F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 8 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHIRLEY BURGESS;
    OWEN HAWZIPTA,

                Plaintiffs-Appellants,

    v.                                                   No. 02-6208
                                                   (D.C. No. 01-CV-1216-C)
    INDEPENDENT SCHOOL DISTRICT                          (W.D. Okla.)
    NO. I-4 OF NOBLE COUNTY
    OKLAHOMA, a/k/a Frontier Public
    Schools,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                     Background

      Appellants Shirley Burgess and Owen Hawzipta appeal the district court’s

order granting summary judgment to appellee Independent School District No. I-4

(“the School District”) on their claims that the School District impermissibly

retaliated against them for the exercise of First Amendment rights. Prior to her

termination, Ms. Burgess was the cafeteria manager for the school district, while

Mr. Hawzipta was an art teacher at the high school. The basic underlying facts

are set forth in the district court’s order:

      The dispute in this matter arose after students found pornographic
      material in a trash dumpster at the school. Hawzipta called the
      shipping company and was allegedly told that the high school
      principal, Mr. Robinson, had ordered the material. It was eventually
      determined that the elementary school principal, Mr. Stidham, had
      ordered the material. Mr. Stidham has admitted ordering the
      material. Defendant [the School District] terminated Hawzipta for
      making false allegations against Mr. Robinson. Hawzipta filed an
      action for de novo review of the termination. Following a non-jury
      trial the Noble County District Court ordered Hawzipta reinstated.
      Hawzipta alleges that when he was reinstated he was not returned to
      his former duties as an art teacher but was placed in a position as a
      teacher in the in-school suspension program. Burgess asserts she
      supported Hawzipta in various meetings and as a result her
      employment was terminated.

Aplt. App. at 69-70. Ms. Burgess and Mr. Hawzipta contend that their

termination by the school board, negative performance reviews and/or written

admonishments by Superintendent Shiever, and Mr. Hawzipta’s reinstatement to a

less-desirable position constituted retaliation for the exercise of First Amendment


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rights–namely, expressing their position on the pornography, who had ordered it,

and whether Mr. Hawzipta should have been punished for pointing the finger at

Mr. Robinson.   1



                            The District Court’s Decision

       In granting summary judgment for the School District, the district court

reasoned that to state a claim against the School District under 42 U.S.C. § 1983,

appellants would have to show that the retaliation was the result of a longstanding

custom or policy or the action of a final policy maker, citing   Jett v. Dallas

Independent School District    , 

, 737 (1989). In Mr. Hawzipta’s case,

the court concluded that Superintendent Shiever was the final policy maker for

purposes of issuing the written admonishments to Mr. Hawzipta. Therefore,

Mr. Hawzipta’s claim did not impermissibly rely on a respondeat superior theory

of liability. The court further concluded, however, that Mr. Hawzipta had not

shown the existence of a federally protected right in that his speech was not on

a matter of public concern.

       The district court considered Mr. Hawzipta’s termination and reinstatement

to a less-desirable position only in terms of the due process claim and concluded

that Mr. Hawzipta had no protected property interest in a particular teaching



1
      Ms. Burgess also presented the district court with a claim for breach of
contract; however, this claim has been abandoned on appeal.

                                             -3-
assignment. The district court did not consider these actions as they related to the

retaliation claim.

       Regarding Ms. Burgess, the court determined that she had failed to show

that the nonrenewal of her contract and/or the written admonishments she

received were part of a policy or custom.

       On appeal, Ms. Burgess and Mr. Hawzipta challenge the conclusion that

their speech did not address a matter of public concern and that Ms. Burgess

failed to prove custom or policy.   We review a grant of summary judgment

de novo, affirming when “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Hysten v. Burlington N. &

Santa Fe Ry. Co., 

, 1180 (10th Cir. 2002). We view the evidence

and the inferences drawn therefrom in the light most favorable to the party

opposing summary judgment. 

.

                                     Ms. Burgess

       The legal test for establishing a First Amendment retaliation claim is

(1) did the employee speak on a matter of public concern; (2) did the employee’s

speech interest outweigh the interest of the State as an employer; (3) was the

speech a substantial factor or a motivating factor in the detrimental employment


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decision, and (4) would the employer have taken the same action even in the

absence of the protected speech.    Lybrook v. Farmington Mun. Schs. Bd of Educ.       ,

, 1338-39 (10th Cir. 2000).

      Here, the district court reasoned that the negative performance reviews

given Ms. Burgess and her eventual termination were not part of a policy or

custom or a decision by a final policy maker. This rationale is difficult to

understand in light of the fact that Superintendent Shiever admonished both

Ms. Burgess and Mr. Hawzipta, and the district court did consider these

admonishments to be actions by a final policy maker with respect to

Mr. Hawzipta.

      We nonetheless affirm summary judgment for the School District on

Ms. Burgess’ claim on different grounds. While it appears that Ms. Burgess,

who allied herself with Mr. Hawzipta and supported him in conversations with

her acquaintances, was a victim of the political maelstrom surrounding the

pornography issue and Mr. Hawzipta’s termination, it cannot be said that these

actions were taken in retaliation for the exercise of First Amendment rights

because Ms. Burgess did not speak on a matter of public concern.

