Cantrell v. Gdowski et al
ORDER by Judge Philip A. Brimmer on 3/24/15. ORDERED: Defendants' Motion for Summary Judgment [Docket No. 27] is GRANTED in part as indicated in this order. ORDERED: Ms. Cantrell's 42 U.S.C. § 1983 claims for violation of her First Amendment rights and violation of her Fourteenth Amendment procedural due process rights are DISMISSED with prejudice against all defendants. ORDERED: Ms. Cantrell's state law claims against Ms. Riccio for breach of contract, intentional inte rference with a contractual relationship, and wrongful discharge in violation of public policy are DISMISSED with prejudice. ORDERED: Ms. Cantrell's state law claims against Mr. Gdowski, Ms. Becker, and the district for breach of contract, inte ntional interference with a contractual relationship, and wrongful discharge in violation of public policy are DISMISSED without prejudice. ORDERED: Within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. ORDERED: This case is dismissed in its entirety. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00679-PAB-KLM
KRISTY RICCIO, and
ADAMS 12 FIVE STAR SCHOOLS,
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 27] filed by defendants Chris Gdowski, Shelley Becker, Kristy Riccio, and Adams
12 Five Star Schools (the “district”). This Court has subject matter jurisdiction over Ms.
Cantrell’s 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331 and over Ms.
Cantrell’s state law claims pursuant to § 1367. 1
In August 2011, Ms. Cantrell began working for the district as the Fiscal Manager
of Student Support Services. Docket No. 27 at 2, ¶ 1. Mr. Gdowski is the district’s
Superintendent. Ms. Becker is the district’s Chief Financial Officer. Ms. Riccio is a
Although Ms. Cantrell’s amended complaint does not contain any jurisdictional
allegations, see generally Docket No. 16, the Scheduling Order indicates that she
asserts jurisdiction pursuant to § 1331 and § 1367.
The following facts are undisputed unless otherwise indicated.
Human Resources Director with the district.
The Student Support Services department provides health services, preschool,
and special education services. Docket No. 30-1 at 1, ¶ 1. Ms. Cantrell’s duties
included reviewing, analyzing, interpreting, and summarizing financial data, responding
to inquires related to account information, reporting needs, and financial questions, and
communicating with various district officials and staff. Docket No. 27-1 at 1. Ms.
Cantrell reported directly to the Director of Student Support Services Brian Printz.
Docket No. 30-1 at 1, ¶ 1. Ms. Cantrell states that she nev er reported to the district’s
Board of Education. Id.
Ms. Cantrell’s contract with the district provided that her employment could be
terminated at any time for cause. Docket No. 27-2 at 2, ¶ 9. Higher level supervisors
such as Ms. Becker could recommend employees for termination, but only Mr. Gdowski
or the district’s Director of Human Resources Mark Hinson had authority to formally
terminate an employee. Docket No. 30 at 9, ¶ 65. A list of proposed personnel actions,
such as hiring, termination, or unrenewed contracts would then be presented to the
board for approval. Docket No. 30-10 at 2, p. 14:1-23.
Ms. Becker was one of Ms. Cantrell’s supervisors during her employment.
Docket No. 27 at 2-3, ¶ 4. In May 2012, Ms. Becker asked Ms. Cantrell to assist in the
preparation of the district’s 2012-2013 fiscal year budget by compiling a spreadsheet of
the district’s full-time equivalent employees (“FTEs”) and their respective salaries. Id. at
3, ¶ 5. In the course of compiling this information, Ms. Cantrell believed that she found
approximately $12 million in unverifiable salary expenses. Id. at 3, ¶ 6. Ms. Cantrell
claims the $12 million represented 569 employees that did not exist. Docket No. 30 at
3, ¶ 32. Defendants admit that there was approximately $12 million in unverifiable
salary expenses, but assert that Ms. Cantrell’s calculations were incorrect for failure to
include numerous items charged to salary accounts such as retirement stipends,
coaching stipends, extra duty and overtime pay, and professional and military leave.
