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

                                                 FILED
                                                                         December 3, 2009

                                       No. 09-40231                    Charles R. Fulbruge III
                                                                               Clerk

MANUEL REYES,

                                                   Plaintiff-Appellant
v.

WESLACO INDEPENDENT SCHOOL DISTRICT; RICHARD RIVERA;
RUBEN ALEJANDRO; DANIEL DE LOS SANTOS; DAVID FOX; JOE
MARINES; RAYMOND GIVILANCZ; RAMON MONTALVO; BUCKLEY
SANCHEZ,

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (06-CV-372)


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Manuel Reyes (“Reyes”) appeals the district court’s grant of summary
judgment on his First Amendment freedom of association claims against
defendant Richard Rivera in his individual capacity.1 First, Reyes claims the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
       Reyes makes no arguments as to any other individual defendant or the Weslaco
Independent School District. Accordingly, any arguments regarding the remaining defendants
                                       No. 09-40231

district court erred when it concluded Reyes failed to raise a genuine issue of
material fact regarding whether he was retaliated against based on his
association with his wife. Second, Reyes appeals the district court’s conclusion
that the First Amendment does not provide an associational right to engage in
extramarital affairs. We AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Reyes worked as a bus driver for the Transportation Department of
Weslaco Independent School District (“Weslaco ISD”) on and off for a period of
more than twenty years beginning in 1982. During his employment, Reyes
engaged in a lengthy affair with a fellow bus driver. In September 2004, Reyes’s
wife, Norma Reyes, contacted Weslaco ISD Superintendent Richard Rivera
(“Rivera”) about the affair. She was extremely upset and demanded that Rivera
terminate both Reyes and the employee with whom Reyes was having the affair.
Rivera directed Buckley Sanchez (“Sanchez”), Weslaco ISD’s Transportation
Director, and Assistant Superintendent Ruben Alejandro (“Alejandro”) to meet
with both employees to discuss the importance of avoiding disruptions to the
efficient operation of the Transportation Department. Additionally, Rivera met
with Reyes separately to express his displeasure at the situation.                     Reyes
voluntarily resigned his position a short time later on October 6, 2004.
       After some negotiation, Reyes was hired back as a substitute bus driver
on a probationary basis which was then converted to a regular basis after the
probationary period ended at the start of the 2005-2006 school year. In August
2005, Reyes attended a mandatory “in service” meeting for members of Weslaco
ISD’s Transportation Department.             At the meeting, Reyes raised an issue
regarding the policies governing bus driver management of disruptive students



have been waived. Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th
Cir. 2008) (failure to advance arguments on appeal as to a given defendant constitutes a
waiver as to that defendant).

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                                 No. 09-40231

on school buses. Sanchez, who led the meeting, informed Reyes that he would
only discuss the matter privately with him. In order to protest “being refused
an answer and direction from [Sanchez],” Reyes signed “George Washington” to
an acknowledgment form handed out at the “in service” meeting. Reyes also
alleges that he was later falsely accused of having signed “George Washington”
to a second form.
      As a result of this conduct, Sanchez recommended to Rivera and Alejandro
that Reyes be terminated.        Nothing in the record suggests Sanchez’s
recommendation was based upon Reyes’s prior extramarital affair.         Rivera
accepted Sanchez’s recommendation, and, shortly thereafter, Reyes received a
letter from Sanchez notifying him of the termination of his employment. Reyes
objected to his termination through Weslaco ISD’s grievance process. During the
grievance process, Reyes was represented by legal counsel, as was the district.
After extensive hearings, Reyes’s grievances were denied at each level of the
process. Reyes has not advanced any evidence that the denial of his grievances
was related to his prior extramarital affair.
      On December 28, 2006, Reyes brought a 42 U.S.C. § 1983 suit against
Weslaco ISD, Rivera, Sanchez, Alejandro, and ISD Board members Daniel De
Los Santos, David Fox, Joe Marines, Raymond Givilanez, and Ramon Montalvo.
Reyes’s complaint went through various motions to dismiss, amendments, and
additional motions to dismiss before the district court finally heard the motion
for summary judgment underlying this appeal. By that time, Reyes’s case had
been reduced to the following claims: 1) Reyes’s § 1983 First Amendment
retaliation and Equal Protection claims against Weslaco ISD stemming from his
final termination in 2005 and his denied grievances that followed; 2) Reyes’s §
1983 First Amendment retaliation and Equal Protection claims against Rivera,
Sanchez, and Alejandro in their individual capacities; and 3) Reyes’s claims



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                                       No. 09-40231

arising under the Texas Constitution. The district court granted summary
judgment on all of these remaining claims, and Reyes timely appealed.
                            II. STANDARD OF REVIEW
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th
Cir. 2006). Our inquiry “is limited to the summary judgment record before the
trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992). We
must view the evidence in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and
the movant has the burden of showing this court that summary judgment is
appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary
judgment is appropriate where the competent summary judgment evidence
demonstrates that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see
F ED. R. C IV. P. 56(c).
                                   III. DISCUSSION
A. First Amendment Retaliation Based on Reyes’s Marriage
       Reyes first contends that the district court erred in granting summary
judgment because a genuine issue of material fact existed as to whether Reyes
was terminated in retaliation for exercising his right to associate with his wife.
We agree with the district court’s conclusion that “[t]he evidence does not
support a claim that Defendants terminated [Reyes]’s employment or denied his
grievance because of his relationship with his wife.”2


       2
          Appellees argue Reyes has waived any argument respecting his right to associate
with his wife. We disagree. In order to preserve an error for appeal, “the argument must be
raised to such a degree that the trial court may rule on it.” In re Fairchild Aircraft Corp., 6
F.3d 1119, 1128 (5th Cir. 1993). Here, though the district court construed his arguments
otherwise, Reyes met this very low threshold. Reyes clearly asserted that his claims flowed
from his right to “intimate association” with his wife and that “his associations with his wife
ultimately led to Superintendent Rivera’s recommendation that [Reyes] not be rehired.” As

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                                        No. 09-40231

       A retaliation claim predicated on freedom of association must satisfy three
elements: 1) the plaintiff suffered an adverse employment action; 2) the
plaintiff’s interest in “associating” outweighed the employer’s interest in
efficiency; and 3) the plaintiff’s protected activity was a substantial and
motivating factor in the adverse employment action. Hitt v. Connell, 301 F.3d
240, 246 (5th Cir. 2002). Reyes fails to point to a single piece of evidence
suggesting he was terminated for associating with his wife. On the contrary, the
record demonstrates that Rivera thought highly of Reyes’s wife and, if anything,
would have sought to punish Reyes exclusively for engaging in the affair. As
such, we find that Reyes has failed to raise a genuine issue of material fact as
to whether his association with his wife was a substantial and motivating factor
in his termination.
B. First Amendment Retaliation Based on Reyes’s Extramarital Affair
       Reyes also argues that Rivera’s conduct violated his purported First
Amendment right to engage in an extramarital affair with his fellow employee.
We need not address the merits of this claim as Reyes all but expressly admits
defeat notwithstanding his decision to appeal. The district court held that all of
the individual defendants, including Rivera, were entitled to qualified immunity
reasoning that no binding precedent existed finding that the First Amendment


such, Reyes at least put the issue before the district court, even if the court later construed it
as referring only to the right engage in an extramarital affair. Appellees’ citation to Saddler
v. Quitman County School District, 278 F. App’x 412 (5th Cir. 2008) (unpublished), on this
point is unavailing. In Saddler, the district court construed the plaintiff’s complaint as
alleging federal, but not state, equal protection claims. Id. at 415. The court concluded that
the plaintiff waived any appellate argument as to her state equal protection claims because
she failed to challenge the district court’s construction either in the district court or in her
appellate briefing. Id. at 416. The instant case is distinguishable from Saddler in two ways.
First, Reyes’s summary judgment briefing at least asserted that his claims were grounded in
his right to associate with his wife whereas the Saddler plaintiff made no such argument to
the district court. Id. at 415 n.5. Second, the district court in this case was only construing
a single legal argument rather than the allegations in the underlying complaint. Though the
argument may not have been artfully presented, it was nonetheless advanced in the briefing
below. Accordingly, Reyes is entitled to argue it on appeal.

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                                   No. 09-40231

affords protected status to extramarital affairs with co-workers such that such
a right, if any, was not “clearly established law.” See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (holding that qualified immunity shields a government
official from liability for discretionary acts “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”). Reyes has completely failed to address
the district court’s grounds for decision. He makes no argument with respect to
qualified immunity. Additionally, he openly concedes that his claim is not
supported by clearly established law and asks us to extend a First Amendment
right in this case to provide him the relief he seeks. Accordingly, we find no
basis to reverse the district court’s conclusion that Rivera is entitled to qualified
immunity.
                               IV. CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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