Leary v. Daeschner

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 19, 2003
• Docket: 01-6118
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Leary et al. v. Daeschner No. 01-6118 ELECTRONIC CITATION: 2003 FED App. 0409P (6th Cir.) File Name: 03a0409p.06 Daniel T. Taylor III, Louisville, Kentucky, for Appellants. Michael Keith Kirk, WYATT, TARRANT & COMBS, Louisville, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which FOR THE SIXTH CIRCUIT CLAY, J., joined. BATCHELDER, J. (pp. 37-42), delivered _________________ a separate dissenting opinion.

MARY ELIZABETH LEARY and X _________________ GLENDA H. WILLIAMS, - OPINION Plaintiffs-Appellants, - _________________ - No. 01-6118 - v. > KAREN NELSON MOORE, Circuit Judge. Plaintiffs- , Appellants Mary Elizabeth Leary (“Leary”) and Glenda H. - Williams (“Williams”) (collectively “Plaintiffs”), previously STEPHEN DAESCHNER, - school teachers at the Atkinson Elementary School Defendant-Appellee. - (“Atkinson”) in Jefferson County, Kentucky, appeal the - following district court orders: (1) the July 31, 2000 order - granting summary judgment in favor of Defendant-Appellee N Superintendent Stephen Daeschner (“Daeschner”) and thereby Appeal from the United States District Court dismissing Plaintiffs’ First Amendment retaliation claims; for the Western District of Kentucky at Louisville. and (2) the June 13, 2001 order denying Plaintiffs’ motion to No. 99-00465—Charles R. Simpson III, District Judge. amend their complaint, dismissing their due process claims, and dismissing all remaining claims. In addition, Plaintiffs Argued: January 30, 2003 argue that the district court failed to provide them a trial by jury in violation of the Seventh Amendment. Plaintiffs allege Decided and Filed: November 19, 2003 in their complaint and amended complaint that they were transferred from Atkinson to another elementary school in the Before: BATCHELDER, MOORE, and CLAY, Circuit same district in retaliation for exercising their First Judges. Amendment rights and that the last-minute hearing violated their right to due process. The district court granted summary _________________ judgment to Daeschner on Plaintiffs’ First Amendment claims because Plaintiffs failed to meet their burden of proof for COUNSEL establishing a First Amendment violation. The district court also denied Plaintiffs’ motion to amend their previously ARGUED: Daniel T. Taylor III, Louisville, Kentucky, for amended complaint to add a demand for monetary relief Appellants. Michael Keith Kirk, WYATT, TARRANT & because the deadline for filing amended pleadings had passed COMBS, Louisville, Kentucky, for Appellee. ON BRIEF: and Plaintiffs failed to show good cause excusing this late

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attempt to amend. The district court announced that Plaintiffs out, on behalf of themselves and others, about issues affecting cannot reformulate their due process claims for injunctive Atkinson, such as student discipline. Administrators at relief as monetary damages claims based on breach of the Atkinson viewed Plaintiffs differently, stating that they were Collective Bargaining Agreement (“CBA”). Finally, the neither dedicated leaders nor supportive of the administration, district court denied Plaintiffs’ Rule 59(e) motion to set aside and that they resisted positive change.1 or vacate the decision granting summary judgment in Daeschner’s favor because the Plaintiffs did not provide the Exacerbating Atkinson’s academic woes were its divisive court with any new evidence justifying such a decision. faculty and its glaring student-discipline problem. Because the Atkinson faculty was not cohesive, the school struggled We now REVERSE the district court’s grant of summary to make decisions on everything from reading-program judgment to Defendant on Plaintiffs’ First Amendment claims selection to curriculum choices. From the administration’s because there is a genuine issue of material fact as to whether perspective, too many academic decisions were made Plaintiffs’ transfers were in retaliation for their protected individually rather than collectively as an institution. Strong speech, and we REMAND for further proceedings. However, faculty commitment to particular programs developed which we AFFIRM the district court’s denial of Plaintiffs’ motion made it difficult for the administration to suggest alternative for leave to amend because Plaintiffs failed to show good approaches. The long-standing student discipline issues cause for their failure to amend their complaint earlier and concerned teachers school-wide. Some teachers, such as Defendant would suffer prejudice by allowing this Leary, were vocal in their complaints about discipline2 and amendment which would require the reopening of discovery took action by compiling signatures on a petition that at this late stage of the proceedings. We also conclude that proposed changes to Atkinson’s discipline policies.3 the district court did not err when it failed to grant Plaintiffs’ motion for a jury trial because the only claims remaining Under Principal LaDita Howard’s (“Howard”) leadership, demand injunctive relief. Atkinson set out to change its poor reputation and institutional problems by embracing new programs and I. BACKGROUND procedures to improve academic success. One such program A. Factual History 1 Plaintiffs were school teachers at Atkinson, a troubled In addition, testimony revealed that Leary intimidated other teachers public elementary school in Jefferson County, Kentucky, and behaved unprofessionally in the classroom. Williams, on the other consistently producing low performance test scores and hand, constantly questioned the principal’s authority and decisions and failed to participate in meetings and other activities. placing in the lowest range for Kentucky public schools. Leary taught special-education students for sixteen years at 2 A numb er of A tkinson teache rs testified tha t they also were vocal in Atkinson, while Williams, a fourteen-year veteran, taught their comp laints regarding discipline. In Leary’s opinion, the degree of reading to “at risk” children, part-time, in a program called her protests sets her ap art from other vo cal teachers. Reading Recovery. Williams split her teaching time with her 3 responsibility as the Jefferson County Teachers Association At the time of Leary’s testimony, the petition had been signed and (“JCTA”) representative for Atkinson. Plaintiffs’ fellow submitted to the administration two or three years earlier. Once teachers viewed Plaintiffs as staff leaders who often spoke Atkinso n’s discipline committee received the petition, it proposed discipline policies and put a discipline procedure in place. No. 01-6118 Leary et al. v. Daeschner 5 6 Leary et al. v. Daeschner No. 01-6118

involved what Jefferson County Public Schools (“JCPS”) model.”5 Meanwhile in April 1999, Howard gave notice that called Dialogue Teams. These teams, comprised of district- she was resigning as Atkinson’s principal at the end of the level administrators, would meet with a school’s faculty and school-year. This resignation sparked discussions between principal to discuss plans for improvement and to evaluate Meriweather and her Dialogue Team to anticipate the needs success. The particular team involved with evaluating of Atkinson in the wake of Howard’s departure. In addition Atkinson was headed by Assistant Superintendent for District to the recruitment and retention of a talented principal, the Wide Instruction, Freda Meriweather (“Meriweather”), whose team believed that faculty changes also were necessary to primary responsibilities consisted of supervising the JCPS ensure support for the school’s chosen principal and new elementary-school principals and developing school programs: “Success for All” and the ECE “collaborative improvement initiatives.4 One of the team’s first tasks model.” Both programs required faculty support: “Success involved evaluating the three reading programs in use at for All” needed a high percentage of faculty acceptance Atkinson and then recommending to Howard and her staff before a grant would issue, and the “collaborative model” that one program be used consistently throughout the school. required substantial backing because it involved a drastic Ultimately, the school accepted this advice and chose to reject change. The Dialogue Team concluded that four or five all other reading programs in favor of the “Success for All” teachers would need to be transferred before the start of the program. 1999 school-year.6 Atkinson’s academic troubles allowed it to qualify under After the Dialogue Team made this decision to transfer the Kentucky Education Reform Act (“KERA”) to receive a teachers, Meriweather asked Howard and Bowlds each to Distinguished Educator or “Highly Skilled Educator,” a compose a list of four to five teachers that they recommended school-district employee with a proven record of success in for transfer because they thought the teachers would resist aiding troubled schools. Between 1998-99, Meriweather change and progress at Atkinson. Howard’s list did not enlisted the help of Distinguished Educator Nancy Bowlds include the current Plaintiffs; Bowlds’s list, however, (“Bowlds”) to work with Atkinson’s faculty and principal included Leary. After Meriweather received Howard’s and over an extended period of time and advise them of how the Bowlds’s lists, Meriweather called Howard to determine school’s academic performance might be improved. whether she agreed with Bowlds that Leary belonged on the list. Howard agreed, allowing Leary to be added to her list In the spring of 1999, Atkinson contacted Dr. Sharon because Howard believed that Leary, the ECE-team leader, Davis, Director of Exceptional Child Education (“ECE”), to evaluate the ECE programs designed for the special education students. The evaluation was completed and resulted in a recommendation for Atkinson to adopt the “collaborative 5 The “collaborative model” requires both regular and ECE- curriculum students to be taught together in one classroom.

