                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                 No. 00-41061

                             Summary Calendar


JANIS MULLINAX,

                                                 Plaintiff-Appellant,

                                    versus

TEXARKANA INDEPENDENT SCHOOL DISTRICT; ET AL.,

                                                 Defendants.

TEXARKANA INDEPENDENT SCHOOL DISTRICT; LARRY SULLIVAN,                    DR.,
Superintendent, Texarkana Independent School District,

                                                 Defendants-Appellees.



            Appeal from the United States District Court
                  for the Eastern District of Texas
                            (5:99-CV-190)

                                 April 2, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      This appeal presents the question of the issue preclusive

effect of findings by a Texas state independent hearing examiner in

a teacher’s termination proceeding.           The district court granted

summary   judgment    to   the   defendants     on   plaintiff’s   claims   of



      *
       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should not be published and is not precedent except under the limited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.
termination     in   retaliation     for    exercise   of    protected     First

Amendment     rights.     The    district   court   held    that   the   hearing

examiner’s finding that the defendant school district had “good

cause”   to   terminate    the    plaintiff’s   employment     precluded    the

plaintiff from relitigating the issue of retaliatory discharge. We

reverse in part and affirm in part.

                                       I

     Plaintiff Janis Mullinax was a physical education teacher at

a public elementary school in Texarkana, Texas.              She was also the

faculty sponsor of a school dance club and was involved in various

other school and community organizations.           In 1998 and early 1999,

Mullinax raised a number of complaints and grievances regarding

various actions by the school and other teachers.             At least one of

these grievances was resolved in Mullinax’s favor by defendant

Larry Sullivan, the Superintendent of the Texarkana Independent

School District.        In March 1999, her employment contract was

renewed.

     One of the complaints Mullinax raised was that the school had

forbidden her use of Christian music in the school dance club’s

routines.     Dr. Sullivan told Mullinax that school policy did not

permit her to use Christian music in the dance club’s routines.

Later, on about April 20, 1999, Mullinax and several students were

interviewed by a local newspaper about the dance club and their use

of Christian music. Mullinax alleges that her discussions with the



                                       2
newspaper made the administration of the school district concerned

about negative publicity in advance of an upcoming bond issue.

     On April 22, 1999, Mullinax led a class of third grade

students on a nature hike.          During that hike, some of the students

ingested a wild plant called sour weed and became ill.1                    Within a

day of this incident, Mullinax was suspended.                  Pursuant to the

procedure established by Texas law,2 Dr. Sullivan recommended to

the School District Board of Trustees that Mullinax be fired.                    The

School Board accepted the recommendation, and Mullinax was given

notice of the proposed decision.              Mullinax invoked her right to

appeal the decision of the School Board to a Hearing Examiner, who

would make findings of fact and recommend either termination or

reinstatement to the School Board.

     After an extensive hearing, the Hearing Examiner issued her

report to the School Board.           The Hearing Examiner’s duty was to

determine whether or not Mullinax should be terminated.                    The only

basis for     termination     claimed    by    the   School    Board      was   “good

cause.”3     The Hearing Examiner made findings of fact regarding

whether the sour weed incident constituted good cause to terminate

Mullinax’s     employment;    the    Hearing    Examiner      made   no    findings



      1
        Mullinax contends that sour weed is harmless and is commonly chewed by
children and adults.
     2
         See Tex. Educ. Code § 21.211 et seq.
      3
        Texas law allows termination “for good cause” or because of “financial
exigency.” Tex. Educ. Code § 21.211.

                                        3
regarding Mullinax’s claims that she was termination in retaliation

for protected activity.         The Hearing Examiner concluded that the

School Board had good cause to terminate Mullinax’s contract and

recommended termination.

     The School Board, after reviewing the Hearing Examiner’s

report,    accepted    the    recommendation      and    terminated   Mullinax.

Mullinax chose not to appeal the decision to the Texas Commissioner

of Education.       Instead, she filed suit in U.S. District Court

alleging deprivation of due process and retaliatory discharge under

Section 19834 and violations of the Texas Whistleblower Act5 and the

right to grieve.6

     The     defendants      moved    for    summary    judgment,   making   two

arguments: that her due process claim fails because she failed to

utilize available state remedies, and that the Hearing Examiner’s

findings collaterally estop her from arguing that the defendants

had an improper motive in terminating her employment. The district

court granted summary judgment on all claims. Mullinax appeals the

ruling on all claims except her due process claim.

