     Case: 12-60897       Document: 00512400689         Page: 1     Date Filed: 10/08/2013




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

                                                                            FILED
                                                                          October 8, 2013

                                      No. 12–60897                         Lyle W. Cayce
                                                                                Clerk

KAREN DARLENE MANN OWENS,

                                                  Plaintiff-Appellant,
v.

CALHOUN COUNTY SCHOOL DISTRICT,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11–cv–00067


Before STEWART, Chief Judge, and KING and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Karen Darlene Mann Owens appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee Calhoun
County School District (“Calhoun”) on Owens’s claims of discrimination under




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60897      Document: 00512400689        Page: 2    Date Filed: 10/08/2013



                                     No. 12-60897

the Americans with Disabilities Act (“ADA”) and First Amendment retaliation.1
We AFFIRM.
                I. FACTUAL AND PROCEDURAL HISTORY
      Owens, a forty-six year old school teacher, worked at Bruce Upper
Elementary School for seventeen years until she was fired on February 9, 2010
by Calhoun’s School Superintendent, Mike Moore. For a number of years,
Owens had suffered from neck and back pain. These problems intensified,
however, and caused Owens to take a leave of absence under the Family and
Medical Leave Act (“FMLA”) beginning on October 19, 2009 to undergo surgery
on her neck and back. Paula Monaghan, Owens’s principal, told her that she
could remain on leave until she received her final x-rays.
      During a phone conversation between Monaghan and Owens on January
20, 2010, Monaghan asked Owens when she would return to work, and Owens
responded that she had a doctor’s appointment on February 12, 2010. She
further answered that she may be able to return to work on February 15, 2010
if her doctor released her. Later, Moore sent Owens a letter warning her that
her FMLA leave would soon expire and requesting that she provide him with a
return date so that her employment status could be determined. Although
Moore sent this letter on February 2, 2010, it was dated January 2, 2010.
Meanwhile, Moore heard rumors that Owens did not intend to return to work
but planned on moving to Arkansas with her husband. On February 4, 2010,
Monaghan and Owens had another phone conversation during which Monaghan
inquired as to when Owens would return to work; Owens never gave Monaghan




      1
         Initially, Owens also appealed the district court’s decision to not exercise
supplemental jurisdiction over her state law claim; however, she has filed a motion to
voluntarily dismiss her appeal as to that issue. Because we grant her motion, we limit our
discussion to her discrimination and retaliation claims.

                                            2
     Case: 12-60897         Document: 00512400689         Page: 3   Date Filed: 10/08/2013



                                         No. 12-60897

a date for her return. Instead, Owens again stated that she had a doctor’s
appointment on either February 12th or 15th.
       Ultimately, Moore sent Owens a letter on February 9, 2010 terminating
her for failing to return to work before her FMLA leave expired on February 1,
2010 and not providing Calhoun with a date for her return. Owens appealed her
termination to the Calhoun County School Board (“School Board”) but was
unsuccessful. The School Board ruled: 1) Owens’s sick leave, including but not
limited to her FMLA, was exhausted;2 2) Owens was negligent in failing to
inform the school of when she would return to work, has no evidence that she
has been cleared to work, and never submitted any documentation evidencing
her release to return to work; 3) Owens worked part time for another school
while she was on leave;3 and 4) Owens completed six semester hours of graduate
coursework at a local university while on leave.
       During the same time period, Owens was in discussions with Calhoun to
secure educational support for her son, Hunter. Although some of Hunter’s
teachers thought he should receive assistance, Moore vetoed the plan that would
provide him with services. On January 27, 2010, Owens wrote a letter to the
Teacher Support Team (“TST”), requesting that Calhoun provide Hunter with
educational support services. Owens also had a telephone conference with the
school principal and members of the TST to reiterate her concerns. After this
conference, Owens met with the Mississippi State Department of Education
(“State Department”) to complain about Calhoun’s failure to provide Hunter with

       2
          This ruling contradicts Owens’s claim that she had three days of personal leave
remaining when she was terminated. Nevertheless, we view the facts in the light most
favorable to Owens. See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)
(“In deciding whether a fact issue has been created, the court must view the facts and the
inferences to be drawn therefrom in the light most favorable to the nonmoving party.”)
(footnote and citation omitted). As discussed infra, this factual dispute does not alter the
result of this appeal.
       3
           Owens conducted testing for the other school district.

