “I have a responsibility in my position to report to the Board when I think there is an
issue that they should be aware of.”

[Doc. 55, Ex. M.]

General Counsel Karstaedt

responded to Holub’s e-mail, stating that the Board would determine whether or not to
request a presentation from her. The Board never requested such a presentation. [Doc. 34
¶12.]
7

On September 5, 2012, again before Ms. Herrmann had completed her review, Holub
expressed her concerns regarding the District’s budget to Amie Baca, a representative of the
local teachers’ union. Holub stated that she believed the District’s budget expenses had been
intentionally inflated by approximately $17 million. [Doc. 34 at ¶ 13.] On September 11,
Holub met with Rob Kellogg, a director with the Colorado Education Association (the state
teachers’ union), and told him the same thing. [Doc. 34 ¶15; Doc. 55, Ex. F at 167:23168:4.]
On September 20, 2012, Vody Herrmann presented her findings to Holub, Superintendent
Gdowski, CFO Becker, General Counsel Karstaedt, and Chief HR Officer Hinson.
Herrmann concluded that for several years the District had had a recurring problem with
underspending of its budget, which the District was aware of and was already taking steps to
address. Herrmann specifically found that while there were concerns that needed to be
addressed and improvements that needed to be made with the District’s budgeting, there was
no illegal or unethical budget activity taking place. [Doc. 34 ¶16; Doc. 55, Ex. D ¶ 16; Ex. E
¶ 7; Ex. W ¶ 4.] Herrmann rejected Holub’s contention that the salary expenses for the 20122013 budget were inflated by $17 million and concluded that there was very little variance in
the District’s budgeted salary to actual salary expenses.

Herrmann noted that Holub’s

calculation of salary expenses had not included a number of items that were counted in the
budgeted salary figures, such as retirement stipends, coaching stipends, extra duty and
overtime pay, professional leave, and military leave. [Doc. 55, Ex. D ¶ 17; Ex. E ¶ 7; Ex. W
¶ 4.] According to Chief HR Officer Hinson, Holub was “visibly angry and clearly unable to
accept that she might have been wrong” after Herrmann presented her conclusions. [Doc.
55, Ex. W ¶ 4.]
8

At the end of the meeting, Superintendent Gdowski told Holub that they needed to fix the
problems Herrmann identified working as a team, which would require that they trust each
other to be acting in good faith and for the good of the District. Gdowski asked Holub to
contact him if she wanted to discuss any outstanding concerns in a smaller forum. Ms.
Holub never requested another meeting. [Doc. 55, Ex. D ¶ 18.]
On September 25, Holub met with two members of the District’s School Board, Fred
Schaefer and Max Wilsey, and informed them that she believed the District would have $17
to $24 million in excess funds at the end of fiscal year 2012-2013. [Doc. 34 ¶21.] Holub
showed them her calculations and claimed that someone had been using a “plug” to hide the
excess expenses. [See id.] Holub indicated she had not raised this issue with Superintendent
Gdowski or CFO Becker because she was concerned about retaliation. [Doc. 55, Ex. I at 10.]
Dr. Schaefer asked Holub why she would put her neck out; she replied: “I believe it is my
job. I believe that I am to be independent because I should audit everyone. I believe it is my
job to report to the board if Management is doing something I think the Board should know
about.” [Id.] Dr. Schaefer indicated that he agreed with Holub. [See id.] Holub e-mailed
documentation of her concerns to Dr. Schaefer following the meeting, but Dr. Schaefer did
not forward that material to anyone else. [Doc. 55, Ex. X.]
Dr. Schaefer and Mr. Wilsey met with Superintendent Gdowski on September 27, 2012
to discuss Holub’s concerns. Superintendent Gdowski explained the process the District had
gone through to explain to Holub why her claim of inflated budgeted salary expenses was
inaccurate. Dr. Schaefer and Mr. Wilsey were satisfied that the issue had already been
addressed and concluded that they did not need to pursue it any further. [Doc. 55, Ex. D ¶
19; Ex. X ¶ 5.]
9

