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

                                                                            FILED
                                                                        November 10, 2008

                                       No. 07-51258                   Charles R. Fulbruge III
                                                                              Clerk

ALTA GARRETT

                                                  Plaintiff-Appellant
v.

JUDSON INDEPENDENT SCHOOL DISTRICT

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-174


Before DAVIS, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Alta Garrett appeals the district court’s grant of the
Judson Independent School District’s (“the School District”) motion for summary
judgment, dismissing her federal and state law claims arising out from the
School District’s decision not to renew Garrett’s teaching contract when it
expired at the end of the 2004-2005 school year. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-51258

                FACTUAL AND PROCEDURAL HISTORY
      Alta Garrett is a former school teacher, who worked for the School District
from 1991 until May 2005. In 2001, Vera Ruffin was hired as a new principal
at the school where Garrett taught. Garrett was aware of the School District’s
employment, employee grievance, and teacher evaluation policies when she was
hired and throughout the duration of her employment with the School District.
Indeed, Garrett utilized the School District’s grievance procedures at least twice
during her employment to challenge performance appraisals, in May 2003 and
June 2004. On May 16, 2003, Garrett initiated the grievance process for the first
time when she complained about receiving a “below expectations” rating on a
performance appraisal. Garrett filed another grievance on June 10, 2004,
regarding another negative appraisal rating. Garrett admitted during her
deposition in this matter that neither of these grievances were related to the
claims that are the basis of her lawsuit.
      During the 2004-2005 school year, the School District received more than
forty parent complaints, and numerous student complaints, regarding Garrett’s
lack of communication, treatment of students, and her negative influence on
student learning. More than twenty parents requested that their children be
removed from Garrett’s classroom. In addition to these complaints, the School
District had demonstrated concerns about Garrett’s judgment, failure to follow
directives, and lack of student progress. School District staff notified Garrett of
these concerns, counseled her for specific incidents and requested improvements
in performance. Garrett received documentation of these meetings. The School
District found such disciplinary actions unsuccessful and notified Garrett on
March 11, 2005, of the administration’s decision to recommend the non-renewal
of her 2004-2005 teaching term contract.

                                        2
                                    No. 07-51258

      Two weeks later the School District’s Board of Trustees voted to accept
that recommendation and authorized the School District’s administration to
provide written notice to Garret of its decision, which Garret received on March
31, 2005.    That correspondence notified Garrett of the reasons her term
employment contract was proposed for non-renewal. Specifically, such reasons
included: (1) deficiencies pointed out in observation reports, appraisals or
evaluations, supplemental memoranda, or other communications; (2) failure to
fulfill duties or responsibilities; (3) insubordination; (4) failure to comply with
Board policies or administrative regulations; (5) failure to meet standards of
professional conduct; (6) a significant lack of student progress attributable to the
educator; and (7) attempts to encourage or coerce a child to withhold information
from the child’s parent or from other School District personnel. During the
twenty-day period between when Garrett received the March 11, 2005 notice and
the March 31, 2005 notice, she did not use the grievance procedure to challenge
the School District’s proposed recommendation not to renew her contract.
      On May 24, 2005, the School District’s Board of Trustees formally adopted
the decision not to renew Garrett’s teaching contract and subsequently provided
Garrett with notice of its decision.1 On May 25, 2005, the day after the School
District’s Board of Trustees formally adopted the decision not to renew Garrett’s
teaching contract, the School District received a resignation letter from Garrett.
Garrett’s resignation letter references “the injustices that have occurred to me
and other teachers at the hands of Principal, Verna Ruffin,” asserting that there
was a pattern of retaliation against employees who opposed Ruffin. The letter


      1
         Although Garrett asserts that she initiated administrative grievance procedures
regarding her employment non-renewal, her sworn testimony specifically and repeatedly
contradicts this assertion.