Docket No. 33 at 4, ¶ 31. Ms. Cantrell reported her f indings to Ms. Becker and the
district’s budget consultant Vickie Lisco, but Ms. Becker and Ms. Lisco did not act on
such information. Docket No. 27 at 3, ¶ 6. Ms. Cantrell asserts that, on June 19, 2012,
Ms. Becker asked Ms. Cantrell to find untraceable employees that Ms. Becker could put
in the budget, Docket No. 30 at 3, ¶ 33, which Ms. Becker denies. Docket No. 33-3 at
1, ¶ 1. On June 22, 2012, Ms. Cantrell reported her f indings to the district’s internal
auditor Gina Holub, who asked Ms. Cantrell to save Ms. Lisco’s original budget model
on Ms. Cantrell’s work computer, which she did. Docket No. 27 at 3, ¶ 9. Ms. Holub
discovered additional unsupported expenses in the budget totaling $17 million. Docket
No. 30 at 3-4, ¶ 34. Defendants deny that Ms. Holub’s calculations were correct.
Considerable portions of the parties’ briefs are devoted to the question of
whether or not the district engaged in budgetary improprieties. However, the arguments
and evidence the parties provide with respect to this issue are largely irrelevant to
resolving the present motion. The Court will discuss Ms. Cantrell’s allegations of
budgetary improprieties and the district’s response to such allegations only to the extent
necessary to place Ms. Cantrell’s claims in the appropriate context. Ms. Cantrell’s
theory regarding the relevance of such alleged improprieties appears to be as follows:
A fact finding hearing with the teachers union was set to take place in October 2012,
where a hearing officer would decide how much money the teachers’ union could
demand from the district during contract negotiations. Docket No. 30 at 5-6, ¶ 45-46.
The more money the district spent, the less the teachers’ union could dem and that the
district distribute to teachers. Id. at 6-7, ¶¶ 46-52. As such, during negotiations with the
teachers’ union, it was better for the district to seem to be spending more money on
employee salaries than it actually was. Id. Ms. Cantrell asserts that the district
overestimated salary expenditures in its 2012-2013 budget by as much as $17 million
so as to place it in a more favorable position when negotiating with the teachers’ union.
The district denies these allegations and asserts that its audited financials for the 20122013 fiscal year demonstrate that its budgeted salary expenses exceeded its actual
salary expenditures by approximately $300,000. Docket No. 27 at 6, ¶ 29.
On July 24, 2012, upon learning that Ms. Cantrell had reported her findings to
Ms. Holub, Ms. Becker came into Ms. Cantrell’s office and, pressing her body into Ms.
Cantrell’s back, said “How dare you go above my head.” Id. at 4, ¶ 35. Ms. Becker
denies threatening or making physical contract with Ms. Cantrell. Docket No. 33-3 at 1,
¶ 2. Later that day the Mr. Hinson met with Ms. Becker and Ms. Cantrell to discuss Ms.
Cantrell taking her concerns directly to Ms. Holub. Docket No. 30-1 at 2, ¶ 8. Ms.
Cantrell later complained about the incident to Superintendent Gdow ski. See Docket
No. 33-11. District’s staff attorney Craig Hein was assigned to investigate Ms. Cantrell’s
complaint. Docket No. 30-1 at 2, ¶ 9.
In August 2012, Ms. Cantrell contacted the Colorado Departm ent of Education
regarding her findings regarding un-accounted for FTEs and was advised to take her
findings to the state teachers’ union and to the press. Docket No. 27 at 3, ¶ 8.
Defendants assert that, on August 17, 2012, Ms. Cantrell met with Ms. Becker,
Mr. Hein, and Ms. Riccio to discuss Ms. Cantrell’s complaint regarding Ms. Becker,
whereas Ms. Cantrell asserts that this meeting took place on August 24, 2012. Docket
No. 33 at 6, ¶ 38; Docket No. 30 at 4, ¶ 38. T he parties agree that, at this meeting, Mr.
Hein explained to Ms. Cantrell that, because he could not determine what happened
during the July 24 incident with Ms. Becker, no action would be taken against Ms.
Becker. Docket No. 30 at 4, ¶ 38. Defendants assert that, on August 24, 2012, a
meeting between Ms. Cantrell, Ms. Becker, Mr. Hein, and Ms. Riccio took place to
discuss Ms. Cantrell’s job performance, including concerns regarding attendance,
teamwork, cooperation, and communications. Docket No. 27 at 3-4, ¶ 11. Ms. Cantrell
denies that any meeting took place regarding her job performance. Docket No. 30 at 2,
During the summer of 2012, four budget meetings took place where Ms. Holub
raised concerns that the district was intentionally inflating budgeted salary figures.
Docket No. 27 at 4, ¶¶ 13-14; Docket No. 30 at 5, ¶ 43. Ms. Cantrell claim s that the
district failed to address Ms. Holub’s concerns in those meetings. Docket No. 30 at 5,
Due in part to Ms. Holub’s allegations of improper activity, the district retained an
outside expert in school financing, Vody Herrmann. Docket No. 27 at 4, ¶ 15. Ms.