Sometime in early October 2012, Superintendent Gdowski, CFO Becker, and Chief HR
Officer Hinson met to discuss Holub’s inability to move forward from her budget
accusations and work productively with CFO Becker. It appeared to them that Holub had
developed a personal vendetta against CFO Becker that had overridden any objectivity she
(Holub) may have previously had. Gdowski, Becker and Hinson collectively decided to
terminate Holub’s employment. [Doc. 55, Ex. D ¶ 21; Doc. 55, Ex. W ¶ 4-5.]
Chief HR Officer Hinson and CFO Becker met with Holub on October 19, 2012. Hinson
informed Holub that the District believed that Holub’s “personalization” of her budgetrelated work over the previous four months dramatically impacted her “ability to be unbiased
in her approach, supportive of Board of Education decisions, and an effective team member
in the Financial Services Department.” [Doc. 55, Ex. N.] Hinson further emphasized
Holub’s poor professional relationship with her immediate supervisor, CFO Becker. [Doc.
55, Ex. N; Ex. W ¶ 6.] Hinson also went over the School District’s efforts to address
Holub’s concerns regarding the 2012-2013 budget and identified other issues with Holub’s
performance. Holub was given an opportunity to respond to each of these issues, but Mr.
Hinson found her responses unpersuasive. At no time during the meeting did Chief HR
Officer Hinson or CFO Becker raise any issues with Holub’s communications with teachers’
union officials, as they were unaware of such communications at the time of the meeting.
[Doc. 55, Ex. E ¶ 10; Ex. W ¶ 8; Ex. D ¶ 23.] At the conclusion of the October 19, 2012,
meeting, Hinson informed Holub that her employment was being terminated. [Doc. 34 ¶ 27].
In a letter to Holub dated October 26, 2012, Chief HR Officer Hinson summarized their
pre-termination meeting and the reasons why the District decided to fire her. [Doc. 55, Ex.
N.] The letter does not mention Holub’s communications with union representatives. [See
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id.] The letter stated that Holub would be on paid administrative leave through October 31,
2012 and that her contract would be terminated effective November 1, 2012. [Id.]
The School District’s collective bargaining agreement with the local teachers’ union
provides for the parties to participate in a formal fact-finding proceeding before a neutral
third party if the sides cannot negotiate an agreement. Apparently that process was triggered
and a fact-finding hearing was scheduled to begin on October 29, 2012. The parties did not
exchange witness lists beforehand. [Doc. 55, Ex. D ¶ 22.] When the District received the
teachers’ union’s witness list on October 29, it learned that Holub was scheduled to testify on
the union’s behalf. Holub’s testimony and the union attorney’s questioning of the School
District’s witnesses made Defendants realize that Holub had provided the union with
information she obtained while working as the District’s Internal Auditor. [Doc. 55, Ex. D
¶¶ 23-24; Ex. E ¶ 10; Doc. 55, Ex. W ¶ 8.] Given that revelation, Chief HR Officer Hinson
sent Holub another termination letter on October 29, 2012, which added a section noting that
the District was in a contested proceeding with the teachers’ union and that Holub breached
her fiduciary duties to the District by disclosing confidential and privileged information to
the union. [Doc. 55, Ex. N at 6.]
On November 1, 2012, Holub submitted her on-line application for unemployment
benefits, stating as follows:
The District stated “the District reached a point where they did not find the employment
relationship as mutually beneficial” because I looked into the budget and found it was
inflated with unsubstantiated expenditures and they retaliated and fired me. The poor
relationship with my immediate supervisor is because she did not want me looking into
what she was doing. I was doing my job as an internal auditor, and although per my job
description she was my supervisor I was in my own department which was Internal Audit
and it was my job to look into anything having to do with district finances and bring
problems/issues to the attention of Management and the Board when necessary. They
11

