     Case: 10-10827 Document: 00511485726 Page: 1 Date Filed: 05/23/2011




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

                                                 FILED
                                                                            May 23, 2011

                                     No. 10-10827                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MARY TYLER,

                                                   Plaintiff - Appellant
v.

CEDAR HILL INDEPENDENT SCHOOL DISTRICT; CEDAR HILL
INDEPENDENT SCHOOL DISTRICT POLICE DEPARTMENT; MICHAEL
MCKINNEY; RICHARD COLLIER,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        of the Northern District of Texas
                           USDC No. 3:09-cv-02469-BD


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Mary Tyler (Tyler) was informed by her employer, Cedar Hill Independent
School District (CHISD) in Cedar Hill, Texas, that she would be terminated. She
subsequently filed suit, asserting race discrimination against CHISD, pursuant
to Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e–2000e-17, and
excessive force, pursuant to 42 U.S.C. § 1983, against two CHISD police officers,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                       No. 10-10827

Michael McKinney and Richard Collier.               Before her requested termination
hearing could be conducted, Tyler and CHISD executed a settlement agreement.
The settlement agreement included a provision that released CHISD and its
employees from all liability, pertaining to Tyler’s termination. Accordingly,
CHISD filled a motion for summary judgment, asserting the affirmative defense
of release. Tyler alleged, in response, that the agreement was obtained by fraud
because her name was forged. The district court granted CHISD’s motion. We
AFFIRM the district court’s judgment and DENY CHISD’s request for sanctions
against Tyler.
                                              I.
       On November 9, 2009, the CHISD Board of Trustees (hereinafter the
Board) voted in favor of Tyler’s termination. The next day, CHISD sent Tyler
a letter informing her of the vote to terminate her contract. Tyler subsequently
requested a termination hearing before an independent hearing examiner,
regarding the proposed termination. See T EX. E DU. C ODE § 21.253(a) (“A teacher
must file a written request for a hearing under this subchapter with the
commissioner not later than the 15th day after the date the teacher receives
written notice of the proposed action.”). Soon after, Tyler filed a complaint in
federal court pro se. After initial screening, the district court 1 dismissed all of
Tyler’s claims except her race discrimination claim against CHISD and her
excessive force claim against two CHISD police officers.2 On the morning of

       1
         The district court adopted the magistrate judge’s report and recommendation,
regarding the relevant motions in this case—CHISD’s motion to dismiss, motion for summary
judgment, and motion for sanctions. Therefore, all references to the district court refer also
to the magistrate judge’s holdings and analysis.
       2
      For purposes of clarity, for the balance of this opinion, CHISD and officers Collier and
McKinney will be referred to collectively as CHISD.

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                                            No. 10-10827

February 8, 2010, before the termination hearing was scheduled to begin, Tyler
entered into a “Compromise Settlement Agreement and Release” (hereinafter the
settlement agreement). The parties dispute the reason, but agree that the
hearing never took place.
      In the settlement agreement, among other things, Tyler voluntarily
resigned her employment with CHISD, agreed to dismiss her request for a
termination hearing and all pending grievances, and promised not to call or
write the Board, administrators, and employees of the CHISD, regarding her
employment and separation. In return, CHISD agreed to pay Tyler a lump sum
of $31,924.10, provide a neutral employment recommendation, and not testify
against her in any criminal proceeding unless subpoenaed. The settlement
agreement also contained a release that effectively absolved CHISD and its
employees of any pending or future liability, relating to her termination.3 Tyler
was represented by counsel when she signed the settlement agreement.
      Following execution of the settlement agreement, Tyler’s pro se suit
continued in the district court.               Relevant here, CHISD filed a motion for



      3
          The provision states:

               Except for the rights and obligations created by this Agreement, the parties
               do hereby remise, release, and forever discharge each other (including the
               District’s Board of Trustees, officers, agents, servants [sic] administrators,
               and employees, past and present) from any and all claims, demands and
               causes of action, of whatever kind or nature, whether known or unknown,
               suspected or unsuspected, held by each other, including but not limited to
               any claim arising out of or in any way connected with Ms. Tyler’s
               employment with the District, the termination and/or resignation thereof,
               or any action or omission by Releases, from the beginning of time through
               the date of this Agreement, including but not limited to any claim under the
               Americans With Disabilities Act of 1990, the Civil Rights Acts of 1964 and
               1991, the Age Discrimination in Employment Act of 1967, and any
               applicable workers’ compensation law.