Herrmann concluded that the district had a recurring problem with underspending its
budget, but found no unethical or illegal activity in relation to the budget and rejected
Ms. Holub’s claim that salary expenses in the 2012-2013 budget were inflated by $17
million. Docket No. 27 at 4, ¶ 16; Docket No. 27-4 at 2, ¶ 7. Ms. Cantrell asserts that
Ms. Herrmann never evaluated specific issues regarding salary expenses. Docket No.
30 at 5, ¶ 44.
In early September 2012, Ms. Holub provided the teachers’ union with
information regarding the 2012-2013 budget. Docket No. 30-2 at 5, ¶ 28. In October
2012, Ms. Cantrell spoke with a representative from the state teachers’ union regarding
unverified salary expenses. Docket No. 27 at 4, ¶ 17. On October 19, 2012, the district
terminated Ms. Holub’s employment. Docket No. 27 at 5, ¶ 18. Ms. Cantrell claims that
Ms. Holub was terminated in part for providing information to the teachers’ union.
Docket No. 30 at 9, ¶ 66.
On February 4, 2013, a local Fox television station aired an interview with Ms.
Holub conducted by reporter Josh Bernstein as part of a story on the district’s budget.
Docket No. 27 at 5, ¶ 19; see also Docket No. 30-14 (“Tonight’s news story regarding
the district’s purported financial practices is the result of misinformation fed to a reporter
by disgruntled former employee Gina Holub.”). On February 13, 2013, Ms. Holub sent
a letter to the district informing it of her intent to file suit. Docket No. 30-16. On
February 19, 2013, Ms. Cantrell attended a department meeting where Mr. Hein
discussed imposing a litigation hold in response to Ms. Holub’s letter. Docket No. 30-1
at 3, ¶ 14. According to Mr. Hein, “[b]ecause Ms. Holub was alleging that the District
had inflated the estimated salaries in the 2012-2013 fiscal year budget by $17 million,
and her allegations were based in part on draft work product produced by Tracey
Cantrell,” the district’s IT department took Ms. Cantrell’s computer and the computer of
another employee who worked with Ms. Holub, Maxine Newmark. Docket No. 27-6 at
1, ¶ 3. The IT department created a disk image of Ms. Cantrell’s computer and
returned it to her. Id. at 1, ¶ 4; Docket No. 30-1 at 3, ¶ 14. Mr. Hein states that the
district did not examine Ms. Cantrell’s computer or the disk image until March, 8, 2013,
when he ordered IT to conduct a forensic examination of Ms. Cantrell’s and Ms.
Newmark’s disk images. Docket No. 27-6 at 2, ¶¶ 5-6; Docket No. 27-7. Ms. Cantrell
does not provide any evidence disputing Mr. Hein’s statements regarding the timing of
the district’s forensic examination of her disk image. Docket No. 30 at 2, ¶ 21.
According to Ms. Becker and Mr. Printz, Ms. Cantrell continued to have
performance issues. Docket No. 27 at 5, ¶ 22; see also Docket No. 27-4; Docket No.
27-8. Ms. Becker recommended that the district terminate Ms. Cantrell’s employment.
Docket No. 30-18 at 2, p. 63:20-24. On February 27, 2013, Ms. Riccio placed Ms.
Cantrell on administrative leave. Docket No. 27 at 5, ¶ 23. On February 28, 2013, Ms.
Cantrell spoke with Mr. Bernstein and told him that she provided information to Ms.
Holub. Id. at 5, ¶ 24. On March 4, 2013, Ms. Riccio and Ms. Becker conducted a pretermination hearing to inform Ms. Cantrell of the reasons they were recommending her
for termination. Id. at 5-6, ¶ 25. Those reasons included continued failure to attend
scheduled meetings, failure to accept meeting invitations, continued lack of interest in
teamwork, providing inaccurate information regarding the posting of a special education
position to the district’s budget manager, providing work product that was unclear and
hard to follow, failing to complete the daily process of approving job positions or failing
to find another employee to complete the task, and complaints from staff that Ms.
Cantrell treated them in a rude or disrespectful manner. Docket No. 27-5 at 2-3, ¶ 6.