                                                3
    Case: 12-60897       Document: 00512400689       Page: 4   Date Filed: 10/08/2013



                                     No. 12-60897

adequate educational support.         This was Owens’s second call to the State
Department concerning Hunter. Subsequently, the State Department ordered
Calhoun to provide Hunter with educational support.
      Owens filed suit in Mississippi state court, alleging that Calhoun violated
the FMLA,4 ADA, Age Discrimination in Employment Act (“ADEA”), First
Amendment, and Fourteenth Amendment when it terminated her. Additionally,
Owens argued that her termination constituted a breach of contract under state
law. Calhoun filed a motion for summary judgment, which the district court
granted.     The district court found that Owens failed to present sufficient
evidence to support her ADA claim, and even if she could have established a
prima facie case, Calhoun had a legitimate nondiscriminatory reason for her
termination. In regards to Owens’s age discrimination claim, the district court
held that the claim failed because she was not replaced by a younger teacher,
and similar to her ADA claim, Calhoun had a legitimate nondiscriminatory
reason. Owens’s First Amendment claim failed, in the court’s view, because she
spoke on a matter of private concern. Moreover, Calhoun’s conduct was not
sufficiently arbitrary and capricious to constitute a violation of the Fourteenth
Amendment. Consequently, because Owens did not have a viable federal claim
remaining, the district court declined to exercise its supplemental jurisdiction
over Owens’s state law claim.
      Owens proceeded to file a motion for the district court to reconsider its
grant of summary judgment as to her federal claims and dismissal of her breach
of contract claim; however, the court denied the motion. Owens timely appealed.




      4
          Owens willingly withdrew her FMLA claim.

                                           4
     Case: 12-60897     Document: 00512400689     Page: 5    Date Filed: 10/08/2013



                                  No. 12-60897

                               II. DISCUSSION
      Owens challenges the district court’s dismissal of her ADA discrimination
claim and First Amendment retaliation claim. We address each set of challenges
in turn.
A.    ADA Discrimination Claim
      1.    Standard of Review
      We review a district court’s grant of summary judgment de novo, applying
the same standards used by the district court. See Garcia v. LumaCorp, Inc.,
429 F.3d 549, 553 (5th Cir. 2005) (citation omitted).       Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Courts must view the evidence in the light most favorable to the
non-moving party. See Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635
F.3d 685, 690 (5th Cir. 2011) (citation omitted). “A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for
the non-moving party.” Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir. 2011)
(citations omitted).
      2.    Applicable Law
      The ADA prohibits employers from discriminating “against a qualified
individual on the basis of [a] disability in regard to . . . [the] discharge of
employees, . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). To establish a prima facie case of discrimination under the
ADA, Owens must prove that she: “1) suffers from a disability; 2) was qualified
for the job; 3) was subject to an adverse employment action; and 4) was replaced
by a non-disabled person or was treated less favorably than non-disabled
employees.” Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 399 (5th Cir. 2012)
(per curiam) (unpublished) (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995)).

                                        5
    Case: 12-60897     Document: 00512400689      Page: 6    Date Filed: 10/08/2013



                                  No. 12-60897

       If a party establishes a prima facie case of discrimination under the ADA,
courts then engage in the McDonnell Douglas burden-shifting analysis. McInnis
v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000). That is, after the
plaintiff establishes a prima facie case of discrimination, the burden shifts to the
employer to articulate a “legitimate, non-discriminatory reason for the adverse
employment action.” McInnis, 207 F.3d at 280. If the employer meets its
burden, then the burden returns to the plaintiff to show that the legitimate non-
discriminatory reason is simply pretext. Id. (citation omitted). “A prima facie
case coupled with a showing that the proffered reason was pretextual will
usually be sufficient to survive summary judgment.” Hammond v. Jacobs Field
Servs., 499 F. App’x 377, 380–81 (5th Cir. 2012) (per curiam) (unpublished)
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48 (2000)
and EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009)).
       3.    Discussion
       On appeal, Owens argues that the district court improperly granted
summary judgment in Calhoun’s favor on her ADA claim because there were
genuine issues of material fact—mainly whether she could return to work.
Calhoun, however, claims that Owens was not capable of working when she was
terminated. Moreover, Calhoun maintains that the accommodations Owens
suggests constitute a request for indefinite leave, which it was not obligated to
provide and is not a reasonable accommodation. We assume but do not decide
that Owens was able to establish a prima facie case of discrimination under the
ADA.
       Nevertheless, we conclude that Owens has failed to raise a genuine
dispute of material fact whether Calhoun’s reasons for her termination are mere
pretext. To the contrary, the record is replete with evidence that Owens was
fired for reasons other than her disability. First, Owens admits that she did not
return to work before her FMLA leave expired. Second, she also failed to present

