# Avington

> District Court, N.D. Oklahoma · January 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11246817

## Case

- **Full name:** A.V. Avington Jr. v. Independent School District No. 1 of Tulsa County, aka Tulsa Public Schools
- **Court:** District Court, N.D. Oklahoma
- **Decided:** January 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11246817

## How later opinions describe it (automated extraction)

- finding superintendent would undoubtedly have recommended firing based on the plaintiff’s insubordination
- finding that plaintiffs waived claim by failing to address defendants’ argument
- finding the “impact of any impermissible motive on the [defendant’s] decision to act was minimal in light of [the plaintiff’s] inappropriate comments, insubordination, and other serious reasons for termination”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
A.V. AVINGTON JR., )
)
Plaintiff, )
)
v. )
) Case No. 24-cv-00410-SH
INDEPENDENT SCHOOL DISTRICT )
NO. 1 OF TULSA COUNTY, aka TULSA )
PUBLIC SCHOOLS, )
)
Defendant. )
OPINION AND ORDER
A.V. Avington worked at Tulsa Public Schools for one semester as not-yet-certified
school counselor. During that limited time, he amassed multiple poor reviews and was
found unqualified for the position by his mentor and principal. In the last month or so of
his employment, he also made public statements regarding an illiterate fifth grader at his
school. At the end of the semester, his contract expired, and the school chose not to renew
it. Avington claims this non-renewal was in retaliation for his exercise of free speech
under the First Amendment. Under the undisputed facts, any reasonable jury would find
the non-renewal inevitable; that is, the school would have decided not to renew Avington’s
contract, whatever his speech. The Court will grant summary judgment to the school.
I. Procedural Background
Plaintiff A.V. Avington Jr. (“Avington”) has brought suit against the Independent
School District No. 1 of Tulsa, a/k/a Tulsa Public Schools (“TPS”) relating to TPS’s
decision not to renew his employment in 2023. (Dkt. No. 2.) As the Court has previously
found (Dkt. No. 17 at 41), Avington appears to assert three claims in the complaint: (1) a
First Amendment retaliation claim under 42 U.S.C. § 1983 (Dkt. No. 2 at ¶¶ 3, 23–24);
(2) a wrongful termination claim based on racial and religious discrimination under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000e-17 (id. ¶ 25);
and (3) an association discrimination claim under Title I of the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111–12117 (id. ¶ 26). The Court dismissed
Avington’s ADA claims in an earlier order (Dkt. No. 17), leaving the First Amendment
retaliation claim and the Title VII claims for discovery. Discovery closed on October 22,
2025 (Dkt. No. 25), and each party filed a motion for summary judgment on November
5, 2025 (Dkt. Nos. 29–30). Avington’s motion—which is not styled as a motion for partial
summary judgment—assumes he only has a First Amendment retaliation claim
remaining. (Dkt. No. 30.) TPS, meanwhile, has moved for summary judgment on this
retaliation claim, as well as the Title VII claims for racial and religious discrimination.2
(Dkt. No. 29.)
II. Standard of Review
A. Generally
Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is genuine if the evidence in the record is such that “a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under

1 Except where otherwise noted, page numbers refer to those in the court-provided
header.
2 As discussed below, Avington now disavows any Title VII claims. (See § IV(B), infra.)
the governing law . . . .” Id. As the court makes this determination, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Id. at 255.
When the movant does not bear the burden of proof at trial on a particular issue,
it may prevail by showing “a lack of evidence for the nonmovant on an essential element

of [their] claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998); see
also 10A Wright & Miller's Federal Practice & Procedure § 2727.1 (4th ed. 2025) (the
“movant can seek summary judgment by establishing that the opposing party has
insufficient evidence to prevail as a matter of law, thereby forcing the opposing party to
come forward with some evidence”). That said, the nonmovant need not show “that the
dispute as to material facts will be resolved in its favor.” 10A Wright & Miller's Federal
Practice & Procedure § 2727.2 (4th ed. 2025).
A party asserting that a fact is or is not disputed must support its assertions by
citing to particular parts of the record or by showing that the moving party cannot produce
admissible evidence to support the fact. Fed. R. Civ. P. 56(c). “[A]llegations alone will
not defeat summary judgment.” Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530