retaliated against me for going to the Board because management did not want me going
to the board.
[Doc. 55, Ex. O (emphasis added).]
On December 5, 2012, Holub submitted a written statement to the Department of Labor
responding to the District’s statement as to why it fired her. [Doc. 55, Ex. I.] Holub
affirmed repeatedly that she was acting within the scope of her job duties when she reported
her concerns both to School District management and to the Board:
 “I was fired in retaliation for doing my job and bringing my concerns to the
Superintendent and the Board” [id. at 3];
 “Mark Clark [Board President] said I should not worry about retaliation that I am
doing what they hired me to do” [id. at 9];
 “I believe it is my job to report to the board if Management is doing something I
think the Board should know about. Fred [Schaefer] said he would agree.” [id. at
10 (emphasis in original)];
 “I did not ‘personalize’ the budget, I did my job and when I had a differing view then
[sic] management that I felt was important I brought it to the Board, to make sure the
Board knew the issues that I saw. I am not in the Financial Services Department; I am
in the Internal Audit Department proven by my job description, the budget book with
my own pages and me as the contact person. I have never been part of the Financial
Services Department because that would be a conflict of interest; I am just to report to
the CFO per my job description no different than the CFO Reporting [sic] to the
Superintendent but not being in Central Administration department” [id. at 13-14].
On February 4, 2013, Denver’s Fox affiliate televised a story about the District’s
budgeting practices. The story included a pre-recorded interview with Holub in which she
asserted that the District had inflated its budgeted salary figures by $17 million. [Doc. 55,
Ex. D ¶ 26; Ex. E ¶ 12.] The story also included a pre-recorded interview with a Professor
Sorenson from the University of Denver, who obtained data and modeling information from
Holub and supported her conclusions. Superintendent Gdowski also sat for a pre-recorded

12

interview. Knowing that the story was going to air, Superintendent Gdowski posted an open
letter to the District’s staff, parents, and community members on the District’s website on
February 4. [Doc. 55, Ex. P.] In the letter, Superintendent Gdowski said that Holub’s
allegations of unethical and illegal budgeting practices were “absolutely false,” as confirmed
by the review of both Vody Herrmann and the District’s external auditors.

[Id.]

Superintendent Gdowski also questioned Holub’s credibility because of her involvement
with the teachers’ union and stated that she had “abandoned her fiduciary responsibility” to
the District by giving the union confidential information. [Id.] Superintendent Gdowski
attached a copy of a letter from Vody Herrmann, confirming that she had found no merit to
Holub’s accusations that the District was hoarding or hiding money. [Id. at 3.]
On February 11, 2013, Holub initiated this lawsuit.
DISCUSSION
Holub claims that Defendants retaliated against her, in violation of the First Amendment,
for: (1) reporting her concerns regarding inflated salary expenses to District management
and School Board members Clark, Schaefer and Wilsey; and (2) reporting the allegedly
inflated salary expenses to two members of the teachers’ union.
Defendants argue that Holub cannot sustain a First Amendment retaliation claim based on
her first contention because her statements to the School Board members were made
pursuant to her official duties.

[Doc. 55 at 20-25.]

“[W]hen public employees make

statements pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.”

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

The

determination of whether speech is made pursuant to an employee’s official duties “is a
13