                                           3
                                    No. 07-51258

makes no mention of any claim that her alleged unjust employment treatment
was on account of race, sex, or age discrimination or in retaliation. Although
dated the day before, May 24, 2005, there is no evidence that the School District
was aware of the letter until it was received on May 25, 2005.
      On April 13, 2005, while Garrett was still employed by the School District,
she initiated a charge of discrimination with the Texas Workforce Commission
Civil Rights Division (“TWC CRD”); she finalized her complaint in September
2005.2 Garrett did not complain or otherwise tell anyone at the School District
prior to the final decision not to renew her contract that she had filed a charge
of discrimination or that she believed that the non-renewal decision was based
on her race, sex, age, or because of retaliation. The School District was unaware
that she had filed a charge of discrimination until five months after that
decision, when it received notification from the TWC CRD on September 9, 2005.
the School District received Garrett’s EEOC charge three days later.
      Although Garrett was familiar with the School District’s grievance process,
she did not initiate the grievance process regarding any of the claims in her
discrimination charge against the School District. In November 2005, the TWC
CRD recommended dismissal of Garrett’s charge and mailed to her a Dismissal
and Notice of Right to File a Civil Action. The EEOC adopted the TWC CRD
findings and similarly mailed to Garrett a Dismissal and Notice of Rights Letter
in December 2005.3

      2
       Garrett’s TWC CRD charge was filed concurrently with the Equal Employment
Opportunity Commission (“EEOC”) for dual filing purposes.
      3
         TWC CRD recommended dismissal and closure of Garrett’s charge, in part, for the
following reasons:

      The evidence does not support the allegations that the employer discriminated

                                           4
                                        No. 07-51258

        In February 2006, Garrett sued the School District, Ruffin, and Williams
(collectively “Defendants”) in their official capacity, asserting unlawful
employment discrimination, retaliation, and various state law tort claims. In
April 2006, the district court granted Defendants’ Rule 12(b)(1) motion to
dismiss Garrett’s state tort claims against Williams, Ruffin, and the School
District on the basis of sovereign immunity, leaving the School District as the
remaining defendant in the suit. At the close of discovery, Defendants filed a
motion for summary judgment on Garrett’s remaining claims. In May 2007, the
magistrate judge issued a memorandum and recommendation that the court
grant Defendants’ motion. In September 2007, the district court accepted the
factual findings and recommendation of the magistrate judge, entered a final
order dismissing Garrett’s claims under the Age Discrimination Employment Act
(“ADEA”) and the Texas Whistleblower Act (“TWA”), and entered summary
judgment in favor of the School District on Garrett’s claims under Chapter 21 of
the Texas Labor Code, Title VII, and the Constitution after denying her request
to amend her complaint. Garrett appeals this judgment.


                              STANDARD OF REVIEW4


       against [Garrett] based on Race/Black, Sex/Female, or in an act of Retaliation.
       Evidence reflects that [Garrett]’s non-renewal of contract was based on
       performance, conduct, and the highest number of student and parent complaints
       lodged against [Garrett]. Respondent’s record reveals that [Garrett] was
       counseled and given directives for improvement which were not adhered to.
       4
         We are not bound by the standard of review set out by the parties briefs if we find that
standard incorrect. See Izzarelli v. Rexene Prod. Co., 24 F.3d 1506, 1519 n.24 (5th Cir. 1994).
Although Appellant’s brief asserts that the “clearly erroneous” standard applies to all of her
claims because she “complains of factual determinations by the District Court,” the rest of her
briefing takes issue with the district court’s application of the summary judgment standard
and substantive law to the facts in the case.

                                               5
                                 No. 07-51258

      The five issues on appeal are whether the district court erred in:
(1) dismissing, for lack of jurisdiction, Garrett’s TWA claim; (2) granting
summary judgment against Garrett on her Texas labor law retaliation claim;
(3) dismissing as time-barred Garrett’s age discrimination claim; (4) granting
summary judgment against Garrett on her Title VII race and gender
discrimination claims; and (5) granting summary judgment on Garret’s
constitutional claims and denying her request to amend those claims.
      Regarding dismissal for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, this court reviews
questions of law de novo. Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th
Cir. 1998). We review the district court’s determinations of disputed fact for
purposes of resolving jurisdiction under the “clearly erroneous” standard. Id.
      The district court’s grant of summary judgment is also reviewed de novo.
Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.
2007). A party is entitled to summary judgment when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). The opposing party must
set forth specific and supported material facts and cannot defeat a properly
supported summary judgment motion by resting on bare accusations or denials.
FED. R. CIV. P. 56(e).


