Muhammad v. Hall

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARCIA MUHAMMAD,
Plaintiff - Appellant,
v. No. 16-6046
(D.C. No. 5:15-CV-00059-R)
MYLISSA HALL, in her individual (W.D. Okla.)
capacity,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
_________________________________
Marcia Muhammad appeals from the district court’s Fed. R. Civ. P. 12(b)(6)
dismissal of her civil rights lawsuit concerning her non-selection for a teaching
position. She also appeals from the district court’s denials of her post-judgment
motions to reopen and to amend her complaint. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
After losing her job as an assistant principal, Ms. Muhammad raised
allegations of academic fraud and sued the school district. Later, she applied for a
teaching position at another school in the same district, whose principal was
Mylissa Hall. Ms. Hall was not the final decision-maker regarding employment of
teachers at her school, but she submitted hiring recommendations to her superiors.
Ms. Muhammad and a former school board member, Angela Monson, met with
Ms. Hall before Ms. Muhammad submitted her application. At the meeting,
Ms. Muhammad disclosed her history with the school district, including the fraud
allegations and the litigation. Ms. Muhammad was advised that there was no
problem in hiring her, and she submitted her application and was interviewed.
Ms. Hall then offered her the position, recommending to her superiors that
Ms. Muhammad be hired. But Ms. Hall’s immediate superior, Karl Springer,
informed Ms. Monson that Ms. Muhammad would not be hired, and Ms. Hall
admitted to Ms. Monson that she (Ms. Hall) was told that she could not hire
Ms. Muhammad due to her history with the school district. Ms. Hall withdrew her
recommendation regarding Ms. Muhammad and filled the position with another
candidate.
Ms. Muhammad sued the school district and Ms. Hall in state court, alleging
that they violated the Oklahoma Constitution by retaliating against her for exercising
her right to free speech. When she amended her original complaint to add claims
(1) under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment, and
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(2) under 42 U.S.C. § 1985(2) for conspiracy to injure a party or witness on account
of having attended or testified before a federal court, the defendants removed the
action to federal court. Ms. Muhammad then filed her second amended complaint,
bringing the same federal and state claims against only Ms. Hall in her individual
capacity.
The district court granted Ms. Hall’s Rule 12(b)(6) motion and dismissed the
second amended complaint. It held that Ms. Muhammad had not adequately pleaded
a § 1983 claim for First Amendment retaliation because she failed to include
sufficient facts to satisfy the elements for non-employer retaliation set forth in
Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). It further held that she had
not adequately pleaded a claim under § 1985(2) because “[a]lthough two or more
persons may have conspired to withdraw [Ms. Muhammad]’s offer of employment,
there is no allegation of a meeting of the minds or agreement involving [Ms. Hall].”
Aplt. App. at 245. And it held that the claim under the Oklahoma Constitution was
precluded by the employee-immunity provision of Oklahoma’s Governmental Tort
Claims Act (GTCA), Okla. Stat. tit. 51, § 163(C). Ms. Muhammad filed a Rule 59(e)
motion, as well as a motion to amend accompanied by a proposed third amended
complaint. After the district court denied both of those motions, Ms. Muhammad
appealed.
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DISCUSSION
I. Rule 12(b)(6) Dismissal
Ms. Muhammad first challenges the dismissal of the second amended
complaint. We review a Rule 12(b)(6) dismissal de novo. See Mocek v. City of
Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. This standard “is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (internal quotation marks omitted). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is
entitled to relief.” Id. at 679 (brackets and internal quotation marks omitted).
A. Section 1983 Claim
Ms. Muhammad’s § 1983 claim alleged that Ms. Hall, a non-final
decisionmaker, retaliated against her in violation of her First Amendment right to
free speech. Under Worrell, a plaintiff alleging retaliation by a non-employer must
show the following elements:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that
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activity; and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s exercise of constitutionally
protected conduct.
219 F.3d at 1212 (internal quotation marks omitted). Focusing on the second and
third elements, the district court held that Ms. Muhammad failed to present sufficient
facts to plausibly allege that Ms. Hall’s actions caused her not to be hired or that
Ms. Hall was substantially motivated by Ms. Muhammad’s protected activity.
We agree with the district court. Assuming (without deciding) that
Ms. Muhammad’s reports and prior litigation qualified as constitutionally protected
activity, the facts set forth in the second amended complaint show that Ms. Hall was
ready and willing to hire Ms. Muhammad, but was prevented from doing so by her
superior. Thus, the second amended complaint does not plausibly establish that
Ms. Hall caused Ms. Muhammad to suffer an injury or that Ms. Hall was motivated
to do so by retaliation.