6 The Dialogue Team considered changing the entire Atkinso n staff, but ultimately concluded that only a few chosen teachers needed to be 4 transferred in order to create a climate of change so that the long-standing Additional team m emb ers were Bill Eckels (“Eckels”), the and unsuccessful education programs could be dropped and new programs Executive Director of Human Reso urces, and Superintendent Daeschner. embraced. No. 01-6118 Leary et al. v. Daeschner 7 8 Leary et al. v. Daeschner No. 01-6118

would not embrace the new “collaborative model.”7 Bowlds school district.” Joint Appendix (“J.A.”) at 32 (Compl. for included Leary on her initial list for a variety of reasons, most Inj. Relief, Attach. A).8 important of these was Leary’s failure to accept leadership by attending monthly district meetings even though she was the B. Procedural History ECE-team leader. In addition, Leary was accused of yelling at students, fellow teachers, and administrators. The Plaintiffs filed their original suit under 42 U.S.C. § 1983 on July 16, 1999, requesting a preliminary injunction, Once Meriweather learned that Williams intended to return permanent injunction, and declaratory relief on the basis that for the 1999-2000 school-year, she contacted Howard and Daeschner violated their right to freedom of speech under the Bowlds again and asked if they agreed that Williams also First Amendment and their right to procedural due process should be on the transfer list. Both Bowlds and Howard under the Due Process Clause. Plaintiffs advanced a theory agreed that Williams was a proper candidate for transfer that they were transferred because “they were vocal and because: (1) she was in a leadership position but failed to complained about various issues” involving discipline and lead, (2) she failed to participate in a grant-writing process for substitute teachers. Appellee’s Br. at 20; Appellants’ Br. at an early-literacy program, and (3) she continuously 8-10. As evidence, the Plaintiffs referenced a petition which questioned the principal’s authority, decisions, and judgment. they previously signed and presented to Atkinson’s School- Moreover, Williams’s status as a part-time employee made Based Decision Committee9 demanding change in the her a desirable candidate for transfer. administration’s student-discipline policies, see J.A. at 33 (Compl., Attach. B); a list of questions they raised regarding These proposed transfers were supplied to the Dialogue the principal’s authority; and their complaints about “hallway Team, which then selected five teachers to transfer; amongst committee meetings” where staff members made business those selected were Leary and Williams. These names were decisions for the school without following proper protocol. then delivered to Daeschner as Superintendent, and he gave Plaintiffs’ evidence also tended to show that they were the final approval. At the close of the1998-99 school-year, considered leaders among the faculty for vociferously Bowlds delivered letters to Leary, Williams, and three other expressing their disagreement with Atkinson’s administration. teachers that indicated that they would be transferred in the In addition, Williams argued that her role as JCTA upcoming year pursuant to section D of the CBA between the JCTA and the Jefferson County Board of Education. Section 8 D in the CBA read: “[t]he Superintendent or designee for Eckels states that a Sectio n D tra nsfer is no t a disciplinary measure good cause and extenuating circumstances will execute and has b een used previously in similar situations. transfers as may be necessary for the efficient operation of the W e have p erson ality conflicts between individuals in a building. Best interest of the build ing and the instructional program and the building for one of the individuals to be moved to another building. We’ve had exam ples where individuals disagreed with the instructional program or proposed instructional programs going into a building, and we have Section D’ed the individual hopefully to a program where their philosophy fits better. 7 J.A. at 209 (Eckels Test.). Howard testified that Leary expressly declined to implement the “collaborative model” in her classroom. Interestingly, when Leary was 9 transferred she requested to be placed in a “collaborative model” program. This committee functioned as a school-governance board and Joint Appendix (“J.A.”) at 335 (Leary Test.). handled solely Atkinson issues. No. 01-6118 Leary et al. v. Daeschner 9 10 Leary et al. v. Daeschner No. 01-6118

representative required her regularly to raise contentious federal whistleblower laws (Count VI ); state law damages issues on behalf of the faculty. under various and sundry theories including false imprisonment, defamation, libel, emotional distress, After a hearing lasting several days, on August 13, 1999, interference with contract rights, and interference with the district court determined that Plaintiffs were not entitled advantageous relationship (Count VII ); and punitive damages to the requested relief on their First Amendment claims, but (Count VIII ). Notably, Plaintiffs’ amended complaint did they were entitled to more pre-deprivation process before they not restate the injunctive claims contained in the original could be transferred. In response to the court’s order, on the complaint as claims for monetary damages. Daeschner filed morning of August 16, 1999,10 Defendant gave Plaintiffs numerous summary judgment motions in response to these written notice of their transfers, explaining the reasons for the claims. On July 31, 2000, the district court entered an order transfers, and providing Plaintiffs with an opportunity to granting Daeschner’s partial motion for summary judgment respond at hearings scheduled for noon and one o’clock in the with respect to Plaintiffs’ First Amendment claims but afternoon, that very day. Instead of making an appearance at denying it as to their due process claims. Almost a month the scheduled hearings or requesting a continuance, Plaintiffs later, on August 29, 2000, the district court entered another chose to file a “Motion in Furtherance of a Preliminary order granting Daeschner’s second motion for summary Injunction; and for Order of Contempt in Regard to judgment with respect to Count V, VI, and portions of Count Superintendent Steven W. Daeschner.” The district court VII from the amended complaint.12 On March 1, 2001, the decided that Daeschner’s short-notice hearing complied with district court granted Daeschner’s third motion for summary the court’s August 13, 1999 order11 and provided Plaintiffs judgment, this time dismissing the remaining claims in Count with sufficient process. Thus, Plaintiffs’ failure to participate VII. in the hearing was a waiver of the due process rights afforded them by the district court’s order. Plaintiffs appealed this After Daeschner’s fourth motion for summary judgment decision to a panel of this court. On appeal, we affirmed the was filed but before the district court issued its June 13, 2001 district court’s decision to deny the preliminary injunction decision, Plaintiffs moved on April 30, 2001 to amend their requested by Plaintiffs. Leary v. Daeschner, 228 F.3d 729, complaint a second time. More than one year after they were 734 (6th Cir. 2000). permitted to file an amended complaint and close to two years after this litigation began, the Plaintiffs wanted to add claims While the interlocutory appeal was pending, Plaintiffs were for general, compensatory, and punitive damages for the due permitted to file an amended complaint on March 17, 2000, process violations, damages for breach of the CBA, and a adding four new claims: damages for loss of their liberty renewed demand for a jury trial. Finally, on June 13, 2001, interests and violation of procedural due process in post- the district court entered an order granting Daeschner’s fourth deprivation procedure (Count V); damages under the state and motion for summary judgment which disposed of all of Plaintiffs’ remaining claims. In addition, this order denied

10 The school year was scheduled to begin on the next day, August 17, 1999. 12 W e note that both the July 31, 2000 and the August 29, 2000 11 district court orders were issued before we published our opinion in Leary The district court cited the imminent start of the school year as one v. Daeschner, 228 F .3d 72 9 (6th Cir. 20 00), which addressed Plaintiffs’ justification for this hurried hearing. appeal from the district court’s denial of a preliminary injunction. No. 01-6118 Leary et al. v. Daeschner 11 12 Leary et al. v. Daeschner No. 01-6118

Plaintiffs’ motion for leave to file a second amended evidence” which would create a genuine dispute for the jury. complaint. The court stated that the Plaintiffs did not show Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001); see good cause pursuant to Federal Rules of Civil Procedure 16 also Street, 886 F.2d at 1477 (“The mere existence of a and 15 for failure to move earlier for leave to amend. scintilla of evidence in support of the plaintiff’s position will Furthermore, Plaintiffs did not highlight any authority be insufficient.” (quotation omitted)). In reviewing the supporting the notion that damages are appropriate in cases district court’s decision to grant summary judgment, we must where Plaintiffs waived their right to due process, and thus an view all evidence and draw all reasonable inferences in the amendment adding damages claims would be futile. Pursuant light most favorable to the nonmoving party. Matsushita to Federal Rule of Civil Procedure 59(e), Plaintiffs moved to Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 have the judgment set aside. On August 7, 2001, the district (1986). court denied this motion. The Plaintiffs then filed this timely appeal. B. First Amendment Retaliation Analysis