(10th Cir. 1994). “In a response to a motion for summary judgment, a party cannot rest
on ignorance of facts, on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988).
In this case, both parties take issue with the other’s statement of facts. The Court
will address each in turn. Once the objections are addressed, any remaining statements
of undisputed material fact (“SUF”) will be considered to the extent they are admitted by
the other side or, if not admitted, are supported by the admissible factual materials
provided in support.
B. TPS’s Objections to Avington’s Statements of Undisputed
Material Fact
TPS correctly notes that many of Avington’s statements of fact are devoid of any
citation to the record. See Fed. R. Civ. P. 56(c)(1)(A) (requiring citation “to particular
parts of materials in the record . . . .”); see also LCvR 56-1(e) (requiring each statement of
fact “be followed by citation, with particularly, to any evidentiary material that the party
presents in support of its position”). On this basis, the Court does not consider Plaintiff’s
SUF Nos. 4, 5, 11, and 12, nor does it consider the last sentence of SUF No. 7. (Dkt. No.
31 at 7–8.) The Court also does not consider various factual statements, sprinkled
throughout Avington’s briefs, that rely on facts not included in the separately numbered

statements of fact required by this Courts rules, see LCvR 56-1(b), and to which TPS was
not given an opportunity to respond, see LCvR 56-1(c).
Any party may also “object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P.
56(c)(2). If admissibility is challenged, the “burden is on the proponent to show that the
material is admissible as presented or to explain the admissible form that is anticipated.”
Fed. R. Civ. P. 56, advisory ctte.'s note to 2010 am., subdiv. (c). TPS has challenged a
couple of Plaintiff’s facts on this basis, asserting they are inadmissible hearsay. (Dkt. No.
36 at 2–3.) Again, TPS is correct. Plaintiff’s SUF No. 2 relies entirely on a newspaper
article, assuming that the facts stated therein are true. (Dkt. No. 31 at 7.) This is classic
hearsay. See Fed. R. Evid. 801(c) (noting hearsay means a statement made outside of

testimony and offered for the truth of the matter asserted). The same applies to Plaintiff’s
SUF No. 6, which refers to the so-called “Avington Letter to ML Grandmother.” (Dkt. No.
37 at 7.) No exhibit number is given, but Plaintiff later clarified this refers to Plaintiff’s
Exhibit 14 (Dkt. No. 34 at 6–7). (See Dkt. No. 32 at 1.) Plaintiff is offering this writing for
the truth of what the writing says happened; this is, again, inadmissible hearsay.
Although Plaintiff was afforded the opportunity to respond to TPS’s objections, Plaintiff

failed to show the material was admissible as presented or to explain the admissible form
anticipated. The Court does not consider the purported facts listed in SUF Nos. 2 and 6.
Finally, TPS objects to Avington’s statement in SUF No. 3 that he “signed an
Individualized Certification Plan . . . .” (Dkt. No. 36 at 2.) In support of this statement,
Avington does not attach an affidavit from himself or any other testimony; he merely has
appended the document. (Dkt. 31 at 7; Dkt. No. 33-1 at 9–11.) In response, TPS attaches
Avington’s deposition testimony, in which he denies recognizing the document and denies
signing it or otherwise being responsible for his name appearing on the signature line.
(Dkt No. 36-1 at 126:9–17, 127:14–128:8, & Depo. Ex. 5.3) The Court will not consider
Plaintiff’s SUF No. 3.
C. Avington’s Objections to TPS’s Statements of Undisputed
Material Fact
Avington, meanwhile, engages in a broad attack on every single fact asserted by
TPS—often while admitting the facts are true or relying on those facts in his own motion.
Where Avington does not dispute the actual facts, but complains as to how they are
characterized (e.g., Dkt. No. 37 at 5), the Court need not consider the objections further.

