Brownfield

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

OSCAR BROWNFIELD, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-312- GLJ

)

CHEROKEE COUNTY SCHOOL )

DISTRICT NO. 35 a/k/a )

TAHLEQUAH PUBLIC SCHOOLS, )

LEON ASHLOCK, MAT CLOUD, )

and DEANN MASHBURN, )

)

Defendants. )

ORDER

Plaintiff Oscar Brownfield filed this action against Defendants Independent School

District No. 35 a/k/a Tahlequah Public Schools (“TPS”), Leon Ashlock, Mat Cloud, and

Deann Mashburn,1 arising out of his experiences with the school district as a volunteer

youth wrestling coach and substitute teacher. Plaintiff alleges claims under Title IX, Title

VII, and the First Amendment pursuant to 42 U.S.C. § 1983. This matter is now before

the Court on dueling motions for summary judgment filed by all Defendants and Plaintiff.

For the reasons set forth below, the Court finds that the School District Defendants’

Combined Motion for Summary Judgment and Brief in Support [Docket No. 144] is

granted as to all claims except Plaintiff’s claim for Title IX retaliation as to TPS, and that

1 Defendants previously dismissed Natalie Cloud, individually; Kimberly Williams; Leon

Ashlock, in his official capacity as superintendent; and Tahlequah Public Schools Boad of

Education.

Plaintiff’s Motion for Summary Judgment [Docket No. 171] is denied. Additionally, the

undersigned Magistrate Judge holds Plaintiff’s Motion for Sanctions under Fed. R. Civ.

P. 11 and Integrated Brief [Docket No. 158] in abeyance pending the show cause hearing

set for Tuesday, March 17, 2026.

Procedural History

Plaintiff filed this case on September 10, 2021, in Oklahoma state court in

Cherokee County, Case No. 21-cj-98, against TPS and Defendant Ashlock. Defendants

removed the case to this Court on October 18, 2021 [Docket Nos. 1-2]. The named

Defendants then filed a partial motion to dismiss, and the Court invited Plaintiff to file

an Amended Complaint, which Plaintiff did on November 11, 2021. See Docket Nos. 8,

10-11. Defendants then filed another partial motion to dismiss [Docket No. 13] on

November 29, 2021. In May 2022, Plaintiff’s counsel were given leave to withdraw from

representing the Plaintiff, and Plaintiff entered an appearance pro se [Docket Nos. 33-

38]. In August 2022, Plaintiff, proceeding pro se, moved for leave to file a Second

Amended Complaint [Docket No. 48], which the undersigned Magistrate Judge granted

in part on October 24, 2022, while denying the partial Motion to Dismiss [Docket No.

13] as moot [Docket No. 53]. Plaintiff then filed his Second Amended Complaint

[Docket No. 55], which named Mat Cloud (“Cloud”), Deann Mashburn, Natalie Cloud,

and Kimberly Williams, in addition to the previously-named Defendants. All named

Defendants moved for full or partial motions to dismiss the Second Amended Complaint.

See Docket Nos. 65, 66, 70, 75.

Plaintiff originally alleged seven causes of action in his Second Amended

Complaint. Defendants raised full or partial challenges to three of those counts, and the

undersigned Magistrate Judge recommended granting those motions in full on January

18, 2023 [Docket No. 86]. On April 7, 2025,2 the Court adopted these recommendations

[Docket No. 122]. Following the adoption of the Report and Recommendation, the

following claims remain pending against certain Defendants: (1) retaliation pursuant to

Title IX against TPS (Count I); (2) violation of the First Amendment, pursuant to 42

U.S.C. § 1983 against TPS and individual Defendants Ashlock, Mashburn, and Mr. Cloud

(Count II); (3) retaliation pursuant to Title VII as to TPS (Count V); (4) First Amendment

retaliation, pursuant to § 1983 as to Mr. Cloud (Count VI); and (5) First Amendment

retaliation pursuant to § 1983 as to TPS (Count VII). Defendants’ Combined Motion for

Summary Judgment moves for summary judgment on all remaining claims. Plaintiff’s

Motion for Summary Judgment contends the evidence is so far in his favor that no

reasonable jury could conclude otherwise, and that he should be granted summary

2 The Northern and Eastern Districts of Oklahoma have experienced unprecedented caseloads and

jurisdictional complexities since the Supreme Court’s decision in McGirt v. Oklahoma, 591 U.S.

894 (2020). McGirt caused an immediate increase of nearly 200% in the number of criminal

cases filed in the Northern District and more than 400% in the Eastern District. See U.S. Courts,

Judiciary Supplements Judgeship Request, Prioritizes Courthouse Projects (Sept. 28, 2021),

https://www.uscourts.gov/news/2021/09/28/judiciary-supplements-judgeship-request-

prioritizes-courthouse-projects. This extraordinary number of criminal cases thrust into federal

court, virtually overnight, is unlike anything ever seen in this Country’s history. Indeed, the

Supreme Court has since recognized the “significant challenge for the Federal Government and

for the people of Oklahoma” in the wake of McGirt. Oklahoma v. Castro-Huerta, 597 U.S. 629,

635 (2022). Numerous federal courts have “noted McGirt’s tremendous impact.” United States

v. Budder, 601 F. Supp. 3d 1105, 1114 (E.D. Okla. 2022) (collecting cases), affirmed 76 F.4th

1007 (10th Cir. 2023).

judgment on all remaining claims based on a lack of genuine dispute for trial. The

undersigned Magistrate Judge makes the following findings.

