                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                   UNITED STATES COURT OF APPEALS            April 14, 2004
                        For the Fifth Circuit
                                                        Charles R. Fulbruge III
                            No. 02-50189                        Clerk



                          ROGELIO P. PEREZ,

                                              Plaintiff - Appellant,



                               VERSUS



   HOUSING AUTHORITY OF THE CITY OF UVALDE; ENRIQUE L. VASQUEZ,
  MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE
CITY OF UVALDE; SHIRLEY ZAMORA, MEMBER-BOARD OF COMMISSIONERS OF
    THE HOUSING AUTHORITY OF THE CITY OF UVALDE; IRMA FUENTES,
  MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE
CITY OF UVALDE; CRUZ HERNANDEZ, MEMBER-BOARD OF COMMISSIONERS OF
THE HOUSING AUTHORITY OF THE CITY OF UVALDE; CITY OF UVALDE; GUS
                  NEUTZE, MAYOR, CITY OF UVALDE.

                                              Defendants - Appellees




             Appeal from the United States District Court
         For the Western District of Texas, Del Rio Division

                             (00-CV-14)


Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.*

DENNIS, Circuit Judge:



     *
      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this opinion should not be published and is not precedent except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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     Appellant Rogelio P. Perez appeals the district court’s grant

of summary judgment on his due process and First Amendment claims.

For the following reasons, we affirm.

I.   Background

     Perez was employed as Executive Director for the Housing

Authority of the City of Uvalde (“UHA”) from 1993 until his

termination on February 10, 2000, and was under contract with the

UHA until November 30, 2003.        In September 1999, Appellee Enrique

Vasquez was named Chairman of the UHA Board by Appellee Gus Neutze,

the newly-elected Mayor.       Perez had actively opposed Neutze’s

election, believing that Neutze was opposed to affordable housing.

After his election, Mayor Neutze appointed new members to the UHA

Board.

     On September 20, 1999, the UHA received a letter from the

Department of Housing and Urban Development (“HUD”) expressing

concern about the severe financial condition of the UHA’s Section

8 housing program, a federal program designed to subsidize rents

for low-income residents.       The UHA would develop a budget that

anticipated the funds needed to administer the program, and HUD

would then forward funds to the UHA to pay landlords for this

subsidized housing.        As the UHA received revenue from tenant

contributions, it would reimburse those funds to HUD.

     The   HUD    letter   stated    that   the   UHA   had   been   over-

requisitioning funds from HUD since 1993 and that mismanagement and



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a lack of proper oversight resulted in the UHA owing HUD $283,515

as of June 30, 1999.           In addition, HUD accused the UHA of using

HUD funds to pay for non-HUD projects.                 HUD required the UHA to

take immediate action to remedy this deficit or face administrative

sanctions,    including        the   possible      termination      of     the     UHA’s

management of the Section 8 program. Specifically, it required the

UHA   to   submit    a    detailed     Improvement       Plan    to      address    the

deficiencies and to set forth specific milestones for improvement.

      Perez, representing the UHA, submitted a Plan on October 26,

1999, which HUD rejected as unrealistic.                 HUD ordered the UHA to

submit by November 24, 1999, “a revised, realistic Improvement Plan

which will result in the reduction of the Section 8 Program deficit

and repayment of all funds due to HUD.”                 Instead of submitting a

revised Improvement Plan, Perez sent a letter to HUD asking what

specific   changes       HUD   would      consider     acceptable     and    for    any

“realistic” suggestions it may have.

      On November 15, 1999, the UHA Board held a meeting for Perez

to report to the Board on a number of topics.                         These topics

included: (1) the financial operating condition of the UHA since

1993;   (2)   the   conversion       of    the    Uvalde   Housing       Development

Corporation (“UHDC”) from an instrumentality of the UHA to a

private    non-profit      corporation;          (3)   personal       services      and

compensation received by Perez from the UHDC; (4) the expenditure

of HUD funds for non-HUD purchases, including the purchase of the



                                           3
Granada Apartments, now owned by the UHDC; and (5) the procurement

of    water   stabilizers      from    Emissions     Panther,    Inc.,    including

compensation received by Perez’s son for the transaction.                    During

the meeting, the Board engaged in an extensive discussion with

Perez concerning the above issues.                   The agenda also included

“[c]onsideration       and     possible   action     regarding     the   employment

agreement     with    Mr.    Rojelio    [sic]   P.    Perez   as   Secretary    and

Executive Director of the Housing Authority, including evaluation,

discipline or termination,” although no employment action was taken

at that time.