                                DISCUSSION
Texas Law Claims
1. Texas Whistleblower Act Claim


                                       6
                                       No. 07-51258

       Garrett argues that the district court erred in dismissing her TWA claim
for lack of jurisdiction because (1) she pursued her administrative remedies by
requesting a hearing before the Board’s final determination not to renew her
contract, and alternatively (2) there is an implicit futility exception to the
requirement to pursue administrative remedies. The School District responds
that there is no futility exception, and the district court correctly ruled that
Garrett did not initiate grievance procedures as required by the TWA.
       The TWA prohibits a governmental entity from terminating or taking any
adverse employment action against an employee who, in good faith, reports to
an appropriate law enforcement authority a violation of law by the entity or a
public employee of the entity. TEX. GOV’T CODE § 554.002(a).5 Although Garrett
argues that Texas law does not in fact require that she have first gone through
the grievance procedure, that argument is without merit. Under the statute,
Garrett was required to pursue her administrative remedies before suing the
School District. See TEX. GOV’T CODE § 554.006(a) (“A public employee must
initiate action under the grievance or appeal procedures of the employing state
or local government entity relating to suspension or termination of employment
or adverse personnel action before suing under this chapter.”).
       Failure to initiate administrative remedies is a jurisdictional bar to suit.
See Medical Arts Hosp. v. Robinson, 216 S.W.3d 38, 40-41 (Tex. App. 2006)
(noting disagreement among Texas appellate courts as to whether filing a
grievance is jurisdictional or simply a bar to recovery, but finding the Texas


       5
         To prevail under the Whistleblower Act, a plaintiff must show that (1) she was
discriminated against for reporting a violation of law, and (2) a causal link exists between the
reporting and the adverse employment action. Upton County, Tex. v. Brown, 960 S.W.2d 808,
823 (Tex. App. 1997).

                                               7
                                  No. 07-51258

legislature’s 2005 amendment to § 311.034 clarified that a governmental entity’s
immunity from suit for a whistleblower claim is conditioned upon timely filing
a grievance); Montgomery County Hosp. Dist. v. Smith, 181 S.W.3d 844, 853
(Tex. App. 2005) (similar); see also Breaux v. City of Garland, 205 F.3d 150, 162-
63 (5th Cir. 2000) (holding that the exhaustion requirement of the TWA is
jurisdictional).   The purpose of the requirement that an employee initiate
grievance procedures before filing suit is to afford the employer an opportunity
to correct its errors by resolving disputes before litigation. See Colorado City v.
Ponko, 216 S.W.3d 924, 928 (Tex. App. 2007).
      The district court’s finding that Garrett did not pursue administrative
remedies for her TWA claim because she did not initiate the School District’s
grievance procedure for the non-renewal of her contract, is supported by the
record and not clearly erroneous.      Although Garrett has used the School
District’s grievance procedures at least twice in the past during her employment,
she chose not to do so on this occasion. As the district court noted, Garrett
testified in deposition that she did not request or want a hearing regarding the
Board’s non-renewal decision, and that she did not initiate or otherwise
participate in a grievance procedure to pursue her TWA claim, instead going
directly to the TWC CRD and EEOC. She further testified that she did not
authorize anyone to initiate the grievance procedures on her behalf, including
her then-attorney. Further, a teacher aggrieved by a decision of the Board not
to renew the teacher’s term employment contract is entitled to appeal to the
Commissioner for a review of that decision; Garrett did not make such an
appeal. See TEX. EDUC. CODE § 21.209.