Background

The undisputed facts in this case reflect that, prior to the fall of 2019, Plaintiff was

a youth wrestling coach for Boys and Girls Club of Tahlequah (“BGC”). Plaintiff asserts,

in contradiction to TPS, that TPS high school wrestling coach Travis Kirby, and by

extension TPS, had control over staffing and access, despite the affiliation with BGC.

On September 7, 2019, Plaintiff wrote a Facebook post complaining that TPS

female student athletes were treated differently than male student athletes.3 That same

day, Cloud, who is TPS’ athletic director, emailed Plaintiff to say, “Please be careful of

the public accusations before you know all the facts.” Plaintiff wrote back that the “post

has been removed for now.” Docket Nos. 144, p. 10, ¶¶ 7-8 & Ex. 4-5; 174, p. 7, ¶¶ 7-8.

Plaintiff made a Title IX complaint on September 11, 2019, during a meeting with TPS

Superintendent Ashlock, Title IX coordinator Mashburn, and Cloud. At that time, he

alleged discrimination against female athletes occurring primarily by three coaches at the

high school. Docket No. 144, p. 11, ¶ 10. Plaintiff alleges that, following his Title IX

complaint, Coach Kirby was no longer as friendly with him and that TPS instructed Kirby

to stop associating with him.

Following the Title IX complaint, Plaintiff made a request for a board hearing, and

Superintendent Ashlock emailed Plaintiff on October 9, 2019, notifying him that the

3 Plaintiff’s minor daughter attended TPS at the time.

Board would be addressing a letter on October 10, responding to Plaintiff’s criticisms

regarding the Title IX investigation, and discussing Plaintiff’s behavior toward others in

recent days, stating, “Continuation of misconduct directed at staff members of this district

will result in issuance of an order prohibiting you from being on the district’s campus or

at its events,” advising him to “stay away from AD Cloud, Mrs. Cloud, and Mr. Ogden,

and discontinue any attempts of intimidation of any staff member of any behavior with

the intent of ‘baiting’ our staff to respond negatively to you.” Docket Nos. 144, pp. 12-

13, ¶ 20 & Ex. 12; No. 174, p. 8, ¶ 20. Plaintiff alleges this letter violates his First

Amendment right to freedom of speech and to petition the government.

Plaintiff then filed a complaint with the Office of Civil Rights (“OCR”). In April

2020, Plaintiff entered into a Resolution Agreement with TPS, in which: (1) Plaintiff was

afforded the opportunity to appeal the Title IX investigation decision, (2) TPS would

remove the October 9, 2019, letter/email from TPS district records, and (3) Plaintiff would

withdraw his OCR complaint. Docket No. 144, p. 13, ¶¶ 22-25 & Ex. 13; 174, p. 8, ¶¶ 22-

25. Plaintiff withdrew his OCR Complaint. Docket No. 144, Ex. 13, p. 3. TPS School

Board considered Plaintiff’s Title IX appeal at a Special Meeting on May 14, 2020. Id.,

Ex. 14.

The undisputed facts further reflect that Plaintiff worked as a substitute teacher

with TPS from time to time beginning in February 2019. See Docket No. 144, pp. 9-10,

¶¶ 1-3 & Docket No. 174, p. 7, ¶¶ 1-3. TPS paid Plaintiff for the substitute teaching work

only; by inference, TPS did not pay Plaintiff for his youth wrestling coach position.

Docket Nos. 144, p. 4, ¶ 4 & 174, p. 7, ¶ 4. At some point, Plaintiff was removed from

the substitute teaching list. Plaintiff alleges this removal was in retaliation for his Title IX

complaint. Docket Nos. 144, p. 16, ¶ 43 & 174, p. 10, ¶ 43.

In April 2021, TPS posted a job for a secondary social studies teacher with

coaching duties, Posting ID 384. The qualifications identified included “Bachelors degree

with certification in Secondary Social Studies Grades 6-12.” Docket Nos. 144, p. 15,

¶¶ 32-33 & 174, p. 9, ¶¶ 32-33. Plaintiff does not hold an Oklahoma teaching certificate.

Plaintiff emailed Cloud to express interest in seeking an “adjunct or lay coaching position”

regarding “the vacant assistant wrestling coach and girls wrestling coach positions.”

Docket No. 144, Ex. 17. Plaintiff contends he was responding to a different posting from

the Oklahoma Coaches Association job board. He identifies the job post as ID 384 as

well, but attaches an one-page printout of multiple job postings and a summary description

of a position at TPS which states, in part: “[TPS] is currently accepting applications for

the following positions: Head HS Baseball Coach, Assistant HS Baseball coach, 9th grade

football (2 positions), HS girls wrestling, HS assistant wrestling coach. Teaching field to

be determined. . . . Please send resume, transcripts, Oklahoma teaching certificate[.]”