practical one,” id. at 424; “[t]he 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.’” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir.
2007) (citing Garcetti). The Tenth Circuit “[has] stated that speech is made pursuant to
official duties if it is generally consistent with ‘the type of activities [the employee] was paid
to do.’” Id. (quoting Green v. Bd. of County Comm’rs, 472 F.3d 794, 801 (10th Cir. 2007)).
Here, Holub’s job duties included “[d]etermin[ing] the adequacy and effectiveness of the
[D]istrict’s systems of internal accounting and operating controls[]”; “[r]eview[ing] the
reliability and integrity of financial information and the means used to identify, classify and
report such information[]”; and reporting results of internal audits to “members of
management” and to “stakeholders.” [Doc. 55, Ex. C.]
When Holub expressed concern about reporting directly to the CFO, she sent
Superintendent Gdowski excerpts from the Attribute Standards from the Institute of Internal
Auditors’ website; the Standards stressed that a “chief audit executive” should have
organizational independence by having direct access to the board of the organization. Holub
characterized herself as the School District’s “chief audit executive.”
When Holub raised issues with the District’s budget practices, she repeatedly stated that
she thought it was her job to report to the Board if management was doing something wrong.
And after her employment was terminated, Holub repeatedly stated that the School District
simply fired her for doing her job. [Doc. 55, Exs. I & O.]
Taking all of this together, it is clear that Holub was speaking pursuant to her official
duties when she raised issues regarding the District’s budget practices with District
management and School Board members.
14

Holub contends that the District “told Ms. Holub that it was not within the scope of duties
to report to the school board” because General Counsel Karstaedt denied Holub’s request to
make her concerns known to the Board. [Doc. 57 at 18.] That is a mischaracterization of the
evidence. When Holub asked to present her findings and concerns to the Board, both
Superintendent Gdowski and General Counsel Karstaedt stated that it was up to the Board to
decide whether a formal presentation was warranted. In addition, the record shows that
Superintendent Gdowski, School Board President Clark, and School Board Member Schaefer
all stated that Holub was doing what she had been hired to do.
The case Holub primarily relies on, Casey v. West Las Vegas Independent Sch. Auth.,
473 F.3d 1323 (10th Cir. 2007), actually undercuts her position. There, the Tenth Circuit
held that Casey, a school district superintendent, acted within the scope of her job duties in
reporting improprieties with the district’s Head Start program to her school board, and in
ordering her subordinate to report the improprieties to federal authorities. The Court further
held that the superintendent acted outside the scope of her job duties when she filed a written
complaint with the state attorney general’s office that the school board was violating the
state’s open meetings act. “It was when Casey went beyond her supervisors and reported to
someone outside her chain of command about a matter which was not committed to her care
that [the Tenth Circuit] found that her speech was protected by the First Amendment.”
Thomas v. City of Blanchard, 548 F.3d 1317, 1325 (10th Cir. 2008) (construing Casey). By
contrast, Holub reported her concerns to CFO Becker, Superintendent Gdowski, and
members of the School Board, each within her chain of command, on matters within her job
responsibilities.

15

Holub’s First Amendment retaliation claim based on her first contention fails because her
statements to School Board members were made pursuant to her official duties and thus were
not protected speech.
As for Holub’s second retaliation contention, Defendants concede that she engaged in
conduct protected by the First Amendment when she reported her budget concerns to
members of the teachers’ union. [Doc. 55 at 25.] Holub must also show that Defendants
would not have reached the same employment decision in the absence of her protected
conduct. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). According to
Holub, her involvement with the teachers’ union was a motivating factor in Defendants’
decision to fire her because she “did not lose her employment until November 1, 2012, and
she was still an employee on October 29, 2012, when [Chief HR Officer] Hinson wrote that
she was being terminated for her communication with the union.” [Doc. 57 at 17.]
Regardless of when Holub’s employment technically ceased, she was fired on October
19, 2012. There is no record evidence showing or suggesting that any Defendant was aware
of Holub’s involvement with the union at that point. Defendants sent Holub a letter on
October 26 giving various reasons why her employment was being terminated; her
communications with teachers’ union representatives were not among them. It was only
after the union revealed Holub as a witness in the fact-finding proceeding on October 29,
2012 that the Defendants learned of the communications and Chief HR Office Hinson sent
Holub an additional termination letter that included them as another reason for the District’s
decision. Given these facts, a reasonable juror could not conclude that the School District
would not have terminated Holub’s employment in the absence of Holub’s protected
conduct.
16