       On January 18, 2000, another Board meeting was held.                     The

agenda included plans to “deliberate the employment, evaluation,

reassignment of duties, discipline, or dismissal of the Executive

Director [Perez].” This discussion, however, was postponed because

Perez did not have his lawyer present.             Thus, discussion of Perez’s

job status was postponed until January 26, 2000.

       The agenda for the Board’s January 26, 2000 meeting included

the    “[c]onsideration and possible action regarding the employment

agreement with Mr. Rogelio P. Perez as Secretary and Executive

Director      of     the    Housing     Authority,      including        evaluation,

discipline, or termination.”              The Board, with Perez present,

extensively        discussed    Perez’s   job   performance,       including    the

deficits owed to HUD due to his over-requisitioning of Section 8

funds and the use of these funds for non-Section 8 purposes in



                                          4
violation of the UHA’s contract with HUD.         The Board also discussed

his purchase of water stabilizers in 1994 without following proper

bidding and disclosure regulations from Emissions Panther, Inc.,

where his son was employed.

     Perez responded to these allegations, contending that his

predecessor was responsible for the UHA’s current dispute with HUD

and that the previous Board had ratified his other activities.

After this discussion, the Board did not take any further action.

But on February 10, 2000, the Board held another meeting.                   The

meeting’s agenda again included a discussion of Perez’s possible

termination.   At this meeting, without further discussion, the

Board   unanimously    voted      to       terminate    Perez’s     employment

immediately.

     After   his   termination,    Perez      filed    suit   in   the   Western

District of Texas against the UHA, Mayor Neutze, and the individual

Board members alleging constitutional violations involving due

process and First Amendment retaliation.          Perez also brought state

law claims alleging breach of contract and violation of the Texas

Open Meetings Act.     The defendants filed for summary judgment,

seeking dismissal on all claims.            On June 1, 2001, the district

court adopted the magistrate’s recommendations and dismissed all

claims with prejudice except for the breach of contract claim,

which was dismissed without prejudice to be considered in state




                                       5
court.1   Perez timely appealed.

II.   Analysis

      Perez contends that the UHA violated both his property and

liberty interests protected by the due process clause of the

Fourteenth Amendment because it failed to provide him notice of the

reasons for termination and a reasonable opportunity to respond to

the   Board’s    contentions.        Perez     also   maintains   that   he   was

terminated for political reasons, not for job performance in

violation of his First Amendment rights. Because these claims were

dismissed on summary judgment, we will review the decision de novo.

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.

1996).

A.    Property Interest

      Perez     first    argues   that   his    termination    resulted    in   a

deprivation      of     his   property   interest     in   employment    without

procedural due process.         Specifically, he contends that he was not

afforded sufficient notice and, thus, a meaningful opportunity to

be heard prior to termination.

      The Constitution guarantees that life, liberty, or property

will not be taken by the government without due process of law.

U.S. CONST. amend. XIV, § 1.        “Procedural due process considers not


      1
      In addition, the district court held that the defendants
waived any right to qualified immunity by failing to invoke
immunity timely. The defendants do not contest this finding on
appeal.


                                         6
the justice of a deprivation, but only the means by which the

deprivation was effected.”         Caine v. Hardy, 943 F.2d 1406, 1411

(5th Cir. 1991). “Procedural due process is a flexible concept

whose contours are shaped by the nature of the individual’s and the

state’s interests in a particular deprivation.”          Id. at 1411-12.

     “Ordinarily, a governmental entity may effect a deprivation

only after it has provided due process.”           Id. at 1412.      However,

the necessary amount and kind of pre-deprivation process depends

upon the balance of three factors: (1) the private interest that

will be effected by the official action; (2) the risk of an

erroneous deprivation of such interest through the procedures used,

and the   probable   value,   if    any,   of   additional   or    substitute

procedural safeguards; and (3) the government’s interest, including

the function involved and the fiscal and administrative burdens

that additional or substitute procedural requirements would entail.