                                        8
                                  No. 07-51258

      Garrett urges that the TWA, because it is remedial in nature, must be
liberally construed, in this case to include a futility requirement applicable to
Garrett’s failure to initiate the grievance process regarding the non-renewal of
her contract. However, we will not construe the statute to eliminate the plain
requirement of the text. See Montgomery County Hosp. Dist. v. Smith, 181
S.W.3d 844, 853-54 (Tex. App. 2005) (declining to adopt a futility exception,
finding that under the circumstances it would “graft terms onto the
Whistleblower Act that were not chosen by the Legislature”); Breaux, 205 F.3d
at 162-63 (declining to create a futility exception to statutory, jurisdictional
exhaustion requirement of the TWA).
      Because Garrett did not pursue her administrative remedies for the
Board’s employment decision, the district court correctly dismissed her TWA
claim for lack of jurisdiction.
2. Chapter 21 Retaliation Claim
      Garrett argues that the evidence shows that she engaged in a protected
activity, and therefore there is a fact issue regarding causation that precludes
summary judgment on her Texas law retaliation claim. The School District
responds that there is no evidence of the necessary but-for causal link, and
therefore Garrett fails to establish even a prima facie case of retaliation.
      To prove a case of retaliation under Chapter 21 of the Texas Labor Code,
Garrett must first establish a prima facie case showing that (1) she engaged in
a protected activity, (2) an adverse employment action occurred, and (3) there
was a causal connection between participation in the protected activity and the
adverse employment decision. Herbert v. City of Forest Hill, 189 S.W.3d 369,
376-77 (Tex. App. 2006) (internal citations omitted). For purposes of a Chapter


                                        9
                                  No. 07-51258

21 retaliation claim, “protected activity” refers specifically to (1) opposing a
discriminatory practice, (2) making or filing a charge, (3) filing a complaint, or
(4) testifying, assisting or participating in any manner in an investigation,
proceeding, or hearing. Id. at 376-77; TEX. LABOR CODE § 21.055. Engaging in
a protected activity requires complaining of the sort of discrimination that is
covered by the Texas Commission on Human Rights Act (“TCHR Act”), and a
vague charge of mistreatment does not invoke protection under that statute.
      Garrett must establish that, without her protected activity, the School
District would not have made the non-renewal employment decision when it did.
McMillon v. Texas Dep’t of Ins., 963 S.W.2d 935, 940 (Tex. App. 1998). While she
does not need to show that her protected activity was the sole cause of the
adverse employment decision, she must establish that “but for” her protected
activity, the employer would not have taken the prohibited actions. See Herbert,
189 S.W.3d at 376-77. She has not done this. In order for an employer to
retaliate against an employee for engaging in a protected activity, the employer
must actually know that the employee engaged in the protected activity. See
Medina, 238 F.3d at 684; Marsaglia v. Univ. of Tex., El Paso, 22 S.W.3d 1, 5
(Tex. App. 1999) (holding that appellant did not show a causal connection
because no evidence existed that the employer knew about the appellant’s
protected activity).
      The evidence in the record establishes that the School District was
unaware of Garrett’s protected activity - filing a charge with the TWC CRD -
until after the ultimate decision on her employment was made. The Board of
Trustees voted in late May 2005 to confirm the decision not to renew her
teaching contract after the 2004-2005 school year, but it did not receive notice


                                       10
                                        No. 07-51258

of Garrett’s TWC CRD charge until September 2005. Garrett testified that she
did not tell anyone at the School District that she had filed a discrimination
charge, and there is no evidence supporting her argument that the School
District was nonetheless aware of her protected activity prior to September
2005.6 Garrett has not raised facts showing the required causal link of her
Chapter 21 retaliation claim. Therefore she did not establish a prima facie case
of retaliation, and the School District was entitled to summary judgment.