Docket No. 170, Ex. 12. TPS interviewed three candidates for the position, none of them

Plaintiff. The candidate ultimately chosen was interviewed on June 8, 2021, and

recommended on June 10, 2021. He was issued alternative certification in physical

education/heath/safety, U.S. History/OK History/Government/Economics, and World

History/Geography. The effective date of the certification was June 1, 2021. Docket No.

133, Ex. 19-20. One other candidate was certified in Biological Sciences, and one was

degreed but not certified. Docket No. 170, Ex. 14, p. 7. Plaintiff alleges he was not hired

in retaliation for his Title IX complaint. Docket Nos. 143, p. 17, ¶ 44 & 174, p. 11, ¶ 44.

Plaintiff disputes any assertion by Defendants that Cloud did not influence others

regarding their association with Plaintiff. He further disputes Defendants’ assertion that

the Title IX investigation was conducted, much less that it was thorough, and that no one

retaliated against him. Plaintiff further disputes allegations that Plaintiff said, “Hey there,

Boss Hog,” in front of another witness, or that Plaintiff sat behind Cloud’s wife and others

at a football game on October 4, 2019, openly discussed Cloud and the Title IX

investigation, and followed Cloud’s wife after she left for the restroom. Docket Nos. 144,

pp. 11-12, ¶¶ 14, 16-19 & 174, p. 8, ¶¶ 14, 16-19. Plaintiff also contends that TPS did not

give him proper notice or consideration of his Title IX appeal, and that TPS officials

assisted respondents in their presentation while “suppressing Plaintiff’s participation.”

Docket No. 174, p. 8, ¶ 26.4 The parties likewise dispute when and why Plaintiff was

struck from the substitute teaching list.

Summary Judgment Standard

Summary judgment is appropriate if the record shows that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show

4 Any challenge to the process related to the underlying Title IX complaint itself has previously

been dismissed.

the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986), with the evidence taken in the light most favorable to the non-moving

party, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party

asserting that a fact cannot be or is genuinely disputed must support the assertion by . . .

citing to particular parts of materials in the record . . . or . . . showing that the materials

cited do not establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P.

56(c).

In employment discrimination cases, “[m]any of the highly fact-sensitive

determinations involved in these cases are best left for trial and are within the province

of the jury.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1221 (10th Cir. 2015). “The rule

in this Circuit . . . is that an employment discrimination suit will always go to the jury so

long as the evidence is sufficient to allow the jury to disbelieve the employer’s proffered

reason for the employment action.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177

(10th Cir. 1998) (Tacha, J., concurring in part) (citing Randle v. City of Aurora, 69 F.3d

441, 451-452 & n. 15 (10th Cir. 1995) (“[I]f this inferential evidence is sufficient to allow

a plaintiff to prevail at trial, it is surely sufficient to permit a plaintiff to avoid summary

judgment so that the plaintiff can get to trial.”).

Finally, because Plaintiff is proceeding pro se, the undersigned Magistrate Judge

liberally construes his pleadings. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)

(requiring courts to liberally construe a pro se litigant’s pleadings); Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991) (a court construes a pro se party’s pleadings liberally

and holds them “to a less stringent standard than [that applied to] formal pleadings drafted

by lawyers.”). Although pro se pleadings are held to a less stringent standard than ones

drafted by lawyers, a pro se litigant must “‘follow the same rules of procedure that govern

other litigants.’” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Furthermore, the

Tenth Circuit “does not believe it is the proper function of the district court to assume the

role of advocate for the pro se litigant.” Hall, 935 F.2d at 1110.

Analysis

I. Defendants’ Motion for Summary Judgment

TPS contends that it did not retaliate against Plaintiff for making a Title IX

complaint, taking no material adverse action based on the protected activity (Count I).

All Defendants contend summary judgment should be granted on Plaintiff’s § 1983 claim

for a violation of Plaintiff’s First Amendment rights of freedom of speech, petition, and

assembly because Plaintiff fails to establish a constitutional violation by any remaining

Defendant (Count II). Further, TPS contends that it did not retaliate against Plaintiff

under Title VII by failing to hire him for a social studies teaching position in 2021 (Count

V). Finally, TPS and Cloud argue they did not retaliate against Plaintiff for exercising

his First Amendment rights to free speech and petition (Counts VI & VII). Plaintiff

contends summary judgment should be denied because evidence shows Defendants’

actions were pretextual for purposes of Title IX and Title VII, and that Defendants’

retaliatory motive is an issue for his First Amendment claim.