II. ANALYSIS Plaintiffs claim that they were transferred in retaliation for engaging in protected speech. Because we believe a review A. Summary Judgment Standard of the record reveals that genuine issues of material fact exist, we hold that the district court improperly granted summary We review a district court’s order granting summary judgment on Plaintiffs’ First Amendment claims. judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d 442, 447 (6th Cir. 2001), cert. denied, 534 U.S. 1132 (2002). In order to state a retaliation claim under the First In accordance with Federal Rule of Civil Procedure 56(c), a Amendment a plaintiff must show that: “1) [she] engaged in grant of summary judgment is affirmed “if the pleadings, constitutionally protected speech; 2) [she] was subjected to depositions, answers to interrogatories, and admissions on adverse action or was deprived of some benefit; and 3) the file, together with the affidavits, if any, show that there is no protected speech was a ‘substantial’ or a ‘motivating factor’ genuine issue as to any material fact and the moving party is in the adverse action.” Brandenburg v. Housing Auth. of entitled to a judgment as a matter of law.” Fed. R. Civ. P. Irvine, 253 F.3d 891, 897 (6th Cir. 2001) (citing Mt. Healthy 56(c). A dispute over a material fact cannot be “genuine” City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 unless a reasonable jury could return a verdict for the (1977)). Public employee plaintiffs are required to meet nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. additional standards to establish that the speech at issue is 242, 248 (1986). Initially, the moving party has the burden of constitutionally protected. First, a public employee plaintiff proving that no genuine issue as to any material fact exists must demonstrate that the speech involved matters of public and that it is entitled to a judgment as a matter of law. Street interest or concern. Cockrel v. Shelby County Sch. Dist., 270 v. J.C. Bradford & Co., 886 F.2d 1472, 1477, 1479 (6th Cir. F.3d 1036, 1048 (6th Cir. 2001), cert. denied, -- U.S. --, 123 1989) (noting “that not every issue of fact or conflicting S. Ct. 73 (2002). Second, the plaintiff must show that her inference presents a genuine issue of material fact which interest in addressing these matters of public concern requires the denial of a summary judgment motion”). To outweighs the interest of her employer “in promoting the meet this burden, the moving party may rely on any of the efficiency of the public services it performs through its evidentiary sources listed in Rule 56(c) or on the failure of the employees.” Pickering v. Bd. of Educ. of Township High Sch. nonmoving party to produce “more than a mere scintilla of Dist. 205, 391 U.S. 563, 568 (1968). The Pickering balancing No. 01-6118 Leary et al. v. Daeschner 13 14 Leary et al. v. Daeschner No. 01-6118

test must be used “[i]f any part of an employee’s speech when we upheld the district court’s finding that Plaintiffs relating to a matter of public concern is a substantial or failed to show a strong likelihood of success on the merits. motivating factor in the adverse action.” Banks v. Wolfe See Leary, 228 F.3d at 739. Recognizing that the standard on County Bd. of Educ., 330 F.3d 888, 893 (6th Cir. 2003). a motion for summary judgment is less deferential than the “Whether speech addresses a matter of public concern is a “stringent” standard applied to a district court’s findings on a question of law.” Id. at 892. preliminary injunction, we made clear that we were not commenting on the merits of the Plaintiffs’ case. Id. We Once the public-employee plaintiff has met her burden and concluded our analysis: established a prima facie case, the burden of persuasion shifts to the defendant who must show by a preponderance of the Thus, we do not decide whether we would grant a evidence that there were other reasons for the adverse action preliminary injunction if we were acting in the place of and that the same adverse action would have resulted even if the district court, nor do we decide whether summary the plaintiff had not engaged in the protected activity at issue. judgment is appropriate. Rather, given the closeness of See Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999); the question, and the fact that the plaintiffs’ arguments, Boger v. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991). while shedding some doubt on the district court’s “These are issues of fact, however, and may not be decided on interpretation of the facts, do not show the district court’s a motion for summary judgment unless the evidence ‘is so factual findings to be clearly erroneous, we affirm the one-sided that one party must prevail as a matter of law.’” district court’s conclusion that the plaintiffs have not, for Boger, 950 F.2d at 322-23 (quotation omitted). the purpose of the preliminary injunction, shown that the plaintiffs’ transfer was motivated by their protected When this case was before the district court on Plaintiffs’ speech, and therefore that the plaintiffs have not shown request for preliminary equitable relief, that court agreed that a strong likelihood of success on the merits. Plaintiffs’ speech involved matters of public concern. The district court altogether skipped the question of whether the Id. transfers were an adverse action and focused instead on the third essential element. The district court determined that While the interlocutory appeal was pending before this Plaintiffs failed to show that their transfers were precipitated court on the preliminary injunction ruling, the district court “in substantial part” by their constitutionally protected granted Daeschner’s motion for summary judgment, noting speech. J.A. at 476 (Tr. on Mot. for Inj. Relief). The district that the Plaintiffs did not present any new evidence in support court pointed to other reasons for Plaintiffs’ transfers of their First Amendment retaliation claims.13 Therefore, including the troubled state of the school and the principal’s because there was no genuine issue for the jury to decide, the pending departure. Moreover, the district court determined district court granted Daeschner’s summary judgment motion that Plaintiffs failed to sustain their burden because the for the reasons stated in the court’s August 13, 1999 evidence they provided involved generalized First Amendment activities over a period of years in which many 13 other non-transferred teachers also participated. W e cannot help but note that because the district court ruled on some of Daeschner’s summary judgment motions while the interlocutory On Plaintiffs’ appeal from the denial of preliminary appeal still was pending, the urgency for Plaintiffs to collect new evidence injunctive relief, we mentioned the “close” nature of this case in supp ort of the ir claims was diminished. Likewise, the d istrict court did not have the benefit of our opinion to assist its decision-making. No. 01-6118 Leary et al. v. Daeschner 15 16 Leary et al. v. Daeschner No. 01-6118

injunction hearing. When the district court granted the and desirability of suggested educational programs to other summary judgment motion, the only evidence on the record teachers’ disregard for school procedures when making was the August 1999 hearing and the deposition testimony of school-related decisions. In our previous decision, based on Bowlds and Daeschner.14 the evidence available at that time, we agreed with the district court’s conclusion that Plaintiffs’ speech was constitutionally 1. Protected Activity protected. See Leary, 228 F.3d at 738 (finding the balance in favor of Plaintiffs and noting that “the school board ha[d] “Speech of a public employee is entitled to First essentially conceded the point”). Although at that stage of the Amendment protection if it relates to a matter of public litigation all that the Plaintiffs needed to show was that their concern.” Boger, 950 F.2d at 322. In Connick v. Myers, 461 speech was constitutionally protected for preliminary U.S. 138 (1983), the Supreme Court held that speech involves injunction purposes, there is no new evidence in the record to a matter of public concern when it relates to “any matter of support a contradictory conclusion on summary judgment. political, social, or other concern to the community.” Id. at 146. This must be differentiated from a public employee’s A public employee’s speech that relates “to any matter of speech that involves matters of personal interest which are not political, social, or other concern to the community [at large]” protected. Id. at 147 (holding that when a public employee is properly considered speech on a matter of public concern. speaks “as an employee upon matters only of personal interest Connick, 461 U.S. at 146. Even if some of the complaints . . . a federal court is not the appropriate forum in which to raised by Plaintiffs more properly are classified as matters of review the wisdom of a personnel decision taken by a public personal concern, at the very least comments regarding the agency allegedly in reaction to the employee’s behavior”). legality of educational programs, the discipline of students, “In general, speech involves matters of public concern when and the violation of school procedures constitute protected it involves ‘issues about which information is needed or speech because “some portion of the speech touches on a appropriate to enable the members of society to make matter of public concern.” Banks, 330 F.3d at 895 (noting informed decisions about the operation of their government.’” that allegations that the school board violated state law and Banks, 330 F.3d at 893 (quoting Brandenburg, 253 F.3d at their own internal policies are matters of public concern); see 898). “Whether an employee’s speech addresses a matter of also Leary, 228 F.3d at 737 (noting that student discipline and public concern must be determined by the content, form, and educational program implementation are “matters of concern context of a given statement, as revealed by the whole to the community at large” and that the legality of proposed record.” Connick, 461 U.S. at 147-48. school programs is “undoubtedly of the highest public concern”). Here, Plaintiffs’ speech receives constitutional Plaintiffs’ theory is that they were transferred in retaliation protection under the First Amendment because it pertains to for actively voicing their complaints regarding the problems issues of community importance. Looking at the “content, at Atkinson. Plaintiffs assert that their complaints involved form, and context,” we conclude that these statements “are of subjects ranging from discipline of the students to the legality public import in evaluating the performance of [Atkinson Elementary School].” Connick, 461 U.S. at 147-48.