                                        II

     Issue preclusion, also called collateral estoppel, “prevents

relitigation of particular fact issues already resolved in a prior



     4
         42 U.S.C. § 1983.

     5
         Tex. Gov’t Code § 554.001 et seq.
     6
         Tex. Gov’t Code § 617.005.

                                         4
suit in a subsequent action upon a different cause.”7                          Issue

preclusion applies to rulings by administrative agencies “when the

agency is acting in a judicial capacity and resolves disputed

issues of fact properly before it which the parties have had an

adequate opportunity to litigate.”8              In the case before us, it is

undisputed that the Hearing Examiner’s findings were made in a

judicial         capacity   and   thus   are   entitled   to   issue   preclusive

effect.9

       The Hearing Examiner made the following relevant findings of

fact       and   legal   conclusions:    Mullinax    made   several    complaints

regarding incidents at her school, including a formal grievance

with Dr. Sullivan; Dr. Sullivan heard her grievance and resolved it

in her favor; Mullinax took third graders on a hike, and some had

to be sent to the nurse after ingesting sour weed; Dr. Sullivan

investigated the sour weed incident and “determined as a result of

the investigation that he could no longer place students in Ms.

Mullinax’s care without any confidence”10; Dr. Sullivan recommended

Mullinax’s termination to the School Board; the School Board voted


      7
        Muckelroy v. Richardson Indep. School Dist., 884 S.W.2d 825, 830 (Tex.
App.—Dallas 1994).   Under federal law, a federal court gives a state court
judgment the same preclusive effect as would be given under the law of state
under which the judgment was entered. See Gammage v. West Jasper School Bd. of
Educ., 179 F.3d 952, 954 (5th Cir. 1999).
       8
            Muckelroy, 884 S.W.2d at 830 (internal quotation marks omitted).
      9
        The Texas Education Code states that the Hearing Examiner must conduct
the hearing “in the same manner as a trial without a jury in a district court of
the state.” Tex. Educ. Code § 21.256(e).
       10
            Presumably, the Hearing Examiner meant “with any confidence.”

                                           5
to   accept     the   recommendation       of    Dr.   Sullivan;    the   sour   weed

incident “is sufficient and does rise to the level of good cause

for termination”; and “Ms. Mullinax’s employment with the Texarkana

Independent School District should be terminated.”11

      These findings preclude the relitigation of these issues in

Mullinax’s      federal    lawsuit.        But    they   do   not   compel   summary

judgment in favor of the defendants on Mullinax’s retaliation

claims.        Both    Section   1983      and    Texas’s     Whistleblower      Act12

incorporate the Mt. Healthy13 burden-shifting framework for proving

termination in retaliation for protected activity.                        Under this

framework, the plaintiff must show that her protected activity was

a “substantial” or “motivating” factor in the defendant’s decision

to terminate her.14        It need not be the only factor.15              The burden


      11
         Defendants contend, citing Montgomery Independent School District v.
Davis, 34 S.W.3d 559, 566-68 (Tex. 2000), that the failure of the Hearing
Examiner to make a finding on the issue of retaliation is an implicit finding
that no retaliation occurred.     We disagree.    Montgomery Independent School
District makes clear that no inference can be drawn from the silence of the
Hearing Examiner; when evidence is presented at the hearing, but the Hearing
Examiner makes no finding, it could be that the Hearing Examiner simply found the
evidence “not material” to the issues before it. Id. at 566. On the other hand,
if “evidence is conflicting and credibility is in issue,” the Hearing Examiner
may decline to make a finding because she is unpersuaded by the evidence
presented. Id. at 568. In this case, the failure of the Hearing Examiner to
make findings regarding Mullinax’s claims of retaliation—when the only issue
before the Hearing Examiner was good cause—creates no inference that a finding
was made.
      12
           Tex. Gov’t Code § 554.001 et seq.
      13
        See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977); see also Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 632-37
(Tex. 1995).
      14
           Mt. Healthy, 429 U.S. at 287.
      15
           Hinds, 904 S.W.2d at 634.