Ms. Cantrell was given an opportunity at the pre-termination hearing to respond to each
of the identified issues, but Ms. Riccio concluded that Ms. Cantrell’s responses were
insufficient. Docket No. 27-5 at 3, ¶¶ 8-9. Ms. Cantrell was given an opportunity to
resign, but declined, and, as a result, her employment with the district was terminated
effective March 8, 2013. Id. at 3, ¶¶ 9-11. Mr. Gdowski did not object to the
recommendation to terminate plaintiff. Docket No. 33-7 at 1, ¶ 1. On March 12, 2013,
Ms. Riccio provided Ms. Cantrell with a letter explaining the reasons for the district’s
decision to termination her employment. Docket No. 27-9 at 1-2.
Ms. Becker, Ms. Riccio, and Mr. Gdowski state that, at the time of the decision to
terminate Ms. Cantrell’s employment, they did not know that Ms. Cantrell had been
communicating with the teachers’ union or the press regarding irregularities in the
budgeted salaries for the 2012-2013 fiscal year. Docket No. 27-4 at 3, ¶ 19; Docket
No. 27-5 at 3, ¶ 7; Docket No. 27-10 at 1, ¶ 3. Board of Education member Norm
Jennings testified that, in the fall or winter of 2012, Ms. Becker informed the Board of
Education that the district suspected someone in the finance department of feeding
information to Ms. Holub, but did not mention a name. Docket No. 30-9 at 4, pp. 87:1788:1. Mr. Jennings also testified:
Q. And what was your understanding of the district’s understanding of the
connection between Ms. Cantrell and Ms. Holub?
A. From what I understand it sounds like they were working together, that
Ms. Cantrell was giving more work product information to Ms. Holub after she
was terminated from the district.
Q. Okay. Was the board told about the termination of Ms. Cantrell?
Q. What was the board told?
A. Just that she had been terminated for cause and similar reasons and
circumstances to Ms. Holub.
Q. Anything else?
A. Other than she didn’t go on to the Fox report and stuff like that.
Q. Anything else you remember?
Id. at 3-4, pp. 84:21-85:14. Mr. Jennings later testified that, at the time the Board of
Education was notified of Ms. Cantrell’s termination, no one had identified Ms. Cantrell
to the board as Ms. Holub’s source of information. Id. at 4, p. 88:2-21.
Ms. Cantrell states that, between August 24, 2012 and her pre-termination
hearing, she received no oral or written notice of performance issues. Docket No. 30-1
at 3, ¶ 13. Ms. Cantrell asserts that the stated reasons f or her termination are false and
pretext for the district’s decision to terminate her because it believed her to be the
“inside source to help Ms. Holub in her efforts to show that the district had presented a
fraudulent budget.” Id. at 3, ¶ 16.
On March 14, 2013, Ms. Cantrell filed this case. Docket No. 1. On June 27,
2013, Ms. Cantrell filed an amended complaint. Docket No. 16. Pursuant to 42 U.S.C.
§ 1983, Ms. Cantrell alleges that defendants retaliated against her in violation of her
First Amendment rights and that defendants violated her Fourteenth Amendment right
to procedural due process. Id. at 7. Ms. Cantrell also asserts state law claims against
defendants for breach of contract, intentional interference with a contractual
relationship, and wrongful discharge in violation of public policy. Id. at 7-10.
In the present motion, defendants seek summary judgment on all of Ms.
Cantrell’s claims. Docket No. 27 at 2. In response, Ms. Cantrell agrees to dismiss her
due process claim and all claims against Ms. Riccio. Docket No. 30 at 1. The motion is
fully briefed and ripe for disposition. In addition, Ms. Cantrell filed a sur-reply [Docket
No. 39] and a motion for leave to correct the record [Docket No. 46], which were
accepted for filing, and defendants filed a notice of supplemental authority [Docket No.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir.1994)). “In applying this standard, we view all facts and
any reasonable inferences that might be drawn from them in the light most favorable to
the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
A. First Amendment Retaliation
Defendants argue that any information Ms. Cantrell shared with Ms. Holub was
done within the scope of Ms. Cantrell’s employment and that none of the individuals
who participated in the decision to terminate her employment were aware that Ms.
Cantrell had spoken to the teachers’ union or the press or prov ided Ms. Holub with
information. Docket No. 27 at 7.
A government employer may not “condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression
[under the First Amendment].” Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th
Cir. 2012) (quotations omitted). In order to protect public employees’ rights, the Tenth
Circuit employs the Garcetti/Pickering test, which asks
1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4)
whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Id. at 661 (quoting Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)). T he first
three prongs are considered questions of law and the last two prongs are questions of
fact. Dixon, 553 F.3d at 1302. For purposes of the present motion, only the first and
fourth prongs are in dispute.