14 Once we hold that Plaintiffs’ speech touches on matters of The only truly new testimony was Daeschner’s deposition, because public concern, Pickering instructs us to balance the Bo wlds’s deposition contained the same information as her testimony at her 1999 hearing. Plaintiffs’ interest, as citizens, in addressing these matters of No. 01-6118 Leary et al. v. Daeschner 17 18 Leary et al. v. Daeschner No. 01-6118

public concern with the school’s interest “as an employer, in changed since our last Pickering balance of these factors15 promoting the efficiency of the public services it performs and because Daeschner provides no reason why we should through its employees.” Pickering, 391 U.S. at 568. When approach the balancing differently simply because we now are balancing these two competing interests, we “consider evaluating the First Amendment claims after a grant of whether an employee’s comments meaningfully interfere with summary judgment, we adhere to our original balancing of the performance of her duties, undermine a legitimate goal or these factors and hold that the Plaintiffs’ speech was mission of the employer, create disharmony among co- constitutionally protected. workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of confidential 2. Adverse Action employees.” Cockrel, 270 F.3d at1053 (quotation omitted). In essence, the speech complained of must interfere with the Our previous opinion noted that Daeschner conceded that job Plaintiffs are hired to perform or the functioning of the an involuntary transfer to another school within the district workplace in general. Pickering, 391 U.S. at 568. The public “would have a sufficient chilling effect to qualify as an employee’s speech will be constitutionally protected only if adverse action under the First Amendment retaliation the Pickering balancing test proves the employee’s interest to analysis.” Leary, 228 F.3d at 738. Again, no new evidence outweigh the employer’s interest. exists for a different finding. The fact that we now review a district court’s disposition of a summary judgment motion as Helping tip the balance in Daeschner’s favor is the fact that opposed to a request for a preliminary injunction does not the volatility of the school’s situation necessitated functional change our conclusion. Clearly, involuntary transfer from efficiency. Leary, 228 F.3d at 738. In addition, because one job to another is action that “would likely chill a person Leary was known to yell at her coworkers and Williams was of ordinary firmness from continuing to engage in that known to challenge Howard’s authority, Plaintiffs’ speech constitutionally protected activity.” Bloch v. Ribar, 156 F.3d can be characterized as disruptive in the work environment. 673, 679 (6th Cir. 1998). Moreover, we previously Id. Moreover, because certain aspects of Plaintiffs’ speech determined that an involuntary job transfer, where neither can be identified as directed toward coworkers and grade nor salary is affected, qualifies as adverse action for supervisors, it posed a “question of maintaining either purposes of the First Amendment. See Boger, 950 F.2d at discipline by immediate superiors or harmony among 321. Here, evidence in the record suggests that being coworkers.” Pickering, 391 U.S. at 570. On the other hand, transferred from one school in the district to another causes Plaintiffs’ speech obviously did not interfere with their job Plaintiffs to suffer harm to their reputations, while the performance because they consistently received stellar transfers also remain notations in their files for a year. The reviews. Moreover, there was no evidence that either teacher act of transferring Plaintiffs to another school additionally can had been disciplined previously for failure to perform her negatively impact their daily experiences including their duties. Daeschner never suggested how Plaintiffs’ speech on commute, coworker friendships, and community student discipline or choice of educational programs “undermine[d] a legitimate goal or mission of the employer.” 15 Cockrel, 270 F.3d at1053. Because the evidence has not After we assessed the factors in the balance, we determined that “the plaintiffs’ speaking out on discipline, choice of educational appro aches, and potential violations of the law by the school district is of sufficient public importance to outweigh the employer’s interest in limiting that speech.” Leary, 228 F.3d at 738. No. 01-6118 Leary et al. v. Daeschner 19 20 Leary et al. v. Daeschner No. 01-6118

relationships. See J.A. at 101-03 (Drescher Test.), 354 Daeschner’s evidence on the reasons for Plaintiffs’ transfers (Williams Test.). or whether to believe Plaintiffs’ contrasting evidence on the reasons for their transfers. While it is true that not every 3. Substantial or Motivating Factor question of fact saves a case from disposition on summary judgment, summary judgment is not proper when Plaintiffs The final showing that the Plaintiffs must make before the create a jury issue by raising a genuine issue of material fact. burden shifts to the Defendant is that their “protected speech In order for a factual issue to be “genuine” a reasonable jury was a substantial or a motivating factor in the adverse action.” must be able to return a verdict for the nonmoving party. Brandenburg, 253 F.3d at 897 (quotation omitted). On the Anderson, 477 U.S. at 248. Here, construing the evidence in Plaintiffs’ request for injunctive relief, the district court a light most favorable to the nonmoving party, Matsushita determined that Plaintiffs failed to make the showing of a Elec. Indus. Co., 475 U.S. at 587, we conclude that Plaintiffs’ substantial or motivating factor because the evidence that they evidence that their transfers were motivated by their protected were transferred for confrontations with Howard was speech, while not overwhelming, is more than a scintilla and undermined by Howard’s resignation and because the is sufficient to survive a motion for summary judgment. See protected speech occurred over a long period of time. We Street, 886 F.2d at 1477. affirmed that decision on the basis that the district court’s factual findings were not clearly erroneous. Leary, 228 F.3d Plaintiffs’ most promising evidence showing that their at 739.16 Because Plaintiffs failed to produce any new transfers were motivated by their outspokenness is that evidence on this issue in response to Daeschner’s motion for Howard testified that Leary was “probably [transferred] summary judgment, the district court relied on its findings because of [her speaking out on school-related issues] and from the preliminary injunction hearing.17 On this appeal, some other things.” J.A. at 296 (Howard Test.). Leary Plaintiffs redirect our attention to evidence that their transfers regards Howard’s later-retracted statement18 as clear and were motivated, at least in part, by their vocal behavior. direct evidence that her transfer was precipitated by her protected speech. In addition to Howard’s suggestive The determination of the reason for Plaintiffs’ transfers is statement, Plaintiffs point to testimony from fellow teachers a question of fact because it involves whether to believe expressing opinions that Plaintiffs were transferred because they were too vocal. Plaintiffs ask us to draw logical inferences from the evidence that Plaintiffs had excellent 16 Although we affirmed the district court’s denial of a preliminary records at Atkinson and from the various administrators’ poor injunction, we clearly stated that the standard requ ired for a preliminary treatment of Plaintiffs, to reach the conclusion that Plaintiffs’ injunction is more “stringe nt” than that required for sum mary judgm ent. vocal behavior caused their transfers.19 Plaintiffs also W e explicitly declined to express an opinion on the merits of Plaintiffs’ case. Leary, 228 F.3d at 739.

17 18 The district court seemed to focus almost entirely on whether Howard later retracted this testimony, stating that Leary was Plaintiffs showed that their transfers were based “in substantial part” on transferred beca use she failed to “emb race c hange.” J.A. at 297 (Howard their protected speech. The actual test provides that the protected speech Test.). must be either a substantial or a motivating factor in bringing about the 19 adverse action. But see Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. At a staff meeting, Howard told the faculty that some of them were at 287 (suggesting that “substantial factor” and “motivating factor” are “nagging, bitching, complainers,” and that they knew who they were. one and the same). J.A. at 317 (Howard Test.). Plaintiffs suggest that this comment was No. 01-6118 Leary et al. v. Daeschner 21 22 Leary et al. v. Daeschner No. 01-6118

provide us with their own testimony explaining their roles in 4. Defendant’s Alternative Explanation the Atkinson community and their proclivity to speak on behalf of others. For example, Williams acted as the part- As stated previously, once Plaintiffs have established their time JCTA representative, which required her to advocate on prima facie case, the burden shifts to the Defendant to prove behalf of other teachers for a period of three or four years. by a preponderance of the evidence that the same adverse Moreover, Leary testified that she had no idea why she was action would have occurred regardless of the protected transferred, so her “best guess is being too vocal.” J.A. at speech. See Mt. Healthy City Sch. Dist. Bd. of Educ., 429 338-39 (Leary Test.). Likewise, Williams seemed baffled by U.S. at 287. Daeschner has produced no evidence, other than her transfer and testified that “[t]he only conclusion I could the evidence used to counter Plaintiffs’ evidence that their come to is that I was too vocal.” J.A. at 460 (Williams Test.). transfers were unconstitutional, to show that the transfers would have occurred at this time and in this manner with or Daeschner argues that the Plaintiffs were transferred not without Plaintiffs’ vocal behavior. Because a genuine issue because they were vocal, but because they were not “team of material fact still exists with respect to the reason for players” and they would impede the changes necessary for Plaintiffs’ transfers, whether Plaintiffs’ transfers would have Atkinson’s success.20 In addition, Daeschner recites occurred in the absence of the protected speech also requires Plaintiffs’ behavioral problems to undermine Plaintiffs’ further proceedings. contention that the transfers were retaliatory. Because a determination of the reasons for Plaintiffs’ transfers involves 5. Supervisor Liability disputed issues of fact, summary judgment is not proper “unless the evidence is ‘so one-sided that one party must The Supreme Court has stated that § 1983 liability cannot prevail as a matter of law.’” Boger, 950 F.2d at 322-23 be premised on a theory of respondeat superior. Taylor v. (quotation omitted). On the record before us, this is not the Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995) case. In fact, the Plaintiffs produced ample evidence on the (citing Monell v. New York City Dep’t of Social Servs., 436 allegedly unconstitutional basis for their transfers which is in U.S. 658, 691 (1978)). However, supervisor liability under direct conflict with Daeschner’s evidence. This creates “a § 1983 is appropriate when “the supervisor encouraged the genuine issue of material fact that must be resolved by the specific incident of misconduct or in some other way directly trier of fact,” not on summary judgment. Id. at 323. participated in it,” or “at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845 (1984). directed to them . In add ition, testimo ny was heard that if Leary did not “[Section] 1983 liability of supervisory personnel must be agree with Bo wlds in team lea der m eetings, B owlds would “cut her off based on more than the right to control employees.” Id. mid-sentence.” J.A. at 354 (M cAvinue Test.). Likewise, simple awareness of employees’ misconduct does 20 not lead to supervisor liability. Lillard v. Shelby County Bd. Daeschner relies on testimony from Bowlds to insist that the transfers were not arranged in violation of Plaintiffs’ First Amendm ent of Educ., 76 F.3d 716, 728 (6th Cir. 1996). rights. Bowlds testified that Leary’s transfer “certainly had nothing to do with speaking out.” J.A. at 173 (Bowlds Test.). W ith respect to W illiams, Daeschner argues that even if Plaintiffs’ transfers were Bowlds testified: “I certainly, certainly, certainly could never have precipitated by their protected speech, he cannot be liable for recommended her because of being vocal. I never heard a word [from his employees’ constitutional violations because Plaintiffs W illiams].” J.A. at 176, 178 (Bowlds T est.). No. 01-6118 Leary et al. v. Daeschner 23 24 Leary et al. v. Daeschner No. 01-6118