3 References to summary judgment exhibits containing deposition testimony and
deposition exhibits will use the original pagination of the deposition with a “page:line”
citation and will refer to the deposition exhibits appended at the end as “Depo. Ex. __.”
As noted above, the Court will only consider the unadmitted facts to the extent they are
supported by the record, drawing all inferences in favor of the nonmoving party.
Avington also attacks the various affidavits supplied by TPS, asserting they are
hearsay, conclusory, subjective, do not provide additional information he desires, or are
“unsupported by contemporaneous documentation.” For the most part, Plaintiff relies on

abject conjecture or facts not in the record to support his assertions—assertions that
would require the Court often to assume that the statements in the affidavits are false or
that the affiant is not credible.
For example, Avington asserts that the affidavit of BreAnna Shine (“Shine”) is
hearsay within hearsay, lacking personal knowledge, and inadmissible. (Dkt. No. 37 at
6.) As a preliminary matter, the affidavit, itself, is not hearsay. Summary judgment
evidence need not be submitted in a form that would be admissible at trial. Brown v.
Perez, 835 F.3d 1223, 1232 (10th Cir. 2016). At summary judgments, affidavits are
permissible in form, but “the content or substance of the affidavit must be otherwise
admissible, and any hearsay contained in a summary judgment affidavit remains hearsay,
beyond the bounds of the court's consideration.” Friends of Animals v. Bernhardt, 15

F.4th 1254, 1272 (10th Cir. 2021) (quoting Johnson v. Weld Cnty., 594 F.3d 1202, 1210
(10th Cir. 2010)).
The statements in Shine’s affidavit are made based on her personal knowledge.
How do we know? Because she says so. (Dkt. No. 29-2 at 1 (“I BreAnna Shine, after being
duly sworn, state that I have personal knowledge of the facts contains in this Affidavit,
unless otherwise specifically stated . . . .”).) See Fed. R. Evid. 602 (“Evidence to prove
personal knowledge may consist of the witness’s own testimony.”). Shine’s affidavit notes
that she was the Director of Student Engagement during the relevant time, began working
with Avington in January 2023, provided him training and mentorship, and went to his
school often to work with him. (Dkt. No. 29-2 ¶¶ 1–4.) Plaintiff has pointed to nothing
in the affidavit that indicates Shine could not have the personal knowledge she attests to
under oath. Cf. Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200
(10th Cir. 2006) (“Under the personal knowledge standard, an affidavit is inadmissible if

the witness could not have actually perceived or observed that which he testifies to.”
(citation modified)). TPS represents that Shine will be available to testify at trial. (Dkt.
No. 40 at 2.) There is no basis to believe that TPS will be unable to present Shine’s
testimony in a form permissible at trial.
Avington then asserts that the statements within the affidavit are hearsay, because
he believes they resemble statements in another document that he asserts would be
hearsay had it been offered in evidence. (Dkt. No. 37 at 6.) Avington offers no legal basis
for this “hearsay by resemblance” argument. As noted above, affidavits are appropriate
at summary judgment, where the affiant will be able to so testify at trial. Statements made
by the affiant at trial are not hearsay when they do not include a reference to out-of-court
statements offered for the truth of the matter asserted. See Fed. R. Evid. 801(c)(1).

Shine’s statements are made in the first-person and do not reference such out-of-court
statements. Except as noted in the factual discussion below, Avington’s arguments
similarly fail as to the affidavits of Patricia Reames and Mekala Corrigan (Dkt. Nos. 29-3
& 29-4).
At various times, Avington also asserts that the affidavits are contrary to
documents outside the record. For example, Avington repeatedly asks the Court to
disregard the witnesses’ testimony, because they are purportedly contradicted by “TPS’s
own policies as reflected in Teacher and Leader Effectiveness (‘TLE’) Observation &
Evaluation Handbook.” (E.g., Dkt. No. 37 at 5–6.) This handbook is included in no
party’s statement of material facts, and, instead, is listed as one of the “other resources”
in Avington’s brief. (Dkt. No. 31 at 3.) Portions of the document appear to be attached as
Exhibit 11 to Plaintiff’s brief (Dkt. No. 33-1 at 48-51), with a notation that the whole policy
may be found at a third party’s website—teacherequality.nctq.org. Plaintiff presents no

evidence that this document was, in fact, a policy of TPS, much less at the time Avington
was employed there. The Court does not consider documents outside the record.
III. Undisputed Facts
The following facts are undisputed for purposes of the parties’ motions:
A. Conditions of Plaintiff’s Employment
Avington worked at TPS for approximately one semester. On October 21, 2022,
Avington accepted a conditional offer letter to be an elementary counselor at Greenwood
Leadership Academy. (Dkt. No. 29-1 at 41:12-42:18 & Depo. Ex. 1; see also Dkt. No. 33-1
at 1.) This conditional offer letter noted that Avington was not yet certified and TPS would
assist Avington in obtaining emergency certification. (Dkt. No. 29-1 at 43:8-18 & Depo
Ex. 1.) On November 5, 2022, Avington signed a Teacher Apprentice Acknowledgement,
stating he intended to take the steps necessary to become certified by the Oklahoma State
Department of Education “as soon as possible.” (Dkt. No. 29-1 at 48:6-49:12, 50:16-51:2