ADEA Claim
       Garrett argues that her ADEA claim is not time-barred because she
exhausted administrative remedies as required; specifically, by checking the
“other” box on her TWC/EEOC form, and stating her age on the form, she claims
that she asserted a charge of age discrimination. The School District counters
that this argument is without merit, and Garrett’s ADEA claim is time-barred
because she did not file a timely administrative charge of age discrimination
with the EEOC before filing her lawsuit.
       A plaintiff suing for age discrimination must file a timely administrative
charge with the EEOC as a precondition to filing her lawsuit. 29 U.S.C. § 626(d)
(“No civil action may be commenced . . . until 60 days after a charge alleging
unlawful discrimination has been filed with the [EEOC]. Such a charge shall be
filed . . . within 180 days after the alleged unlawful practice occurred . . .”). In
Texas, the charge must be filed within 300 days after the alleged unlawful

       6
          Garrett’s resignation letter, although dated May 24, 2005, did not put the School
District on notice of her protected activity - initiating a charge with the EEOC - because it was
received May 25, 2005, the day after the Board of Trustees’ formally adopted its employment
decision. Further, it contained no reference to any complaint of discrimination based on race,
sex, age, or any other form of discrimination covered by the TCHR Act.

                                              11
                                         No. 07-51258

practice occurred. See 29 U.S.C. § 626(d)(2) (referencing limitation of federal
civil actions upon commencement of state proceedings provided by § 633); Tyler
v. Union Oil Co. of Cal., 304 F.3d 379 (5th Cir. 2002) (explaining that as a
“deferral” state, the limitations period for filing an age discrimination charge
with the EEOC in Texas is effectively 300 days). Thus, subject to certain
equitable exceptions not at issue here, a Texas employee’s ADEA claims are
time-barred if the employee fails to file an age discrimination charge with the
EEOC within 300 days from the date of the alleged unlawful employment
practice. See Tyler, 304 F.3d at 390-91.
       From the record, it is clear that Garrett did not exhaust her administrative
remedies as required. Age discrimination is a “separate and distinct” claim of
employment discrimination, which requires a specific administrative charge to
have been filed with the EEOC. See Randel, 157 F.3d at 395. Garrett’s initial
complaint to the TWC CRD in April 2005 and the finalized complaint in
September 2005 alleged only race, sex, retaliation and other (TCHR Act)7 as the
basis for the School District’s non-renewal decision, and Garrett never amended
her EEOC charge to add a claim for age discrimination. Garrett’s age claim was
not within the scope of her EEOC charge of discrimination. Her argument that
having checked the “other” box, and not the specific “age” box, on the EEOC form

       7
         Garrett indicated on her EEOC charge that checking the box for “other” discrimination
indicated she suffered discrimination under the “TCHR Act”. The TCHR Act prohibits
discrimination based on age as well as race, color, disability, religion, sex, and national origin.
See TEX. LABOR CODE ANN. § 21.051. Because there is no evidence that the EEOC investigated
age discrimination while investigating Garrett’s charge, it is unreasonable to construe a charge
of “other” discrimination as a charge of “age” discrimination where the charge form specifically
included a box for Garrett to indicate that she was discriminated against based on “age”. See
Thomas v. Tex. Dep’t of Crim. Justice, 220 F.3d 389, 395 (5th Cir. 2000) (“[T]he scope of a Title
VII complaint is limited to the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.”).

                                               12
                                     No. 07-51258

alleged a charge of age discrimination is disingenuous, particularly because she
makes no argument that age was a basis for any of the discriminatory activity
she alleges in the written statement accompanying the form.                     Garrett’s
argument that the fact that her age is stated on the form, as a matter of routine
detail such as name and address, constitutes a claim of age discrimination is
meritless. Such an assertion would imply that every individual over age 40
filing a charge with the EEOC is bringing an ADEA claim in addition to
whatever charge they intend to bring.
      The district court correctly found Garrett did not file an EEOC age
discrimination charge, failed to exhaust her administrative remedies, and
therefore the court lacked jurisdiction over this claim. See Tyler, 304 F.3d at
390-91. Because Garrett did not file an EEOC age discrimination charge, and
is now time-barred by the statute of limitations for doing so, her ADEA claim
was also properly dismissed.