      As we have previously stated, “[i]t is not enough that the subject matter

[of the speech] be of public concern; the content of the expression must also be

of public concern.”   Withiam v. Baptist Health Care of Okla., Inc.   , 

,


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583 (10th Cir. 1996). Thus, “[t]o be protected speech, the expression must

‘sufficiently inform the issue   as to be helpful to the public in evaluating

the conduct of the government.’”      

v. City of Littleton ,

, 768 (10th Cir. 1984)). Here, Ms. Burgess expressed support of

Mr. Hawzipta in private conversations and remained friendly with him throughout

the controversy, but she did not speak at any hearings or meetings, or otherwise

express her views to the larger public. Aplt. App. at 153. While Ms. Burgess

commented on a topic of public interest, there is no evidence indicating that her

comments themselves informed the public debate in any way.

                                      Mr. Hawzipta

       Speech on a matter of public concern

       Applying the same analysis to Mr. Hawzipta’s claim, however, yields the

opposite result: we conclude that Mr. Hawzipta’s speech touched on a matter of

public concern. After discovering that pornography had been found in the school

dumpster, and that it had apparently been ordered by the high school principal,

Mr. Hawzipta reported his concerns to Superintendent Shiever and demanded an

investigation. He continued to agitate among his co-workers, arguing that action

had to be taken on the issue. The debate over pornography at the school was

covered in local newspapers. When it was determined that the accusation against

Mr. Robinson was false, Mr. Hawzipta was terminated. Later, as part of the


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settlement of a lawsuit by Mr. Robinson over the false accusation, Mr. Hawzipta

was required to take out an ad in a local newspaper apologizing for his

statements.

      When Mr. Hawzipta was fired, he contested his termination in court,

ultimately winning reinstatement. By challenging his dismissal and testifying in

court about the fact that he believed the dismissal was inappropriate retaliation

for his speech about the pornography issue, Hawzipta further stirred the pot

regarding the issue of how the school responded to his accusation. Hawzipta’s

challenge of his dismissal thus touched off another round of public debate and

media coverage.

      Not only did Mr. Hawzipta’s speech inform the public debate on these

interrelated issues, it is fair to say there would have been no public debate at

all had he not made his provocative statements. We therefore conclude that

Mr. Hawzipta spoke on a matter of public concern.

      Detrimental employment decision

      The School District alternatively argues, in essence, that there was no

detrimental employment decision because Mr. Hawzipta did not have a property

interest in any particular teaching assignment (i.e., assignment as an art teacher

versus assignment as a monitor in the in-school suspension program).




                                          -7-
       The School District does not explain how a property interest/due process

concept is relevant to a First Amendment retaliation claim. The School District

points to no authority stating that retaliation occurs only where an individual is

deprived of a property interest. It is apparent that a school has an inherent right

to terminate employees, reassign them, dispense negative performance reviews,

and eliminate job responsibilities. This does not, however, mean that these

actions can never constitute impermissible retaliation for the exercise of First

Amendment rights.

       This point is illustrated by our decision in   Schuler v. City of Boulder , 

(10th Cir. 1999). In     Schuler , a Boulder Parks & Recreation employee

complained about a janitor who was spying on women in the locker room and who

was only lightly reprimanded when this conduct was discovered.              

Ms.

Schuler’s speech consisted of written complaints to her supervisor, comments to

other employees at a going-away party, a complaint through her union, and

statements to a television news reporter.      

  2
                                                                     In response to these

statements, Ms. Schuler received a written reprimand from a supervisor and a

poor performance review.      

She also had responsibilities removed and



2
      Without extensive analysis, we concluded that Ms. Schuler’s speech
touched on a matter of public concern. As in this case, her speech addressed both
a controversial workplace incident and the retaliation against her for speaking out
on that matter.

                                             -8-
was subjected to an unwanted transfer to another position.     

noting

Supreme Court precedent to the same effect, concluded that “deprivations less

harsh than dismissal [can] nevertheless violate[] a public employee’s rights under

the First Amendment.”    

(citation omitted). We further concluded that

the actions taken against Ms. Schuler were sufficient to defeat the defendant’s

qualified immunity defense on summary judgment.         

      Very similar actions were taken by the School District in the instant case.

Upon termination, Mr. Hawzipta was technically on suspension pending

resolution of his challenge to the termination. The School District nonetheless

hired a permanent replacement art teacher before de novo review of Mr.

Hawzipta’s termination was complete. Once Mr. Hawzipta won the right to be

reinstated, he was assigned to a position which did not engage his specialized

skills and experience as an art teacher and which greatly limited his interaction

with other members of the school community. He suddenly began receiving

negative performance reviews, and his additional duties as coach to the school’s

academic team were eliminated. Under our precedent in        Schuler , Mr. Hawzipta

has succeeded in showing that these actions were onerous enough to constitute a

detrimental employment decision.




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       Retaliatory motive

       In addition to showing that a detrimental employment decision was made,

a plaintiff must show that the speech was a “substantial factor or a motivating

factor” in that decision.   Lybrook , 232 F.3d at 1338 (quotation omitted). A jury is

entitled to infer retaliatory motive from the circumstances of the detrimental

employment action.      See Ware v. Unified Sch. Dist. No. 492   , 

, 911

(10th Cir. 1989) (jury may rely on circumstantial evidence of retaliatory

motivation), modified on reh’g by     

(10th Cir. 1990). Viewing

the events described above in the context of the ongoing and heated conflict

between Mr. Hawzipta and the School District over the School District’s reaction

to the pornography issue, a reasonable jury could conclude that the School

District acted with a retaliatory motive.

                                       Conclusion

       The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED in part, REVERSED in part, and REMANDED for

further proceedings consistent with this decision.


                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge


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