cannot show how Daeschner, who did not know either of the specific instances where either Leary or Williams impeded Plaintiffs, had a retaliatory motive in issuing the final progress at Atkinson. J.A. at 132 (Daeschner Dep.). approval for Plaintiffs’ transfers. In our prior published Considering that Meriweather’s directive to Bowlds and opinion in this case, we identified a number of ways in which Howard was to identify teachers for transfer who would resist Daeschner could be liable. One way Daeschner could be change and progress at Atkinson, a reasonable fact finder exposed to liability is if he encouraged or acquiesced in the could determine that even though the school was in crisis unconstitutional behavior. Leary, 228 F.3d at 740. Another mode and needed to effectuate change through transfers, possible way would be if the Plaintiffs could show that change should stem from reasonable procedures that ensure “because Daeschner was primarily responsible for approving that teachers are chosen for transfers based on proper criteria the transfer of teachers, he [was] responsible for failing to and not based on their proclivity to vocalize concerns of perform his job properly or for acquiescing in the public importance. Cf. Taylor, 69 F.3d at 81 (noting that a constitutional violations resulting from his delegation of this jury could find a supervisor liable for failure to adopt policies responsibility.” Id. Finally, we noted that “Daeschner might for transfer that ensure inmate safety). Moreover, a be liable if the plaintiffs can show that he encouraged his reasonable fact finder could determine that reliance on people subordinates to transfer teachers who were particularly vocal in leadership positions to recommend transfers is insufficient in speaking out against school policy through his mandate to to ensure that transferees are not chosen for unconstitutional transfer those teachers who were not ‘team players.’” Id. reasons. J.A. at 124 (Daeschner Dep.) (stating that he relied on Eckels and Meriweather who gave him the In Taylor, we determined that summary judgment for a recommendations who in turn relied on the recommendations prison warden in a § 1983 action was improper because a of Howard and Bowlds). Thus, whether Daeschner can be genuine issue of material fact existed as to whether the held liable in his supervisory capacity for the violation of warden was aware and acquiesced in his subordinates’ failure Plaintiffs’ First Amendment rights remains an issue for the to review properly prisoner-transfer orders resulting in trier of fact. violation of a transferred prisoner’s Eighth Amendment rights. Taylor, 69 F.3d at 80. We commented that the prison C. Denial of Leave to Amend Analysis warden in Taylor was not “merely a supervisor, but [was] the official directly responsible both for transfers and for 1. Standard of Review adopting reasonable transfer procedures.” Id. at 81. In our estimation, the warden “abandon[ed] the specific duties of his Denial of a motion for leave to amend is reviewed by this position — adopting and implementing an operating court for an abuse of discretion. See Duggins v. Steak ‘N procedure that would require a review of the inmate’s files Shake, Inc., 195 F.3d 828, 833 (6th Cir. 1999). “Abuse of before authorizing the transfers.” Id. discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Bowling v. Much like the situation in Taylor, a reasonable fact finder Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996), cert. denied, “could find on the facts that [Daeschner] personally had a job 522 U.S. 906 (1997) (quotation omitted). A district court’s to do, and that he did not do it.” Taylor, 69 F.3d at 81. decision is to be afforded great deference; it “will be Daeschner stated in his deposition that he was the one who disturbed only if the district court relied upon clearly put the transfers “into operation.” J.A. at 127 (Daeschner erroneous findings of fact, improperly applied the governing Dep.). However, he also stated that he did know of any law, or used an erroneous legal standard.” Blue Cross & Blue No. 01-6118 Leary et al. v. Daeschner 25 26 Leary et al. v. Daeschner No. 01-6118

Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 denied Plaintiffs’ motion for leave to amend their complaint F.3d 318, 322 (6th Cir. 1997). However, if leave to amend is because Plaintiffs did not show good cause for failure to denied on the grounds that it would be “futile,” then de novo move for leave to amend before expiration of the deadlines in review is appropriate. Inge v. Rock Fin. Corp., 281 F.3d 613, the court’s scheduling order, as called for in Federal Rule of 625 (6th Cir. 2002). Civil Procedure 16. The court concluded: 2. Leave to Amend The plaintiffs seek at this late date to recast the due process violation as one for breach of the collective The prayer for relief in Plaintiffs’ original complaint bargaining agreement. They have provided no requested that the district court hold a hearing on Plaintiffs’ justification for their failure to raise this legal theory motion for a preliminary injunction, issue a permanent earlier. The plaintiffs have referenced the collective injunction prohibiting Defendant’s violation of Plaintiffs’ bargaining agreement throughout this litigation, and the constitutional rights, declare Section D of the CBA claim has clearly been available to them. unconstitutional, order the Defendant to pay Plaintiffs’ costs and attorney fees, and grant “all further and proper relief to J.A. at 103 (Mem. Op. & Or.). As an aside, the district court which [Plaintiffs] may be herein entitled.” J.A. at 31 noted that even if Plaintiffs had been permitted to amend their (Compl.). The first amended complaint added four new claims, the amendment would be futile because they did not claims, all seeking damages. Plaintiffs sought to amend their include any binding precedent to support their contention that complaint a second time “to clear up any confusion in regard damages are available when Plaintiffs waive “process which to damages claimed.” J.A. at 91 (Mem. in Supp. of Second was due [and] subsequently afforded them.” Id.23 Am. Compl.).21 The proposed second amended complaint sought to add claims for monetary damages — general, Federal Rule of Civil Procedure 15 provides that leave to compensatory, and punitive — for the due process claims amend “shall be freely given when justice so requires.” Fed. contained in the original complaint.22 The district court R. Civ. P. 15(a). The Supreme Court, commenting on the mandate in Rule 15(a), stated:

21 Plaintiffs’ original complaint requested only declaratory and injunctive relief for their due process claims, whereas the first amended complaint added new claims with requests for monetary damages but never requested monetary damages for the due process claims contained received all the process that was due. Thus, even if the district court in the original complaint. One claim in the first amended complaint abused its discretion by denying Plaintiffs an op portunity to am end their requested monetary damages for post-d eprivation violations of due com plaint, Plaintiffs have not shown how the district court could have process, but the first amended com plaint did not request monetary granted any damages when no due process violation had o ccurred. T hus, damages for the pre-deprivation due process violation alleged in the we could decide that the district court reached the correct result on an origina l complaint. alternative ground — concluding that the proposed amendment would be futile. 22 Because we already have determined that there was no d ue proc ess 23 violation, see Leary, 228 F.2d at 744, Plaintiffs’ motion for leave to This was merely dicta because the district court expressly stated amend their complaint to include a damages claim for the violation of that it did not need to reach the question of futility. J.A. at 103 (M em. their right to due process (Counts IX-XI) is moot. Indeed, it is unclear Op. & Or.). Thus, the proper standard of review on appeal is abuse of what due p rocess issues remain after we determined that Plaintiffs discretion. See Duggins, 195 F.3d at 833. No. 01-6118 Leary et al. v. Daeschner 27 28 Leary et al. v. Daeschner No. 01-6118