Id. at 1412; Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

     Under this balancing test, the Supreme Court has concluded

that a governmental entity must accord a public employee effective

notice and an informal hearing permitting the employee to give his

version of events prior to termination.         See Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 546 (1985).           The Court held that a

public employee “is entitled to oral or written notice of the

charges against him, an explanation of the employer’s evidence, and

an opportunity to present his side of the story.”            Id.


                                      7
     We conclude that the UHA provided Perez due process prior to

his termination.2   First, prior to Perez’s termination on February

10, 2000, the Board had put Perez on notice that he was subject to

possible termination.     The Board agendas, which were drafted by

Perez, for its November 15, 1999, January 18, 2000, January 26,

2000, and February 10, 2000 meetings all listed as an item for

discussion the possible termination of Perez’s employment.   Perez

was clearly aware that his employment was at issue because not only

did he draft the agendas for the UHA meetings, he also had his

attorney present at every meeting except that of January 18. Thus,

Perez was put on notice prior to February 10, 2000, that he was

subject to termination.

     Further, Perez was aware of the charges against him as well as

the UHA’s evidence on which it planned to base his termination.   At

the November 18, 1999 UHA Board meeting Perez discussed with the

Board his over-requisitioning of Section 8 funds, his use of

Section 8 funds for non-section 8 purposes, and his purchase of

water stabilizers when he had a conflict of interest.   These were

the exact allegations the Board discussed with Perez on January 26.

Therefore, Perez was made aware of the Board’s charges and evidence

against him more than two months before his January 26 meeting with

the Board.



     2
       The parties do not dispute that Perez’s employment contract
with the UHA provided him with a valid property interest.

                                  8
     Finally, Perez had an opportunity to tell his side of the

story prior to termination.           At the January 26, 2000 meeting,

Perez, with his attorney present, was able to respond to all of the

UHA’s accusations that he had not properly performed as Executive

Director of the UHA.          He was able to argue that the financial

situation    of   the   UHA   was    not    his   fault,   but   that   of   his

predecessor, and he was able to contend that he acted properly with

regard to his other activities.

     Perez maintains that he did not receive formal, written

reasons of the charges against him prior to termination, and thus

he was not accorded constitutionally sufficient notice of the

reasons for termination.            This argument is without merit.            A

governmental entity is not required to provide formal, written

reasons for termination in order to provide procedural due process.

See Loudermill, 470 U.S. at 546.           Instead, the governmental entity

needs to provide notice “reasonably calculated to apprise the

accused of the pending action and to afford himself an opportunity

to defend himself.”       See Everhart v. Jefferson Parish Hospital

District, 757 F.2d 1567, 1570 (5th Cir. 1985)(quoting Knight v. La.

State Board of Medical Examiners, 211 So.2d 433, 438 (La. Ct. App.

1968)).     For the reasons given above, we conclude that UHA Board

provided such notice.         Accordingly, we find the district court

properly granted summary judgment on this claim.

B.   Liberty Interest


                                       9
     Perez   next   maintains    that      the   district   court    improperly

granted summary     judgment    on   his    liberty   interest      claim.   “A

constitutionally protected liberty interest is implicated only if

an employee is discharged in a manner that created a false and

defamatory impression about him and thus stigmatizes him and

forecloses him from other employment opportunities.”                  White v.

Thomas, 660 F.2d 680, 684 (5th Cir. 1981); Hughes v. City of

Garland, 204 F.3d 223, 226 (5th Cir. 2000).

     This court has enunciated a test to be used when examining a

liberty interest claim related to public employment.                In order to

prevail, the plaintiff must prove: (1) he was discharged; (2)

stigmatizing charges were made against him in connection to the

discharge; (3) such charges were false; (4) he was not given notice

or an opportunity to be heard prior to the discharge; (5) the

charges were made public; (6) he requested a hearing to clear his

name; and (7) the employer refused the request for a hearing.

Hughes, 204 F.3d at 226.        Perez’s liberty interest claim fails

because, as stated above, he was given notice and an opportunity to

be heard prior to discharge.         In addition, there is no evidence

that he ever requested a name-clearing hearing, let alone proof

that this request was refused.3              Therefore, this argument is

     3
          Although he contends that he had no opportunity to
request a name-clearing hearing, there is no requirement that the
name-clearing hearing occur before termination. Rosenstein v. City
of Dallas, 876 F.2d 392, 396 n.8 (5th Cir. 1989) (holding that “the
State is not required to tender [a name-clearing hearing] prior to

                                     10
without merit.

