     Case: 15-40161      Document: 00513218234         Page: 1    Date Filed: 10/05/2015




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

                                    No. 15-40161                                   FILED
                                  Summary Calendar                           October 5, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
EVEN THOMAS, III,

                                         Plaintiff - Appellant

v.

BEAUMONT INDEPENDENT SCHOOL DISTRICT,

                                        Defendant - Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CV-572


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Even Thomas, III, proceeding pro se, appeals the district court’s
summary judgment dismissing all of his claims. After reviewing the district
court’s opinion, the record, and the applicable law, we agree with the district
court. Accordingly, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                              I.    Factual Background
      Thomas was initially hired by Beaumont ISD (“BISD”) in 1993. During
the relevant period, the 2012-2013 and 2013-2014 school years, Thomas taught
second grade. The record shows that Thomas had performance problems,
including: (1) tardiness and attendance; (2) following the school’s grading
policy; and (3) insubordination. Additionally, parents and staff had concerns
about Thomas’s conduct and his classroom instruction. Because of Thomas’s
conduct and performance, he was not recommended for a contract renewal.
      Thomas sued BISD asserting a number of claims, including contract
nonrenewal under state law, retaliation and hostile work environment under
Title VII, disability discrimination under the American with Disabilities Act
(the “ADA”), and violations of his Weingarten and First, Fourth, Fifth, and
Fourteenth Amendment rights.          Magistrate Judge Keith Giblin granted
summary judgment in favor of BISD. On appeal, Thomas contends that Judge
Giblin was biased against him, that fact issues exist in regard to his hostile
work environment claim, and that BISD withheld exculpatory evidence and
violated the district court’s scheduling order.
                             II.    Standard of Review
      A district court’s grant of summary judgment is reviewed de novo on
appeal. Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 635 (5th Cir.
2002). Summary judgment is proper when there is no genuine issue as to any
material fact. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech.
Coll., 719 F.3d 356, 362 (5th Cir. 2013).
                                   III.   Discussion
         A. Judge Giblin’s alleged bias is not a proper basis for appeal.
      Generally, one seeking disqualification of a judge must do so as soon as
the basis for disqualification is apparent.       See United States v. Sanford,
157 F.3d 987, 988 (5th Cir. 1998) (quoting Travelers Ins. Co. v. Liljeberg
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                                 No. 15-40161
Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)). “The most egregious delay—
the closest thing to per se untimeliness—occurs when a party already knows
the facts purportedly showing an appearance of impropriety but waits until
after an adverse decision has been made by the judge before raising the issue
of recusal.” Id. at 988–89.   Because Thomas’s bias claim is based on Judge
Giblin’s recusal from Thomas’s previous lawsuit against BISD, Thomas
evidently had knowledge of a possible reason for disqualification as soon as
this case was assigned to Judge Giblin. Yet, Thomas waited until he received
an adverse ruling to raise the recusal issue. In addition to untimely raising
the issue, Thomas has not identified any evidence of bias. Accordingly, this
court will not disturb the district court’s judgment based on Thomas’s untimely
and unsubstantiated claim of bias.
         B. Thomas did not exhaust his nonrenewal of contract claim.
      In Texas, a plaintiff must exhaust all remedies under the applicable
administrative scheme if the party’s claim: concerns the administration of
school laws and involves a question of fact. Nairn v. Killeen Indep. Sch. Dist.,
366 S.W.3d 229, 241 (Tex. App.—El Paso 2012, no pet.) (citing Mission Indep.
Sch. Dist. v. Diserens, 188 S.W.2d 568, 570 (Tex. 1945)). Under the Term
Contract Nonrenewal Act, a teacher who is aggrieved by the nonrenewal of a
term contract must exhaust administrative remedies before seeking judicial
redress. Id. at 241 (citing Tex. Educ. Code § 21.209 (West 2006)). “[T]he last
step in the administrative process is an appeal to the Commissioner of
Education.” Id.
      Here, there is no evidence that Thomas exhausted his administrative
remedies, specifically, that he appealed to the Commissioner of Education. The
district court properly dismissed Thomas’s nonrenewal of contract claim.