& Depo Ex. 2; see also Dkt. No. 33-1 at 3.) The Acknowledgement further stated that “I
understand time is of the essence and that I must promptly submit my complete
certification application to the state.” (Dkt. Nos. 29-1 at 51:14-20 & Depo Ex. 2.) Finally,
the Acknowledgement provided it was Avington’s responsibility to “know and
understand” what he “need[ed] to do, by when, to obtain an Oklahoma Teaching
certificate.” (Id. at 52:15-21 & Depo. Ex. 2.) At the time of signing, Avington understood
that he was not certified and he needed to become certified as soon as possible. (Id. at
51:3-7.) Avington never obtained any certification from the state. (Id. at 58:21-59:3,
130:11-25, 167:4-14.)
B. Plaintiff’s Job Performance
Avington was trained and mentored by BreAnna Shine, starting in January 2023.
(Dkt. No. 29-2 ¶¶ 2–3.) Avington required assistance on “fundamentals, including basic

file organization”; struggled with technology; and “did not always understand his role and
responsibilities . . . despite training and coaching.” (Id. ¶¶ 4, 6–7.) Avington was
provided many training opportunities, but Shine “did not see progress in Mr. Avington’s
skills.” (Id. ¶¶ 5, 8.) In May 2023, Shine found Avington still needed “a very high level of
support,” including in communicating with families and in organization, and “needed
assistance” on developing plans that were an important component of his job duties.4 (Id.
¶¶ 9–10.) Shine does “not believe Mr. Avington was a fit for the role of counselor, as he
lacked the necessary skills and was not making progress with extensive support.” (Id.
¶ 11.)
Avington was also observed and evaluated by Patricia Reames (“Reames”), who
became principal of Greenwood Leadership Academy in mid-January 2023. (Dkt. No.

29-3 ¶ 1.) According to Reames, she had to remind Avington on March 9, 2023, “of the
proper procedure for reporting absences after he did not call or message to report he
would be absent for the third time.” (Id. ¶ 2.) On March 22, 2023, Avington “failed to
follow proper procedures in regard to a student’s suicide threat,” and, on April 4, 2023,
Avington went to his office instead of helping other staff deescalate a situation when a

4 Shine’s affidavit states that this was in May 15, 2025, but this appears to be a scrivener’s
error, as the rest of her affidavit is referring to events in 2023. (Dkt. No. 29-2 ¶ 10.)
student was “having a crisis and self-harming.” (Id. ¶¶ 3–4.) On April 7, 2023, Reames
“observed Mr. Avington and noted several deficiencies in his job performance.” (Id. ¶ 6.)
Reames met with Avington and discussed the review with him. (Dkt. No. 29-1 at 132:13–
19.) The evaluation contained additional criticisms of Avington’s performance, although
Avington disputes their accuracy.5 (Id. at 131:1–25, 132:20–140:10 & Depo. Ex. 7; see also

Dkt. No. 33-1 at 17–19.) These deficiencies included that Avington had “no plan that
allows for scholars to have regular meetings in small group setting”; he had not “fully
developed or implemented” his guidance program; he did not “demonstrate full
understanding of crisis situations” and did not “fully follow board policy and procedures”;
he exhibited “inconsistent reliability-based behavior patterns as evidenced by flawed
punctuality and dependability” and timeliness issues; and he appeared to be “inconsistent
and inaccurate in providing information to families and engaging them in the educational
program.” (Dkt. No. 33-1 at 17–19.)
On April 19, 2023, Reames saw an email regarding the status of personnel issues
at Greenwood Leadership Academy that indicated Avington’s contract would not be
renewed for the following year. (Dkt. No. 29-3 at ¶ 8.) This statement would normally be

hearsay if offered for the truth of the fact that Avington was, in fact, slated for non-
renewal. Plaintiff, however, does not dispute that Avington was slated for non-renewal
on April 19th—he just argues that it cannot be seen as indicative of his alleged poor
performance. (Dkt. No. 37 at 11, 14, 15.)