Title VII Claims
      Garrett argues that there is an issue of fact as to whether the School
District’s offered explanation of her employment treatment was a pretext for
racial discrimination, precluding summary judgment on her Title VII
employment discrimination claim.8 The School District responds that Garrett



      8
         In her brief under “Title VII Claims,” Garrett also references age and sex
discrimination. We address her claim of age employment discrimination supra. Further,
Garrett’s brief does not put forward any argument that the School District discriminated
against her based on her sex, and in fact states that she was replaced by a woman; as such,
that issue is waived, and summary judgment on that claim is affirmed.

                                            13
                                       No. 07-51258

has not raised a fact question regarding the School District’s legitimate, non-
discriminatory reasons for not renewing her teaching contract.
       Where, as here, the plaintiff alleging employment discrimination does not
produce any direct evidence of discrimination, the McDonnell Douglas burden-
shifting framework applies. Garrett must first demonstrate a prima facie case
of discrimination; the School District then must articulate a legitimate, non-
discriminatory reason for its decision not to renew her contract; and if the School
District meets this burden of production, Garrett must put forward sufficient
evidence to create a genuine issue of material fact that either (1) the School
District’s reason is pretext, or (2) even if the School District’s reason is true, it
is only one reason for not renewing the contract, and Garrett’s race is another
motivating factor for the School District’s conduct. See Burrell, 482 F.3d at 411-
12; Rachild v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
       Garrett established a prima facie case of employment discrimination under
Title VII:9 (1) she is black, and therefore a member of a protected class; (2) she
was qualified for the teaching position; (3) she suffered an adverse employment
action, the non renewal of her teaching contract; and (4) that a similarly situated
white employee was hired to fill the position. See Burrell, 482 F.3d at 412. The
School District then met its burden of producing evidence of a legitimate, non-
discriminatory reason for its decision not to renew Garrett’s contract: her poor
performance evaluations, disciplinary actions, and numerous parent and student
complaints.

       9
        The School District argues for the first time on appeal that Garrett did not establish
a prima facie case under Title VII. Bcause this argument was not raised before the district
court, we will not address it here.

                                             14
                                  No. 07-51258

      Garrett’s case depends on the contention that the School District’s
proffered nondiscriminatory justification for not renewing of her teaching
contract was merely a pretext. See Auguster v. Vermilion Parish Sch. Bd., 249
F.3d 400, 403 (5th Cir. 2001). To carry her burden of persuading the trier of fact
that the School District intentionally discriminated against her, Garrett is
required to produce “substantial evidence” of pretext on the part of the School
District. Auguster, 249 F.3d at 402-03 (noting that if a Title VII plaintiff can
show that the defendant’s proffered justification is mere pretext, that showing,
coupled with the prima facie case, will be sufficient in most cases to survive
summary judgement). Her subjective belief that she has been discriminated
against, without more, cannot defeat summary judgment. See Auguster, 249
F.3d at 403. Garrett has not presented evidence creating a fact issue that the
School District’s offered legitimate, nondiscriminatory reasons that its non-
renewal of her contract was a pretext for racial discrimination.
      Reviewing the record, we find that the district court properly entered
summary judgment for the School District. The record supports the School
District’s explanation that it decided not to renew Garrett’s teaching contract
based solely on her inadequate performance. During the 2004-2005 school year,
the School District received over forty parent complaints and numerous student
complaints about Garrett’s teaching performance, including twenty parent
requests to transfer their children out of Garrett’s classroom. Garrett was
counseled on several occasions regarding the School District’s concerns about her
performance without sufficient progress and improvement resulting. Garrett
has provided no evidence to identify how her race influenced the School District’s




                                       15
                                    No. 07-51258

employment decision or attacking the School District’s explanation of its
employment decision.