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                                  No. 10-10827

summary judgment and a motion for sanctions. In its motion for summary
judgment, CHISD argued that Tyler’s claims were barred by the release
provision in the settlement agreement. In its motion for sanctions, CHISD
argued that Tyler filed suit to inconvenience and harass the defendants. The
district court granted CHISD’s motion for summary judgment, but denied the
motion for sanctions. Tyler appealed, challenging the district court’s summary
judgment.    CHISD filed a motion, pursuant to Federal Rule of Appellate
Procedure 38, asking this court to impose sanctions on Tyler.
                                       II.
A.    Summary Judgment
      1.    Standard of Review
      This court reviews a district court’s grant of summary judgment and
application of state law de novo. Holt v. State Farm Fire & Cas. Co., 627 F.3d
188, 191 (5th Cir. 2010). 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.” F ED. R. C IV. P. 56(a). When a party
seeks summary judgment pursuant to an affirmative defense, such as release,
the movant must establish all of the elements of the defense. Fontenot v. Upjohn
Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the movant does so, the burden
shifts to the nonmovant to provide specific facts showing the existence of a
genuine issue for trial.   F ED. R. C IV. P. 56(c), (e).   In reviewing summary
judgment, “[w]e construe all facts and inferences in the light most favorable to
the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)
(citation and internal quotation marks omitted). The parties may satisfy their
respective burdens by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits

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or declarations, stipulations . . . admissions, interrogatory answers, or other
materials.” F ED. R. C IV. P. 56(c)(1).
      2.     Analysis
      Federal law governs the release of federal claims in a contract. Chaplin
v. NationsCredit Corp., 307 F.3d 368, 373 (5th Cir. 2002). To obtain summary
judgment on an affirmative claim of release, a defendant must establish that the
plaintiff: (1) signed a release that addresses the claims at issue, (2) received
adequate consideration, and (3) breached the release. Faris v. Williams WPC-I,
Inc., 332 F.3d 316, 322 (5th Cir. 2003). If a defendant is able to prove these
elements, the plaintiff must “demonstrate that the release was invalid because
of fraud, duress, material mistake, or some other defense.” Smith v. Amedisys
Inc., 298 F.3d 434, 441 (5th Cir. 2002) (citation and internal quotation marks
omitted).   Here, Tyler does not argue that CHISD has not established the
requisite elements of the affirmative defense. Instead she argues that the
release was obtained by fraud because her name was forged on the document.
Therefore, our sole inquiry is whether Tyler has demonstrated that the
settlement agreement should be invalidated because of fraud.
      After closely reviewing the record, we conclude that the only document
Tyler provides to support her claim of fraud is her conclusory, unsworn affidavit,
stating that she did not sign the agreement. We have repeatedly held that self-
serving affidavits, without more, will not defeat a motion for summary judgment.
See DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005) (“[The
non-moving party’s] attempt to create a fact issue as to [an element of the
relevant statute] by relying on a conclusory and self-serving affidavit is on
unsteady ground.”); see also United States v. Lawrence, 276 F.3d 193, 197 (5th
Cir. 2001) (affirming summary judgment for plaintiff where defendant’s only

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evidence consisted of “self-serving allegations,” which “are not the type of
significant probative evidence required to defeat summary judgment” (citation
and internal quotation marks omitted)). Moreover, “[i]t is a settled rule in this
circuit that an unsworn affidavit is incompetent to raise a fact issue precluding
summary judgment.” DIRECTV, Inc., 420 F.3d at 530 (citation omitted). Thus,
the district court correctly granted CHISD’s motion because Tyler’s unsworn,
conclusory affidavit is insufficient evidence to defeat summary judgment.
B.    Motion for Sanctions
      CHISD asks this court to sanction Tyler under Rule 38 for maintaining her
pro se appeal because CHISD claims that Tyler’s suit is frivolous. “We do not
lightly impose sanctions for invoking the right of appeal.” Stelly v. Comm’r of
Internal Revenue, 761 F.2d 1113, 1116 (5th Cir. 1985). However, pro se plaintiffs
“are not granted unrestrained license to pursue totally frivolous appeals.”
Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988) (citation and internal
quotation marks omitted). “Where pro se litigants are warned that their claims
are frivolous . . . and where they are aware of the ample legal authority holding
squarely against them, then sanctions are appropriate.” Id.
      Here, we do not believe that Tyler’s appeal warrants sanctions. Although
the district court acknowledged that Tyler’s claims were frivolous in its order
denying CHISD’s motion for sanctions, it did not dismiss Tyler’s case as
frivolous. Moreover, there is no evidence that Tyler pursued this appeal in bad
faith. However, though we do not impose Rule 38 sanctions at this time, we
caution Tyler that any further prolongation of this matter may result in the
imposition of sanctions.




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                               No. 10-10827

                                    III.
      Accordingly, we AFFIRM the district court’s judgment and DENY CHISD’s
motion for sanctions.




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