This court has not yet decided whether a subordinate employee can be liable
for First Amendment retaliation when he or she merely acts at the direction of a
superior who desires to retaliate. See Trant v. Oklahoma, 754 F.3d 1158, 1170 n.5
(10th Cir. 2014) (stating that “[w]e have never held that true subordinate employees
may be liable for First Amendment retaliation claims” and declining to decide the
issue).1 Further, the other circuits are not of one mind. Compare King v. Zamiara,
1
Ms. Muhammad argues that Trant’s dicta is inapplicable because it refers to
“true subordinates,” 754 F.3d at 1170 n.5, and Ms. Hall would be Ms. Muhammad’s
superior rather than her subordinate. In the relationship between Ms. Hall and
Mr. Springer, however, Ms. Hall is the subordinate.
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680 F.3d 686, 696 (6th Cir. 2012) (“Individuals who aid in the implementation of an
adverse action at the instructions of a superior will be liable along with their superior
if they knew or should have known that the adverse action was unlawful.”), with
Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004) (“[O]nly final
decision-makers may be held liable for First Amendment retaliation employment
discrimination under § 1983.”). Because Ms. Muhammad did not establish the
Worrell elements, we need not decide the question here. See Trant, 754 F.3d at 1170
n.5.
But this lack of precedent also means that the law is not clearly established, so
that Ms. Hall would be entitled to the protection of qualified immunity on this claim.2
See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (“Ordinarily, in order for the
law to be clearly established, there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” (internal quotation marks
omitted)).
Ms. Muhammad also argues that Trant cannot supplant earlier circuit decisions
recognizing that a subordinate may be liable for retaliation. See, e.g., Maestas v.
Segura, 416 F.3d 1182, 1191 (10th Cir. 2005). But the cases she relies on involve a
“cat’s paw” theory, where a subordinate engages in retaliation by influencing a
superior’s decision. In contrast, this case involves the reverse situation, in which an
allegedly retaliating superior acted through a subordinate. This court has not yet
addressed whether the subordinate can be liable in a “reverse cat’s paw” situation.
2
The district court did not decide Ms. Hall’s entitlement to qualified
immunity, even though the Ms. Hall briefed the issue in her motion to dismiss. “Our
precedent allows us to reach the qualified immunity issue if the parties have had an
adequate opportunity to advance their arguments.” Worrell, 219 F.3d at 1215.
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B. Section 1985(2) Claim
The district court dismissed Ms. Muhammad’s § 1985(2) conspiracy claim on
the ground that “[a]lthough two or more persons may have conspired to withdraw
[Ms. Muhammad]’s offer of employment, there is no allegation of a meeting of the
minds or agreement involving [Ms. Hall].” Aplt. App. at 245. Ms. Muhammad
argues that “it would appear that when the District Court exonerated Ms. Hall on one
hand for ‘just following orders’, it implicitly recognized ‘a meeting of the minds’.”
Aplt. Br. at 13.
“To establish a conspiracy claim under 42 U.S.C. § 1985(2), a plaintiff must
prove three elements: (1) a conspiracy, (2) to deter attendance in court or testimony
by force or intimidation or to injure a witness for having appeared in court or
testified, and (3) injury to the plaintiff.” Hogan v. Winder, 762 F.3d 1096, 1113
(10th Cir. 2014). “The first element, a conspiracy, requires the combination of two
or more persons acting in concert. A plaintiff must allege, either by direct or
circumstantial evidence, a meeting of the minds or agreement among the defendants.
The conspiracy must be one that has the requisite statutory purpose . . . .” Brever v.
Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994) (brackets, citations, and
internal quotation marks omitted).
We agree with the district court that the allegations of the second amended
complaint do not plausibly show that Ms. Hall was involved in a “meeting of the
minds” for the purpose of retaliation. Rather, as with the § 1983 claim, the
allegations indicate that Ms. Hall had no intention of retaliating; she offered
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Ms. Muhammad the job, and withdrew her recommendation only at the insistence of
her supervisor. These facts do not plausibly show a § 1985(2) conspiracy involving
Ms. Hall. Further, it does not appear to be clearly established that merely following
her superior’s directive would make Ms. Hall a conspirator in violation of § 1985(2).
Accordingly, Ms. Hall would also be entitled to qualified immunity on this claim.
C. Oklahoma Constitutional Claim
The district court dismissed Ms. Muhammad’s state constitutional claim under
the GTCA’s employee-immunity provision, which states, “[i]n no instance shall an
employee of the state or political subdivision acting within the scope of [her]
employment be named as defendant.” Okla. Stat. tit. 51, § 163(C). “Scope of
employment” is defined as “performance by an employee acting in good faith within
the duties of the employee’s office or employment.” Id. § 152(12). The district court
concluded that there were no plausible factual allegations supporting
Ms. Muhammad’s conclusory assertions that Ms. Hall was acting in bad faith when
she withdrew the employment recommendation.