In the absence of any apparent or declared reason — such will suffer prejudice by virtue of the amendment. Inge, 281 as undue delay, bad faith or dilatory motive on the part of F.3d at 625. the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the A number of circuit courts have previously considered the opposing party by virtue of allowance of the amendment, intersection of Rule 15’s liberal amendment mandate and futility of the amendment, etc. — the leave sought Rule 16’s good cause requirement. See generally Parker v. should, as the rules require, be “freely given.” Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (holding that “despite the lenient standard of Rule 15(a), a Foman v. Davis, 371 U.S. 178, 182 (1962). The Court noted district court does not abuse its discretion in denying leave to that although leave to amend remains within the sound amend the pleadings after the deadline set in the scheduling discretion of the trial court, the lower court must announce order where the moving party has failed to establish good some reason for its decision, i.e., exercise discretion, or risk cause”); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th being reversed for an abuse of discretion. Id. Cir. 1998) (“[B]ecause [plaintiff’s] motion to amend was filed after the scheduling order’s deadline, [plaintiff] must first More than twenty years after the Court’s decision in demonstrate good cause under Rule 16(b) before we will Foman, the 1983 amendments to the Federal Rules of Civil consider whether amendment is proper under Rule 15(a).”); Procedure altered Rule 16 to contain a provision restricting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 the timing of amendments. Fed. R. Civ. P. 16, 1983 advisory (9th Cir. 1992) (noting that Rule 16’s standards may not be committee’s notes. Rule 16 states, in relevant part: “the “short-circuited” by those of Rule 15 because “[d]isregard of district judge . . . shall, after receiving the report from the the [scheduling] order would undermine the court’s ability to parties under Rule 26(f) . . . enter a scheduling order that control its docket, disrupt the agreed-upon course of the limits the time (1) to join other parties and to amend the litigation, and reward the indolent and the cavalier”). pleadings . . . .” Fed. R. Civ. P. 16(b) (emphasis added). The Although we never have commented explicitly on the Rule is designed to ensure that “at some point both the parties intersection of the two Rules, one of our recent decisions and the pleadings will be fixed.” Fed. R. Civ. P. 16, 1983 addresses the “good cause” requirement in Rule 16. See Inge, advisory committee’s notes. The Rule permits modification 281 F.3d at 625-26. to the scheduling order “upon a showing of good cause and by leave of the district judge.” Fed. R. Civ. P. 16(b) In Inge, we concluded that the district court’s denial of (emphasis added). But a court choosing to modify the leave to amend based on Rule 16(b) was an abuse of schedule upon a showing of good cause, may do so only “if discretion because the plaintiff acted diligently when she it cannot reasonably be met despite the diligence of the party sought to amend her complaint to “remedy pleading seeking the extension.” Fed. R. Civ. P. 16, 1983 advisory deficiencies.” Id. at 626. We determined that while prejudice committee’s notes; see also Inge, 281 F.3d at 625 (stating that to the defendant is not an express component of Rule 16, it is good cause is measured by the movant’s “diligence in nonetheless a “relevant consideration,” and the Inge defendant attempting to meet the case management order’s would not suffer significant prejudice if plaintiff was allowed requirements” (quotation omitted)). Another important to amend her complaint to remedy the errors that caused the consideration for a district court deciding whether Rule 16’s complaint to be dismissed seven days earlier. Id.; cf. Moore “good cause” standard is met is whether the opposing party v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986) (noting that the denial of plaintiff’s motion to amend was an abuse of No. 01-6118 Leary et al. v. Daeschner 29 30 Leary et al. v. Daeschner No. 01-6118

discretion where “rejection of the amendment would preclude dismissed most of the claims in the first amended complaint, plaintiff’s opportunity to be heard on the merits on facts seven months after we issued an opinion in this case agreeing which are well known to the parties and which were pleaded with the district court that Plaintiffs received sufficient pre- at the outset although relief was erroneously sought under deprivation process, one month after the district court § 1985” and where the defendant suffered only “relatively dismissed the interference and emotional distress claims from light prejudice”). Even though in Inge we held that the the first amended complaint, and one month after Daeschner district court abused its discretion, we relied solely on Rule filed his last summary judgment motion to dismiss Plaintiffs’ 16 to reach this conclusion, never once mentioning Rule 15 sole remaining claim for punitive damages. Plaintiffs sought and its liberal amendment policy. leave for an amendment almost two years after the scheduling order’s discovery and dispositive motion deadlines had An earlier decision of this court required a district court to passed. See Inge, 281 F.3d at 625 (requiring that a party find “‘at least some significant showing of prejudice to the diligently attempt to meet the scheduling order’s deadlines opponent,’” before it could deny a motion for leave to amend. before the deadline can be changed); but see Moore, 790 F.2d Duggins, 195 F.3d at 834 (quoting Moore, 790 F.2d at 562). at 560 (noting that “delay alone, regardless of its length is not In that case, we determined that the district court did not enough to bar it [amendment] if the other party is not abuse its discretion when it denied plaintiff’s motion for leave prejudiced” (quotation omitted)). to amend based on plaintiff’s undue delay and the prejudice to the opposition. Id. We noted that prior to the plaintiff’s Once the deadline passed, the district court could allow motion, the time for discovery and dispositive motions had Plaintiffs to file their second amended complaint only if the passed and a summary judgment motion had been filed. Id. scheduling order was modified. As noted previously, We also considered the “significant prejudice” the defendant modification is permitted under Rule 16 if Plaintiffs can would suffer if the plaintiff were allowed to amend the demonstrate “good cause” for their failure to comply with the complaint because not only would discovery have to be original schedule, by showing that despite their diligence they reopened, but a new defense would be necessary to defeat the could not meet the original deadline. Fed. R. Civ. P. 16, 1983 new claim. Id. advisory committee’s notes; see also Inge, 281 F.3d at 625. Instead, Plaintiffs gave the district court no excuse for their In the present case, the Rule 16 order stated that “[any] considerable delay in seeking monetary damages.25 See motions for . . . amendment of pleadings shall be filed no Duggins, 195 F.3d at 834 (denying plaintiff’s motion, in part, later than November 8, 1999.” J.A. at 62 (Mem. of R. 16 because plaintiff gave no justification for her delay); Moore, Scheduling Conf. & Or.).24 Plaintiffs sought to amend their 790 F.2d at 559-62 (stating that failure to provide justification complaint for a second time on April 30, 2001. This attempt for tardy filings is insufficient by itself for a court to deny an at amendment was filed nine months after the district court’s attempt at modification). In fact, Plaintiffs attempted to grant of summary judgment on Plaintiffs’ First Amendment characterize their damages claim as a mere clarification, retaliation claims, eight months after the district court

25 24 Plaintiffs offered no excuse in their memorandum in suppo rt of Plaintiffs correctly point out that the first amended complaint was their second amended complaint, but in their appellate brief they suggest filed on Novem ber 18, 1999, 10 days after the deadline, but was that it should have been “obvious” that they were requesting monetary nevertheless allowed. damages all along and that a monetary damage component was implied. No. 01-6118 Leary et al. v. Daeschner 31 32 Leary et al. v. Daeschner No. 01-6118