5 The Court considers the criticisms as they relate to Reames’ state of mind and the fact
that Avington was receiving negative job reviews. The Court does not treat the statements
within the evaluation itself as a true recounting of the underlying events.
On April 25, 2023, Reames again observed Avington and again noted deficiencies
in his job performance. (Dkt. No. 29-3 ¶ 9.) On May 3, 2023, Plaintiff was placed on a
Personal Development Plan to address issues relating to Reames’ observations of him and
his interactions with administration.6 (Id. ¶ 10.) On May 4, 2023, Reames evaluated
Avington as needing improvement. (Id. ¶ 11.) Reames also concludes that Avington “did

not have the skills to remain in the counselor position.” (Dkt. No. 29-3 ¶ 12.)
C. Plaintiff’s Exercise of Free Speech & TPS’s Knowledge
On April 10, 2023, Avington wrote a letter to a student’s grandmother/guardian at
her request.7 (Dkt. No. 29-1 at 90:18–91:11, 92:18–21; Dkt. No. 29-3 ¶ 7.) Avington
testified that he wrote the letter, because the grandmother asked for a letter about the
current events that happened at the school concerning the granddaughter. (Dkt. No. 29-
1 at 91:4–11.) The granddaughter had been at the school for five years, and Avington felt
it was an emergency. (Id. at 91:25–92:1, 92:6–14.) It appears TPS saw the letter at some
point,8 as Reames states that it contained inaccuracies. (Dkt. No. 29-3 ¶ 7.) Reames also

6 Both parties have attached the Personal Development Plan to their motions for summary
judgment. (Dkt. No. 29-1 at Depo. Ex. 9; Dkt. No. 33-1 at 23–25.) The Court does not
treat the statements in the plan as true.
7 The letter is not included with the evidence provided by TPS. Plaintiff has a document
marked as Exhibit 14 that appears to be an unsigned letter dated April 10, 2023. (Dkt.
No. 34 at 6–7.) Plaintiff only offers this document for certain hearsay contained within
it—i.e., that he took certain steps relating to the child and what the administration did in
response. (Dkt. No. 31 at 7; Dkt. No. 33 at 1 (noting Exhibit 14 is the document referenced
as “Avington Letter to ML Grandmother” in Dkt. No. 31).) Plaintiff offers no evidence
that Exhibit 14 is, in fact, a letter Avington wrote or the letter referred to in Reames’
affidavit or his testimony.
8 Plaintiff has submitted an exhibit that appears to be an April 13, 2023, e-mail from him
to Shine, stating he had shown the letter to Reames. (Dkt. No. 33-1 at 40.) This document
was not included with the statement of facts, as required by the rules. See, e.g., LCvR 56-
1(b), (e). In any event, the statements contained within Avington’s e-mail are hearsay.
See Fed. R. Evid. 801(c).
has faulted Avington for failing to obtain any review or approval of the letter by the
administration before providing it to the grandmother. (Id.; see also Dkt. No. 29-1 at
91:12–20 (Avington’s testimony that he did not take the letter to Reames or the vice
principal).)
On April 17, 2023, Plaintiff submitted a form requesting to speak in the Citizen’s

Comments portion of the board of education meeting. (Dkt. No. 29-4 ¶ 2; Dkt. No. 33-1
at 13.) The form stated that Plaintiff wished to speak on “Academic Failures/Student
Abuse.” (Dkt. No. 33-1 at 13.) On May 1, 2023, the Deputy Clerk of the Board requested
additional details regarding Plaintiff’s request to speak.9 (Dkt. Nos. 29-4 ¶ 3; 33-1 at 14.)
On May 12, 2023, Plaintiff was approved to speak at the May 15, 2023 board meeting.
(Dkt. No. 29-4 ¶ 4.) Sometime between the request and this approval, Avington went to
a local news channel about what had “happened over there at that school with one of their
students . . . who can’t read” and the news channel ran a news brief on the topic including
an interview that was aired. (Dkt. No. 29-1 at 96:23–98:14.)
D. Avington’s Non-Renewal
On May 15, 2023, TPS informed Avington that his contract would not be renewed
for the 2023–2024 school year. (Dkt. No. 29-1 at 160:8–162:10 & Depo. Ex. 11; see also