Constitutional Claims
      Garrett argues that under the liberal pleading standards of the federal
courts, her complaint can be read to include claims that the School District
violated her First Amendment and Due Process Clause rights, and that
summary judgment on such claims is not warranted. In the alternative, she
argues that she should be allowed to amend her complaint. The School District
asserts that such claims were not before the district court because Garrett’s
complaint does not reference 42 U.S.C. § 1983, and it is insufficient to put the
School District on notice of any claims of Constitutional deprivation. The School
District further argues that Garrett cannot produce evidence to establish the
elements of either claim.
      Pleadings must be construed “to do justice,” and we do not require
technical forms of pleading or motions. FED. R. CIV. P. 8(d)(1), (f). Under Rule
8, it is enough that the plaintiff plead sufficient facts to put the defense on notice
of the theories on which the complaint is based. TIG Ins. Co. v. Aon Re, Inc., 521
F.3d 351, 357 (5th Cir. 2008) (quoting Wellborn v. Sears, Roebuck & Co., 970
F.2d 1420, 1425 (5th Cir. 1992)).
       Garrett does articulate an allegation that adverse employment actions
were taken against her because of an exercise of First Amendment freedoms.
Garrett contends that she complained to Ruffin, stating her belief that placing
different special needs students (resource students and co-teach students) in the
same classes within the Content Mastery Center (CMC) program violated the


                                         16
                                 No. 07-51258

federal law requirements to continue receiving funding, and that after this
complaint she faced a “campaign of unfounded charges of incompetence”
beginning in February 2004.
      Although she does not delineate her First Amendment retaliation claim
as a distinct “count” in her complaint, neither did she delineate her age claim,
which was listed in the same paragraph as the other Title VII claims and which
the district court recognized as an cognizable ADEA claim. Similarly, the same
paragraph of the complaint discusses with sufficient particularity Garrett’s
allegation that she received adverse employment treatment as a result of orally
communicating to Ruffin her belief that the school was operating in violation of
federal law in running its CMC program. The fact that she did not specify that
her claim was brought under § 1983, much as she had not specified that her age
claim was appropriately brought under the ADEA, is of no moment.
      Having determined that Garrett’s complaint did sufficiently allege a claim
for recovery under § 1983, we turn to whether summary judgment would be
appropriate on that claim. Even though Garrett complied with the minimal
pleading requirements of Rule 8(a), summary judgment is nevertheless proper
because she has not produced evidence of a genuine issue of material fact. See
FED. R. CIV. P. 56. To prove a First Amendment retaliation claim under 42
U.S.C. § 1983, Garrett must show that (1) she suffered an adverse employment
action; (2) her speech involved a matter of public concern; (3) her interest in
commenting on such matters outweighed the government employer’s interest in
promoting efficiency; and (4) her speech motivated the adverse employment
action. Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004). If that test is
passed, the burden shifts to the School District to show that it would have come


                                      17
                                        No. 07-51258

to the same conclusion in the absence of the protected conduct. Id. (quoting
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001)).
       Reviewing the record , no material issue of fact remains on this claim, and
there is no evidence supporting Garrett’s assertion that it was protected First
Amendment activity that caused her employment problems at the School
District. Specifically, Garrett has not raised an issue of fact that her comments
to Ruffin and subsequent memo to other faculty members in 2001 regarding the
AME/CMC educational program caused her to receive poor performance
appraisals in the following years and/or ultimately the non-renewal of her
teaching contract four years later. Judson is entitled to summary judgment on
this claim.10


                                      CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       10
          The district court correctly held that Garrett’s pleadings do not establish a claim for
deprivation of Due Process. See Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir.
1993) (substantive due process); Rathjen v. Litchfield, 878 F.2d 836, 838 (5th Cir. 1989)
(procedural due process). Further, we find no abuse of discretion in the district court’s denial
of Garrett’s request to amend her pleading to include Due Process or other additional
allegations. See Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th Cir. 2000) (abuse of discretion
is the standard for reviewing denial of request to amend pleadings). Such amendment would
be extraordinarily prejudicial to Judson at this stage.

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