                                           6
then shifts to the defendant to prove that it would have made the

termination decision even in the absence of the protected conduct.16

      The findings of the Hearing Examiner do not address the

elements of the Mt. Healthy framework.                   They only establish that

one   legitimate,      motivating       factor      in    Mullinax’s     termination

decision was her conduct in the sour weed incident.                      There is no

finding that Mullinax’s allegedly protected conduct was not a

“substantial” or “motivating” factor in her termination.                     Nor is

there      any   finding   that   Dr.    Sullivan        would   have    recommended

Mullinax’s       termination,     or   that   the    School      Board   would   have

accepted the recommendation, even in the absence of her allegedly

protected conduct.         Summary judgment against Mullinax is improper

because, as we have stated, “the question is not whether the

employer justifiably could have made the same decision [in the

absence of the protected conduct] but whether it actually would

have done so.”17

      Thus, the Hearing Examiner’s factual findings do not destroy

any genuine issues of material fact in this case that would




      16
        Mt. Healthy, 429 U.S. at 287. Hinds did not shift the burden of proof
of this issue to the defendant.      See Hinds, 904 S.W.2d at 637.       However,
amendments to the Texas Whistleblower Act in 1995 made the showing that the
defendant would have terminated the employee even in the absence of the protected
conduct an affirmative defense.       See Tex. Gov’t Code § 554.004 (2001).
Regardless of any differences in the burdens of proof, the same elements are
required by Mt. Healthy and Hinds.
      17
         Professional Ass’n of College Educators v. El Paso County Community
College Dist., 730 F.2d 258, 265 (5th Cir. 1984).

                                          7
otherwise exist.18       Since defendants raise no other basis for

granting summary      judgment,19    the   district    court’s    granting    of

summary judgment on Mullinax’s Section 1983 and Texas Whistleblower

Act claims were error, and we reverse these rulings.20

      The district court’s grant of summary judgment on Mullinax’s

claim based on Texas Government Code § 617.005 was not, however,

error.21   This section protects the rights of public employees to

present grievances, but it requires no more than that an employee

has “access to those in a position of authority in order to air

their grievances.”22 Mullinax has not alleged that she did not have

access to Dr. Sullivan or the School Board in ventilating her


      18
         Cf. Gammage v. West Jasper School Bd. of Educ., 179 F.3d 952 (5th Cir.
1999) (affirming summary judgment on grounds of issue preclusion when the state
court had explicitly ruled against plaintiff on essential elements of the
plaintiff’s claim).
      19
         All parties agree in their submissions to this Court that issue
preclusion is the only grounds proferred for affirming summary judgment.
Further, the defendants’ reply to plaintiff’s response to the motion for summary
judgment expressly disclaimed any claim that there was no evidence sufficient to
create a genuine issue of material fact as to any element of her claims.
      20
        The magistrate judge’s report and recommendation stated that the Hearing
Examiner’s finding that the School Board had good cause “breaks any possible
chain of causation,” noting that Mt. Healthy held that the “fact that
constitutionally protected conduct played a substantial part in the decision not
to rehire a teacher did not necessarily amount to a constitutional violation.”
The magistrate judge correctly cited Mt. Healthy, but the fact that protected
conduct allegedly played a substantial part in the decision does not necessarily
amount to a constitutional violation does not justify a summary judgment ruling
that it cannot amount to a constitutional violation. The Hearing Examiner’s
findings simply do not address the issue of whether the School Board would have
fired Mullinax in the absence of her allegedly protected conduct.
      21
         Mullinax argues that the district court did not enter summary judgment
on her state law claims.     This is incorrect.    The district court expressly
dismissed her entire lawsuit when it entered summary judgment for the defendants.

      22
         Corpus Christi Indep. School Dist. v. Padilla, 709 S.W.2d 700, 707 (Tex.
App.—Corpus Christi 1986).

                                       8
concerns and complaints.       Further, for this claim, the Hearing

Examiner’s findings preclude any relief under this statute.                  The

Hearing Examiner expressly found that Mullinax had access to and

utilized the School District’s procedures for raising grievances.

We affirm the district court’s grant of summary judgment on this

claim.

                                      III

     We agree with the district court that the factual findings of

the Hearing Examiner are entitled to issue preclusive effect.                 We

AFFIRM the district court’s grant of summary judgment on the

plaintiff’s claim under Texas Government Code Section 617.005.                We

REVERSE    the   district   court’s        grant   of   summary   judgment    on

plaintiff’s claims under section 1983 for retaliatory discharge and

under the Texas Whistleblower Act, because the findings of the

Hearing Examiner, although issue preclusive, do not establish that

the defendants must prevail as a matter of law.              We REMAND to the

district   court   for   further   proceedings          consistent   with   this

opinion.




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