Dkt. No. 33-1 at 38.) Avington believes he was retaliated against for whistleblowing about
a child who attended “Greenwood Leadership Academy for over five years and couldn’t

9 Plaintiff has included a document in his exhibits that appears to be a May 1, 2023,
statement for the Tulsa Public Schools Board Meeting. (Dkt. No. 33-1 at 15–16.) It
appears to relate to a failure to address the struggles of a fifth-grader at Greenwood
Leadership Academy who cannot read. (Id.) No testimony or affidavit is offered stating
that this is the response to the May 1 request for additional information or when it was
sent.
read” and for being an educated “black, African-American male” who reported this.10
(Dkt. No. 29-1 at 170:21-171:15, 172:16–24.) No one affiliated with Greenwood Leadership
Academy or Tulsa Public Schools ever verbally expressed or communicated to Avington
that his contract was not renewed due to statements to the media, the board of education,
the student’s grandmother, or based on his sex or race. (Dkt. No. 29-1 at 177:6-22.)

IV. Analysis
Both parties focus their arguments on Avington’s free speech retaliation claim,
although TPS also argues that Avington has failed to support any claim for racial or
religious discrimination under Title VII. In response, Avington denies asserting any claim
involving religious discrimination. Avington also denies asserting a racial discrimination
claim under Title VII, instead arguing in a single paragraph—with no legal support—that
he has asserted deprivation of his Equal Protection rights under 42 U.S.C. § 1983. The
Court will address each argument in turn.
A. First Amendment Retaliation
1. Standard
The First Amendment “prohibits public employers from taking adverse action
against employees because of their protected speech.” Knopf v. Williams, 884 F.3d 939,
945 (10th Cir. 2018). To determine whether the First Amendment is violated, the Court

applies the Garcetti/Pickering test. Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 421
(2006), and Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)).
The five steps of the test are:

10 Avington also believes his religion played somewhat of a role (id. at 179:2–182:16), but
Plaintiff has abandoned any claim of religious discrimination in the summary judgment
briefing (see § IV(B), infra).
(1) whether the speech was made pursuant to an employee’s official
duties;
(2) whether the speech was on a matter of public concern;
(3) whether the government’s interests, as employer, in promoting the
efficiency of the public service are sufficient to outweigh the
plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and
(5) whether the defendant would have reached the same employment
decision in the absence of the protected conduct.

Id. (quoting Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014)). “The first three
elements are issues of law for the court to decide, while the last two are factual issues
typically decided by the jury.” Trant, 754 F.3d at 1165. While the Tenth Circuit has stated
that “a plaintiff must establish all five elements,” Knopf, 884 F.3d at 945, the defendant
bears the burden of showing the fifth element, see Roberts v. Winder, 16 F.4th 1367, 1383
(10th Cir. 2021). TPS argues that Avington’s claims fail at the fourth and fifth steps under
the undisputed material facts.11
2. Fourth Step—Motivating Factor
Avington’s claims survive the fourth step. At this step, a plaintiff need not show
that their protected conduct was the sole reason for dismissal or that it was the “but for”

11 In his briefing, Avington relies extensively on cases applying the framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (See, e.g., Dkt. No. 31 at 11 & 14
(citing Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 (10th Cir. 2006)); id. at 13–
15 (citing Proctor v. United Parcel Serv., 502 F.3d 1200, 1209 (10th Cir. 2007)); Dkt. No.
39 at 5 (citing Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 (1981); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); and Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (2000)).) The Tenth Circuit, however, “has held that
‘McDonnell Douglas has no useful role to play in First Amendment retaliation cases.’”
Roberts, 16 F.4th at 1381 (quoting Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir.
2016)).
cause. Maestas v. Segura, 416 F.3d 1182, 1188 (10th Cir. 2005). “A plaintiff’s subjective
beliefs about why the government took action, without facts to back up those beliefs, are
not sufficient to create a genuine issue of fact.” Nielander v. Bd. of Cnty. Comm’rs, 582
F.3d 1155, 1165 (10th Cir. 2009). Plaintiff must therefore “produce evidence linking the
employer’s action to the employee’s speech” and cannot simply show that Defendant