As to the first prong, “when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment
purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). The Supreme Court has
refused “to recognize First Amendment claims based on government employees’ work
product” because “[r]estricting speech that owes its existence to a public employee’s
professional responsibilities does not infringe any liberties the employee might have
enjoyed as a private citizen.” Id. at 421-22. The Tenth Circuit has indicated that it is
appropriate to consider both the “content of the speech, as well as the employee’s
chosen audience, to determine whether the speech is made pursuant to an employee’s
official duties.” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 746 (10th Cir.
With regard to the content of the speech, speech may be made pursuant to
official duties “even if it deals with activities that the employee is not expressly required
to perform.” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008)
(quotations omitted). However, whether or not the speech is on a topic “committed to
[the] care” of the employee remains an important consideration, see Casey v. W. Las
Vegas Indep. Sch. Dist., 473 F.3d 1323, 1332 (10th Cir. 2007). T he First Amendment
does not allow employees the “‘right to perform their jobs however they see fit.’” Green
v. Bd. of Cnty. Comm’rs, 472 F.3d 794, 801 (10th Cir. 2007) (quoting Garcetti, 547 U.S.
at 422). With regard to the employee’s chosen audience, “speech directed at an
individual or entity within an employee’s chain of command is often found to be
pursuant to that employee’s official duties.” Rohrbough, 596 F.3d at 747. Speech
occurring outside the workplace, after hours, with ordinary citizens may be considered
not within the scope of one’s official duties. See id.; Thomas, 548 F.3d at 1325 (“when
Mr. Thomas went beyond complaining to his supervisors and instead threatened to
report to [an] agency outside his chain of command, his speech ceased to be merely
‘pursuant to his official duties’”). However, this is not necessarily dispositive; rather, the
focus remains on “whether the speech ‘stemmed from and [was of] the type . . . that
[the employee] was paid to do,’ regardless of the exact role of the individual or entity to
which the employee has chosen to speak.” Rohrbough, 596 F.3d at 747 (quoting
Green, 472 F.3d at 798).
With respect to the fourth prong, “[a]n employer’s knowledge of the protected
speech, together with close temporal proximity between the speech and challenged
action, may be sufficiently probative of causation to withstand summary judgment.”
Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005) (emphasis in original). In
order to establish causation, an employer must know of the protected conduct prior to
making the complained of adverse employment decision. See Hook v. Regents of
Univ. of Cal., 394 F. App’x 522, 539 (10th Cir. 2010) (unpublished) (“Axiomatic to
establishing causation in th[e First Amendment retaliation] context is proof that the
employer knew of the employee’s protected conduct.”); Dillon v. Twin Peaks Charter
Acad., No. 99-cv-02462-CMA-BNB, 2009 WL 2982008, at *2 (D. Colo. Sep. 11, 2009)
(ruling that, under Garcetti/Pickering test, plaintiff must establish that “employer knew
about the plaintiff’s protected activity before taking the adverse employment action”).
Ms. Cantrell’s claim appears to be based primarily on her communications with
Ms. Holub and to a lesser extent on her communications directly with the teachers’
union and Mr. Bernstein. 3
1. Communications with Ms. Holub
Ms. Cantrell concedes that “she was not terminated for initially going to Ms.
Holub” and that, in June 2012, she was acting within the scope of her duties in reporting
to Ms. Holub. Docket No. 30 at 12. On this point, Ms. Cantrell is correct. Ms. Cantrell’s
reporting her findings to Ms. Holub in June 2012 and her saving a budget model on her
computer were activities committed to Ms. Cantrell’s care as a fiscal manager and fell
within her duties to “[r]eview, analyze, interpret, and summarize financial data and
prepare related spreadsheets and analyses” and to communicate with “auditors
regarding budgets.” See Docket No. 27-1; cf. Rohrbough, 596 F.3d at 749. Thus, Ms.
Ms. Cantrell does not appear to claim that she was terminated in retaliation for
speaking with the Colorado Department of Education. Regardless, there is no evidence
that defendants were aware of such conduct.
Cantrell did not engage in protected conduct when initially communicating with and
providing information to Ms. Holub.
The question then becomes whether, after these initial communications with Ms.
Holub, Ms. Cantrell can establish that she engaged in any instances of protected
speech with Ms. Holub and whether such instances were a motivating factor in
defendants’ decision to terminate her employment. Ms. Cantrell does not explicitly
admit or deny speaking with or providing information to Ms. Holub on any other
occasions, but, more importantly, does not identify with reference to specific facts any
instances where she engaged in protected speech with Ms. Holub. See Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir. 1992) (“In the absence
of such specific reference, we will not search the record in an effort to determine
whether there exists dormant evidence which might require submission of the case to a
jury.”). No such instances of protected communication are apparent from the record.
