MARY ELIZABETH LEARY and GLENDA H. WILLIAMS v. Stephen Daeschner

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0409P (6th Cir.)
File Name: 03a0409p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARY ELIZABETH LEARY and
GLENDA H. WILLIAMS,
Plaintiffs-Appellants,
v.
STEPHEN DAESCHNER,
Defendant-Appellee.
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No. 01-6118
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 99-00465—Charles R. Simpson III, District Judge.
Argued: January 30, 2003
Decided and Filed: November 19, 2003
Before: BATCHELDER, MOORE, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Daniel T. Taylor III, Louisville, Kentucky, for
Appellants. Michael Keith Kirk, WYATT, TARRANT &
COMBS, Louisville, Kentucky, for Appellee. ON BRIEF:
2 Leary et al. v. Daeschner No. 01-6118
Daniel T. Taylor III, Louisville, Kentucky, for Appellants.
Michael Keith Kirk, WYATT, TARRANT & COMBS,
Louisville, Kentucky, for Appellee.
MOORE, J., delivered the opinion of the court, in which
CLAY, J., joined. BATCHELDER, J. (pp. 37-42), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiffs-
Appellants Mary Elizabeth Leary (“Leary”) and Glenda H.
Williams (“Williams”) (collectively “Plaintiffs”), previously
school teachers at the Atkinson Elementary School
(“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
Superintendent Stephen Daeschner (“Daeschner”) and thereby
dismissing Plaintiffs’ First Amendment retaliation claims;
and (2) the June 13, 2001 order denying Plaintiffs’ motion to
amend their complaint, dismissing their due process claims,
and dismissing all remaining claims. In addition, Plaintiffs
argue that the district court failed to provide them a trial by
jury in violation of the Seventh Amendment. Plaintiffs allege
in their complaint and amended complaint that they were
transferred from Atkinson to another elementary school in the
same district in retaliation for exercising their First
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
establishing a First Amendment violation. The district court
also denied Plaintiffs’ motion to amend their previously
amended complaint to add a demand for monetary relief
because the deadline for filing amended pleadings had passed
and Plaintiffs failed to show good cause excusing this late

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

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No. 01-6118 Leary et al. v. Daeschner 5
4Additional team m emb ers were Bill Eckels (“Eckels”), the
Executive Director of Human Reso urces, and Superintendent Daeschner.
involved what Jefferson County Public Schools (“JCPS”)
called Dialogue Teams. These teams, comprised of district-
level administrators, would meet with a school’s faculty and
principal to discuss plans for improvement and to evaluate
success. The particular team involved with evaluating
Atkinson was headed by Assistant Superintendent for District
Wide Instruction, Freda Meriweather (“Meriweather”), whose
primary responsibilities consisted of supervising the JCPS
elementary-school principals and developing school
improvement initiatives.4 One of the team’s first tasks
involved evaluating the three reading programs in use at
Atkinson and then recommending to Howard and her staff
that one program be used consistently throughout the school.
Ultimately, the school accepted this advice and chose to reject
all other reading programs in favor of the “Success for All”
program.
Atkinson’s academic troubles allowed it to qualify under
the Kentucky Education Reform Act (“KERA”) to receive a
Distinguished Educator or “Highly Skilled Educator,” a
school-district employee with a proven record of success in
aiding troubled schools. Between 1998-99, Meriweather
enlisted the help of Distinguished Educator Nancy Bowlds
(“Bowlds”) to work with Atkinson’s faculty and principal
over an extended period of time and advise them of how the
school’s academic performance might be improved.
In the spring of 1999, Atkinson contacted Dr. Sharon
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
6 Leary et al. v. Daeschner No. 01-6118
5The “collaborative model” requires both regular and ECE-
curriculum students to be taught together in one classroom.
6The Dialogue Team considered changing the entire Atkinso n staff,
but ultimately concluded that only a few chosen teachers needed to be
transferred in order to create a climate of change so that the long-standing
and unsuccessful education programs could be dropped and new programs
embraced.
model.”5 Meanwhile in April 1999, Howard gave notice that
she was resigning as Atkinson’s principal at the end of the
school-year. This resignation sparked discussions between
Meriweather and her Dialogue Team to anticipate the needs
of Atkinson in the wake of Howard’s departure. In addition
to the recruitment and retention of a talented principal, the
team believed that faculty changes also were necessary to
ensure support for the school’s chosen principal and new
programs: “Success for All” and the ECE “collaborative
model.” Both programs required faculty support: “Success
for All” needed a high percentage of faculty acceptance
before a grant would issue, and the “collaborative model”
required substantial backing because it involved a drastic
change. The Dialogue Team concluded that four or five
teachers would need to be transferred before the start of the
1999 school-year.6
After the Dialogue Team made this decision to transfer
teachers, Meriweather asked Howard and Bowlds each to
compose a list of four to five teachers that they recommended
for transfer because they thought the teachers would resist
change and progress at Atkinson. Howard’s list did not
include the current Plaintiffs; Bowlds’s list, however,
included Leary. After Meriweather received Howard’s and
Bowlds’s lists, Meriweather called Howard to determine
whether she agreed with Bowlds that Leary belonged on the
list. Howard agreed, allowing Leary to be added to her list
because Howard believed that Leary, the ECE-team leader,

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

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No. 01-6118 Leary et al. v. Daeschner 9
10The school year was scheduled to begin on the next day, August
17, 1999.
11The district court cited the imminent start of the school year as one
justification for this hurried hearing.
representative required her regularly to raise contentious
issues on behalf of the faculty.
After a hearing lasting several days, on August 13, 1999,
the district court determined that Plaintiffs were not entitled
to the requested relief on their First Amendment claims, but
they were entitled to more pre-deprivation process before they
could be transferred. In response to the court’s order, on the
morning of August 16, 1999,10 Defendant gave Plaintiffs
written notice of their transfers, explaining the reasons for the
transfers, and providing Plaintiffs with an opportunity to
respond at hearings scheduled for noon and one o’clock in the
afternoon, that very day. Instead of making an appearance at
the scheduled hearings or requesting a continuance, Plaintiffs
chose to file a “Motion in Furtherance of a Preliminary
Injunction; and for Order of Contempt in Regard to
Superintendent Steven W. Daeschner.” The district court
decided that Daeschner’s short-notice hearing complied with
the court’s August 13, 1999 order11 and provided Plaintiffs
with sufficient process. Thus, Plaintiffs’ failure to participate
in the hearing was a waiver of the due process rights afforded
them by the district court’s order. Plaintiffs appealed this
decision to a panel of this court. On appeal, we affirmed the
district court’s decision to deny the preliminary injunction
requested by Plaintiffs. Leary v. Daeschner, 228 F.3d 729,
734 (6th Cir. 2000).
While the interlocutory appeal was pending, Plaintiffs were
permitted to file an amended complaint on March 17, 2000,
adding four new claims: damages for loss of their liberty
interests and violation of procedural due process in post-
deprivation procedure (Count V); damages under the state and
10 Leary et al. v. Daeschner No. 01-6118
12W e note that both the July 31, 2000 and the August 29, 2000
district court orders were issued before we published our opinion in Leary
v. Daeschner, 228 F.3d 72 9 (6th Cir. 20 00), which addressed Plaintiffs’
appeal from the district court’s denial of a preliminary injunction.
federal whistleblower laws (Count VI ); state law damages
under various and sundry theories including false
imprisonment, defamation, libel, emotional distress,
interference with contract rights, and interference with
advantageous relationship (Count VII ); and punitive damages
(Count VIII ). Notably, Plaintiffs’ amended complaint did
not restate the injunctive claims contained in the original
complaint as claims for monetary damages. Daeschner filed
numerous summary judgment motions in response to these
claims. On July 31, 2000, the district court entered an order
granting Daeschner’s partial motion for summary judgment
with respect to Plaintiffs’ First Amendment claims but
denying it as to their due process claims. Almost a month
later, on August 29, 2000, the district court entered another
order granting Daeschner’s second motion for summary
judgment with respect to Count V, VI, and portions of Count
VII from the amended complaint.12 On March 1, 2001, the
district court granted Daeschner’s third motion for summary
judgment, this time dismissing the remaining claims in Count
VII.
After Daeschner’s fourth motion for summary judgment
was filed but before the district court issued its June 13, 2001
decision, Plaintiffs moved on April 30, 2001 to amend their
complaint a second time. More than one year after they were
permitted to file an amended complaint and close to two years
after this litigation began, the Plaintiffs wanted to add claims
for general, compensatory, and punitive damages for the due
process violations, damages for breach of the CBA, and a
renewed demand for a jury trial. Finally, on June 13, 2001,
the district court entered an order granting Daeschner’s fourth
motion for summary judgment which disposed of all of
Plaintiffs’ remaining claims. In addition, this order denied

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No. 01-6118 Leary et al. v. Daeschner 11
Plaintiffs’ motion for leave to file a second amended
complaint. The court stated that the Plaintiffs did not show
good cause pursuant to Federal Rules of Civil Procedure 16
and 15 for failure to move earlier for leave to amend.
Furthermore, Plaintiffs did not highlight any authority
supporting the notion that damages are appropriate in cases
where Plaintiffs waived their right to due process, and thus an
amendment adding damages claims would be futile. Pursuant
to Federal Rule of Civil Procedure 59(e), Plaintiffs moved to
have the judgment set aside. On August 7, 2001, the district
court denied this motion. The Plaintiffs then filed this timely
appeal.
II. ANALYSIS
A. Summary Judgment Standard
We review a district court’s order granting summary
judgment de novo. Rannals v. Diamond Jo Casino, 265 F.3d
442, 447 (6th Cir. 2001), cert. denied, 534 U.S. 1132 (2002).
In accordance with Federal Rule of Civil Procedure 56(c), a
grant of summary judgment is affirmed “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). A dispute over a material fact cannot be “genuine”
unless a reasonable jury could return a verdict for the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Initially, the moving party has the burden of
proving that no genuine issue as to any material fact exists
and that it is entitled to a judgment as a matter of law. Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1477, 1479 (6th Cir.
1989) (noting “that not every issue of fact or conflicting
inference presents a genuine issue of material fact which
requires the denial of a summary judgment motion”). To
meet this burden, the moving party may rely on any of the
evidentiary sources listed in Rule 56(c) or on the failure of the
nonmoving party to produce “more than a mere scintilla of
12 Leary et al. v. Daeschner No. 01-6118
evidence” which would create a genuine dispute for the jury.
Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001); see
also Street, 886 F.2d at 1477 (“The mere existence of a
scintilla of evidence in support of the plaintiff’s position will
be insufficient.” (quotation omitted)). In reviewing the
district court’s decision to grant summary judgment, we must
view all evidence and draw all reasonable inferences in the
light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
B. First Amendment Retaliation Analysis
Plaintiffs claim that they were transferred in retaliation for
engaging in protected speech. Because we believe a review
of the record reveals that genuine issues of material fact exist,
we hold that the district court improperly granted summary
judgment on Plaintiffs’ First Amendment claims.
In order to state a retaliation claim under the First
Amendment a plaintiff must show that: “1) [she] engaged in
constitutionally protected speech; 2) [she] was subjected to
adverse action or was deprived of some benefit; and 3) the
protected speech was a ‘substantial’ or a ‘motivating factor’
in the adverse action.” Brandenburg v. Housing Auth. of
Irvine, 253 F.3d 891, 897 (6th Cir. 2001) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)). Public employee plaintiffs are required to meet
additional standards to establish that the speech at issue is
constitutionally protected. First, a public employee plaintiff
must demonstrate that the speech involved matters of public
interest or concern. Cockrel v. Shelby County Sch. Dist., 270
F.3d 1036, 1048 (6th Cir. 2001), cert. denied, -- U.S. --, 123
S. Ct. 73 (2002). Second, the plaintiff must show that her
interest in addressing these matters of public concern
outweighs the interest of her employer “in promoting the
efficiency of the public services it performs through its
employees.” Pickering v. Bd. of Educ. of Township High Sch.
Dist. 205, 391 U.S. 563, 568 (1968). The Pickering balancing

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

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14The only truly new testimony was Daeschner’s deposition, because
Bo wlds’s deposition contained the same information as her testimony at
her 1999 hearing.
injunction hearing. When the district court granted the
summary judgment motion, the only evidence on the record
was the August 1999 hearing and the deposition testimony of
Bowlds and Daeschner.14
1. Protected Activity
“Speech of a public employee is entitled to First
Amendment protection if it relates to a matter of public
concern.” Boger, 950 F.2d at 322. In Connick v. Myers, 461
U.S. 138 (1983), the Supreme Court held that speech involves
a matter of public concern when it relates to “any matter of
political, social, or other concern to the community.” Id. at
146. This must be differentiated from a public employee’s
speech that involves matters of personal interest which are not
protected. Id. at 147 (holding that when a public employee
speaks “as an employee upon matters only of personal interest
. . . a federal court is not the appropriate forum in which to
review the wisdom of a personnel decision taken by a public
agency allegedly in reaction to the employee’s behavior”).
“In general, speech involves matters of public concern when
it involves ‘issues about which information is needed or
appropriate to enable the members of society to make
informed decisions about the operation of their government.’”
Banks, 330 F.3d at 893 (quoting Brandenburg, 253 F.3d at
898). “Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147-48.
Plaintiffs’ theory is that they were transferred in retaliation
for actively voicing their complaints regarding the problems
at Atkinson. Plaintiffs assert that their complaints involved
subjects ranging from discipline of the students to the legality
16 Leary et al. v. Daeschner No. 01-6118
and desirability of suggested educational programs to other
teachers’ disregard for school procedures when making
school-related decisions. In our previous decision, based on
the evidence available at that time, we agreed with the district
court’s conclusion that Plaintiffs’ speech was constitutionally
protected. See Leary, 228 F.3d at 738 (finding the balance in
favor of Plaintiffs and noting that “the school board ha[d]
essentially conceded the point”). Although at that stage of the
litigation all that the Plaintiffs needed to show was that their
speech was constitutionally protected for preliminary
injunction purposes, there is no new evidence in the record to
support a contradictory conclusion on summary judgment.
A public employee’s speech that relates “to any matter of
political, social, or other concern to the community [at large]”
is properly considered speech on a matter of public concern.
Connick, 461 U.S. at 146. Even if some of the complaints
raised by Plaintiffs more properly are classified as matters of
personal concern, at the very least comments regarding the
legality of educational programs, the discipline of students,
and the violation of school procedures constitute protected
speech because “some portion of the speech touches on a
matter of public concern.” Banks, 330 F.3d at 895 (noting
that allegations that the school board violated state law and
their own internal policies are matters of public concern); see
also Leary, 228 F.3d at 737 (noting that student discipline and
educational program implementation are “matters of concern
to the community at large” and that the legality of proposed
school programs is “undoubtedly of the highest public
concern”). Here, Plaintiffs’ speech receives constitutional
protection under the First Amendment because it pertains to
issues of community importance. Looking at the “content,
form, and context,” we conclude that these statements “are of
public import in evaluating the performance of [Atkinson
Elementary School].” Connick, 461 U.S. at 147-48.
Once we hold that Plaintiffs’ speech touches on matters of
public concern, Pickering instructs us to balance the
Plaintiffs’ interest, as citizens, in addressing these matters of

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No. 01-6118 Leary et al. v. Daeschner 17
public concern with the school’s interest “as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568. When
balancing these two competing interests, we “consider
whether an employee’s comments meaningfully interfere with
the performance of her duties, undermine a legitimate goal or
mission of the employer, create disharmony among co-
workers, impair discipline by superiors, or destroy the
relationship of loyalty and trust required of confidential
employees.” Cockrel, 270 F.3d at1053 (quotation omitted).
In essence, the speech complained of must interfere with the
job Plaintiffs are hired to perform or the functioning of the
workplace in general. Pickering, 391 U.S. at 568. The public
employee’s speech will be constitutionally protected only if
the Pickering balancing test proves the employee’s interest to
outweigh the employer’s interest.
Helping tip the balance in Daeschner’s favor is the fact that
the volatility of the school’s situation necessitated functional
efficiency. Leary, 228 F.3d at 738. In addition, because
Leary was known to yell at her coworkers and Williams was
known to challenge Howard’s authority, Plaintiffs’ speech
can be characterized as disruptive in the work environment.
Id. Moreover, because certain aspects of Plaintiffs’ speech
can be identified as directed toward coworkers and
supervisors, it posed a “question of maintaining either
discipline by immediate superiors or harmony among
coworkers.” Pickering, 391 U.S. at 570. On the other hand,
Plaintiffs’ speech obviously did not interfere with their job
performance because they consistently received stellar
reviews. Moreover, there was no evidence that either teacher
had been disciplined previously for failure to perform her
duties. Daeschner never suggested how Plaintiffs’ speech on
student discipline or choice of educational programs
“undermine[d] a legitimate goal or mission of the employer.”
Cockrel, 270 F.3d at1053. Because the evidence has not
18 Leary et al. v. Daeschner No. 01-6118
15After 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.
changed since our last Pickering balance of these factors15
and because Daeschner provides no reason why we should
approach the balancing differently simply because we now are
evaluating the First Amendment claims after a grant of
summary judgment, we adhere to our original balancing of
these factors and hold that the Plaintiffs’ speech was
constitutionally protected.
2. Adverse Action
Our previous opinion noted that Daeschner conceded that
an involuntary transfer to another school within the district
“would have a sufficient chilling effect to qualify as an
adverse action under the First Amendment retaliation
analysis.” Leary, 228 F.3d at 738. Again, no new evidence
exists for a different finding. The fact that we now review a
district court’s disposition of a summary judgment motion as
opposed to a request for a preliminary injunction does not
change our conclusion. Clearly, involuntary transfer from
one job to another is action that “would likely chill a person
of ordinary firmness from continuing to engage in that
constitutionally protected activity.” Bloch v. Ribar, 156 F.3d
673, 679 (6th Cir. 1998). Moreover, we previously
determined that an involuntary job transfer, where neither
grade nor salary is affected, qualifies as adverse action for
purposes of the First Amendment. See Boger, 950 F.2d at
321. Here, evidence in the record suggests that being
transferred from one school in the district to another causes
Plaintiffs to suffer harm to their reputations, while the
transfers also remain notations in their files for a year. The
act of transferring Plaintiffs to another school additionally can
negatively impact their daily experiences including their
commute, coworker friendships, and community

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16Although we affirmed the district court’s denial of a preliminary
injunction, we clearly stated that the standard requ ired for a preliminary
injunction is more “stringent” than that required for summary judgm ent.
W e explicitly declined to express an opinion on the merits of Plaintiffs’
case. Leary, 228 F.3d at 739.
17The district court seemed to focus almost entirely on whether
Plaintiffs showed that their transfers were based “in substantial part” on
their protected speech. The actual test provides that the protected speech
must be either a substantial or a motivating factor in bringing about the
adverse action. But see Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S.
at 287 (suggesting that “substantial factor” and “motivating factor” are
one and the same).
relationships. See J.A. at 101-03 (Drescher Test.), 354
(Williams Test.).
3. Substantial or Motivating Factor
The final showing that the Plaintiffs must make before the
burden shifts to the Defendant is that their “protected speech
was a substantial or a motivating factor in the adverse action.”
Brandenburg, 253 F.3d at 897 (quotation omitted). On the
Plaintiffs’ request for injunctive relief, the district court
determined that Plaintiffs failed to make the showing of a
substantial or motivating factor because the evidence that they
were transferred for confrontations with Howard was
undermined by Howard’s resignation and because the
protected speech occurred over a long period of time. We
affirmed that decision on the basis that the district court’s
factual findings were not clearly erroneous. Leary, 228 F.3d
at 739.16 Because Plaintiffs failed to produce any new
evidence on this issue in response to Daeschner’s motion for
summary judgment, the district court relied on its findings
from the preliminary injunction hearing.17 On this appeal,
Plaintiffs redirect our attention to evidence that their transfers
were motivated, at least in part, by their vocal behavior.
The determination of the reason for Plaintiffs’ transfers is
a question of fact because it involves whether to believe
20 Leary et al. v. Daeschner No. 01-6118
18Howard later retracted this testimony, stating that Leary was
transferred beca use she failed to “emb race change.” J.A. at 297 (Howard
Test.).
19At a staff meeting, Howard told the faculty that some of them were
“nagging, bitching, complainers,” and that they knew who they were.
J.A. at 317 (Howard Test.). Plaintiffs suggest that this comment was
Daeschner’s evidence on the reasons for Plaintiffs’ transfers
or whether to believe Plaintiffs’ contrasting evidence on the
reasons for their transfers. While it is true that not every
question of fact saves a case from disposition on summary
judgment, summary judgment is not proper when Plaintiffs
create a jury issue by raising a genuine issue of material fact.
In order for a factual issue to be “genuine” a reasonable jury
must be able to return a verdict for the nonmoving party.
Anderson, 477 U.S. at 248. Here, construing the evidence in
a light most favorable to the nonmoving party, Matsushita
Elec. Indus. Co., 475 U.S. at 587, we conclude that Plaintiffs’
evidence that their transfers were motivated by their protected
speech, while not overwhelming, is more than a scintilla and
is sufficient to survive a motion for summary judgment. See
Street, 886 F.2d at 1477.
Plaintiffs’ most promising evidence showing that their
transfers were motivated by their outspokenness is that
Howard testified that Leary was “probably [transferred]
because of [her speaking out on school-related issues] and
some other things.” J.A. at 296 (Howard Test.). Leary
regards Howard’s later-retracted statement18 as clear and
direct evidence that her transfer was precipitated by her
protected speech. In addition to Howard’s suggestive
statement, Plaintiffs point to testimony from fellow teachers
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
records at Atkinson and from the various administrators’ poor
treatment of Plaintiffs, to reach the conclusion that Plaintiffs’
vocal behavior caused their transfers.19 Plaintiffs also

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No. 01-6118 Leary et al. v. Daeschner 21
directed to them . In add ition, testimo ny was heard that if Leary did not
agree with Bo wlds in team leader m eetings, B owlds would “cut her off
mid-sentence.” J.A. at 354 (M cAvinue Test.).
20Daeschner relies on testimony from Bowlds to insist that the
transfers were not arranged in violation of Plaintiffs’ First Amendm ent
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,
Bowlds testified: “I certainly, certainly, certainly could never have
recommended her because of being vocal. I never heard a word [from
W illiams].” J.A. at 176, 178 (Bowlds T est.).
provide us with their own testimony explaining their roles in
the Atkinson community and their proclivity to speak on
behalf of others. For example, Williams acted as the part-
time JCTA representative, which required her to advocate on
behalf of other teachers for a period of three or four years.
Moreover, Leary testified that she had no idea why she was
transferred, so her “best guess is being too vocal.” J.A. at
338-39 (Leary Test.). Likewise, Williams seemed baffled by
her transfer and testified that “[t]he only conclusion I could
come to is that I was too vocal.” J.A. at 460 (Williams Test.).
Daeschner argues that the Plaintiffs were transferred not
because they were vocal, but because they were not “team
players” and they would impede the changes necessary for
Atkinson’s success.20 In addition, Daeschner recites
Plaintiffs’ behavioral problems to undermine Plaintiffs’
contention that the transfers were retaliatory. Because a
determination of the reasons for Plaintiffs’ transfers involves
disputed issues of fact, summary judgment is not proper
“unless the evidence is ‘so one-sided that one party must
prevail as a matter of law.’” Boger, 950 F.2d at 322-23
(quotation omitted). On the record before us, this is not the
case. In fact, the Plaintiffs produced ample evidence on the
allegedly unconstitutional basis for their transfers which is in
direct conflict with Daeschner’s evidence. This creates “a
genuine issue of material fact that must be resolved by the
trier of fact,” not on summary judgment. Id. at 323.
22 Leary et al. v. Daeschner No. 01-6118
4. Defendant’s Alternative Explanation
As stated previously, once Plaintiffs have established their
prima facie case, the burden shifts to the Defendant to prove
by a preponderance of the evidence that the same adverse
action would have occurred regardless of the protected
speech. See Mt. Healthy City Sch. Dist. Bd. of Educ., 429
U.S. at 287. Daeschner has produced no evidence, other than
the evidence used to counter Plaintiffs’ evidence that their
transfers were unconstitutional, to show that the transfers
would have occurred at this time and in this manner with or
without Plaintiffs’ vocal behavior. Because a genuine issue
of material fact still exists with respect to the reason for
Plaintiffs’ transfers, whether Plaintiffs’ transfers would have
occurred in the absence of the protected speech also requires
further proceedings.
5. Supervisor Liability
The Supreme Court has stated that § 1983 liability cannot
be premised on a theory of respondeat superior. Taylor v.
Michigan Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995)
(citing Monell v. New York City Dep’t of Social Servs., 436
U.S. 658, 691 (1978)). However, supervisor liability under
§ 1983 is appropriate when “the supervisor encouraged the
specific incident of misconduct or in some other way directly
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).
“[Section] 1983 liability of supervisory personnel must be
based on more than the right to control employees.” Id.
Likewise, simple awareness of employees’ misconduct does
not lead to supervisor liability. Lillard v. Shelby County Bd.
of Educ., 76 F.3d 716, 728 (6th Cir. 1996).
Daeschner argues that even if Plaintiffs’ transfers were
precipitated by their protected speech, he cannot be liable for
his employees’ constitutional violations because Plaintiffs

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No. 01-6118 Leary et al. v. Daeschner 23
cannot show how Daeschner, who did not know either of the
Plaintiffs, had a retaliatory motive in issuing the final
approval for Plaintiffs’ transfers. In our prior published
opinion in this case, we identified a number of ways in which
Daeschner could be liable. One way Daeschner could be
exposed to liability is if he encouraged or acquiesced in the
unconstitutional behavior. Leary, 228 F.3d at 740. Another
possible way would be if the Plaintiffs could show that
“because Daeschner was primarily responsible for approving
the transfer of teachers, he [was] responsible for failing to
perform his job properly or for acquiescing in the
constitutional violations resulting from his delegation of this
responsibility.” Id. Finally, we noted that “Daeschner might
be liable if the plaintiffs 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.’” Id.
In Taylor, we determined that summary judgment for a
prison warden in a § 1983 action was improper because a
genuine issue of material fact existed as to whether the
warden was aware and acquiesced in his subordinates’ failure
to review properly prisoner-transfer orders resulting in
violation of a transferred prisoner’s Eighth Amendment
rights. Taylor, 69 F.3d at 80. We commented that the prison
warden in Taylor was not “merely a supervisor, but [was] the
official directly responsible both for transfers and for
adopting reasonable transfer procedures.” Id. at 81. In our
estimation, the warden “abandon[ed] the specific duties of his
position — adopting and implementing an operating
procedure that would require a review of the inmate’s files
before authorizing the transfers.” Id.
Much like the situation in Taylor, a reasonable fact finder
“could find on the facts that [Daeschner] personally had a job
to do, and that he did not do it.” Taylor, 69 F.3d at 81.
Daeschner stated in his deposition that he was the one who
put the transfers “into operation.” J.A. at 127 (Daeschner
Dep.). However, he also stated that he did know of any
24 Leary et al. v. Daeschner No. 01-6118
specific instances where either Leary or Williams impeded
progress at Atkinson. J.A. at 132 (Daeschner Dep.).
Considering that Meriweather’s directive to Bowlds and
Howard was to identify teachers for transfer who would resist
change and progress at Atkinson, a reasonable fact finder
could determine that even though the school was in crisis
mode and needed to effectuate change through transfers,
change should stem from reasonable procedures that ensure
that teachers are chosen for transfers based on proper criteria
and not based on their proclivity to vocalize concerns of
public importance. Cf. Taylor, 69 F.3d at 81 (noting that a
jury could find a supervisor liable for failure to adopt policies
for transfer that ensure inmate safety). Moreover, a
reasonable fact finder could determine that reliance on people
in leadership positions to recommend transfers is insufficient
to ensure that transferees are not chosen for unconstitutional
reasons. J.A. at 124 (Daeschner Dep.) (stating that he relied
on Eckels and Meriweather who gave him the
recommendations who in turn relied on the recommendations
of Howard and Bowlds). Thus, whether Daeschner can be
held liable in his supervisory capacity for the violation of
Plaintiffs’ First Amendment rights remains an issue for the
trier of fact.
C. Denial of Leave to Amend Analysis
1. Standard of Review
Denial of a motion for leave to amend is reviewed by this
court for an abuse of discretion. See Duggins v. Steak ‘N
Shake, Inc., 195 F.3d 828, 833 (6th Cir. 1999). “Abuse of
discretion is defined as a definite and firm conviction that the
trial court committed a clear error of judgment.” Bowling v.
Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996), cert. denied,
522 U.S. 906 (1997) (quotation omitted). A district court’s
decision is to be afforded great deference; it “will be
disturbed only if the district court relied upon clearly
erroneous findings of fact, improperly applied the governing
law, or used an erroneous legal standard.” Blue Cross & Blue

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No. 01-6118 Leary et al. v. Daeschner 25
21Plaintiffs’ 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
in the original complaint. One claim in the first amended complaint
requested monetary damages for post-d eprivation violations of due
process, but the first amended com plaint did not request monetary
damages for the pre-deprivation due process violation alleged in the
original complaint.
22Because we already have determined that there was no d ue proc ess
violation, see Leary, 228 F.2d at 744, Plaintiffs’ motion for leave to
amend their complaint to include a damages claim for the violation of
their right to due process (Counts IX-XI) is moot. Indeed, it is unclear
what due p rocess issues remain after we determined that Plaintiffs
Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110
F.3d 318, 322 (6th Cir. 1997). However, if leave to amend is
denied on the grounds that it would be “futile,” then de novo
review is appropriate. Inge v. Rock Fin. Corp., 281 F.3d 613,
625 (6th Cir. 2002).
2. Leave to Amend
The prayer for relief in Plaintiffs’ original complaint
requested that the district court hold a hearing on Plaintiffs’
motion for a preliminary injunction, issue a permanent
injunction prohibiting Defendant’s violation of Plaintiffs’
constitutional rights, declare Section D of the CBA
unconstitutional, order the Defendant to pay Plaintiffs’ costs
and attorney fees, and grant “all further and proper relief to
which [Plaintiffs] may be herein entitled.” J.A. at 31
(Compl.). The first amended complaint added four new
claims, all seeking damages. Plaintiffs sought to amend their
complaint a second time “to clear up any confusion in regard
to damages claimed.” J.A. at 91 (Mem. in Supp. of Second
Am. Compl.).21 The proposed second amended complaint
sought to add claims for monetary damages — general,
compensatory, and punitive — for the due process claims
contained in the original complaint.22 The district court
26 Leary et al. v. Daeschner No. 01-6118
received all the process that was due. Thus, even if the district court
abused its discretion by denying Plaintiffs an op portunity to am end their
com plaint, Plaintiffs have not shown how the district court could have
granted any damages when no due process violation had o ccurred. T hus,
we could decide that the district court reached the correct result on an
alternative ground — concluding that the proposed amendment would be
futile.
23This was merely dicta because the district court expressly stated
that it did not need to reach the question of futility. J.A. at 103 (M em.
Op. & Or.). Thus, the proper standard of review on appeal is abuse of
discretion. See Duggins, 195 F.3d at 833.
denied Plaintiffs’ motion for leave to amend their complaint
because Plaintiffs did not show good cause for failure to
move for leave to amend before expiration of the deadlines in
the court’s scheduling order, as called for in Federal Rule of
Civil Procedure 16. The court concluded:
The plaintiffs seek at this late date to recast the due
process violation as one for breach of the collective
bargaining agreement. They have provided no
justification for their failure to raise this legal theory
earlier. The plaintiffs have referenced the collective
bargaining agreement throughout this litigation, and the
claim has clearly been available to them.
J.A. at 103 (Mem. Op. & Or.). As an aside, the district court
noted that even if Plaintiffs had been permitted to amend their
claims, the amendment would be futile because they did not
include any binding precedent to support their contention that
damages are available when Plaintiffs waive “process which
was due [and] subsequently afforded them.” Id.23
Federal Rule of Civil Procedure 15 provides that leave to
amend “shall be freely given when justice so requires.” Fed.
R. Civ. P. 15(a). The Supreme Court, commenting on the
mandate in Rule 15(a), stated:

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No. 01-6118 Leary et al. v. Daeschner 27
In the absence of any apparent or declared reason — such
as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc. — the leave sought
should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962). The Court noted
that although leave to amend remains within the sound
discretion of the trial court, the lower court must announce
some reason for its decision, i.e., exercise discretion, or risk
being reversed for an abuse of discretion. Id.
More than twenty years after the Court’s decision in
Foman, the 1983 amendments to the Federal Rules of Civil
Procedure altered Rule 16 to contain a provision restricting
the timing of amendments. Fed. R. Civ. P. 16, 1983 advisory
committee’s notes. Rule 16 states, in relevant part: “the
district judge . . . shall, after receiving the report from the
parties under Rule 26(f) . . . enter a scheduling order that
limits the time (1) to join other parties and to amend the
pleadings . . . .” Fed. R. Civ. P. 16(b) (emphasis added). The
Rule is designed to ensure that “at some point both the parties
and the pleadings will be fixed.” Fed. R. Civ. P. 16, 1983
advisory committee’s notes. The Rule permits modification
to the scheduling order “upon a showing of good cause and
by leave of the district judge.” Fed. R. Civ. P. 16(b)
(emphasis added). But a court choosing to modify the
schedule upon a showing of good cause, may do so only “if
it cannot reasonably be met despite the diligence of the party
seeking the extension.” Fed. R. Civ. P. 16, 1983 advisory
committee’s notes; see also Inge, 281 F.3d at 625 (stating that
good cause is measured by the movant’s “diligence in
attempting to meet the case management order’s
requirements” (quotation omitted)). Another important
consideration for a district court deciding whether Rule 16’s
“good cause” standard is met is whether the opposing party
28 Leary et al. v. Daeschner No. 01-6118
will suffer prejudice by virtue of the amendment. Inge, 281
F.3d at 625.
A number of circuit courts have previously considered the
intersection of Rule 15’s liberal amendment mandate and
Rule 16’s good cause requirement. See generally Parker v.
Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)
(holding that “despite the lenient standard of Rule 15(a), a
district court does not abuse its discretion in denying leave to
amend the pleadings after the deadline set in the scheduling
order where the moving party has failed to establish good
cause”); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th
Cir. 1998) (“[B]ecause [plaintiff’s] motion to amend was filed
after the scheduling order’s deadline, [plaintiff] must first
demonstrate good cause under Rule 16(b) before we will
consider whether amendment is proper under Rule 15(a).”);
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610
(9th Cir. 1992) (noting that Rule 16’s standards may not be
“short-circuited” by those of Rule 15 because “[d]isregard of
the [scheduling] order would undermine the court’s ability to
control its docket, disrupt the agreed-upon course of the
litigation, and reward the indolent and the cavalier”).
Although we never have commented explicitly on the
intersection of the two Rules, one of our recent decisions
addresses the “good cause” requirement in Rule 16. See Inge,
281 F.3d at 625-26.
In Inge, we concluded that the district court’s denial of
leave to amend based on Rule 16(b) was an abuse of
discretion because the plaintiff acted diligently when she
sought to amend her complaint to “remedy pleading
deficiencies.” Id. at 626. We determined that while prejudice
to the defendant is not an express component of Rule 16, it is
nonetheless a “relevant consideration,” and the Inge defendant
would not suffer significant prejudice if plaintiff was allowed
to amend her complaint to remedy the errors that caused the
complaint to be dismissed seven days earlier. Id.; cf. Moore
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

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No. 01-6118 Leary et al. v. Daeschner 29
24Plaintiffs correctly point out that the first amended complaint was
filed on Novem ber 18, 1999, 10 days after the deadline, but was
nevertheless allowed.
discretion where “rejection of the amendment would preclude
plaintiff’s opportunity to be heard on the merits on facts
which are well known to the parties and which were pleaded
at the outset although relief was erroneously sought under
§ 1985” and where the defendant suffered only “relatively
light prejudice”). Even though in Inge we held that the
district court abused its discretion, we relied solely on Rule
16 to reach this conclusion, never once mentioning Rule 15
and its liberal amendment policy.
An earlier decision of this court required a district court to
find “‘at least some significant showing of prejudice to the
opponent,’” before it could deny a motion for leave to amend.
Duggins, 195 F.3d at 834 (quoting Moore, 790 F.2d at 562).
In that case, we determined that the district court did not
abuse its discretion when it denied plaintiff’s motion for leave
to amend based on plaintiff’s undue delay and the prejudice
to the opposition. Id. We noted that prior to the plaintiff’s
motion, the time for discovery and dispositive motions had
passed and a summary judgment motion had been filed. Id.
We also considered the “significant prejudice” the defendant
would suffer if the plaintiff were allowed to amend the
complaint because not only would discovery have to be
reopened, but a new defense would be necessary to defeat the
new claim. Id.
In the present case, the Rule 16 order stated that “[any]
motions for . . . amendment of pleadings shall be filed no
later than November 8, 1999.” J.A. at 62 (Mem. of R. 16
Scheduling Conf. & Or.).24 Plaintiffs sought to amend their
complaint for a second time on April 30, 2001. This attempt
at amendment was filed nine months after the district court’s
grant of summary judgment on Plaintiffs’ First Amendment
retaliation claims, eight months after the district court
30 Leary et al. v. Daeschner No. 01-6118
25Plaintiffs offered no excuse in their memorandum in suppo rt of
their second amended complaint, but in their appellate brief they suggest
that it should have been “obvious” that they were requesting monetary
damages all along and that a monetary damage component was implied.
dismissed most of the claims in the first amended complaint,
seven months after we issued an opinion in this case agreeing
with the district court that Plaintiffs received sufficient pre-
deprivation process, one month after the district court
dismissed the interference and emotional distress claims from
the first amended complaint, and one month after Daeschner
filed his last summary judgment motion to dismiss Plaintiffs’
sole remaining claim for punitive damages. Plaintiffs sought
leave for an amendment almost two years after the scheduling
order’s discovery and dispositive motion deadlines had
passed. See Inge, 281 F.3d at 625 (requiring that a party
diligently attempt to meet the scheduling order’s deadlines
before the deadline can be changed); but see Moore, 790 F.2d
at 560 (noting that “delay alone, regardless of its length is not
enough to bar it [amendment] if the other party is not
prejudiced” (quotation omitted)).
Once the deadline passed, the district court could allow
Plaintiffs to file their second amended complaint only if the
scheduling order was modified. As noted previously,
modification is permitted under Rule 16 if Plaintiffs can
demonstrate “good cause” for their failure to comply with the
original schedule, by showing that despite their diligence they
could not meet the original deadline. Fed. R. Civ. P. 16, 1983
advisory committee’s notes; see also Inge, 281 F.3d at 625.
Instead, Plaintiffs gave the district court no excuse for their
considerable delay in seeking monetary damages.25 See
Duggins, 195 F.3d at 834 (denying plaintiff’s motion, in part,
because plaintiff gave no justification for her delay); Moore,
790 F.2d at 559-62 (stating that failure to provide justification
for tardy filings is insufficient by itself for a court to deny an
attempt at modification). In fact, Plaintiffs attempted to
characterize their damages claim as a mere clarification,

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

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No. 01-6118 Leary et al. v. Daeschner 33
27W e note that, in both Moore and Duggins, a showing of prejudice
was required, even though the plaintiffs advanced brand-new claims
which more o bviously create prejudice b ecause the defendant must
contend with an entirely different substantive issue. See ge nerally M oore,
790 F.2d at 559; Duggins,195 F.3d at 833.
first must show good cause under Rule 16(b) for failure
earlier to seek leave to amend before a court will consider
whether amendment is proper under Rule 15(a). See Sosa,
133 F.3d at 1419. Our previous decisions suggest that the
district court also is required to evaluate prejudice to the
opponent before modifying the scheduling order. See Inge,
281 F.3d at 625; see also Duggins, 195 F.3d at 834; Moore,
790 F.2d at 562.27 Thus, in addition to Rule 16’s explicit
“good cause” requirement, we hold that a determination of the
potential prejudice to the nonmovant also is required when a
district court decides whether or not to amend a scheduling
order. Here, the district court did not abuse its discretion
when it denied Plaintiffs’ motion for leave to amend their
complaint after the dispositive motion deadline had passed.
First, the district court determined that Plaintiffs failed to
show good cause for modification of the scheduling order.
Second, the district court’s opinion implicitly, if not
explicitly, commented on the prejudice that Daeschner would
suffer if the Plaintiffs were permitted to “recast” their claims
at this late stage in the proceedings. Because the district court
properly applied the governing law, we must conclude that it
did not abuse its discretion.
D. Motion to Schedule Jury Trial
Plaintiffs moved for a jury trial on November 8, 2000. The
district court never ruled on this motion, and Plaintiffs allege
that the district court erred by denying them a jury trial.
According to Federal Rule of Civil Procedure 38, “[t]he right
of a trial by jury as declared by the Seventh Amendment to
the Constitution . . . shall be preserved to the parties
inviolate.” Fed. R. Civ. P. 38. The Seventh Amendment
provides: “In Suits at common law . . . the right of trial by
34 Leary et al. v. Daeschner No. 01-6118
jury shall be preserved.” U.S. Const. amend. VII. Assessing
whether the Seventh Amendment provides for a jury trial in
a specific case “depends on the nature of the issue to be tried
rather than the character of the overall action.” Ross v.
Bernhard, 396 U.S. 531, 538 (1970); see also 9 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2302, at 18 (2d ed. 1994) (“There is no right to jury trial if
viewed historically the issue would have been tried in the
courts of equity or otherwise would have been tried without
a jury.”). Thus, we resolve the question of whether Plaintiffs
are entitled to a jury trial by determining whether the issues
involved in the case are legal or equitable in nature.
In Ross, the Supreme Court identified a three-part test for
reaching the legal-versus-equitable-in-nature conclusion.
First, we consider the “pre-merger custom with reference to
such questions.” Ross, 396 U.S. at 538 n.10. Second, we
consider the “remedy sought” by the plaintiff. Id. Third, we
evaluate “the practical abilities and limitations of juries” with
respect to the issue presented. Id. The first element troubled
many courts, but as we noted in Hildebrand v. Bd. of Tr. of
Mich. State Univ., 607 F.2d 705 (1979), cert. denied, 456
U.S. 910 (1982), the Supreme Court in a later case “shift[ed]
the focus to the second issue: the nature of the relief sought.”
Id. at 708 (citing Curtis v. Loether, 415 U.S. 189 (1974)).
Thus we noted that:
[T]he chief focus to be made when determining whether
a jury trial right exists is the nature of the relief sought.
If the remedy sought is injunctive relief and/or back pay,
no jury trial right attaches. In the ordinary case, if the
relief sought includes compensatory and/or punitive
damages, then there does exist a right to trial by jury.
Id. (“A key dividing line between law and equity has
historically been that the former deals with money damages
and the latter with injunctive relief.”); see also Tull v. United
States, 481 U.S. 412, 417 (1987) (noting that the court must
examine the nature of the action and whether the remedy

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No. 01-6118 Leary et al. v. Daeschner 35
sought is legal or equitable before it can determine if the
claim should be tried to a jury).
In light of these factors, because Plaintiffs’ original
complaint involved only claims that were equitable in nature,
Plaintiffs were not entitled to a jury trial. See Harris v.
Richards Mfg. Co., 675 F.2d 811, 815 (6th Cir. 1982);
Bereslavsky v. Kloeb, 162 F.2d 862, 864 (6th Cir.), cert.
denied, 332 U.S. 816 (1947); see also Deringer, 866 F.2d at
863 (concluding that because plaintiff’s claims were
“equitable in nature and sought purely equitable remedies, the
district court properly denied [plaintiff’s] request for a jury
trial”). However, once Plaintiffs filed an amended complaint
on March 17, 2000 with claims at law, they were entitled to
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
a court determines that a case involves legal issues, the
litigants have a right to a jury trial on those issues, regardless
of how insignificant they may appear in relation to equitable
issues.”). Indeed, Plaintiffs expressly demanded a jury trial
in the first amended complaint, and this demand was timely.
See Local 783, Allied Indus. Workers of Am., AFL-CIO v.
Gen. Elec. Co., 471 F.2d 751, 755 (6th Cir.), cert. denied, 414
U.S. 822 (1973). Although Plaintiffs preserved their right to
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
with their equitable claims for declaratory and injunctive
relief based on a theory of First Amendment retaliation.
Because we have affirmed the district court’s denial of
36 Leary et al. v. Daeschner No. 01-6118
28W hile it is true that declaratory relief can be legal rather than
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
at 662.
Plaintiffs’ motion for leave to amend, the complaint cannot be
altered to include any claims other than those equitable
claims28 currently at issue. Because Plaintiffs requested only
injunctive and declaratory relief for the violation of their First
Amendment rights, we must consider these claims equitable
in nature, and thus the remaining decisions in this case rest
exclusively with the court rather than a jury. See generally
Ross, 396 U.S. at 538 n.10; Hildebrand, 607 F.2d at 708; 5
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1260, at 380-81 (2d ed. 1990) (“If [plaintiff]
asserts an equitable claim and requests relief in the form of
specific performance or an injunction, the action will be
considered equitable in nature and neither party has a right to
a jury trial.”).
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of Defendant’s motion for summary judgment
as to Plaintiffs’ First Amendment claims and REMAND to
the district court for further proceedings. We AFFIRM the
district court’s denial of Plaintiffs’ motion for leave to amend
and conclude that the district court did not err when it failed
to grant Plaintiffs’ motion for a jury trial.

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No. 01-6118 Leary et al. v. Daeschner 37
_________________
DISSENT
_________________
ALICE M. BATCHELDER, Circuit Judge, dissenting. I
respectfully dissent. Although I agree with the majority
opinion with respect to its holdings regarding the motion for
leave to amend and the motion for jury trial, I dissent because
I find no evidence in this record that Appellants were
transferred because they exercised their First Amendment
rights. Neither do I find any basis upon which Superintendent
Daeschner could be held liable, even if the Appellants could
demonstrate that their transfers were retaliatory. I would
therefore AFFIRM the district court’s grant of summary
judgment.
I.
The “Evidence” Upon Which the Majority Bases its
Holding is Not Evidence
The majority holds that the Appellants have provided
evidence sufficient to create a genuine issue of fact regarding
the reason for their transfers. The evidence to which the
majority points as “most promising” includes Ms. Howard’s
testimony that, as the majority quotes it, “Leary was
‘probably [transferred] because of [her speaking out on
school-related issues] and some other things,’ J.A. at 296
(Howard Test.),” a statement about which the majority
opinion notes, “Howard later retracted this testimony, stating
that Leary was transferred because she failed to ‘embrace
change.’ J.A. at 297 (Howard Test.)” Both this quotation and
the pronouncement that it was retracted mischaracterize
Howard’s testimony. The testimony to which the majority
opinion cites reads in full as follows:
Q. Well, was there anything else? I mean, Ms. Leary
alleged she was a vocal person. Is she?
38 Leary et al. v. Daeschner No. 01-6118
A. Yes, she is.
Q. And she has alleged and said that she speaks out.
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
have positions on issues such as this?
A. Yes.
Q. That’s true?
A. Yes.
Q. And she’s alleging here that it’s because of this
that she’s being transferred?
A. It’s probably because of that and some other
things.
Q. Well –
A. Which says that she’s unwilling to embrace
change.
Q. Well, you said she was unwilling to embrace the
collaborative model. Is she also being transferred
because she’s just a vocal persona and yells out?
A. No, I wouldn’t think so. We also had a DI program,
a Direct Instruction reading program, I mentioned when
I first begun the testimony.
Q. Uh-huh.
A. And there was some teachers who participated in that
there were some who didn’t and wouldn’t. She was one
of those, also.
Q. One of those who?
A. Would not embrace that change.
Q. Okay. Well, you said that she was properly
characterizing herself as one of the more prominent
ringleaders or agitators for something including
discipline or whatever at the school. Was that the reason
she was recommended or at least signed off by you as
being appropriate for transfer as not a team player?
A. Yes.
Q. Because she wasn’t one of the leaders?
A. No, because she wouldn’t embrace the changes in our
school.

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

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No. 01-6118 Leary et al. v. Daeschner 41
to their outspoken criticisms, then a trier of fact might find
him liable for constitutional violations.
No such evidence, however, appears anywhere in the
record. Instead, it is clear from the record that the decision to
transfer Appellants, and commensurate knowledge of their
proclivity for expressive conduct, rested solely on Dr.
Merriweather, Howard, and Bowlds. Moreover, Daeschner
specifically testified that he had “never had any contact with
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
42 Leary et al. v. Daeschner No. 01-6118
liability would effectively preclude the delegation of authority
to subordinates at all, a result far afield from that required by
any prior decision of this circuit or the Supreme Court.
Because there is no evidence to support the conclusion that
Appellants’ exercise of free speech was a substantial factor in
their transfer, and, even if there were, there is no evidence to
support a finding that Daeschner encouraged or acquiesced in
the alleged constitutional violations, I respectfully dissent.

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