would have welcomed elimination of the protected activity. Maestas, 416 F.3d at 1188–
89. A close temporal proximity between the speech and adverse action, without more, is
also not enough. Id. at 1189. However, the employer’s knowledge of the speech, together
with that close temporary proximity, may be enough to withstand summary judgment.
Id. Other evidence may include the employer’s expressed opposition to the protected
speech or evidence the speech “implicated the employer in serious misconduct or
wrongdoing.” Id.
Here, it is undisputed for summary judgment purposes that Avington engaged in
First Amendment protected speech by addressing the school board on May 15, 2023, and
in the preceding news interview. The Court will also assume, without deciding, that
Avington’s April 10, 2023, letter to the grandmother was similarly protected. There is no

evidence as to exactly when TPS decided not to renew Avington’s contract, although
Avington appears to agree this decision was made by April 19, 2023, when Reames said
she saw his name on a list of contracts not to be renewed. In any event, TPS informed
Avington of the decision not to renew his contract on May 15, 2023, after he was slated to
appear at the school board meeting and had given a public interview about a student’s
literacy. Plaintiff further had been adjudged deficient for writing the April 10 letter, albeit
for reasons purportedly unrelated to the contents of that letter. Drawing all inferences in
favor of Avington, there is a close temporal proximity between the final decision of non-
renewal and his protected speech—a decision made after TPS had knowledge of the
contents of that speech. There is sufficient evidence for Avington to survive summary
judgment at this step.12
3. Fifth Step—Same Decision Absent Improper Motivation
Avington, however, cannot survive the fifth step. This step “ensures a plaintiff
cannot ‘prevent his employer from assessing his performance record and reaching a

decision not to rehire on the basis of that record, simply because the protected conduct
makes the employer more certain of the correctness of its decision.’” Roberts, 16 F.4th at
1382 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977)).
So, even where a plaintiff proves the first four elements of their claim, the
defendant may still prevail by proving they would have reached the same employment
decision regardless of the protected conduct. Cragg v. City of Osawatomie, 143 F.3d
1343, 1346 (10th Cir. 1998). Summary judgment is appropriate at this step “when any
reasonable jury would have found that the plaintiff would have been terminated even
absent any desire on the Defendant’s part to punish him in retaliation for his allegedly
protected speech.” Roberts, 16 F.4th at 1383 (citation modified).
Here, TPS has shown—without any factual dispute—that both Avington’s mentor

and principal considered him lacking the necessary skills to continue as a counselor.
Shine has detailed problems she observed from January through May of 2023, as well as
Avington’s failure to improve. Avington has offered no evidence that these criticisms were

12 The Court does not, however, find Avington would be entitled to summary judgment.
Drawing inferences in TPS’s favor, a jury could easily find that the protected speech was
not a motivating factor in the non-renewal decision, given that the news interview and
school board comments were never mentioned by TPS and any criticisms of the letter
related only to process, not content.
untrue. Similarly, Reames has detailed her interactions with Avington from early March
to May 2023. These include numerous instances where Reames faulted Avington for
violating proper procedures or performing deficiently. Again, Avington offers no evidence
to dispute that the events occurred as Reames has described in her affidavit or that
Reames’ beliefs as to his qualifications were not genuine.