To the contrary, Ms. Cantrell admits that “[n]othing else of any significance transpired”
between Ms. Holub’s termination in October 2012 and February 4, 2013, when the local
television station aired a story featuring Ms. Holub. Docket No. 30 at 13. Ms. Holub’s
declaration states that “[a]t the beginning of my investigation, Ms. Cantrell showed me
that she calculated that there were 3,250 FTE’s,” but does not otherwise specifically
mention any interactions between Ms. Holub and Ms. Cantrell. Docket No. 30-2 at 4, ¶
20; id. at 1, ¶ 1. Ms. Cantrell’s declaration states that, on June 22, 2012, she broug ht
her concerns to Ms. Holub’s attention, but does not otherw ise specifically mention any
interactions between Ms. Holub and Ms. Cantrell. Docket No. 30-1 at 2, ¶ 6. Ms.
Cantrell testified that she had no advance notice that the February 4, 2013 news story
would air, did not talk to Ms. Holub about the story before it aired, and did not know
what documents Ms. Holub gave to the television reporter. Docket No. 27-3 at 7, pp.
67:22-68:18. Moreover, defendants disclaim any contemporaneous knowledge of Ms.
Cantrell engaging in protected communication with Ms. Holub. Ms. Becker’s
declaration states, “I had no knowledge that Ms. Cantrell had any involvement
whatsoever in Ms. Holub’s communications with the union or the press.” Docket No.
33-3 at 3, ¶ 15; see also Docket No. 33-4 at 1, ¶ 1; Docket No. 33-7 at 1, ¶¶ 1-2.
Ms. Cantrell suggests that she can engage in protected conduct when using
another individual to make a communication. The Tenth Circuit has recognized that an
employee may use another individual “as her agent to engage in protected citizen
whistleblowing,” but only if doing so is not pursuant to that employee’s official duties.
Casey, 473 F.3d at 1329. Here, however, Ms. Cantrell identifies no evidence that she
asked or intended for Ms. Holub to speak to anyone on her behalf and, as discussed
above, there is no evidence that Ms. Cantrell provided Ms. Holub with information
outside the scope of Ms. Cantrell’s employment. Cf. id. at 1329-30 (holding that
employee ordering a subordinate to report regulatory noncompliance was acting within
the scope of her official duties). Ms. Cantrell testified that she spoke with Ms. Holub
after the story aired, but there is no indication that defendants were aware of this
conversation. Docket No. 27-3 at 7, pp. 67:22-68:18.
Ms. Cantrell also argues that the district seized her computer prior to her
termination, but does not indicate what the district would have found or provide
evidence disputing Mr. Hein’s assertion that no one at the district examined the
contents of her computer prior to her termination. These incidents cannot therefore
have been a motivating factor in defendants’ decision to terminate Ms. Cantrell’s
employment. See Hook, 394 F. App’x at 539. Ms. Cantrell does not argue otherwise.
Ms. Cantrell’s primary argument appears to be, not that she actually provided
information to Ms. Holub for use in the February 4, 2013 news story outside the scope
of her employment, but that defendants “believed that Ms. Cantrell was the inside
source for Ms. Holub’s speech to Fox News.” Docket No. 30 at 12. In support of her
argument, Ms. Cantrell contends that Mr. Jennings’ deposition testimony concerning his
“understanding of the district’s understanding” of the connection between Ms. Cantrell
and Ms. Holub should be construed to establish that the district knew that Ms. Cantrell
aided Ms. Holub’s reports to the press prior to terminating Ms. Cantrell. Id. at 12-13
(citing Docket No. 30-9 at 3-4, pp. 84:21-85:2). However, “a First Amendment
retaliation claim seeks to vindicate a public employee’s exercise of free speech rights
when she has suffered an adverse employment action in response to having spoken
out publicly. It cannot be used to remedy a case of mistaken identity.” Wasson v.