                                         6
    Case: 12-60897       Document: 00512400689         Page: 7     Date Filed: 10/08/2013



                                      No. 12-60897

evidence that she told Calhoun a date when she would return to work. Rather,
Owens relies on a phone conversation with her principal during which Owens
merely stated that she had an upcoming doctor’s appointment and thought she
would be released to return to work then. This fails to establish pretext as she
could not state with any certainty when she could return to work. Moreover,
Owens failed to give Calhoun any documentation that she was cleared to work.
During her termination hearing, Owens testified that she was capable of
working and presented lay testimony that she was physically able to work.
However, the school board’s finding focused on the absence of a doctor’s release,5
which Owens failed to provide and still does not possess. Third, Owens worked
part time for another school district while on leave under contract with Calhoun.
In opposition, she stresses that the work-related activity she conducted for the
other school district was of a limited duration, she volunteered to do it, and she
was able to sit throughout the testing. Notwithstanding her characterization,
she still engaged in more activity for the other school district than she was
currently providing for Calhoun. Finally, Owens does not contest that she
attended multiple educational conferences while on leave, which enabled her to
receive credit for six hours of graduate coursework.
      Ultimately, Owens has failed to present any evidence to suggest that she
was fired for any reason other than those listed above.                   See Sanchez v.
Dallas/Fort Worth Intern. Airport Bd., 438 F. App’x 343, 347 (5th Cir. 2011) (per
curiam) (unpublished) (“The issue at the pretext stage is whether [the
defendant’s] reason, even if incorrect, was the real reason for [the plaintiff’s]



      5
       The pertinent portion of the School Board’s ruling is as follows:
      The board finds you negligent in keeping school officials informed when you
      would return to work or when the doctor would release you to come back to
      work. The board found no evidence from documents submitted that you have
      been released by the doctor but this information was never submitted to district
      officials according to testimony and documents submitted to the board . . . .

                                             7
     Case: 12-60897       Document: 00512400689           Page: 8    Date Filed: 10/08/2013



                                       No. 12-60897

termination.” (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th
Cir. 2002)) (internal quotation marks omitted)). Therefore, we conclude that the
district court did not err in granting Calhoun summary judgment on Owens’s
ADA discrimination claim.6
B.     First Amendment Retaliation Claim
       We also review de novo the district court’s grant of summary judgment in
Calhoun’s favor on Owens’s First Amendment retaliation claim. See Garcia, 429
F.3d at 553 (citation omitted).
       To state a claim for retaliation under the First Amendment, a plaintiff
must allege that “1) she suffered an adverse employment action; 2) her speech
involved a matter of public concern; 3) her interest in commenting on matters of
public concern outweighs the employer’s interest in promoting efficiency; and 4)
her speech motivated the employer’s adverse action.” Modica v. Taylor, 465 F.3d
174, 179–80 (5th Cir. 2006) (citation omitted). Whether speech is a matter of
public concern is a question of law. Salge v. Edna Indep. Sch. Dist., 411 F.3d
178, 184 (5th Cir. 2005) (citation omitted).
       Owens alleges that Calhoun terminated her in retaliation for attempting
to secure educational support for her son. Owens concedes that her speech was
not on a matter of public concern; however, she contends that she is still entitled
to protection under the First Amendment. Her argument is unpersuasive as it
is well-established that “[t]he First Amendment protects a public employee’s
speech in cases of alleged retaliation only if the speech addresses a matter of


       6
          Owens also argues that summary judgment was inappropriate because Calhoun
violated the ADA by not determining whether she was capable of working before terminating
her. In addition, Owens maintains that Calhoun inhibited her from requesting an
accommodation by firing her before she could request an accommodation. Because Owens
failed to raise these issues below, we do not address them. See Celanese Corp. v. Martin K.
Eby Constr. Co. Inc., 620 F.3d 529, 531 (5th Cir. 2010) (citing AG Acceptance Corp. v. Veigel,
564 F.3d 695, 700 (5th Cir. 2009)) (“The general rule of this court is that arguments not raised
before the district court are waived and will not be considered on appeal.”).

                                               8
     Case: 12-60897       Document: 00512400689         Page: 9     Date Filed: 10/08/2013



                                       No. 12-60897

‘public concern.’” Harris, 635 F.3d at 692 (emphasis added) (quoting Connick v.
Myers, 461 U.S. 138, 147 (1983)). In fact, in Harris, we faced a situation similar
to the case at hand. We held that the plaintiff did not assert a viable First
Amendment retaliation claim because “the record show[ed] only a mother who
complained about the treatment her child received . . . .” Id. Similarly, Owens’s
speech dealt with securing educational support services for her son, not a matter
of public concern. Consequently, the district court correctly granted summary
judgment in Calhoun’s favor on Owens’s First Amendment retaliation claim.7
                                   III.CONCLUSION
       For the foregoing reasons, the district court’s grant of summary judgment
in favor of Calhoun is AFFIRMED, and Owens’s motion to dismiss her appeal as
it relates to her state law claim is GRANTED.




       7
         Because we hold that Owens did not speak on a matter of public concern, we need not
decide whether Owens’s failure to plead 42 U.S.C. § 1983 is fatal to her First Amendment
retaliation claim or whether the district court erred by not granting Owens leave to amend her
complaint to plead § 1983.

                                              9