“An employee whose acts are malicious, willful, wanton and in bad faith is not
acting in the scope of his employment.” Mustain v. Grand River Dam Auth., 68 P.3d
991, 999 (Okla. 2003); see also Benshoof v. Niles, 380 P.3d 902, 907 (Okla. Civ.
App. 2016). The second amended complaint, however, does not supply any facts to
support a plausible inference that Ms. Hall acted maliciously, willfully, wantonly or
otherwise so as to place her conduct outside the scope of her employment. And as
for lesser conduct, the Supreme Court of Oklahoma recently clarified that reckless
8
disregard “is distinguishable from acts that clearly show malice or bad faith” and
“do[es] not automatically rise to a level constituting malice or bad faith.” Gowens v.
Barstow, 364 P.3d 644, 652 (Okla. 2015). Even if the facts described could perhaps
reach the level of reckless disregard, the second amended complaint does not supply
any facts that plausibly show reckless disregard rising to the level of bad faith.
Further, the Oklahoma courts have held that governmental employees who
made termination decisions in violation of law or policy were nevertheless acting
within the scope of their employment. See Shepard v. Compsource Okla., 209 P.3d
288, 293-94 (Okla. 2009); Wilson v. City of Tulsa, 91 P.3d 673, 679 (Okla. Civ. App.
2004). Both Shepard and Wilson noted that the governmental employers ratified the
employees’ actions, thereby establishing that the employees acted within the scope of
their employment. Shepard, 209 P.3d at 290, 293; Wilson, 91 P.3d at 678. The fact
that the termination decisions violated law or policy did not bring the employees
outside the scope of their employment and did not alone establish that the employees
acted with malicious intent. Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679.
“Acting in good faith and using poor judgment are not mutually exclusive and the use
of poor judgment does not, without more, exceed the scope of employment.” Wilson,
91 P.3d at 679.
Here, in moving to dismiss the first amended complaint, the school district
(who was then a defendant) asserted that Ms. Hall was acting within the scope of her
employment. Aplt. App. at 134-35. This appears to be a ratification of Ms. Hall’s
conduct, thereby establishing that she acted within the scope of her employment. See
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Shepard, 209 P.3d at 293-94; Wilson, 91 P.3d at 678. And, as discussed, the second
amended complaint does not allege any facts that would plausibly establish malice.
See Shepard, 209 P.3d at 294; Wilson, 91 P.3d at 679. In short, Shepard and Wilson
support affording Ms. Hall immunity under the GTCA.
II. Motion to Amend
After the district court dismissed the second amended complaint,
Ms. Muhammad filed a Rule 59(e) motion to reopen that would allow her to amend
her complaint. She concurrently filed a motion to reopen that attached a proposed
third amended complaint. The district court denied the motions, concluding that
amendment would be futile. Although we generally review denial of reopening and
denial of amendment for abuse of discretion, Etherton v. Owners Ins. Co., 829 F.3d
1209, 1228 (10th Cir. 2016) (Rule 59(e) motion); Jones v. Norton, 809 F.3d 564, 579
(10th Cir. 2015), cert. denied, 137 S. Ct. 197 (2016) (motion to amend), we review a
determination of futility de novo, Jones, 809 F.3d at 579.
Ms. Muhammad’s proposed third amended complaint principally added
allegations that when the current litigation was in state court, Ms. Hall was
questioned and denied that Ms. Muhammad was offered a position, denied that
Ms. Hall was aware of Ms. Muhammad’s reports of academic fraud, and denied that
Ms. Hall acted at the direction or suggestion of any other school official. It further
averred that these denials could lead to inferences that Ms. Hall entered into a
meeting of minds to retaliate against Ms. Muhammad and took affirmative actions to
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join a conspiracy against Ms. Muhammad, both by withdrawing the offer and by
attempting to cover up the conspiracy.
We consider only the additional facts, not the averments about possible legal
inferences therefrom. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”). “[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679. As Iqbal explains, “[t]he plausibility standard . . .
asks for more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” Id. at
678 (citation and internal quotation marks omitted). At best, Ms. Muhammad’s
additional facts are merely consistent with liability. They therefore stop short of
showing a plausible claim for relief against Ms. Hall. And “where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct,”
dismissal is appropriate because the plaintiff has failed to show entitlement to relief.
Id. at 679. The district court did not err in denying Ms. Muhammad leave to reopen
and to file her third amended complaint.
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CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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