                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 01-40816
                          Consolidated with
                             No. 01-40817


                         IMELDA T. RODRIGUEZ,

                                                Plaintiff – Appellant,


                                VERSUS


BOARD OF TRUSTEES OF THE LAREDO INDEPENDENT SCHOOL DISTRICT; PAUL
        CRUZ, In His Official and Individual Capacities,

                                               Defendants – Appellees.




             Appeal from the United States District Court
         for the Southern District of Texas, Laredo Division
                             (L-99-CV-22)
                            March 25, 2003

Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM:*

      Imelda Rodriguez, the former Assistant Superintendent for

Curriculum and Program Accountability of the Laredo Independent

School   District   (“LISD”),   filed   this   suit   against   LISD   and



  *
     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this opinion should not be published and is not precedent except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.

                                  -1-
Superintendent Paul Cruz under 42 U.S.C. § 1983 and the Texas

Whistleblower Act, TEX. GOV’T CODE § 554.002.   She alleged that Cruz

and LISD retaliated against her in violation of her First Amendment

rights and Texas law.    More specifically, Rodriguez alleged that

she was demoted for demanding strict compliance with standardized

testing procedures, reporting deviations from those procedures, and

recommending that the district adopt new methods for assessing

student progress — actions that conflicted with Cruz’s goal of

raising test scores.

      The district court dismissed Rodriguez’s § 1983 claim against

LISD and Cruz under Rule 12(b)(6).      At a later stage, the district

court granted LISD’s motion for summary judgment on the Texas

Whistleblower Act claim.    For the reasons given by the district

court, we find that Rodriguez failed to state a claim for municipal

liability under § 1983 against LISD and that summary judgment was

proper on the Whistleblower claim.1 Therefore, we summarily affirm

the district court’s judgment on those matters.           However, we

reverse the district court’s dismissal of Rodriguez’s § 1983 First

Amendment claim against Superintendent Cruz under Rule 12(b)(6) and

remand for further proceedings.

      Cruz’s brief suggested that the district court granted summary


  1
     See Rodriguez v. Laredo Indep. Sch. Dist., 82 F. Supp. 2d 679
(S.D. Tex. 2000) (“Rodriguez I”) (dismissing § 1983 claims against
LISD); Rodriguez v. Board of Trustees of the Laredo Indep. Sch.
Dist., 143 F. Supp. 2d 727 (S.D. Tex. 2001) (“Rodriguez II”)
(granting summary judgment on the Texas Whistleblower claim).

                                  -2-
judgment    in   his   favor   on   the   §   1983   First   Amendment      claim.

However, the only issue before the district court at the summary

judgment stage was the Texas Whistleblower Act claim.2                After the

district court dismissed Rodriguez’s § 1983 claims, Rodriguez moved

for reconsideration.       On February 20, 2001, the district court

indicated that it would grant the motion in part and treat the

defendants’ original motion to dismiss as one for summary judgment.

The district court changed course, however, and denied the motion

for reconsideration two months later.           In its Memorandum and Order

denying the motion, the court specifically noted that it was

amending its February 2001 order and affirmed its earlier holding

that Rodriguez failed to state a First Amendment claim.3              In short,

the record firmly establishes that we are reviewing a Rule 12(b)(6)

dismissal. Because this case is before us on a 12(b)(6) dismissal,

we refer only to the complaint for the facts.

                               THE ALLEGATIONS

      The   complaint    alleges     that     Paul   Cruz    became   the    LISD

Superintendent in August 1998.            Shortly after his appointment,

Rodriguez met with him to discuss past testing irregularities

(including the alleged disclosure of the writing prompt and the

recent report of improper assistance at an elementary school), the


  2
     See Defs. Mot. Summ. J. at 2 (“[T]he only remaining issue
before this Court is plaintiff’s state law whistleblower claim
against LISD.”).
  3
      Rodriguez II, 143 F. Supp. 2d at 728 n.1.

                                      -3-
use of pacing and its recent discontinuance, declining test scores,

special education coding, and her insistence on strict compliance

with testing regulations.          During this initial meeting, Rodriguez

recommended that the district administer other tests, including the

Gates-McGinitie test for sixth-grade reading proficiency and the

Terra Nova norm-referenced test, to verify the accuracy of the TAAS

results      and   to   assure    that     students    were   meeting     national

standards.