A. Count I – Title IX Retaliation (TPS)

Title IX provides that “[n]o person in the United States shall, on the basis of sex,

be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Where sex-based discrimination is intentional, Title IX

is enforceable through a cause of action for which money damages are available. See

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

Where, as here, a Title IX plaintiff relies on indirect proof of discrimination, we

apply the three-part burden-shifting framework announced in McDonnell Douglas Corp

v. Green, 411 U.S. 792, 802-805 (1973); Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315

n.8 (10th Cir. 2017) (“The McDonnell Douglas framework applies” to “Title IX sex

discrimination claims.”). “The shifting burdens of proof set forth in McDonnell Douglas

are designed to assure that the plaintiff has his day in court despite the unavailability of

direct evidence.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Under

this framework:

“[A] plaintiff must first “raise a genuine issue of material fact on each

element of the prima facie case, as modified to relate to differing factual

situations.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)

(citation omitted). The burden then “shifts to the employer to offer a

legitimate nondiscriminatory reason for its employment decision.” Id. If the

employer does so, “the burden then reverts to the plaintiff to show that there

is a genuine dispute of material fact as to whether the employer's proffered

reason for the challenged action is pretextual—i.e., unworthy of belief.” Id.

(internal quotation marks omitted).

Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). “[T]o set out a prima facie case

of retaliation under Title IX, []he must show (1) []he engaged in protected activity, (2) []he

suffered an adverse action, and (3) a causal connection existed between the protected

activity and the adverse action.” Nave v. Indep. Sch. Dist. No. 20 of LeFlore Cnty., 2018

WL 6419296, at *6 (E.D. Okla. Dec. 6, 2018) (citing Hiatt, 858 F.3d at 1316).

Defendant’s burden at the second stage to offer a legitimate nondiscriminatory reason is

a burden of production, not persuasion. See Texas Dep’t of Cmty. Affs. v. Burdine, 450

U.S. 248, 254 (1981) (“The burden that shifts to the defendant, therefore, is to rebut the

presumption of discrimination by producing evidence that the plaintiff was rejected, or

someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant

need not persuade the court that it was actually motivated by the proffered reasons.”). The

burden then returns to Plaintiff on the issue of pretext.

As to the prima facie case, TPS agrees that Plaintiff engaged in protected activity

when he filed a Title IX complaint. Plaintiff alleges the materially adverse actions against

him included preventing him from continuing to coach the youth wrestling program, the

October 2019 letter sent to Plaintiff by Ashlock, and his removal from the TPS substitute

teacher list. TPS argues, however, that it did not take a materially adverse action against

Plaintiff because TPS did not operate the youth wrestling program, the October 2019 letter

was not a materially adverse action, and Plaintiff remained on the substitute list for TPS.

The undersigned Magistrate first finds that the October 2019 letter was not a

material adverse action. The letter notified Plaintiff of the information for his requested

board meeting and instructed him regarding behavior toward coaches and their family

members. “[A]n action is ‘materially adverse’ if it is “sufficiently severe or pervasive that

it could well dissuade a reasonable worker from engaging in protected activity.” Kincaid

v. Unified Sch. Dist. No. 500, Kansas City, Kansas, 645 F. Supp. 3d 1134, 1162 (D. Kan.

2022), affirmed, 94 F.4th 936 (10th Cir. 2024). While not unrelated to the Title IX claim,

as the requested Title IX hearing with the School Board is discussed in the letter, the letter

does not constitute an action that would dissuade a reasonable person from engaging in

protected activity. Furthermore, Plaintiff makes no argument in his response that the letter

itself constitutes a material adverse action, while he maintains that his removal from youth

coach wrestling and the substitute teaching list were material adverse actions.

As to Plaintiff’s positions as a youth wrestling coach and a substitute teacher, the

undersigned Magistrate Judge finds that genuine issues of material fact remain upon

application of the McDonnell Douglas burden-shifting test. A genuine dispute remains as

to whether TPS influenced/controlled the youth wrestling program and Plaintiff’s removal

therefrom despite being operated by the Boys and Girls Club in name. Likewise, a dispute

remains as to when and how Plaintiff was removed from the substitute teaching list. TPS

contends that it did not operate the youth wrestling club, and that Plaintiff remained on

the substitute teaching list. But Plaintiff raises genuine questions as to whether TPS

leadership influenced decisions made with regard to the youth wrestling club coach

position, and Plaintiff further raises a genuine dispute as to why the site employees

removed his name from the substitute list despite TPS issuing letters of assurance that he

remained on the list. Accordingly, summary judgment for Plaintiff’s Title IX claim

against TPS (Count I) is denied on the issues of removal from the youth wrestling coach

position and removal from the substitute teaching list only. The motion is otherwise

granted as to Count 1.

B. Count IV – Title VII Retaliation (TPS Only)

As with the Title IX retaliation claims, to survive summary judgment on a Title VII

retaliation claim, the Court applies the McDonnell-Douglas burden-shifting framework.

“To state a prima facie Title VII retaliation claim, a plaintiff must show (1) that []he

engaged in protected opposition to discrimination, (2) that a reasonable employee would

have found the challenged action materially adverse, and (3) that a causal connection

existed between the protected activity and the materially adverse action. Bekkem, 915

F.3d at 1267 (quotation omitted). The parties agree that Plaintiff’s Title IX complaint

constitutes protected activity. Plaintiff alleges TPS failed to interview or hire him in 2021

due to his previously-filed 2019 Title IX complaint and the OCR complaint. TPS contends

there is no material adverse action as Defendant was not qualified for the position because

he did not hold a teaching certificate, and that Plaintiff failed to establish a causal

connection because more than three months passed between the protected activity and the

challenged action.

