     Case: 12-51166        Document: 00512527968          Page: 1     Date Filed: 02/10/2014




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

                                                                              FILED
                                                                          February 10, 2014

                                        No. 12-51166                         Lyle W. Cayce
                                                                                  Clerk

RONALD AYERS,

                                                    Plaintiff-Appellant
v.

BOARD OF REGENTS UNIVERSITY OF TEXAS SYSTEM; UNIVERSITY OF
TEXAS AT SAN ANTONIO, "UTSA" Individually and in their Official
Capacities; RICARDO ROMO, "President" Individually and in their Official
Capacities; ROSALIE AMBROSINO, "Provost" Individually and in their Official
Capacities; LYNDA DE LA VINA, "Dean" Individually and in their Official
Capacities; COLLEEN MCHUGH, Individually and in their Official Capacities;
JAMES D. DANNEBAUM, P.E., Individually and in their Official Capacities;
PAUL L. FOSTER, Individually and in their Official Capacities; PRINTICE L.
GARY, Individually and in their Official Capacities; H. SCOTT CAVEN, JR.,
Individually and in their Official Capacities; JOHN W. BARNHILL, JR.,
Individually and in their Official Capacities; JAMES R. HUFFINES,
Individually and in their Official Capacities; JANIECE LONGORIA,
Individually and in their Official Capacities; ROBERT ROWLING, Individually
and in their Official Capacities,

                                                    Defendants-Appellees



                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 5:10–CV–612


Before DAVIS and JONES, Circuit Judges, and MILAZZO,* District Judge.


      *
          District Judge for the Eastern District of Louisiana, sitting by designation.
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                                       No. 12-51166

MILAZZO, District Judge:**
       Appellant Ronald Ayers filed this wrongful termination suit against his
former employer—the University of Texas at San Antonio ("UTSA")—and
various UTSA administrators. Following a series of pre-trial motions, the
district court entered final judgment in favor of Appellees. Appellant challenges
the dismissal of his First Amendment, substantive due process, and procedural
due process claims. For the following reasons, we find that Appellant failed to
preserve his First Amendment and substantive due process claims for appeal
and that the district court properly dismissed Appellant's procedural due process
claim on summary judgment. Accordingly, we AFFIRM.
                                              I.
       Appellant worked for UTSA as an economics professor. On February 22,
2006, a female graduate student complained that she heard noises of a "sexual
nature" coming from Appellant's office. The UTSA Police Department and the
Dean of the College of Business, Lynda de la Vina ("de la Vina"), investigated the
complaint. As part of the investigation, the UTSA Information Technology
Department inspected Appellant's computer and discovered that he had visited
several pornographic websites.
       In late March or early April 2006, the head of the Department of
Economics, Dr. Ken Weiher ("Weiher"), notified Appellant of the graduate
student's complaint and ongoing investigation. Appellant believed he was
suspected of accessing child pornography. At some point between April 3 and
April 5, Appellant deleted files from his computer that evidenced his
consumption of pornography.




       **
         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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      On April 5, 2006, Appellant met with Weiher, de la Vina, and Associate
Dean Daniel Hollas. Appellant stated that he viewed pornography from his
UTSA computer for recreational purposes during non-work hours. He further
stated that he never intentionally accessed any obscene or illicit material.
Appellant was subsequently placed on indefinite medical leave, during which he
sought treatment from a psychotherapist.         The psychotherapist concluded
Appellant was not addicted to pornography and cleared him to return to work.
      On June 15, 2006, Appellant met with UTSA Provost Rosalie Ambrosino
("Ambrosino"). Appellant asserted for the first time that he viewed pornography
from his office computer in connection with an ongoing research project. On
December 6, 2006, Ambrosino recommended termination of Appellant's
employment.
      On March 27, 2007, UTSA President Ricardo Romo ("Romo") sent
Appellant a detailed written notice of the charges against him and the evidence
supporting those charges. Romo concluded that good cause existed to terminate
Appellant's employment. Appellant was informed that a hearing tribunal of
UTSA faculty would be convened to consider whether he should be dismissed.
      The hearing was held on March 13 and March 18, 2008.        Appellant was
present, represented by counsel, and given the opportunity to testify at both
sessions. On May 6, 2008, the tribunal found that Appellant used a UTSA
computer to access sexually explicit websites and that Appellant deleted files
from that computer related to an ongoing investigation. Nonetheless, the
tribunal did not recommend termination.
      The Board of Regents (the "Board") reviewed the tribunal's findings. The
Board accepted the following factual findings: (1) that Appellant frequently used
a UTSA computer to access pornographic web sites over an indeterminate period
of time; (2) that such access was unrelated to Appellant's job as a professor; (3)
that Appellant offered varying explanations for his behavior that were not fully

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                                    No. 12-51166

supported by the evidence presented; and (4) that Appellant admitted to deleting
files related to the investigation against him. The Board terminated Appellant's
employment on July 24, 2008.
      Appellant filed suit against UTSA, three UTSA officials, and nine current
or former members of the Board (collectively "Defendants").1 Appellant asserted
claims under 42 U.S.C. § 1983 for violations of the First, Fourth, Fifth, and
Fourteenth Amendments. Appellant also asserted claims under the Family
Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and Texas state law.
      On July 27, 2011, the district court sua sponte dismissed all claims against
UTSA for lack of subject matter jurisdiction. On October 19, 2011, the district
court granted in part a motion for summary judgment, dismissing (1) Appellant's
unlawful detention claim; (2) Appellant's claims against Defendants in their
individual capacities; and (3) Appellant's claims for monetary damages against
Defendants in their official capacities. Upon motion of Defendants, the district
court reconsidered its order and dismissed all claims against two UTSA officials
and six former members of the Board. Appellant does not challenge these
rulings on appeal.
      On October 1, 2012, the district court entered summary judgment in favor
of Defendants with respect to Appellant's remaining claims under Section 1983.
Upon motion of Defendants, the district court reconsidered its order and
dismissed Appellant's claim under the FMLA as well. The court entered final
judgment on October 10, 2012. Appellant raises three arguments on appeal: (1)
the district court erred by entering summary judgment on his First Amendment
claim; (2) the district court erred by dismissing his substantive due process claim
sua sponte; and (3) the district court erred by entering summary judgment on his
procedural process claim.

      1
       Appellant amended his complaint twice. The following refers to Appellant's second
amended complaint.

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                                             II.
       We review the grant of summary judgment de novo, applying the same
standard as the district court. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.
2008). Summary judgment is appropriate when "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).                 "A genuine issue of
material fact exists if the evidence is such that a reasonable jury could return a
verdict for the non-moving party." Thorson v. Epps, 701 F.3d 444, 445 (5th Cir.
2012) (internal quotation marks omitted). We review the summary judgment
record in the light most favorable to the non-moving party. James v. State Farm
Mut. Auto. Ins. Co., 719 F.3d 447, 451 (5th Cir. 2013).
                                            III.
       In order to preserve an argument for appeal, a litigant "must press and not
merely intimate the argument during the proceedings before the district court."
F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994). Although no bright-line
rule exists, the argument must be raised "to such a degree that the district court
has an opportunity to rule on it." Rosedale Missionary Baptist Church v. New
Orleans City, 641 F.3d 86, 90 (5th Cir. 2011) (internal quotation marks omitted).
"Even an issue raised in the complaint but ignored at summary judgment may
be deemed waived."2 Mid–Continent Cas. Co. v. Bay Rock Operating Co., 614
F.3d 105, 113 (5th Cir. 2010) (quoting Grenier v. Cyanamid Plastics, Inc., 70
F.3d 667, 678 (1st Cir. 1995)). In sum, "[a] party may not stand idly by,
watching the proceedings and allowing the district court to commit error on
which the party subsequently complains." Hopkins v. Saunders, 199 F.3d 968,
975 (8th Cir. 1999) (internal quotation marks omitted).


       2
         We have "specifically refused to overturn a summary judgment on a theory not
advanced in opposition to the motion in the district court." Savers Fed. Sav. & Loan Ass'n v.
Reetz, 888 F.2d 1497, 1501 (5th Cir. 1989).

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                                       A.
      Before addressing whether Appellant preserved his First Amendment
claim for appeal, we must first determine whether that claim was sufficiently
raised in the complaint. See Hopkins, 199 F.3d at 973. The liberal pleading
standards of Rule 8 merely require "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he
statement need only give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(second alteration in original) (internal quotation marks omitted).
      Although far from pellucid, Appellant's complaint contains facts sufficient
to put Defendants on notice of his First Amendment claim. The complaint lists
the First Amendment as a basis for the district court's jurisdiction and, more
importantly, alleges in the procedural due process count that Appellant was
denied "the academic freedom to engage in the act of exploring, researching and
publishing research related to pornography" and that Appellant was "punish[ed]
. . . for engaging in research related to a subject matter protected by the 1st
Amendment." See Hopkins, 199 F.3d at 973–74 (finding constitutional claims
sufficiently pleaded under similar circumstances). Moreover, in each of its first
three counts, the complaint lists "Violation of 1st . . . Amendment[]" as a
subheading.
      Having determined Appellant sufficiently raised his First Amendment
claim ab initio, we now address whether that claim was adequately pressed
before the district court. A thorough examination of the lower court motion
practice is necessary to answer this question.
      On August 29, 2011, Defendants filed a motion to dismiss, and in the
alternative for summary judgment. Defendants argued that Appellant's official
capacity claims were barred by sovereign immunity, that Appellant's individual
capacity claims were barred by qualified immunity, and that Appellant's suit in

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                                   No. 12-51166

general was barred by the statute of limitations. The motion did not specifically
mention Appellant's First Amendment claim, nor did Appellant's response to the
motion. In its October 19, 2011, memorandum opinion, the district court
summarized Appellant's federal claims as follows:
              (1) terminating Plaintiff's employment 'for reasons
              which were false, stigmatizing, and published' in
              violation of the Fifth and Fourteenth Amendments . . .
              (2) unlawful detention in violation of the Fourth and
              Fourteenth Amendment; (3) gender discrimination in
              violation of the Fourteenth Amendment; and (4) 'failing
              to follow established procedures' in connection with
              [Plaintiff's] termination in violation of the Fourteenth
              Amendment.         [Plaintiff] also alleges that his
              termination violated the FMLA.
      The court granted the motion in part and dismissed Appellant's unlawful
detention claim, Appellant's claims against Defendants in their individual
capacities, and Appellant's claims for monetary damages against Defendants in
their official capacities.3 Defendants moved for reconsideration, arguing that
nine of the remaining defendants should be dismissed because they lacked the
requisite authority to reinstate Appellant to his former position. Appellant did
not file an opposition. The court granted the motion and dismissed the nine
defendants.
      On August 13, 2012, the remaining defendants filed a motion for summary
judgment, seeking dismissal of what they considered to be Appellant's "three
remaining claims:" (1) gender discrimination; (2) procedural due process
violations; and (3) substantive due process violations. The motion did not even
acknowledge the existence of Appellant's First Amendment claim, much less
seek dismissal thereof.     In response to the motion and in support of his
procedural due process claim, Appellant essentially copied and pasted the one-

      3
        The district court analyzed the motion under Rule 56 due to the attachment of
matters outside the pleadings.

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                                  No. 12-51166

sentence allegation in his complaint that he was punished for engaging in
research protected by the First Amendment. Appellant did not otherwise
mention nor invoke his First Amendment claim.            In its October 1, 2012,
memorandum opinion, the district court summarized Appellant's remaining
claims as: (1) sexual discrimination; (2) deprivation of a liberty interest without
due process of law; and (3) a violation of the FMLA. The court granted the
motion and dismissed the constitutional claims but found that Defendants did
not seek summary judgment on the FMLA claim.
      Defendants moved the district court to reconsider its order, arguing that
their previous motion sought dismissal of the FMLA claim in a footnote.
Appellant opposed the Motion and noted that "[t]he only claim remaining after
granting Defendants [sic] Motion for Summary Judgment is the Plaintiff [sic]
claim that the Defendants violated the Family Medical leave [sic] Act's anti
retaliation provisions." The court granted the motion for partial reconsideration
on October 10, 2012, and entered final judgment in favor of Defendants on the
same day.
      The pre-trial motion practice in this matter demonstrates that Appellant
ignored multiple opportunities to press the district court for a ruling on his First
Amendment claim. Appellant was first put on notice that the district court was
unaware of his First Amendment claim when the court purported to summarize
his federal law claims in its October 19, 2011, memorandum opinion. The court
did not mention Appellant's First Amendment claim. The court again omitted
any reference to the First Amendment when it summarized Appellant's
remaining claims in its October 1, 2012, memorandum opinion. In fact, in
response to Defendants' motion for partial reconsideration, Appellant conceded
that only his FMLA claim remained. Perhaps most fatal to the instant appeal
was Appellant's failure to inform the district court following the entry of final



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                                        No. 12-51166

judgment that it had not ruled on his First Amendment claim.4 Given the
foregoing, we conclude Appellant did not preserve his First Amendment claim
for appeal.
      Our prior case law supports this conclusion. In Keenan v. Tejeda, the
plaintiffs filed a Section 1983 action, alleging the defendants unlawfully
retaliated against them for whistle-blowing and denied them due process and
equal protection under the law. 290 F.3d 252, 257 (5th Cir. 2002). The district
court entered summary judgment in favor of the defendants and dismissed the
First Amendment retaliation claim. Id. The court did not address the due
process and equal protection claims. Id. at 258. Final judgment was entered in
favor of the defendants. See id. at 257–58.
      On appeal, we held that the plaintiffs had waived their due process and
equal protection claims, despite the fact that both claims were raised in the
complaint and briefed before this court:
               Due process and equal protection were not even
               mentioned, much less argued, in the defendants' motion
               for summary judgment, in the plaintiffs' response to the
               motion for summary judgment, or in the district court's
               memorandum opinion granting summary judgment.
               Nor did the plaintiffs file a motion for reconsideration
               following the court's dismissal of the entire action.
               Because the due process and equal protection
               arguments were not properly presented to the district
               court, we may not consider them here.
Id. at 262.
      The facts of this case with respect to the abandoned claim closely resemble
those in Keenan. The defendants in both cases failed to mention the abandoned
claim in their dispositive motions. Moreover, although Appellant did mention
the First Amendment in his reply to Defendants' August 13, 2012, motion for


      4
          Appellant could have objected to this error by filing a motion to reconsider.

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                                  No. 12-51166

summary judgment, the reference was fleeting at best and made only in support
of the procedural due process claim. Finally, as in Keenan, Appellant did not file
a motion for reconsideration following the district court's entry of final judgment.
Thus, we conclude Appellant abandoned his First Amendment claim. See
Hopkins, 199 F.3d at 973–76 (finding waiver of constitutional claims where
appellant failed to assert claims prior to the entry of final judgment or in post-
judgment motions); cf. Rosedale, 641 F.3d at 88–90 (finding waiver of
constitutional claim where appellant failed to raise claim until after close of
appellee's case at trial). Accordingly, we may not consider the merits on appeal.
                                        B.
      We now address whether Appellant has preserved his substantive due
process claim for appeal. As in the previous subsection, we cannot assess the
issue of waiver without first determining whether Appellant adequately raised
the claim in his complaint. Appellant argues his complaint alleges two separate
substantive due process violations: (1) termination of public employment in a
matter that impugns the employee's reputation, and (2) termination of public
employment in an arbitrary or capricious manner. As explained more fully
below, the first alleged violation sounds in procedural due process. To succeed
on the second, a plaintiff must show that he had a property interest in his
employment and that the public employer's termination of that interest was
arbitrary or capricious. Lewis v. Univ. of Tex. Med. Branch at Galveston, 665
F.3d 625, 630 (5th Cir. 2011). A decision is arbitrary or capricious when "made
without a rational connection between the known facts and the decision or
between the found facts and the evidence." Id. (internal quotation marks
omitted).
      Appellant's complaint contains facts sufficient to satisfy the liberal notice
pleading requirements of Rule 8. Appellant lists the Fourteenth Amendment as
a basis for jurisdiction and lists "substantive due process" as a heading for count

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                                       No. 12-51166

I.5 More importantly, Appellant pleads facts, which challenge the integrity of
Defendants' decision-making process. For example, Appellant alleges that: (1)
the hearing tribunal heard evidence that other professors accessed pornography
and used state resources for personal use more often than Appellant; (2) his
conduct did not violate UTSA policy; and (3) the Board "misread or misstated the
conclusion of the Hearing Tribunal" and chose to "completely ignore the
uncontroverted evidence from the hearing." Because these allegations attack
Defendants' use of professional judgment, they suffice to state a claim for
substantive due process. See State of Tex. ex rel. Bd. of Regents of Univ. of Tex.
Sys. v. Walker, 142 F.3d 813, 819 (5th Cir. 1998) (finding allegation of
compromise of professional judgment sufficient to state claim for substantive due
process violation).
       An examination of the lower court proceedings is once again necessary to
determine whether Appellant has abandoned his substantive due process claim.
On August 29, 2011, Defendants moved to dismiss, inter alia, Appellant's
substantive due process claims listed in count 1 of the complaint. In his
opposition memorandum, Appellant stated that Defendants acted arbitrarily and
capriciously when the Board purported to accept the factual findings of the
hearing tribunal but ignored the tribunal's recommendation that Appellant not
be terminated. In its memorandum opinion, the district court did not list
Appellant's arbitrary and capricious claim in summarizing the federal causes of
action alleged in the complaint. "Unlawful detention" was the only substantive
due process allegation mentioned by the court. The court entered summary
judgment and dismissed that claim, Appellant's claims against Defendants in
their individual capacities, and Appellant's claims for monetary damages against


       5
         The allegations in this count cannot fairly be read, however, to contain an allegation
of arbitrary or capricious behavior. Rather, Appellant appears to allege a procedural due
process violation and a violation of his right to privacy.

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                                     No. 12-51166
Defendants in their official capacities. The motion was denied "in all other
respects."
      The district court's ruling clearly did not encompass Appellant's
substantive due process allegation of arbitrary and capricious behavior. As
explained above, Defendants moved to dismiss only those substantive due
process violations listed in count I of the complaint. Appellant did not allege
arbitrary and capricious behavior in count I,6 nor did Defendants list arbitrary
and capricious behavior in their summary of Appellant's substantive due process
allegations.    Furthermore, the district court did not purport to address
Appellant's arbitrary and capricious claim in its memorandum opinion. The
court's failure to list that claim in its summary of the Appellant's complaint
strongly suggests the court was unaware that such claim had been made.
      On August 13, 2012, Defendants purported to move for summary judgment
on, inter alia, Appellant's remaining substantive due process claims. Defendants
only addressed Appellant's claim that he was terminated for "false and
stigmatizing reasons." Defendants argued Appellant could not prove the charges
against him were (1) false, (2) publicized, and (3) stigmatizing, as required by
our case law. But even if Appellant could meet these requirements, Defendants
argued the substantive due process claim would still fail because Appellant was
provided an opportunity to clear his name during a two-day hearing. Appellant
opposed this motion by essentially copying and pasting conclusory allegations
from his complaint.       In responding directly to Defendant's attack on the
sufficiency of his substantive due process claim,             Appellant argued that
Defendants made public, "false assertions of wrongdoing" which gave rise "to a
badge of infamy, public scorn, or the like." Appellant also disputed that he was
given a meaningful opportunity to clear his name.

      6
        Rather, as explained above, Appellant's arbitrary and capricious claim is cobbled
together from various sections of a rather prolix complaint.

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                                       No. 12-51166
       The parties clearly conflated substantive due process with procedural due
process. We have previously recognized that "discharge from public employment
under circumstances that put the employee's reputation, honor or integrity at
stake gives rise to a liberty interest under the Fourteenth Amendment [and] a
procedural opportunity to clear one's name." Rosenstein v. City of Dall., Tex., 876
F.2d 392, 395 (5th Cir. 1989) (emphasis added).                    Even the cases which
Defendants cited in support of their motion recognize that a so-called
stigmatization claim invokes the procedural (as opposed to the substantive)
safeguards of the due process clause.7
       Appellant nonetheless contends on appeal that his stigmatization claim
is properly cognizable as a substantive due process claim. Appellant's argument
consists solely of two out-of-context, one-sentence excerpts from distinguishable
case law. This argument is waived for inadequate briefing. See Salazar–Regino
v. Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (finding waiver where argument
consisted solely of one citation to an authority), vacated on other grounds, 549
U.S. 1093 (2006).
       Given the foregoing, we conclude Appellant has not properly preserved his
substantive due process claim for appeal.              The district court purported to
summarize Appellant's federal claims in two separate orders, each time omitting
any reference to a substantive due process violation for arbitrary and capricious
termination of employment. Appellant did not challenge this error in response
to either order, nor did he file a motion to reconsider the district court's entry of
final judgment. Appellant's statement in response to Defendants' August 29,



       7
         See Cabrol v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir. 1997) (affirming
summary judgment because plaintiff failed to demonstrate stigma and therefore "the
Fourteenth Amendment did not require any procedural safeguards in connection with [his]
discharge"); Moore v. Miss. Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989) (emphasizing
that stigmatization claim fails if plaintiff is afforded notice and opportunity to clear his
name).

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                                        No. 12-51166
2011, motion for summary judgment that Defendants acted arbitrarily and
capriciously cannot, by itself, suffice to preserve the claim for appeal. At best,
Appellant merely "intimate[d] the argument during the proceedings before the
district court." Mijalis, 15 F.3d at 1327. By scattering his allegations of
arbitrary and capricious termination throughout his complaint and failing to
press the district court for a ruling, Appellant waived his right to the pursue the
claim on appeal.
                                              IV.
           Although not listed in the "Issues Presented" portion of his brief,
Appellant challenges the dismissal of his procedural due process claim.8 Because
we liberally construe briefs in determining issues presented for appeal, we may
address the propriety of this ruling. See Carmon v. Lubrizol Corp., 17 F.3d 791,
794 (5th Cir. 1994). We also note that despite mislabeling the claim as one for
substantive due process, Appellant's procedural due process claim was
sufficiently raised before the trial court such that we may consider the merits on
appeal.
       When the government discharges an employee amidst allegations which
impugn his reputation, the employee may be entitled to notice and an
opportunity to clear his name. See Bledsoe, 449 F.3d at 653. We employ a seven-
part "stigma-plus-infringement" test to determine whether a government
employee is entitled to a name-clearing hearing. Bellard,675 F.3d at 461–62.
The employee must show: (1) that he was discharged; (2) that stigmatizing
charges were made against him in connection with the discharge; (3) that the
charges were false; (4) that he was not provided notice or an opportunity to be
heard prior to his discharge; (5) that the charges were made public; (6) that he
requested a hearing to clear his name; and (7) that the employer refused his

       8
        As explained supra, Appellant conflates the notions of procedural and substantive due
process, both in his briefing before this court and in the proceedings before the district court.

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                                       No. 12-51166
request for a hearing. Hughes, 204 F.3d at 226.
       Appellant cannot meet the fourth, sixth, nor seventh prong of this
conjunctive test. As to the fourth, it is undisputed that Appellant was provided
notice of the charges against him and an opportunity to refute those charges at
the tribunal hearing in March 2008. Appellant contends he was not afforded an
adequate opportunity to refute any child pornography allegations at the tribunal
hearing.    In support of this argument, Appellant references the Board of
Regent's decision to terminate his employment. That decision was based on the
hearing tribunal's findings of fact, none of which mention child pornography.
According to Appellant, it follows "that the tribunal did not explore the child
pornography allegations and that [Appellant] has never had an opportunity to
be heard on those allegations."
       This argument is easily dismissed. That the tribunal's findings do not
mention child pornography does not speak to the separate issue of whether
Appellant was afforded the opportunity to challenge the allegations of child
pornography.       In fact, it appears to prove the opposite—that Appellant
successfully refuted those allegations. Indeed, the transcript from the second
day of the hearing clearly establishes that Appellant was afforded the
opportunity to clear his name.
       Alternatively, Appellant appears to argue he is entitled to a second
hearing convened solely for the purpose of clearing his name. Appellant cites no
authority in support of this position, nor can we find any. To the contrary, in
articulating the stigma-plus-infringement test, we have repeatedly listed the
absence of a pre-termination hearing as an element of a prima facie case.9
       Even assuming arguendo Appellant was not provided an adequate
opportunity to clear his name prior to discharge, the record is devoid of any

       9
        See, e.g., Bellard, 675 F.3d at 462; Bledsoe, 449 F.3d at 653; Hughes, 204 F.3d at 226;
Rosenstein, 876 F.2d at 396.

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                                  No. 12-51166
evidence that he requested a name-clearing hearing. Appellant's record citations
do not support his contentions on this point whatsoever. Thus, Appellant cannot
meet the sixth nor seventh element of the stigma-plus-infringement test.
                                        V.
      It was incumbent upon Appellant to raise his First Amendment and
substantive due process claims before the district court. Instead, Appellant
allowed those claims to languish in limbo during the proceedings below and now
seeks to resurrect them before this court. We will not address the merits of a
constitutional claim raised essentially for the first time on appeal. Additionally,
the record is clear that the district court properly dismissed Appellant's
procedural due process claim on summary judgment. Accordingly, and for the
reasons previously stated, we AFFIRM.




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