suggesting that they had sought damages for the due process As for prejudice, we already have indicated that prejudice claims all along.26 It comes as no surprise, then, that the to the defendant is also a “relevant consideration.” Inge, 281 district court rejected Plaintiffs’ request pursuant to Rule 16. F.3d at 625. In the present case, the district court did not expressly reference the prejudice to Daeschner, nor did it Much like the plaintiff in Duggins, Plaintiffs here were make a finding that there has been a “significant showing of “obviously aware of the basis of the claim for many months,” prejudice.” Moore, 790 F.2d at 562. However, some but nonetheless failed to pursue the claim until after it was language in the district court opinion suggests that the court brought to their attention by Daeschner’s final summary considered prejudice to Daeschner. The district court judgment motion. Duggins, 195 F.3d at 834 (holding that the challenged the Plaintiffs’ amendment as an attempt to change district court did not abuse its discretion when it denied their legal theory by “recast[ing] the due process violation as plaintiff’s amendment on the grounds of both undue delay one for breach of the collective bargaining agreement.” J.A. and undue prejudice); see also Sosa, 133 F.3d at 1419 (“If we at 103 (Mem. Op. & Or.); cf. Inge, 281 F.3d at 626 (holding considered only Rule 15(a) without regard to Rule 16(b), we that the defendant would not suffer prejudice when the would render scheduling orders meaningless and effectively plaintiff sought to refine existing claims rather than add would read Rule 16(b) and its good cause requirement out of brand-new claims). Obviously Daeschner would suffer the Federal Rules of Civil Procedure.”). Plaintiffs were aware prejudice if the district court permitted the Plaintiffs to file a of the “underlying facts” and the varying types of relief second amended complaint which essentially transformed the available, as evidenced by the fact that they sought injunctive original due process claims into new claims for breach of the relief for their constitutional claims and damages for their CBA. Moreover, because we previously evaluated the merits state law claims. See Duggins, 195 F.3d at 834 (“The of Plaintiffs’ claims and ruled that Plaintiffs received plaintiff was obviously aware of the basis of the claim for sufficient pre-deprivation due process, the prejudice to many months, especially since some underlying facts were Defendant is even more apparent. Cf. Moore, 790 F.2d at 562 made a part of the complaint.”). Moreover, Plaintiffs’ (noting that its “principal basis for [its] decision is that the inclusion of the phrase “all further and proper relief to which rejection of the amendment would preclude plaintiff’s [Plaintiffs] may be herein entitled,” J.A. at 31 (Compl.), does opportunity to be heard on the merits on facts which are well not transform “the prayer for purely equitable relief into a known to the parties and which were pleaded at the outset”). legal claim.” See Deringer v. Columbia Transp. Div., Daeschner also can show prejudice by the fact that discovery Oglebay Norton Co., 866 F.2d 859, 863 (6th Cir. 1989); see will have to be reopened, years after it was closed, on the also Fed. R. Civ. P. 8(a) (stating that pleadings must contain issue of damages if this amendment were permitted. “a demand for judgment for the relief the pleader seeks”). The question, then, is whether the district court abused its discretion in denying Plaintiffs’ motion for leave to amend 26 their complaint because the motion was filed after the Rule 16 As a preliminary matter, this characterization is undeniably false — the first amended complaint requested damages only for a ne wly- deadline for amendments had passed. The answer is asserted post-deprivation due process claim. However, even if we were decidedly “no,” because the Plaintiffs failed to show good to agree that Plaintiffs had asserted a dam ages claim for the pre- cause and because Daeschner would suffer undue prejudice. deprivation due process violation, that does not change the fact that we This is so even though the clear language of Rule 15 states previously have determined that Plaintiffs received all the process that that leave to amend “shall be freely given.” Fed. R. Civ. P. was due. Thus, any damages claim set forth by Plaintiffs was rendered moo t by our prior judgment. 15(a). Once the scheduling order’s deadline passes, a plaintiff No. 01-6118 Leary et al. v. Daeschner 33 34 Leary et al. v. Daeschner No. 01-6118

first must show good cause under Rule 16(b) for failure jury shall be preserved.” U.S. Const. amend. VII. Assessing earlier to seek leave to amend before a court will consider whether the Seventh Amendment provides for a jury trial in whether amendment is proper under Rule 15(a). See Sosa, a specific case “depends on the nature of the issue to be tried 133 F.3d at 1419. Our previous decisions suggest that the rather than the character of the overall action.” Ross v. district court also is required to evaluate prejudice to the Bernhard, 396 U.S. 531, 538 (1970); see also 9 Charles Alan opponent before modifying the scheduling order. See Inge, Wright & Arthur R. Miller, Federal Practice and Procedure 281 F.3d at 625; see also Duggins, 195 F.3d at 834; Moore, § 2302, at 18 (2d ed. 1994) (“There is no right to jury trial if 790 F.2d at 562.27 Thus, in addition to Rule 16’s explicit viewed historically the issue would have been tried in the “good cause” requirement, we hold that a determination of the courts of equity or otherwise would have been tried without potential prejudice to the nonmovant also is required when a a jury.”). Thus, we resolve the question of whether Plaintiffs district court decides whether or not to amend a scheduling are entitled to a jury trial by determining whether the issues order. Here, the district court did not abuse its discretion involved in the case are legal or equitable in nature. when it denied Plaintiffs’ motion for leave to amend their complaint after the dispositive motion deadline had passed. In Ross, the Supreme Court identified a three-part test for First, the district court determined that Plaintiffs failed to reaching the legal-versus-equitable-in-nature conclusion. show good cause for modification of the scheduling order. First, we consider the “pre-merger custom with reference to Second, the district court’s opinion implicitly, if not such questions.” Ross, 396 U.S. at 538 n.10. Second, we explicitly, commented on the prejudice that Daeschner would consider the “remedy sought” by the plaintiff. Id. Third, we suffer if the Plaintiffs were permitted to “recast” their claims evaluate “the practical abilities and limitations of juries” with at this late stage in the proceedings. Because the district court respect to the issue presented. Id. The first element troubled properly applied the governing law, we must conclude that it many courts, but as we noted in Hildebrand v. Bd. of Tr. of did not abuse its discretion. Mich. State Univ., 607 F.2d 705 (1979), cert. denied, 456 U.S. 910 (1982), the Supreme Court in a later case “shift[ed] D. Motion to Schedule Jury Trial the focus to the second issue: the nature of the relief sought.” Id. at 708 (citing Curtis v. Loether, 415 U.S. 189 (1974)). Plaintiffs moved for a jury trial on November 8, 2000. The Thus we noted that: district court never ruled on this motion, and Plaintiffs allege that the district court erred by denying them a jury trial. [T]he chief focus to be made when determining whether According to Federal Rule of Civil Procedure 38, “[t]he right a jury trial right exists is the nature of the relief sought. of a trial by jury as declared by the Seventh Amendment to If the remedy sought is injunctive relief and/or back pay, the Constitution . . . shall be preserved to the parties no jury trial right attaches. In the ordinary case, if the inviolate.” Fed. R. Civ. P. 38. The Seventh Amendment relief sought includes compensatory and/or punitive provides: “In Suits at common law . . . the right of trial by damages, then there does exist a right to trial by jury. Id. (“A key dividing line between law and equity has 27 historically been that the former deals with money damages W e note that, in both Mo ore and Duggins, a showing of prejudice was required, even though the plaintiffs advanced brand-new claims and the latter with injunctive relief.”); see also Tull v. United which more o bviously create p rejudice b ecause the defendant must States, 481 U.S. 412, 417 (1987) (noting that the court must contend with an entirely different substantive issue. See ge nerally M oore, examine the nature of the action and whether the remedy 790 F.2d at 559; Duggins,195 F.3d at 833. No. 01-6118 Leary et al. v. Daeschner 35 36 Leary et al. v. Daeschner No. 01-6118

sought is legal or equitable before it can determine if the Plaintiffs’ motion for leave to amend, the complaint cannot be claim should be tried to a jury). altered to include any claims other than those equitable claims28 currently at issue. Because Plaintiffs requested only In light of these factors, because Plaintiffs’ original injunctive and declaratory relief for the violation of their First complaint involved only claims that were equitable in nature, Amendment rights, we must consider these claims equitable Plaintiffs were not entitled to a jury trial. See Harris v. in nature, and thus the remaining decisions in this case rest Richards Mfg. Co., 675 F.2d 811, 815 (6th Cir. 1982); exclusively with the court rather than a jury. See generally Bereslavsky v. Kloeb, 162 F.2d 862, 864 (6th Cir.), cert. Ross, 396 U.S. at 538 n.10; Hildebrand, 607 F.2d at 708; 5 denied, 332 U.S. 816 (1947); see also Deringer, 866 F.2d at Charles Alan Wright & Arthur R. Miller, Federal Practice 863 (concluding that because plaintiff’s claims were and Procedure § 1260, at 380-81 (2d ed. 1990) (“If [plaintiff] “equitable in nature and sought purely equitable remedies, the asserts an equitable claim and requests relief in the form of district court properly denied [plaintiff’s] request for a jury specific performance or an injunction, the action will be trial”). However, once Plaintiffs filed an amended complaint considered equitable in nature and neither party has a right to on March 17, 2000 with claims at law, they were entitled to a jury trial.”). demand a jury trial. See Golden v. Kelsey-Hayes Co., 73 F.3d 648, 660 (6th Cir.), cert. denied, 519 U.S. 807 (1996) (“Once III. CONCLUSION a court determines that a case involves legal issues, the litigants have a right to a jury trial on those issues, regardless For the foregoing reasons, we REVERSE the district of how insignificant they may appear in relation to equitable court’s grant of Defendant’s motion for summary judgment issues.”). Indeed, Plaintiffs expressly demanded a jury trial as to Plaintiffs’ First Amendment claims and REMAND to in the first amended complaint, and this demand was timely. the district court for further proceedings. We AFFIRM the See Local 783, Allied Indus. Workers of Am., AFL-CIO v. district court’s denial of Plaintiffs’ motion for leave to amend Gen. Elec. Co., 471 F.2d 751, 755 (6th Cir.), cert. denied, 414 and conclude that the district court did not err when it failed U.S. 822 (1973). Although Plaintiffs preserved their right to to grant Plaintiffs’ motion for a jury trial. a trial by jury, a district court is not required to impanel a jury unless a trial will take place. In the instant case, no trial took place because the district court disposed of all of Plaintiffs’ claims on Daeschner’s motions for summary judgment. If there are no issues for a jury, it is not error for the district court to dismiss the Plaintiffs’ claims pursuant to a summary judgment motion, thereby implicitly denying their demand and motion for a jury trial. Our reversal of the district court’s grant of summary judgment on Plaintiffs’ First Amendment claims does not change this result. After our opinion today, Plaintiffs are left 28 with their equitable claims for declaratory and injunctive W hile it is true that declaratory relief can be legal rather than relief based on a theory of First Amendment retaliation. equitable, “[s]eeking declaratory relief does not entitle one to a jury trial where the right to a jury trial does not otherwise exist.” Golden, 73 F.3d Because we have affirmed the district court’s denial of at 662. No. 01-6118 Leary et al. v. Daeschner 37 38 Leary et al. v. Daeschner No. 01-6118