“A plaintiff may establish a causal connection by showing that an adverse action

closely follow[ed] protected activity. [W]e have held that a one and one-half month period

between protected activity and adverse action may, by itself, establish causation, but we

have held that a three-month period, standing alone, is insufficient. When a plaintiff has

engaged in multiple protected activities, we measure the temporal proximity between the

plaintiff’s last instance of protected activity and the adverse employment action.”

Walkingstick Dixon v. Oklahoma ex rel. Reg’l Univ. Sys. of Oklahoma Bd. of Regents, 125

F.4th 1321, 1339 (10th Cir. 2025) (internal quotations omitted). Plaintiff filed his Title

IX complaint in September 2019. Plaintiff later filed the OCR Complaint but withdrew it

on April 15, 2020, pursuant to the Resolution Agreement. His Title IX appeal was

addressed at a TPS School Board Special Meeting in May 2020. Plaintiff applied for the

teaching/coaching position in April 2021. Standing alone, the time difference of over

eleven months between the most recent protected activity and the challenged action is

insufficient to establish a causal connection. See Anderson v. Coors Brewing Co., 181

F.3d 1171, 1179 (10th Cir. 1999) (“[T]he closer [the challenged action] occurred to the

protected activity, the more likely it will support . . . causation.”); see also Proctor v.

United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007) (“Four months is too large a

time gap to establish a causal connection.”); Doerr v. Colorado Div. of Youth Servs., 95

Fed. Appx. 295, 298 (10th Cir. 2004) (“We agree with the district court, however, that the

one-year time lapse is too great to draw a causal connection between his protected

grievance and his termination.”) (citing Conner v. Schnuck Markets, Inc., 121 F.3d 1390,

1395 (10th Cir.1997) (holding four-month lapse between protected activity and adverse

action insufficient to justify inference of causation)); Mauldin v. Wormuth, 713 F. Supp.

3d 1132, 1147 (E.D. Okla. 2024) (“As Plaintiff’s non-selection occurred eighteen months

after she submitted her statement in support of Cloud’s EEO complaint, the time span

between her protected activity and non-selection is too extended to infer retaliatory motive

under Tenth Circuit precedent.”) (ADEA retaliation), affirmed sub nom., Mauldin v.

Driscoll, 136 F.4th 984 (10th Cir. 2025).

Plaintiff attempts to overcome this time distance by Cloud’s deposition testimony,

which indicates that “[w]e’ve had ongoing grievances with you since ’19,” and that the

“main driver” for not interviewing Plaintiff for the open teaching position was that he did

not “think any sane person, if somebody was suing their employer, would bring them on

as an employee. I think that’s safe to say with anybody.” See Docket No. 170, Ex. 13,

pp. 4, 6. This appears sufficient to give rise to an inference of discrimination for purposes

of a prima facie case.

TPS responds that its legitimate, nondiscriminatory reasons for failing to hire

Plaintiff are that Plaintiff was not qualified for the position for which he applied because

it is undisputed that Plaintiff did not hold a teaching certificate. TPS ultimately hired a

certified teacher. Moreover, TPS notes that Cloud was not the sole decisionmaker for the

hiring decisions. These assertions are sufficient for this stage of the burden-shifting test.

See Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1058 (10th Cir. 2020)

(“In the Title VII context, we have explained that ‘the defendant does not at this stage of

the proceedings need to litigate the merits of the reasoning, nor does it need to prove that

the reason relied upon was bona fide, nor does it need to prove that the reasoning was

applied in a nondiscriminatory fashion.’”) (quoting E.E.O.C. v. Flasher Co., 986 F.2d

1312, 1316 & n.4 (10th Cir. 1992) (“[T]his stage of the analysis only requires the

defendant to articulate a reason for the discipline that is not, on its face, prohibited” and

that is “reasonably specific and clear.”).

Plaintiff contends that his admitted lack of qualifications do not supersede TPS’s

retaliatory motive in excluding him from the hiring process. Based on documentation

submitted by both parties, TPS advertised for a teacher with a certification. Plaintiff points

out that the teacher ultimately hired was not certified in Social Studies, the requisite

certification identified in the job posting. Additionally, of the other two candidates

interviewed, one was certified in biological sciences and one was degreed and not

certified. Docket No. 170, Ex. 14, p. 7. Defendant does not dispute Plaintiff’s assertion

that TPS could have interviewed and hired Plaintiff while he finished a certification

process, but contends this fact is irrelevant. The parties may dispute the category of

certification, but there is no dispute that both listings identified certification as necessary

and/or relevant, and neither party disputes that Plaintiff held no certification. “A plaintiff

demonstrates pretext by producing evidence of “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-discriminatory

reasons.” Jaramillo v. Colorado Jud. Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005)

(quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v.