       The complaint further alleges that in September 1998, Cruz

denied Rodriguez permission to attend a meeting of administrators

with   curriculum       responsibility.         Cruz   explained   that   another

administrator      would      represent    LISD   at   the    meeting   and   that

financial constraints would not permit him to approve more than one

administrator for travel to any one event.               The complaint alleges

that Cruz’s explanation was pretextual because he later permitted

three administrators to travel to a band competition.

       According to the complaint, Rodriguez continued to advocate

for norm-referenced testing in the fall of 1998.                    But despite

Rodriguez’s advocacy, Cruz told LISD principals in October 1998

that    he    would     not   require     norm-referenced      testing.       Soon

thereafter, Cruz announced at a School Board committee meeting that

test scores would improve significantly under his leadership, so

much so that the LISD would qualify for “exemplary district” status

within five years.            The complaint alleges that this five-year

prediction, along with the rejection of mandatory norm-referenced

                                          -4-
testing, indicated that Cruz’s “emphasis would be on testing

scores, not on compliance with the requirements of the testing and

other programs.”4

      The complaint alleges that earlier on the same day that he

made his prediction to the Board, Cruz issued a memorandum removing

Rodriguez from her Assistant Superintendent post and assigning her

to a previously non-existent administrative position, which placed

her   in   charge    of   textbooks   and   janitorial    services.     This

reassignment conflicted with LISD policy because the School Board

had not approved the new position at a public meeting.

      Rodriguez       filed   a   timely     grievance     protesting    her

reassignment.       When Cruz denied the grievance, she appealed to the

School Board.       The Board permitted Rodriguez to make a ten-minute

presentation before it, but ultimately took no action.            Rodriguez

then filed suit against LISD and Cruz, and they moved to dismiss

her complaint for failure to state a claim.              The district court

granted the motion with respect to Rodriguez’s § 1983 claim against

Cruz, finding that Rodriguez had not alleged the violation of a

right secured by the First Amendment in her complaint and that Cruz

was therefore entitled to qualified immunity.        Rodriguez appealed.

                                  ANALYSIS

      A Rule 12(b)(6) dismissal for failure to state a claim upon

which relief can be granted is subject to de novo review and will


  4
      Complaint ¶ 4.93.

                                      -5-
not be affirmed “unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.”5          “To ascertain whether a complaint states

a   claim,    we    must    construe      the   complaint    liberally    in   the

plaintiff’s       favor    and   accept   all    factual    allegations   in   the

complaint as true.”6

        In order to state a First Amendment retaliation claim under §

1983, a public employee must allege facts that could establish that

(1) the employee suffered an adverse employment action; (2) the

employee spoke on a matter of public concern; (3) the employee’s

interest     in    speaking      outweighs      his   employer’s   interest     in

efficiency; and (4) the employee’s speech motivated the adverse

employment action.7

        Properly limiting our focus to Rodriguez’s complaint, we find

that it satisfies the minimal pleading standard for each of the

elements of a First Amendment retaliation claim.                   The district

court therefore erred in dismissing Rodriguez’s First Amendment

claim under Rule 12(b)(6).          Likewise, the district court’s finding

of qualified immunity in this case at the pleading stage was

premature.     We do not comment on the merits of the case and leave



    5
        Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
    6
     Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d
359, 365 (5th Cir. 2000).
    7
     Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir.
2001); Kennedy, 224 F.3d at 366.

                                          -6-
it to the district court to decide what further proceedings are

appropriate.

                                 CONCLUSION

      The judgment of the district court is affirmed in part and

reversed in part, and the case is remanded to the district court

for further proceedings not inconsistent with this opinion.8

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




  8
      Rodriguez also      appeals the district court’s order awarding
costs to LISD and         Cruz.     Our partial reversal on the merits
operates to reverse       the entire costs award. See 10 JAMES WM. MOORE
ET AL., MOORE’S FEDERAL   PRACTICE § 54.100[4][c] (3d ed. 2001).

                                     -7-