Based on the undisputed evidence TPS has submitted, any reasonable jury would
find that Avington would have been terminated even absent the protected speech. See
also Meyers v. E. Oklahoma Cnty. Tech. Ctr., 776 F.3d 1201, 1207 (10th Cir. 2015)
(finding superintendent would undoubtedly have recommended firing based on the
plaintiff’s insubordination); Trant, 754 F.3d at 1169 (finding the “impact of any
impermissible motive on the [defendant’s] decision to act was minimal in light of [the
plaintiff’s] inappropriate comments, insubordination, and other serious reasons for
termination”).
B. Title VII—Religious and Racial Discrimination
Under Title VII, it is “an unlawful employment practice for an employer . . . to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1).
Here, TPS argues that “Plaintiff has no evidence that his non-reemployment was
based, even in part, on his religion.” (Dkt. No. 29 at 20.) In response, Avington denies
alleging “any claim involving religious discrimination” (Dkt. No. 37 at 16) and offers no
substantive response to TPS’s arguments.
As for race, TPS argues that Avington has put forth no evidence that he was
qualified for his job and it has demonstrated “legitimate, non-discriminatory reasons for
his non-reemployment.” (Dkt. No. 29 at 15-16.) In response, Avington states he “does
not allege that TPS discriminated against him based on his race” and that he “has not
asserted a traditional disparate-treatment race discrimination claim . . . .” (Dkt. No. 37 at
19.) Again, Avington offers no substantive response to TPS’s Title VII arguments.13
The Court, therefore, grants TPS summary judgment on these claims. See Zane v.

Kramer, 195 F. Supp. 3d 1243, 1256 (W.D. Okla. 2016) (finding that plaintiffs waived
claim by failing to address defendants’ argument), aff’d sub nom. Hedger v. Kramer, 726
F. App’x 677 (10th Cir. 2018).
C. Equal Protection
After denying any Title VII claims, Avington notes in passing that his activities
“constitute the very type of association that courts recognize as protected under the Equal
Protection Clause” and any retaliation based on such advocacy “is actionable under
§ 1983.” (Dkt. No. 37 at 19.) This is the first time Avington has ever raised an Equal
Protection theory, and Avington makes no effort to provide any law or argument
supporting that theory.
Under Tenth Circuit law, “[i]ssues raised for the first time in a plaintiff’s response
to a motion for summary judgment may be considered a request to amend the complaint,

pursuant to Fed. R. Civ. P. 15.” Viernow v. Euripides Dev. Corp., 157 F.3d 785, 790 n. 9
(10th Cir. 1998). Here, Plaintiff does not ask for leave to amend. He does not even offer

13 In any event, absent an argument that TPS discriminated against Avington based on his
race, it is difficult to see how he would ever prevail under the plain language of Title VII,
which requires the “discharged individual” to have been discriminated against “because
of such individual’s” race or other protected characteristic. 42 U.S.C. § 2000e-2(a)(1).
See also Cano-Rodriguez v. Adams Sch. Dist. No. 14, No. 19-CV-01370-CMA-KLM, 2020
WL 6049531, at *3 (D. Colo. Apr. 22, 2020) (noting that associational race discrimination
claims have generally not been accepted in the Tenth Circuit and, where recognized, have
been based on interracial association).
any legal authorities indicating that an Equal Protection claim under § 1983 would have
any greater prospect of success than his now-abandoned Title VII claims. Here, any
amendment would be inappropriate due to the undue delay. The Tenth Circuit has held
that “denial of leave to amend is appropriate ‘when the party filing the motion has no
adequate explanation for the delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206

(10th Cir. 2006). Plaintiff has offered no explanation at all for why amendment was not
sought prior to the close of discovery and only after Defendant filed a motion for summary
judgment indicating the weaknesses of his Title VII claims. “It would be a perversion of
the Federal Rules of Civil Procedure to allow plaintiff to make his case a moving target in
the manner proposed here . . . .” Carbajal v. St. Anthony Cent. Hosp., No. 12-CV-02257-
REB-KLM, 2015 WL 1499864, at *2 (D. Colo. Mar. 27, 2015); see also Evans v.
McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (“We do not believe . . . that the
liberalized pleading rules permit plaintiffs to wait until the last minute to ascertain and
refine the theories on which they intend to build their case.”).
Finally, Plaintiff has failed to provide any legal authorities or argument in support
any purported Equal Protection claim, and the Court finds he has waived any argument

that summary judgment should be denied on this basis.
V. Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment
(Dkt. No. 30) is DENIED, and Defendant’s Motion for Summary Judgment (Dkt. No. 29)
is GRANTED. Defendant is entitled to judgment as a matter of law on Plaintiff’s claims.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine to Exclude
Performance Evaluation Records as Hearsay Not Within Rule 803(6) is DENIED as
MOOT.
ORDERED this 27th day of January, 2026.

UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11246817. Public record. Not legal advice.