C.   First Amendment Retaliation

     Finally, Perez argues that the district court improperly

granted summary judgment on his First Amendment retaliation claim.

To prevail on a First Amendment retaliation claim, the plaintiff

must prove: (1) he suffered an adverse employment decision, (2) his

speech involved a matter of public concern, (3) his interest in

commenting on matters of public concern outweighed the defendant’s

interest in promoting efficiency, and (4) the speech motivated the

defendant’s actions.        Kennedy v. Tangipahoa Parish Library Bd. of

Control, 224 F.3d 359, 366 (5th Cir. 2000).

     Here, the parties concede that Perez suffered an adverse

employment decision and that his speech involved a matter of public

concern.     Therefore, we need only consider the remaining two

elements.    Because the district court based its decision to grant

summary     judgment   on    whether    Perez’s   speech   motivated   his

termination, we will consider that issue first.

     Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.”          FED. R. CIV. P. 56(e).   A dispute


disclosing the charges or discharging the employee.”). Therefore,
Perez had ample opportunity to request a name-clearing hearing
after termination.

                                       11
about a material fact is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).         The movant

must initially demonstrate the absence of a material fact issue.

Id.   “If it satisfies that burden, the non-movant must identify

specific evidence in the summary judgment record demonstrating that

there is a material fact issue concerning the essential elements of

its case for which it will bear the burden of proof at trial.”         Id.

Mere conclusory allegations are not competent summary judgment

evidence and are insufficient to overcome a summary judgment

motion.   Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1984); Eason

v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

      Here, the defendants maintain that Perez was fired for his

management of the UHA and argue that summary judgment was proper

because Perez can not prove that his termination was based on his

political activities.       To avoid summary judgment, Perez must

provide specific evidence that his termination was politically

motivated. To prove he was terminated for political reasons, Perez

provided a number of affidavits and depositions, as well as his own

deposition testimony.       The district court concluded that his

deposition testimony was conclusory and held that he had not

demonstrated   that   he   was   terminated   as   retaliation   for   his

political activities.

      On appeal, Perez does not contend that the district court’s


                                    12
characterization of his deposition testimony as conclusory was

erroneous.    Instead, he argues that the district court failed to

consider the other affidavits and deposition testimony he submitted

and that this evidence was sufficient to allow a reasonable jury to

conclude that he was terminated due to his political activities.

      Although Perez is correct that the district court did not

expressly consider this additional evidence, we disagree that this

evidence is sufficient to allow his First Amendment claim to

survive summary judgment.     Most of the depositions and affidavits

submitted by Perez only contain either conclusory statements that

the termination was political “pay-back” without any substantive

proof or discussion of statements by non-defendants who wished to

see   Perez   fired.   Of   this   evidence   submitted   by   Perez,   the

testimony of only three individuals provides specific evidence that

a member of the UHA Board planned to terminate Perez prior to his

actual termination.

      Two affidavits and a deposition show that Enrique Vasquez, the

UHA Board Chairman who voted to fire Perez, stated before Perez’s

termination that he wanted Perez fired.        Even assuming that this

testimony would be admissible at trial, these statements fail to

provide any evidence that Vasquez or any other member of the UHA

Board wanted Perez terminated because of his political activities.

In fact, the statements provide evidence to the contrary.           Amaro

Cardona’s affidavit provides that Vasquez “stated that Rogelio



                                    13
Perez   should    be   fired   for   stealing     from     the   Uvalde   Housing

Authority.”      Antonio Ruiz’s affidavit states that he was going to

fire Perez because he was “wrong.”             And in his deposition, Josue

Garza testified that Vasquez told him that he wanted Perez fired

because he had lied on his initial application by not documenting

all of his previous employers.             Thus, the only specific evidence

Perez presented shows that Vasquez had non-political reasons for

wanting to terminate Perez’s employment.

       Because the affidavits and deposition testimony submitted by

Perez do not provide evidence that he was terminated for political

reasons, he has not shown that a reasonable jury could return a

verdict in his favor on this claim.             Therefore, we conclude that

the district court properly granted summary judgment in favor of

the defendants.



III.    Conclusion

       For the foregoing reasons, we AFFIRM the district court’s

grant   of   summary   judgment      on    Perez’s   due   process   and    First

Amendment retaliation claims.




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