General Elec. Astrospace, 101 F.3d 947, 951-952 (3d Cir. 1996)). Given the facts above,

the undersigned Magistrate Judge finds Plaintiff fails to meet his burden of showing that

the legitimate, nondiscriminatory reasons offered by TPS for not hiring Plaintiff were a

pretext for retaliation related to a protected activity. Plaintiff has introduced no

meaningful evidence that he was qualified for the position for which he applied, and any

assertion that he could have become qualified (or that he later did become qualified) would

have been speculation at the time of his application and throughout the hiring process.

Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1198 (10th Cir. 2018) (“[O]nce the employer

presents evidence regarding the qualifications, prerequisites, and essential functions of a

position, the burden is on the plaintiff to demonstrate that he was qualified or to rebut the

employer’s evidence that a qualification, prerequisite, or function was actually essential

for selection to the position. Thus, although both parties face a burden of production, the

plaintiff always bears the ultimate burden of persuasion.”) (internal quotation and citation

omitted); see also Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v.

Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017) (“[A]n inference is unreasonable

if it requires a degree of speculation and conjecture that renders [the factfinder’s] findings

a guess or mere possibility.”) (quotation omitted). TPS ultimately hired a degreed and

certified teacher for the posted position, and Plaintiff has not rebutted the assertion that

certification was required. Furthermore, while the hired teacher’s certification does not

list “Social Studies,” two of his three certifications include subsets of social studies:

World, U.S., and Oklahoma history; Government; Economics; and geography. Docket

No. 144, Ex. 20. Accordingly, TPS is entitled to summary judgment on this claim.

C. Counts II, VI & VII – First Amendment Retaliation (TPS, Cloud, Ashlock,

and Mashburn)

The remaining portion of Plaintiff’s Count II on its face raises a claim for violation

of Plaintiff’s First Amendment rights to free speech, petition, and association, pursuant

to § 1983, as to TPS, Mashburn, Ashlock, and Cloud. Counts VI and VII allege claims

of First Amendment retaliation against Cloud and TPS, respectively, and are likewise

pleaded pursuant to § 1983.

“A claim pleaded under § 1983 requires (1) deprivation of a federally protected

right by (2) an actor acting under color of state law.” VDARE Found v. City of Colorado

Springs, 11 F.4th 1151, 1160 (10th Cir. 2021) (internal quotation marks omitted). “The

traditional definition of acting under color of state law requires that the defendant in a

§ 1983 action exercised power possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” Schaffer v. Salt Lake

City Corp., 814 F.3d 1151, 1156 (10th Cir. 2016) (internal quotation marks omitted).

A municipality can only be held liable under 42 U.S.C. § 1983 for the actions of its

employees when the action is taken pursuant to the municipality’s “official policy,”

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell v. Dep’t of Soc.

Svcs. of City of New York, 436 U.S. 658, 692 (1978)), or for acts it has sanctioned or

ordered, Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir.

2010) (citing Pembaur, 475 U.S. at 480). This is because a municipality cannot be held

liable simply under a theory of respondeat superior. Pembaur, 475 U.S. at 478; see also

Monell, 436 U.S. at 694. “Rather, to establish municipal liability, a plaintiff must show

1) the existence of a municipal policy or custom, and 2) that there is a direct causal link

between the policy or custom and the injury alleged.” Hinton v. City of Elwood, Kan.,

997 F.2d 774, 782 (10th Cir. 1993). Municipal policy can take the form of, among other

things, “the decisions of employees with final policymaking authority or the ratification

by such final policymakers of the decisions—and the basis for them—of subordinates to

whom authority was delegated subject to these policymakers’ review and approval.”

Brammer-Hoelter, 602 F.3d at 1189. Furthermore, “the fact that a tort was committed by

an individual employed by the state does not, ipso facto, warrant attributing all of the

employee’s actions to the state.” Schaffer, 814 F.3d at 1156 (internal quotation marks

omitted). “Rather, before conduct may be fairly attributed to the state because it

constitutes action under color of state law, there must be a real nexus between the

employee’s use or misuse of their authority as a public employee, and the violation

allegedly committed by the defendant.” Id. (internal quotation marks omitted).

“Section 1983 does not authorize liability under a theory of respondeat superior.”

Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (citing Monell, 436 U.S. at 691).

“Because vicarious liability is inapplicable to []§ 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This takes the

form of either personal liability through personal involvement, or supervisory liability

based on a violation of a policy. Brown, 662 F.3d at 1164-1165 (“Personal liability under

§ 1983 must be based on . . . personal involvement, and supervisory liability must be based

on his Policy.”). The Tenth Circuit has interpreted this to mean that “§ 1983 allows a

plaintiff to impose liability upon a defendant-supervisor who creates, promulgates,

implements, or in some other way possesses responsibility for the continued operation of

a policy” causing the constitutional harm. Dodds v. Richardson, 614 F.3d 1185, 1199

(10th Cir. 2010).

As an initial matter, to the extent Plaintiff has alleged a valid claim for violation of

the First Amendment right to association, the undersigned Magistrate Judge finds that

Defendants should now be granted summary judgment. “[T]he right of association and

the right of assembly protect an individual’s ability to join with others or engage in group

effort for a common purpose.” Van Deelen v. Johnson, 535 F. Supp. 2d 1227, 1232 (D.