_________________ A. Yes, she is. Q. And she has alleged and said that she speaks out. DISSENT A. Yes. Yells out. She speaks out. _________________ Q. Yells out, speaks out, whatever. And that she is one of the more ringleaders or prominent people who ALICE M. BATCHELDER, Circuit Judge, dissenting. I have positions on issues such as this? respectfully dissent. Although I agree with the majority A. Yes. opinion with respect to its holdings regarding the motion for Q. That’s true? leave to amend and the motion for jury trial, I dissent because A. Yes. I find no evidence in this record that Appellants were Q. And she’s alleging here that it’s because of this transferred because they exercised their First Amendment that she’s being transferred? rights. Neither do I find any basis upon which Superintendent A. It’s probably because of that and some other Daeschner could be held liable, even if the Appellants could things. demonstrate that their transfers were retaliatory. I would Q. Well – therefore AFFIRM the district court’s grant of summary A. Which says that she’s unwilling to embrace judgment. change. Q. Well, you said she was unwilling to embrace the I. collaborative model. Is she also being transferred because she’s just a vocal persona and yells out? The “Evidence” Upon Which the Majority Bases its A. No, I wouldn’t think so. We also had a DI program, Holding is Not Evidence a Direct Instruction reading program, I mentioned when The majority holds that the Appellants have provided I first begun the testimony. evidence sufficient to create a genuine issue of fact regarding Q. Uh-huh. the reason for their transfers. The evidence to which the A. And there was some teachers who participated in that majority points as “most promising” includes Ms. Howard’s there were some who didn’t and wouldn’t. She was one testimony that, as the majority quotes it, “Leary was of those, also. ‘probably [transferred] because of [her speaking out on Q. One of those who? school-related issues] and some other things,’ J.A. at 296 A. Would not embrace that change. (Howard Test.),” a statement about which the majority Q. Okay. Well, you said that she was properly opinion notes, “Howard later retracted this testimony, stating characterizing herself as one of the more prominent that Leary was transferred because she failed to ‘embrace ringleaders or agitators for something including change.’ J.A. at 297 (Howard Test.)” Both this quotation and discipline or whatever at the school. Was that the reason the pronouncement that it was retracted mischaracterize she was recommended or at least signed off by you as Howard’s testimony. The testimony to which the majority being appropriate for transfer as not a team player? opinion cites reads in full as follows: A. Yes. Q. Because she wasn’t one of the leaders? Q. Well, was there anything else? I mean, Ms. Leary A. No, because she wouldn’t embrace the changes in our alleged she was a vocal person. Is she? school. No. 01-6118 Leary et al. v. Daeschner 39 40 Leary et al. v. Daeschner No. 01-6118

J.A. 296-97. Ms. Howard did not state that Leary was should stand for itself.” J.A. 203. Bald assertions, transferred because of her speaking out; Howard merely unsupported by any personal knowledge or facts, but rather confirmed that this is what Leary alleged. Ms. Howard’s own reached by process of elimination, are not evidence. testimony was that Leary was transferred because “she’s unwilling to embrace change.” J.A. at 297. Ms. Howard Appellants’ own assertions as to why they were transferred simply did not make the statement that the majority points to likewise lack any basis in fact. The majority opinion admits as “most promising;” to be charitable, the majority opinion that both Leary and Williams were “baffled” by their cobbles together parts of a statement taken out of context. I transfers. To support its holding that the Appellants have find the majority’s “most promising” support altogether nonetheless presented evidence of retaliatory motivation, the wanting. majority opinion declares that: “Leary testified that she had no idea why she was transferred, so her ‘best guess is being If other evidence supported the majority opinion, I could too vocal,’ J.A. at 338-39 (Leary Test.)” [Majority Opinion at perhaps agree with its holding. But it does not. Instead, the 20] and Williams “seemed baffled by her transfer and testified majority cites “testimony from fellow teachers expressing that ‘[t]he only conclusion I could come to is that I was too opinions that Appellants were transferred because they were vocal.’ J.A. at 460 (Williams Test.).” [Majority Opinion at too vocal.” [ Majority Opinion at 19-20]. This opinion 20]. The Appellants’ guesses are just that; they are not testimony is not evidence. It is pure conjecture, unsupported evidence. Therefore, because there is not even a scintilla of by any personal knowledge or foundation. evidence upon which the jury could find in Appellants’ favor, I cannot join in the majority’s opinion. For example, one of the peer teachers to whom Appellants point, Ms. Toliafero, responded to the question of why the II. Appellants were transferred, “I think because they were vocal.” J.A. 447. No foundation whatever was laid for this Appellants Established No Connection Between Their belief. According to Appellants’ brief, Ms. Shalda, another Speech and Defendant Daeschner’s Actions of Appellants’ colleagues, also surmised that Appellants’ were transferred because they were outspoken. The record, As the majority rightly recognizes, supervisory liability is however, reflects that Ms. Schalda’s testimony (J.A. 431-36) only appropriate in § 1983 actions when “the supervisor includes no mention of a belief that Appellants were encouraged the specific incident of misconduct or in some transferred for this reason. Another teacher, Ms. Drescher, other way directly participated in it.” Bellamy, 729 F.2d at testified that Appellants were “among the more vocal people” 421. In the prior published opinion in this case, a panel of at the school, (J.A. 200), and that in her opinion, Appellants this court suggested that merely “showing that [Daeschner] were transferred “because they spoke out about the lack of did not know the Appellants personally” cannot shield him discipline.” J.A. 202. When the district court asked Ms. from liability. Leary, 228 F.3d at 740. And it opined that Drescher why she believed that, Ms. Drescher’s answer was failure to perform his job properly, acquiescing in “[f]or whatever reason would there be.” J.A. 203. This constitutional violations, or encouraging subordinates to enigmatic answer did not satisfy the district court, so it transfer “particularly vocal” teachers could sustain a trier of pressed further, “[s]o done through a process of elimination?” fact’s conclusion that Daeschner is liable for constitutional J.A. 203. Ms. Drescher answered, “I have taught with them violations. See id. In short, if evidence were proffered that all. If they have 30 years of good teaching evaluations, that Daeschner acquiesced or encouraged Appellants’ transfer due No. 01-6118 Leary et al. v. Daeschner 41 42 Leary et al. v. Daeschner No. 01-6118

to their outspoken criticisms, then a trier of fact might find liability would effectively preclude the delegation of authority him liable for constitutional violations. to subordinates at all, a result far afield from that required by any prior decision of this circuit or the Supreme Court. No such evidence, however, appears anywhere in the record. Instead, it is clear from the record that the decision to Because there is no evidence to support the conclusion that transfer Appellants, and commensurate knowledge of their Appellants’ exercise of free speech was a substantial factor in proclivity for expressive conduct, rested solely on Dr. their transfer, and, even if there were, there is no evidence to Merriweather, Howard, and Bowlds. Moreover, Daeschner support a finding that Daeschner encouraged or acquiesced in specifically testified that he had “never had any contact with the alleged constitutional violations, I respectfully dissent. any of the Appellants until subsequent to the filing of this action,” (J.A. 231) and he “was not aware that these individuals had ever complained about anything.” J.A. 231. The majority opinion twists this evidence into a basis for finding supervisory liability, suggesting that it might support a jury’s finding that Daeschner is liable for failure to do his job or for relying on recommendations of his employees. But neither of these constitutes encouragement or knowing acquiescence. By holding supervisors potentially liable for all the actions of those they supervise, even where the uncontroverted evidence establishes no personal knowledge of a connection between the adverse employment action and exercise of free speech, and no basis for a finding that the supervisor knew or should have known that the employees on whom he relied were not reliable, the majority extends Monell liability far beyond rational application. Indeed, the majority opinion extends far beyond its logical bounds this court’s own language from our prior opinion in this very case: “Daeschner might be liable if the Appellants can show that he encouraged his subordinates to transfer teachers who were particularly vocal in speaking out against school policy through his mandate to transfer those teachers who were not ‘team players.’” Leary, 228 F.3d at 740. The record contains no evidence that Daeschner did so, and, in fact, it is hard to imagine a case where a supervisor could be shown to have less connection to the alleged constitutional violation. The lengths to which the majority opinion suggests that supervisors must to go in order to protect themselves from