Sonoma Cnty. Junior Coll., 203 F.3d 659, 663 (9th Cir. 2000) (citing Waters v. Churchill,
511 U.S. 661, 679 (1994) (“W e have never held that it is a violation of the Constitution
for a government employer to discharge an employee based upon substantively
incorrect information.”)). Thus, “a free-speech retaliation claim is actionable under
§ 1983 only where the adverse action at issue was prompted by an employee’s actual,
rather than perceived, exercise of constitutional rights.” Heffernan v. City of Paterson,
777 F.3d 147, 153 (3d Cir. 2015); see also McBeth v. Himes, 598 F.3d 708, 717 (10th
Cir. 2010) (noting that “engaged in constitutionally protected activity” is the first element
of traditional First Amendment retaliation claim). Here, even assuming that Mr.
Jennings’ testimony could be construed in the manner Ms. Cantrell suggests,4 the
possibility that the district may have perceived that she spoke or provided information to
Ms. Holub is insufficient to sustain a First Amendment retaliation claim. Moreover, as
discussed above, Ms. Cantrell fails to identify any instances of protected speech to Ms.
Holub that the district could have actually known about and acted upon. Cf. Wasson,
203 F.3d at 662 (rejecting First Amendment retaliation claim where plaintiff asserted
that “defendants retaliated against her for speech that she insists she did not make”);
Jones v. Collins, 132 F.3d 1048, 1054 (5th Cir. 1998) (“The fact that Collins transferred
her on the basis of a mistaken belief that she spoke out in a manner that we assume for
the sake of argument would have been constitutionally protected fails to establish a
violation of Jones’s First amendment rights.”); Fogarty v. Boles, 121 F.3d 886, 887, 890
(3d Cir. 1997) (concluding that teacher could not sustain claim that he was punished
based upon school principal’s erroneous belief that teacher had contacted press about
a matter of public interest because “there was no conduct that was constitutionally
protected – indeed, there was no conduct – period”); Barkoo v. Melby, 901 F.2d 613,
619 (7th Cir. 1990) (holding that, where employee maintained that she did not actually
Defendants correctly point out that the portion of Mr. Jennings’ testimony upon
which Ms. Cantrell relies does not support her point. There is no indication from the
deposition excerpt when Mr. Jennings formed his understanding concerning Ms.
Cantrell providing work product to Ms. Holub. Without proof that it occurred before the
adverse employment action, it is irrelevant. Moreover, even assuming that Ms. Cantrell
actually provided “work product” to Ms. Holub after their initial communication in the
summer of 2012, see Docket No. 30-9 at 3-4, pp. 84:21-85:2, Ms. Cantrell does not
explain why such information would not “owe its existence to [her] professional
responsibilities.” See Garcetti, 547 U.S. at 421.
provide information to press, “[t]o the extent Barkoo alleges that her employers
retaliated against her because they thought she was engaged in First Amendment
protected speech on an issue of public concern, we reject the notion that this allegation
brings her claim within the requirements of § 1983”).
Ms. Cantrell fails to establish that she engaged in protected speech with Ms.
Holub and that any such speech was a motivating factor in defendants’ decision to
terminate her employment. As a result, there is no basis for her claim that defendants
retaliated against her in violation of the First Amendment because of her
communications with Ms. Holub.
2. Communications with the Teachers’ Union and Mr. Bernstein
To the extent Ms. Cantrell asserts that defendants retaliated against her for
speaking with the teachers’ union and Mr. Bernstein, her First Amendment retaliation
claim fails. In October 2012, Ms. Cantrell spoke with Rob Kellogg from the teachers’
union about unverified salary expenses in the district’s 2012-2013 budget. Docket No.
27 at 4, ¶ 17. Prior to February 4, 2013, Ms. Cantrell did not speak with the local
television station that reported on the district’s budget issues. Docket No. 27-3 at 7, p.
67:16-21. On February 28, 2013, after she was placed on administrative leave, Ms.
Cantrell discussed her findings regarding the district’s budget with Mr. Bernstein and
provided him with various documents. Id. at 7-8, pp. 68:23-70:1. Assuming, without
deciding, that this speech satisfied the first three prongs of the Garcetti/Pickering test,
the Court finds that Ms. Cantrell fails to provide evidence rebutting Ms. Becker’s, Ms.
Riccio’s, and Mr. Gdowski’s statements that, at the time of the decision to terminate Ms.
Cantrell’s employment, they did not know that Ms. Cantrell had been communicating
with the teachers’ union or the press regarding irregularities in the budgeted salaries for
the 2012-2013 fiscal year. Docket No. 27-4 at 3, ¶ 19; Docket No. 27-5 at 3, ¶ 7;
Docket No. 27-10 at 1, ¶ 3. As a result, Ms. Cantrell identif ies no evidence upon which
a reasonable juror could conclude that her statem ents to the teachers’ union and Mr.