Kan. 2008) (citing Boy Scouts of Am. v. Dale, 530 U.S. 640, 678 (2000) (finding

“. . . [W]hen the State interferes with individuals’ selection of those with whom they wish

to join in a common endeavor, freedom of association . . . may be implicated.”) (emphasis

added); Cox v. State of La., 379 U.S. 536, 554-555 (1965); National Ass’n for

Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460-461,

463 (1958) (protecting the ability of NAACP “members to pursue their collective effort

to foster beliefs.”); Raggi, An Independent Right to Freedom of Association, 12

HARV.C.R.–C.L.L.REV. 1, 1 (1977) (freedom of association is “little more than a

shorthand phrase used by the Court to protect traditional first amendment rights of speech

and petition as exercised by individuals in groups”)). The undisputed facts clearly reflect

Plaintiff acting on his own, rather than attempting to act with others for a common

purpose.

Additionally, while Count II alleges on its face violations of the First Amendment

rights to freedom of speech and petition, the factual support provided by Plaintiff in the

Second Amended Complaint and in the undisputed facts by the parties indicates that

Plaintiff alleges all remaining Defendants, rather than violating his rights to free speech

and petition, retaliated against him for exercising his right to free speech and petition due

to his Facebook post, public statements to Cloud and others, and his Title IX and OCR

complaints. See, e.g., Docket Nos. 55, pp. 8-13, ¶¶ 46-64 & 174, pp. 21-24. This is the

same claim more explicitly alleged against TPS and Cloud in Counts VI and VII.

“Any form of official retaliation for exercising one’s freedom of speech, including

prosecution, threatened prosecution, bad faith investigation, and legal harassment,

constitutes an infringement of that freedom.” Worrell v. Henry, 219 F.3d 1197, 1212

(10th Cir. 2000) (quotation omitted); see also Van Deelen, 535 F. Supp. 2d at 1233-1234

(“[T]he rights to free speech, peaceable assembly, expressive association and petition

have been called ‘inseparable.’”) (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)).

“To state a First Amendment retaliation claim, a plaintiff must allege facts showing

‘(1) that [he] was engaged in constitutionally protected activity; (2) that the defendant’s

actions caused the plaintiff to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity; and (3) that the defendant’s adverse

action was substantially motivated as a response to the plaintiff’s exercise of

constitutionally protected conduct.’” Irizarry v. Yehia, 38 F.4th 1282, 1288 (10th Cir.

2022) (quoting Worrell, 219 F.3d at 1212). As such, “this circuit has held that

‘McDonnell Douglas has no useful role to play in First Amendment retaliation cases.’”

Roberts v. Winder, 16 F.4th 1367, 1381 (10th Cir. 2021) (quoting Walton v. Powell, 821

F.3d 1204, 1210 (10th Cir. 2016)). And as to TPS, Plaintiff “must show 1) the existence

of a municipal policy or custom, and 2) that there is a direct causal link between the policy

or custom and the injury alleged.” McCook v. Springer School Dist., 44 Fed. Appx. 896,

910 (10th Cir. 2002).

Plaintiff engaged in protected activity when he made a Facebook post critical of

TPS in September 2019. Plaintiff contends TPS, and particularly Ashlock and Mashburn,

rushed through the Title IX investigation and failed to follow proper procedures during

the Title IX investigation in retaliation for his First Amendment exercise. Furthermore,

he alleges that all Defendants continued to retaliate against him for his OCR complaint.

The undersigned Magistrate Judge thus turns to whether any of Defendants’ actions

caused Plaintiff to suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity. “Generally speaking, government action which

chills constitutionally protected speech or expression contravenes the First Amendment.”

Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir.1996) (citations omitted). The “chill”

standard is not subjective in the context of First Amendment retaliation cases. McCook,

44 Fed. Appx. at 905 (“Both sides mistakenly assume the ‘chill’ standard is subjective,

which it is not.”) (citing Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (“The focus,

of course, is upon whether a person of ordinary firmness would be chilled, rather than

whether the particular plaintiff is chilled.”). The undisputed facts, as interpreted in favor

of Plaintiff as the nonmoving party, do not meet the rigorous objective standard of actions

that would chill a person of ordinary firmness. Indeed, many of Plaintiff’s arguments as

to First Amendment retaliation appear to be an attempt to again challenge the underlying

process by which his Title IX complaint was handled. See Docket No. 174, p. 22. These

allegations are insufficient as it is clear that they do not meet the high standard nor did

any of the Defendants’ actions, in fact, chill Plaintiff from his continued exercise of his

First Amendment, and other, constitutional rights. See Eaton v. Meneley, 379 F.3d 949,

956 (10th Cir. 2004) (“We reaffirm with this decision that the objective standard of a

person of ordinary firmness is a vigorous standard; although the standard permits a

plaintiff who perseveres despite serious injury from official misconduct to assert a

constitutional claim, it is substantial enough that not all insults in public debate become

actionable under the Constitution.”); see also Valdez v. New Mexico, 109 Fed. Appx. 257,

263 (10th Cir. 2004) (“The result of Eaton illustrates the rigorousness of our standard. . . .

