     Case: 15-41503      Document: 00513500816         Page: 1    Date Filed: 05/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41503                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            May 11, 2016
ELIZABETH M. LEAL,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CORPUS CHRISTI-NUECES COUNTY PUBLIC HEALTH DISTRICT;
ANNETTE RODRIGUEZ,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:15-CV-302


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       In this appeal, Elizabeth Leal challenges the district court’s dismissal of
her First Amendment retaliation suit against the Corpus Christi-Nueces
County Public Health District. Because Leal plausibly alleged that the Health
District’s director was a final policymaker, we VACATE this portion of the
district court’s judgment and REMAND.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                               BACKGROUND
      Leal was employed by the Corpus Christi-Nueces County Public Health
District as the Administrative Research Director. According to her complaint,
in 2014, she told the Corpus Christi Police Department that she believed the
Health District’s director was misusing taxpayer and grant funds and also not
working hours she was being paid for.        The director, Annette Rodriguez,
allegedly retaliated against Leal for making this report. The acts of retaliation
included unfairly scrutinizing the plaintiff’s time and attendance, instituting
an ad hoc dress code on an employee supervised by plaintiff, questioning
purchases made months earlier that had been made with Annette Rodriguez’s
approval, undermining the plaintiff’s decisions, and unfairly criticizing the
plaintiff’s job performance, and the performance of others who she supervised.
Leal ultimately resigned from the Health District because she couldn’t take
Rodriguez’s harassment anymore. She alleges that this was a constructive
discharge in retaliation for her First Amendment protected report to law
enforcement. She filed suit against the Health District alleging a violation of
42 U.S.C. § 1983 for First Amendment retaliation and against Rodriguez
alleging various state law claims. On the defendants’ motion, the district court
dismissed all the claims with prejudice for failing to state a claim.
                                DISCUSSION
      We review de novo the district court’s decision to dismiss for failing to
state a claim. See Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015). Leal’s
complaint “must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face.” Id. (internal quotation marks
omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009)). This court construes the complaint in the light most favorable to Leal
and draws all reasonable inferences in Leal’s favor. See Severance v. Patterson,
566 F.3d 490, 501 (5th Cir. 2009).
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                                  No. 15-41503
      As an initial matter, Leal only appeals the dismissal of her First
Amendment retaliation claim against the Health District. The district court
dismissed her entire suit, against both the Health District and Rodriguez
individually, for failure to state a claim. In fact, the district court found that
Leal had never even asserted a § 1983 claim against Rodriguez. In her opening
brief, Leal only quarrels with the district court’s dismissal of the retaliation
claim against the Health District. The brief even recites that “plaintiff has no
issues with the other rulings in the district court’s order.” In reply, Leal
attempts to revive her claims against Rodriguez by arguing that the same
rationale for reversing the district court on the claim against the Health
District applies to her claim against Rodriguez. That’s not true and, in any
event, it is too late since this court does not consider arguments raised for the
first time in a reply brief.   See Spear Mktg., Inc. v. BancorpSouth Bank,
791 F.3d 586, 602–03 (5th Cir. 2015). Thus, Leal has abandoned all her other
arguments against the district court’s ruling.
      Turning to this appeal’s sole issue, the Health District can only be liable
under § 1983 for the retaliatory actions of Rodriguez if those actions represent
the District’s official policy in the area of retaliation—in this case, personnel
or employee matters. See Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir.
2008) (per curiam). One way of showing that Rodriguez’s actions represent the
District’s official personnel policy is by establishing that Rodriguez is the
District’s final policymaker on personnel matters. See id. Final policymaking
authority is often understood as the power to set the ultimate standards and
rules for an organization. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d
377, 382 (5th Cir. 2007). The status of an official as the final policymaker is a
matter of state and local law. See Bolton, 541 F.3d at 548.
      In this case, contrary to the district court’s conclusion, Leal has
adequately alleged that Rodriguez is the Health District’s final policymaker in
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personnel matters. As the district court rightly recognized, Leal’s allegation
that Rodriguez is the “top level, final policy maker for Nueces County with
respect to operating the Health District” is a legal conclusion that we do not
credit in assessing the adequacy of her complaint. However, several other
factual assertions plausibly allege Rodriguez’s final policymaker authority.
       First, Leal’s complaint asserts that Rodriguez is the Health District’s
director. As her brief makes clear, the director of a public health district is a
position created by state law. See Tex. Health & Safety Code § 121.045(b).
That law provides that the director is the “chief administrative officer” of the
district. See id. It is at least plausible that a person holding that position
would be the final policymaker with respect to personnel matters.
       Second, Leal’s complaint details that Rodriguez instituted a dress code,
that Rodriguez had the authority to scrutinize time, attendance, and
purchasing records, and that complaints to the human resources director did
not improve Leal’s situation.              Taken together and drawing reasonable
inferences in Leal’s favor, these factual assertions plausibly allege that
Rodriguez had the ability to set personnel policies and that, in this regard, she
may have outranked the human resources director.
       Though our case law has found other head administrators to lack final
policymaking authority, such a conclusion must rest on a nuanced analysis of
the relevant state and local law and is generally made on summary judgment
after factual development. 1 See, e.g., Bolton, 541 F.3d at 550–51; Gelin v. Hous.
Auth. of New Orleans, 456 F.3d 525, 528–31 (5th Cir. 2006). Thus, at least at




       1 The Health District attached its governing document to its motion to dismiss to show
that Corpus Christi and Nueces County retain policymaking authority over the Health
District. Since Leal did not refer to this document in her complaint and the district court did
not consider it in its ruling below, this court does not consider it in this appeal. See Taylor v.
City of Shreveport, 798 F.3d 276, 279 & n.4 (5th Cir. 2015).
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this stage, Leal’s complaint has plausibly alleged that Rodriguez has final
policymaking authority for the Health District.
      For these reasons, we VACATE the judgment of the district court
dismissing Leal’s § 1983 complaint against the Health District and REMAND
for further proceedings.




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