     Case: 11-40963   Document: 00511809149   Page: 1   Date Filed: 04/02/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 April 2, 2012
                                No. 11-40963
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

LETICIA WILSON,

                                          Plaintiff–Appellant
v.

COLLEGE OF THE MAINLAND; LISA TEMPLER, In Her Individual and
Official Capacity; INTERIM PRESIDENT LAWRENCE DURRENCE, Ph.D.,
In His Individual and Official Capacity,

                                          Defendants–Appellees



KENT DOWDY,


                                          Plaintiff–Appellant
v.

COLLEGE OF THE MAINLAND; LISA TEMPLER, In Her Individual and
Official Capacity; LAWRENCE DURRENCE, Ph.D., In His Individual and
Official Capacity,

                                          Defendants–Appellees



                  Appeal from the United States District Court
                       for the Southern District of Texas
                     USDC Nos. 3:09-CV-13; 4:09-CV-2452
   Case: 11-40963       Document: 00511809149         Page: 2     Date Filed: 04/02/2012



                                       No. 11-40963

Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellants Kent Dowdy and Leticia Wilson appeal the district court’s
grant of summary judgment to Appellee College of the Mainland. Appellants’
central claim is that they were retaliated against for speaking out against the
College’s allegedly illegal past overpayment of police officers. Because we find
that no adverse employment action was taken against the Appellants based on
their speech, we AFFIRM the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In 2008, Kent Dowdy and Leticia Wilson were both employed by the
College of the Mainland (“COM”)—Dowdy as a campus police officer and Wilson
as a cashier in COM’s business office. In July of that year, Dowdy and Wilson
participated in a conversation with another campus police officer Sylvia Chapa.
The conversation, which was recorded by Chapa, dealt in part with a meeting
that took place a few weeks earlier at which it was revealed to COM police
officers that they had been receiving overpayment in the form of unauthorized
“hazardous duty pay.”           Much of the conversation, which Dowdy later
characterized as “blowing off steam . . . [as to Human Resources’] mishandling
a number of issues,” concerned, however, with Dowdy’s anger towards COM
human resources employee Jennifer Johnson. Johnson had previously filed a
sexual harassment complaint against Dowdy, which COM determined to be
unfounded. Specifically, Dowdy made comments about hiring someone to drive
by and point a pistol at Johnson; paying someone to go to Johnson’s office and
“barf” on her; hiring someone to “pop” Johnson; hiring someone to “follow and
run her off the road”; and, putting “some dynamite under her car.”


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                      No. 11-40963

       Concerned, Chapa informed COM Chief of Police E.W. Carr and COM Vice
President Lisa Templer about the conversation and gave them her recording.
In response, Carr requested that Dowdy be placed on administrative leave for
making threats against Johnson, which COM did the following day (two days
after the conversation).        As a “precaution,” Wilson was also placed on
administrative leave for having participated in the conversation where threats
were made (and not discouraging them or informing any college official about
them). With respect to Dowdy, he met with Carr and Templer about ten days
later where he was allowed to review the transcript of the conversation and
given two days to respond. Dowdy’s response was that his threats were “not
serious” but admitted he should not have made them. After investigation, COM
deemed Dowdy’s conduct “unacceptable” and terminated him. As to Wilson, she
met with Templer, was given the transcript of the conversation, and it was
decided that because she had made no threats, she could return to work.
Months later, after two thousand dollars went missing from a deposit while
Wilson was working, COM transferred Wilson to a position in the admissions
office, which came with higher pay. Wilson remains employed by COM.
       Wilson filed suit in the Southern District of Texas, Houston Division in
early 2009 claiming that COM retaliated against her by transferring her from
the business office to admissions. In July 2009, Dowdy filed suit in the Southern
District of Texas, Galveston Division for his termination from COM, raising First
Amendment retaliation as well as substantive and procedural due process
claims.    The cases were consolidated and proceeded to discovery.                   After
discovery, COM moved for summary judgment in both Wilson’s and Dowdy’s
case. The district court granted summary judgment, and the Appellants timely
appealed.1

       1
        Though Dowdy asserted a procedural due process claim below, he fails to press this
claim on appeal. Therefore, it is waived. United States v. Pompa, 434 F.3d 800, 806 n.4 (5th

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                                       No. 11-40963

                            II. STANDARD OF REVIEW
        We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Dediol v. Best Chevrolet, Inc., 655 F.3d
435, 439 (5th Cir. 2011). Summary judgment is appropriate where the movant
shows that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). In reviewing
the record, all facts and inferences are construed in the light most favorable to
the non-movant. Deidol, 655 F.3d at 439. However, “[i]f the record, taken as a
whole, could not lead a rational trier of fact to find for the non-moving party,
then there is no genuine issue for trial.” Id.
                                   III. DISCUSSION
A.      First Amendment Retaliation (Dowdy and Wilson)
        “[A] plaintiff asserting a First Amendment retaliation claim in
employment must show that (1) an adverse employment action was taken, (2)
speech involving a matter of public concern was uttered, (3) the employee’s
interest in speaking outweighs the employer’s interest in efficiency, and (4) the
protected speech precipitated the adverse employment action.” McCoy v. City of
Shreveport, 492 F.3d 551, 562 (5th Cir. 2007). We have alternatively described
this fourth requisite showing as demanding that the plaintiff establish that “his
protected conduct was a ‘substantial factor’ or ‘motivating factor’ in the
employer’s adverse employment action.” Charles v. Grief, 522 F.3d 508, 516 n.
28 (5th Cir. 2008) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). As to Dowdy’s claim, even assuming that he can make the
first three showings, the record reveals that it was Dowdy’s threats as to
Johnson that precipitated his termination, not any speech regarding the
unauthorized pay. Similarly with Wilson, it was not her passing references in



Cir. 2005); Fed. R. App. P. 28(a)(9)(A).

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                                  No. 11-40963

the conversation to the hazardous duty pay that precipitated her transfer
months alter, but rather the disappearance of the two thousand dollars in
deposits during her shift. Therefore, the district court correctly found that
summary judgment was appropriate on the First Amendment retaliation claims.
B.      Substantive Due Process (Dowdy)
        In addition to First Amendment retaliation, Dowdy argues that his
termination violated his right to substantive due process. “To succeed with a
claim based on substantive due process in the public employment context, the
plaintiff must show two things: (1) that he had a property interest/right in his
employment, and (2) that the public employers termination of that interest was
arbitrary or capricious.” Lewis v. Univ. of Tex. Med. Branch at Galveston, 665
F.3d 625, 630 (5th Cir. 2011) (internal quotation marks omitted). Much of
Dowdy’s argument is that the district court incorrectly determined that Dowdy
did not have a property interest in his employment. Even if we assume that
Dowdy could establish such a property interest, his claim still fails because he
cannot show that COM’s termination decision was arbitrary and capricious.
Proving that a termination was arbitrary and capricious is a high bar: “the
plaintiff must show that the decision was made without a rational connection
between the known facts and the decision or between the found facts and the
evidence. [That is,] . . . that the abuse of power by the state official shocks the
conscience.” Id. at 631 (internal citations and quotation marks omitted). COM’s
termination of Dowdy for making threats against a co-worker is not so irrational
as to shock the conscience. Cf. White v. S. Park Indep. Sch. Dist., 693 F.2d 1163,
1169 (5th Cir. 1982). Therefore, we find that the district court correctly granted
summary judgment to COM on Dowdy’s substantive due process claim.
                              IV. CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to COM.

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