Bernstein were a motivating factor in defendants’ decision to terminate her
employment. Cf. Duvall v. Putnam City Sch. Dist., Indep. Sch. Dist. No. 1 of Okla.
Cnty., 530 F. App’x 804, 815 (10th Cir. 2013) (unpublished) (resolving First Amendment
retaliation claim under the fourth prong of the Garcetti/Pickering test).
Because Ms. Cantrell fails to show that Ms. Becker, Ms. Riccio, Mr. Gdowski, or
any other district policymaker5 violated her First Amendment rights, defendants’ motion
for summary judgment on Ms. Cantrell’s First Amendment retaliation claim will be
B. Procedural Due Process
Ms. Cantrell concedes to the dismissal of her procedural due process claim.
Docket No. 30 at 15. As a result, defendants’ motion for summary judgment on Ms.
Cantrell’s procedural due process claim will be granted.
C. Remaining Claims
Ms. Cantrell concedes to the dismissal of all claims against Ms. Riccio. Docket
A local governmental entity “can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of
N.Y., 436 U.S. 658, 690 (1978) (footnote omitted); see also Bryson v. City of Okla. City,
627 F.3d 784, 788 (10th Cir. 2010) (noting that official “policy or custom” may be shown
by evidence of, among other things, decisions of employees with final policy-making
authority or the ratification by a final decisionmaker of a subordinate’s actions).
No. 30 at 1. As a result, defendants’ motion for summary judgment with respect to Ms.
Cantrell’s claims against Ms. Riccio will be granted.
Having dismissed Ms. Cantrell’s claims arising under federal law, the Court next
addresses the issue of whether it should exercise supplemental jurisdiction over her
remaining claims against Mr. Gdowski, Ms. Becker, and the district, which are based
upon state law. While courts may exercise supplemental jurisdiction over state law
claims if there is otherwise a jurisdictional basis for doing so, 28 U.S.C. § 1367(c)(3)
states that a court may decline to exercise jurisdiction over such claims if “the district
court has dismissed all claims over which it has original jurisdiction.” When
§ 1367(c)(3) is implicated in the Tenth Circuit, courts are advised to dismiss pendent
state law claims “‘absent compelling reasons to the contrary.’” Brooks v. Gaenzle, 614
F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir.
1995) (reversing the district court’s grant of summary judgment on state law claims);
Endris v. Sheridan Cnty. Police Dep’t, 415 F. App’x 34, 36 (10th Cir. 2011) (“any statelaw claims for assault and battery or mental and emotional injury were inappropriate
subjects for the exercise of pendent jurisdiction where all federal claims had been
dismissed”). But see Henderson v. Nat’l R.R. Passenger Corp., 412 F. App’x 74, 79
(10th Cir. 2011) (finding no abuse of discretion in trial court’s decision to retain
jurisdiction over state law claims after plaintiff voluntarily dismissed claims arising under
federal law). Finding no compelling reason here to retain jurisdiction, the Court will
dismiss Ms. Cantrell’s remaining claims without prejudice. See Colo. Rev. Stat. § 1380-111 (permitting claims properly commenced within the statute of limitations to be re-
filed if involuntarily dismissed because of lack of jurisdiction); Dalal v. Alliant
Techsystems, Inc., 934 P.2d 830, 834 (Colo. App. 1996) (interpre ting 28 U.S.C. §
1367(d) as tolling the statute of limitations while claim is pending in federal court); see
also City of Los Angeles v. Cnty. of Kern, 328 P.3d 56, 65 (Cal. 2014) (noting that
interpretations of § 1367(d) vary between jurisdictions).
For the foregoing reasons, it is
ORDERED that defendants’ Motion for Summary Judgment [Docket No. 27] is
GRANTED in part as indicated in this order. It is further
ORDERED that Ms. Cantrell’s 42 U.S.C. § 1983 claims for violation of her First
Amendment rights and violation of her Fourteenth Amendment procedural due process
rights are DISMISSED with prejudice against all defendants. It is further
ORDERED that Ms. Cantrell’s state law claims against Ms. Riccio for breach of
contract, intentional interference with a contractual relationship, and wrongful discharge
in violation of public policy are DISMISSED with prejudice. It is further
ORDERED that Ms. Cantrell’s state law claims against Mr. Gdowski, Ms. Becker,
and the district for breach of contract, intentional interference with a contractual
relationship, and wrongful discharge in violation of public policy are DISMISSED without
prejudice. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.
DATED March 23, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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