Plaintiff attempts to hold the School District liable for the alleged retaliation by its
official policymakers. [Doc. 34 ¶¶ 33-34.] “[A] municipality may not be held liable where
there was no underlying constitutional violation by any of its officers.” Graves v. Thomas,
450 F.3d 1215, 1218 (10th Cir. 2006). Because the School District’s officers did not violate
the First Amendment by terminating Holub’s employment, it follows that the School District
cannot be liable for retaliation on a municipal liability theory.
Holub’s employment contract with the School District provided: “Throughout the term
of this Contract, . . . the Administrator may be terminated for cause.” [Doc. 55, Ex. B ¶ 9.]
The term “cause” is not defined. Holub claims that the School District breached the contract
because it did not have “cause” to terminate her employment.
The School District’s reasons for terminating Holub’s employment were explained to her
during her October 19 meeting with Chief HR Officer Hinson and CFO Becker, and in the
October 26 letter the School District sent to her. The “overarching basis” for the District’s
decision was its position that Holub’s “personalization of budget-related work for the past
four months . . . had a dramatic impact on [her] ability to be unbiased in [her] approach,
supportive of Board of Education decisions and an effective team member in the Financial
Services Department.”

[Doc. 55, Ex. N at 2.]

The District attributed Holub’s “poor

professional working relationship” with CFO Becker to Holub’s personal “[attacks] on the
competency and ethics” of Becker during the meetings the District held to address Holub’s
concerns. [Id.] The District noted that even though it tried to address Holub’s concerns in a
constructive manner, her “tone, tenor and negative approach remained virtually the same”
[id.]; that Holub was unwilling to accept Vody Herrmann’s independent conclusion that there
was nothing illegal or unethical about the District’s budget practices [id. at 3]; and that after
17

Herrmann presented her findings, Holub “made no attempt to move forward and work in a
collaborative manner” [id.]. Based on those circumstances, the District concluded that Holub
was “unable to successfully execute all aspects of the position [she held] in an effective and
positive manner.” [Id.]
Holub claims that there is a factual dispute as to whether Superintendent Gdowski and
CFO Becker, “who were in charge of the entire process, knew exactly what was going on[]”
and manufactured cause to terminate Holub’s employment as a pretext for their true
motivation: retaliating against Holub for exposing that the District “cooked the books.”
[Doc. 57 at 20-21.] The factual dispute, Holub seems to say, is who was ultimately correct in
their analysis of the School District’s budget, which, according to her, is “[a] principal issue
in this case . . . .” [Doc. 66 at 1.] Even assuming Holub’s budget analysis was correct, the
record shows that District management engaged outside experts and internal employees to
conduct analyses of their own, and that District management explained their differing
methodologies to Holub on a number of occasions. This was unmistakably a dispute about
accounting practices and conventions and there is no indication that the School District was
feigning engagement in a debate with Holub just so it could ultimately fabricate a reason to
fire her. Holub apparently believes that if it is shown that she was right and the School
District was wrong about the budget calculations, then the inference should be that there was
a massive cover-up. Based on the Court’s review of the evidence, that inference is not
plausible.
The undisputed evidence shows that the District had sufficient “cause” to terminate
Holub’s employment. Holub’s breach of contract claim accordingly fails.

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Defendants argue that Holub’s state tort claims against the School District are barred by
the Colorado Governmental Immunity Act (“CGIA”) because the School District is a public
entity and has not waived immunity for the tort claims at issue here. Holub acknowledges
that her tort claims against the School District are barred by the CGIA. [Doc. 57 at 21.]
Defendants argue that the CGIA bars Holub’s claims for intentional interference with a
contract and wrongful discharge in violation of public policy against both Superintendent
Gdowski and CFO Becker; and Holub’s defamation claim against Gdowski only. [Doc. 55 at
29-36.] Because Superintendent Gdowski and CFO Becker are public employees, and there
is no applicable waiver of immunity, Holub can bring her tort claims against them only if she
can demonstrate that their actions were “willful and wanton” within the meaning of the
CGIA. See Colo. Rev. Stat. § 24-10-118(2)(a).
Holub asserts that “intentionally lying to the public about $16 million of the public’s
money is enough to support a claim of willful and wanton conduct.” [Doc. 57 at 24.] The
evidence does not support Holub’s assertion. When Holub accused the District of illegal and
unethical activities, the School District hired an independent investigator, Vody Herrmann, a
well-respected figure in the field of school budget and finance, to investigate.

If

Superintendent Gdowski and CFO Becker were in fact involved in a cover-up, it defies
common sense that they would, on their own volition, engage an independent expert to
review the very books they are alleged to have cooked. Based on 70 hours of reviewing the
issue, Herrmann “found no merit to [Holub’s] allegations”—“there were no grounds to
support the charges of unethical or illegal behavior[]”; “[n]o funds were hidden[]”; and “[t]he
district [was] not hoarding money . . . .” [Doc. 55, Ex. P at 3.] Holub may disagree with

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Herrmann’s calculations, but Holub does not provide any basis for the Court to question that
Herrmann undertook her review, and Defendants relied on her conclusions, in good faith.
Holub also claims that “willful and wanton” conduct can be inferred because, after CFO
Becker found out that Tracey Cantrell told Holub about the budget discrepancies, Becker
“came into [Tracey] Cantrell’s office; pressed her body against Ms. Cantrell’s back forcing
[sic] Ms. Cantrell’s chest against her desk; and, with her lips on Ms. Cantrell’s hair, said
‘How dare you go above my head.’” [Doc. 57 at 21.] This incident is in dispute. Even
assuming Holub’s account is true, Becker’s conduct is that of a supervisor frustrated by a
subordinate’s perceived insubordination; the conduct has little, if anything, to do with
intentional interference with an employment contract, unlawful discharge, or defamation
against Holub. CFO Becker’s conduct, as characterized by Holub, does not rise to the level
of willful and wanton, either.
Holub premises her defamation claim against Superintendent Gdowski on two statements
in the letter he wrote to School District staff and parents when he realized a story detailing
Holub’s allegations was going to air on the local Fox affiliate. The first statement is as
follows: “This former employee continues to allege the district has engaged in unethical and
illegal budgeting practices. This is absolutely false. This has been confirmed through a
review of our practices by multiple experts.” [Doc. 55, Ex. P (emphasis in original).] Holub
claims that Superintendent Gdowski knew that the statement was false because he was
involved in “cooking the books” [Doc. 57 at 25], but again, there is no evidence actually
supporting Holub’s allegations of book cooking.

There is no evidence supporting a

reasonable conclusion that this statement was willful or wanton.
Holub also objects to the following statement in Superintendent Gdowski’s letter:
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Also of note, the credibility of disgruntled former employee Ms. Holub is
questionable given she chose to represent the district’s teachers’ union in negotiations
while she was employed as an administrator of the district. Through this action alone she
abandoned her fiduciary responsibility to the district and board of education.
[Doc. 55, Ex. P.] According to Holub, Superintendent Gdowski is an attorney and should
have known, but was deliberately indifferent to, the fact that Holub’s “fiduciary
responsibilities” were to the taxpayers. [Doc. 57 at 25.] The District is governed by an
elected Board of Education. They are the representatives of the taxpayers and it is to them
that District employees owe a fiduciary duty. Gdowski’s second statement does not amount
to willful and wanton conduct.
The evidence provided by Holub does not support a reasonable finding that
Superintendent Gdowski and CFO Becker acted willfully and wantonly.

Accordingly,

Holub’s state tort law claims against them are barred by the CGIA.
CONCLUSION
Upon the foregoing, it is
ORDERED that Defendants’ Motion for Summary Judgment [Doc. 55] is granted. The
clerk shall enter judgment for Defendants, dismissing this civil action and awarding costs.
Dated: September 12, 2014
BY THE COURT:

s/Richard P. Matsch
___________________
Richard P. Matsch
Senior District Judge

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