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                                 No. 15-40161
         C. Thomas did not establish all the elements of his hostile work
            environment claim.
      To prevail on a hostile work environment claim under Title VII, Thomas
must establish that: (1) he belongs to a protected class; (2) he was subject to
unwelcome harassment; (3) the harassment was based on the protected
characteristic; and (4) the harassment was so serious as to affect a “‘term,
condition, or privilege’ of employment.” See E.E.O.C. v. Boh Bros, 731 F.3d
444, 453 (5th Cir. 2013) (en banc) (quoting Lauderdale v. Tex. Dep’t of Criminal
Justice, 512 F.3d 157, 162–63 (5th Cir. 2007)).
      Thomas did not allege, or identify any evidence, that the alleged adverse
treatment occurred because he was a member of a protected class. As a result,
Thomas cannot establish that he was harassed based on a protected
characteristic—the first and third elements of his claim.
        D. Thomas failed to proffer evidence of pretext to establish his
           retaliation claim.
       To survive summary judgment, Thomas must first establish a prima
facie retaliation case by demonstrating: (1) that he engaged in protected
activity under Title VII; (2) that BISD subjected Thomas to an adverse
employment action; and (3) “but for” causation between the protected activity
and the adverse employment action. Scrivener v. Socorro Indep. Sch. Dist.,
169 F.3d 969, 972 (5th Cir. 1999); Long v. Eastfield College, 88 F.3d 300, 305
n.4 (5th Cir. 1996). If Thomas establishes a prima facie case, the court next
engages in the McDonnell Douglas burden-shifting framework. See Fierros v.
Tex. Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001). Under this framework,
BISD must then “articulate a legitimate, nondiscriminatory reason for the
adverse employment action.” Byers v. Dall. Morning News, Inc., 209 F.3d 419,
427 (5th Cir. 2000). Once BISD provides a lawful reason for the adverse
employment action, Thomas must proffer evidence that BISD’s alleged lawful
reason was pretextual. Id.
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                                No. 15-40161
      The district court correctly determined that Thomas’s claim failed as a
matter of law. BISD proffered a lawful reason for taking adverse employment
action against Thomas. The record shows that Thomas was frequently absent,
did not comply with the school’s grading, attendance, and cell phone use
policies, refused to meet with his superior, left his classroom unattended, and
was the subject of several parent complains. With the burden shifted back to
him, Thomas did not identify any evidence of pretext. Accordingly, the district
court did not err in dismissing Thomas’s retaliation claim.
          E. Thomas failed to exhaust his ADA claim.
      Under the ADA “[n]o action . . . shall be brought . . . if administrative
remedies have not been exhausted.” 42 U.S.C. § 6104(e)(2). Here, Thomas’s
E.E.O.C. charge does not expressly complain of disability discrimination.
Moreover, a disability claim could not have reasonably grown out of the
allegations in Thomas’s charge. This claim lacks any foundation in law.
          F. Thomas is precluded from asserting a Weingarten claim.
      In Weingarten, the Supreme Court held that the National Labor
Relations Act (the “NLRA”) “guarantees an employee’s right to the presence of
a union representative at an investigatory interview in which the risk of
discipline reasonably inheres.” Nat’l Labor Relations Bd. v. J. Weingarten,
Inc., 420 U.S. 251, 262, 95 S. Ct. 959, 966 (1975). But the Texas Supreme Court
has specifically held that “[t]here is no question that Section 7 of the NLRA
and the Weingarten decision apply only to private-sector employees.” City of
Round Rock v. Rodriguez, 399 S.W.3d 130, 143 (Tex. 2013) (citing 29 U.S.C.
§ 152(2) (2012)) (emphasis added). We agree with the district court that as a
public school teacher, Thomas did not possess Weingarten representation
rights.




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          G. Thomas proffered insufficient evidence to move his Constitutional
             claims beyond the summary judgment stage.

      First, to set forth a First Amendment speech retaliation claim against
BISD, Thomas must show: (1) an adverse employment decision; (2) speech
involving a matter of public concern; (3) Thomas’s interest in commenting on
matters of public concern outweighs BISD’s interest in promoting efficiency;
and (4) Thomas’s speech motivated the BISD’s actions. Teague v. City of
Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999). As the district court
correctly found, Thomas did not identify the speech at issue or how the
unidentified speech involved a matter of public concern. Therefore, Thomas’s
claim fails.
      Second, a municipality or similar entity cannot be held liable for the
Fourth Amendment violations of its non-policymaking employees under a
respondeat superior theory of liability. See Williams v. Kaufman County,
352 F.3d 994, 1013 (5th Cir. 2003). But municipal liability can be established
if the plaintiff identifies “(1) an official policy (or custom), of which (2) a
policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose ‘moving force’ is that policy (or custom).” Pineda
v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002).
      Thomas did not offer competent summary judgment evidence to move
forward his Fourth Amendment claim. Thomas’s claim is premised on an
incident where the school’s principal called the police to have Thomas removed
from school premises. 1        Thomas, however, did not identify BISD’s
unconstitutional policy or custom, nor did he proffer evidence indicating that




      1  The call was in response to Thomas’s agitated conduct around students in the
cafeteria.
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                                 No. 15-40161
the school’s principal was a policy maker. He has not stated a claim against
BISD.
      Third, regarding Thomas’s claims under the Fifth and Fourteenth
Amendments, the analysis begins with an inquiry into whether the challenged
conduct affected a life, liberty, or property interest protected by the
Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569–71, 92 S. Ct. 2701,
2705–06 (1972). Here, Thomas did not indicate which liberty or property
interest he was deprived of by BISD. Accordingly, the district court did not err
in dismissing Thomas’s constitutional claims.
         H. Thomas’s exculpatory evidence allegation does not warrant a
            reversal of the district court’s judgment.

      Finally, Thomas contends that BISD withheld exculpatory evidence.
Specifically, Thomas references tapes from his grievance hearing. Thomas also
alleges that BISD violated the district court’s scheduling order.
      Thomas’s allegations are insufficient to set aside the district court’s
ruling. The record shows that BISD produced the transcript and the audio
recording from the grievance hearing. Moreover, Thomas does not provide the
court with a reason why, or an explanation of how, the evidence would be
dispositive in his favor. Finally, Thomas does not inform the court why BISD’s
alleged violation of the scheduling order should change the outcome of the case.
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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