Plaintiff’s allegations concerning the delivery of the television set, the prohibition of

contact with the Gonzaleses, the press conference reference to his possible connection

with the reverse sting, the comment to the reporter, and the criminal complaint’s mention

of his name do not meet the subjective standard for a chilling effect.”). “Applying that

[vigorous, objective] standard, courts in this Circuit have [even] found that statements

concerning the illegality or impropriety of a plaintiff’s conduct are insufficient, standing

alone, to support a First Amendment retaliation claim.” Douglass v. Garden City Cmty.

Coll., 652 F. Supp. 3d 1329, 1349 (D. Kan. 2023) (collecting cases) (citing How v. City

of Baxter Springs, Kan., 217 Fed. Appx. 787, 798 (10th Cir. 2007) (threat of criminal

charges not injury that would chill person of ordinary firmness from continuing to

exercise constitutional rights); Valdez, 109 Fed. Appx. at 263 (statements made to press

regarding plaintiff’s possible involvement in criminal activity not sufficient for First

Amendment retaliation claim); Taylor v. City of Claremore, 2019 WL 3482965, at *9

(N.D. Okla. July 31, 2019) (statement that plaintiff had committed perjury would not chill

person of ordinary firmness from continuing to engage in First Amendment activity).

Accordingly, TPS, Ashlock, Mashburn, and Cloud are entitled to summary judgment on

all of Plaintiff’s First Amendment claims in Count II, VI, and VII.

D. Individual Defendants Entitled to Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “Qualified immunity is ‘an immunity from suit rather than a mere defense to

liability.’” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). Once a defendant has asserted a qualified immunity

defense, “the plaintiff must meet a strict two-part test” to establish “‘(1) that the defendant

violated a constitutional or statutory right, and (2) that this right was clearly established at

the time of the defendant’s conduct[.]’” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir.

2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)); see also Brown,

662 F.3d at 1164 (same). Because the undersigned Magistrate Judge finds all remaining

individual Defendants are entitled to summary judgment on the claims against them,

Count II and Count VI, Plaintiff has therefore failed to create a genuine issue of material

fact establishing that Defendants violated a constitutional or statutory right. Accordingly,

the undersigned Magistrate Judge finds that Defendants Ashlock, Cloud, and Mashburn

are entitled to qualified immunity in this case.

II. Plaintiff’s Motion for Summary Judgment [Docket No. 171]

Plaintiff also filed a motion for summary judgment, asserting that the evidentiary

record does not present a dispute, and that he should be entitled to summary judgment

upon all claims. Upon review of the motion and as discussed above in the context of

Defendants’ Motion for Summary Judgment, the undersigned Magistrate Judge finds

Plaintiff has not demonstrated “no genuine dispute as to any material fact” or that he is

“entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Shaw v. T-

Mobile, 2020 WL 5231309, at *6 (D. Kan. Sept. 2, 2020) (citing MacCormack v. Cit of

Prairie Village, KS, 2001 WL 58838, at *4 (Jan. 17, 2001) (explaining even if court

accepted plaintiff's unsupported “‘fact[s]’” as true, “summary judgment would not be

proper because the plaintiff has shown no legal basis to justify summary judgment”). As

noted above, Defendants are entitled to summary judgment on all claims except for

Plaintiff’s claim for retaliation pursuant to Title IX. As to the remaining claim, Plaintiff

has not overcome his burden under the McDonnell Douglas framework to show as a

matter of law that Defendant’s legitimate, nondiscriminatory reason for his removal as a

youth wrestling club coach and his removal from the substitute teaching list.

Accordingly, Plaintiff’s Motion for Summary Judgment [Docket No. 171] is denied.

III. Plaintiff’s Motion for Sanctions [Docket No. 158]

Finally, the undersigned Magistrate Judge acknowledges Plaintiff’s Moton for

Sanctions Under Fed. R. Civ. P. 11 and Integrated Brief [Docket No. 158]. This motion

is the subject of a show cause hearing set for Tuesday, March 17, 2026, before the

undersigned Magistrate Judge [Docket No. 180]. An appropriate ruling on this motion

and any related matters shall be issued following that hearing.

CONCLUSION

Accordingly, the School District Defendants’ Combined Motion for Summary

Judgment and Brief in Support [Docket No. 144] is DENIED as to Count I, with regard

to Plaintiff’s claim of Title IX retaliation related to his removal from the youth wrestling

coach position and from the substitute teaching lists, but otherwise GRANTED.

Defendants Ashlock, Cloud, and Mashburn are entitled to qualified immunity.

Additionally, Plaintiff’s Motion for Summary Judgment [Docket No. 171] is DENIED.

Furthermore, the undersigned Magistrate Judge holds Plaintiff’s Motion for Sanctions

under Fed. R. Civ. P. 11 and Integrated Brief [Docket No. 158] in abeyance pending the

show cause hearing set for Tuesday, March 17, 2026.

IT IS SO ORDERED this 5th day of March, 2026.

___________________________________________

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE