     Case: 16-20720      Document: 00514318789         Page: 1    Date Filed: 01/23/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-20720                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ELSA RODRIGUEZ,                                                          January 23, 2018
                                                                           Lyle W. Cayce
                            Plaintiff - Appellant                               Clerk

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

                            Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-3360


Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
       Elsa Rodriguez (“Rodriguez”) brought an action under 42 U.S.C.
Section 1983 against her employer, the Houston Independent School District
(“HISD”), for alleged violations of her First and Fourteenth Amendment rights.
She appeals the district court’s order dismissing her complaint for failure to
state a claim. Because she did not plead sufficient facts to establish municipal
liability, the district court’s judgment is AFFIRMED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20720       Document: 00514318789   Page: 2   Date Filed: 01/23/2018



                                  No. 16-20720
   I. BACKGROUND
      Rodriguez is a current HISD employee and a member of the HISD
teacher’s union, the Houston Federation of Teachers (“HFT”). Rodriguez joined
and became active in HFT in 2008 while teaching at Oates Elementary.
Rodriguez filed several union grievances against Oates’s principal, Isabel
Palacios (“Palacios”).
      Palacios placed Rodriguez on a performance plan and asked
Superintendent Terry Grier and the HISD Board of Trustees to approve non-
renewal of Rodriguez’s contract. The Board of Trustees approved nonrenewal,
which Rodriguez and the HFT then challenged.           Rodriguez subsequently
entered an agreement with Grier and HISD allowing Rodriguez to keep her job
and be transferred to a new school with a one-year demotion if she agreed not
to sue Grier, HISD, or any of its officer employees and lawyers. Rodriguez was
transferred to Jefferson Elementary School for the 2011-12 school year.
      Rodriguez was seriously injured in April 2013, causing her to take
medical leave for the remainder of the 2012-13 school year at Jefferson.
Jefferson’s new principal, Ashley Green (“Green”), reassigned Rodriguez from
a third grade classroom in an auxiliary building to a second grade classroom
in the main building for the 2013-14 school year. Due to lingering medical
limitations, Rodriguez asked Green for help moving her classroom materials
to her new classroom; Green allegedly called the school’s custodians to the
main office and instructed them not to help any teacher move anything. The
materials were eventually moved to Rodriguez’s new classroom after she
placed a call to HISD’s EEO Office.
      Rodriguez and several other teachers met with Green in September 2013
to discuss their writing curriculum.     Green made negative remarks about
Rodriguez’s performance during this meeting, and Rodriguez filed an HFT
grievance against Green for violating HISD policy. The grievance was resolved
                                        2
    Case: 16-20720     Document: 00514318789       Page: 3   Date Filed: 01/23/2018



                                   No. 16-20720
in Rodriguez’s favor and Green was required to apologize publicly and privately
to Rodriguez.
      During this time, Green contacted Chief Elementary Schools Officer
Karla Loria (“Loria”) regarding anonymous reports of STAAR testing
irregularities in April 2013. Loria initiated an investigation regarding these
irregularities that implicated Rodriguez and other teachers at Jefferson.
Rodriguez and the other teachers were suspended from teaching duties on
November 15, 2013.       That same day Rodriguez received a memorandum
explaining that she would be temporarily relieved of teaching duties and
reassigned until the investigation ended. Rodriguez spent the remainder of
the school year working at HISD’s Butler Stadium Field House. Rodriguez was
not formally cleared of the cheating allegations for over a year despite HISD’s
knowledge that she had been on medical leave for several weeks before, and
many months after, the alleged cheating took place.
      Rodriguez filed the instant suit against HISD in November 2015 alleging
violations of her First and Fourteenth Amendment rights. Rodriguez amended
her complaint in April 2016. HISD moved to dismiss the amended complaint
for failure to state a claim. The district court granted HISD’s motion.
   II. STANDARD OF REVIEW
      This court reviews de novo motions to dismiss. Jebaco, Inc. v. Harrah’s
Operating Co., 587 F.3d 314, 318 (5th Cir. 2009) (citation omitted). “Viewing
the facts as pled in the light most favorable to the nonmovant, a motion to
dismiss . . . should not be granted if a complaint provides ‘enough facts to state
a claim to relief that is plausible on its face.” Id. (citations omitted).




                                         3
    Case: 16-20720     Document: 00514318789     Page: 4   Date Filed: 01/23/2018



                                  No. 16-20720
   III.   ANALYSIS
      Rodriguez claims the district court erred in dismissing her Section 1983
claims.     HISD, the sole defendant, cannot be held liable under 42 U.S.C.
Section 1983 on a theory of respondeat superior for the actions of its employees.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94, 98 S. Ct. 2018, 2036-
38 (1978).     Rather, municipal liability under Section 1983 requires three
elements: (1) a policymaker; (2) an official policy; and (3) a violation of
constitutional rights whose “moving force” is the policy or custom. Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (footnote omitted) (citation
omitted).
      The facts alleged in Rodriguez’s Amended Complaint are insufficient to
show that an HISD policymaker or policy was the “moving force” behind any
constitutional violations, or that the disputes Rodriguez had with HISD
administrators can be fairly identified as actions attributable to HISD.
Rodriguez alleges that Superintendent Grier was HISD’s “delegated
policymaker in personnel matter[s] at all levels of HISD employment,” which
the HISD Board of Trustees ratified.          Rodriguez further alleges Grier
“espoused and publically (sic) implemented an anti-teacher union policy”
throughout his tenure at HISD.
      Whether an official has policymaking authority is a question of state law.
See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). Under
Texas law, final policymaking authority in an independent school district rests
with the district’s board of trustees, not the Superintendent. See id. (quoting
Tex. Educ. Code § 23.01 (repealed and reenacted as amended in 1999 as Tex.
Educ. Code § 11.051)) (“The public schools of an independent school district
shall be under the control and management of a board of seven trustees.”); see
also Tex. Educ. Code § 11.051 (“An independent school district is governed by
a board of trustees . . . .”). State law makes clear that Superintendent Grier
                                        4
    Case: 16-20720     Document: 00514318789     Page: 5   Date Filed: 01/23/2018



                                  No. 16-20720
was not a policymaker. Alternatively, Rodriguez pled no facts to suggest that
any of the alleged violations of her constitutional rights were the result of an
intentional decision by the HISD Board of Trustees. Accordingly, Rodriguez’s
Amended Complaint does not allege sufficient facts to find that either a
policymaker or an official policy or custom was the “moving force” behind the
alleged violations of her constitutional rights. The district court did not err in
dismissing Rodriguez’s Section 1983 claim against HISD.
      For the foregoing reasons, the district court’s dismissal of Rodriguez’s
Amended Complaint is AFFIRMED.




                                        5
