     Case: 12-40487       Document: 00512117726         Page: 1     Date Filed: 01/18/2013




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

                                                                            FILED
                                                                         January 18, 2013

                                     No. 12-40487                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DOREATHA WALKER,

                                                  Plaintiff - Appellant
v.

HITCHCOCK INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No: 3:11-CV-219


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Doreatha Walker appeals the district court’s order denying her motion for
partial summary judgment and granting defendant Hitchcock Independent
School District’s motion for summary judgment on her Title VII retaliation and
race discrimination claims, her 42 U.S.C. § 1983 claim that she was denied due
process, and her Texas Whistleblowers Act (“TWA”) claim. We AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                              FACTS AND PROCEEDINGS
       Walker was employed as the Director of Kids First Head Start for
Hitchcock under a one-year probationary contract for the 2008-09 school year.
As Director, it was her job to facilitate collegial relationships between staff and
communication between the Superintendent, staff, parents, and the Head Start
Policy Council.1
       In February 2009, Walker filed a complaint with the county health
department. She reported that there was mold and poor air quality in the Head
Start Building where she worked, which she thought was a violation of law. She
believed that the mold had made her ill and had sought medical treatment
shortly before she filed her complaint. She requested leave under the Family
Medical Leave Act (“FMLA”), but the Superintendent informed her in early
March that she did not qualify for FMLA leave because she had been employed
by Hitchcock for less than one year.                    She also filed a Texas Workers’
Compensation Act claim establishing her inability to work and the conditions
under which she could return to work, which was processed by her doctor. At
the same time these events were unfolding, the Superintendent recommended
to the district’s Board of Trustees that Walker’s contract be renewed for the
following school year.
       On March 20, Hitchcock received a return-to-work slip from Walker’s
doctor, indicating that Walker could return to work on March 23, but could not
return to the Head Start Building. The Superintendent did not initially notice
this restriction, and notified Walker that Hitchcock would allow her to return to
work. After realizing his error, the Superintendent sent Walker a letter on
March 24 explaining that the district would not permit her to return to work


       1
          The Policy Council is composed of parents and makes employment recommendations about
whether to terminate or renew the Director’s contract to the district’s Board of Trustees, which is the
ultimate decision maker.

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until she could resume her duties in the Head Start Building. Walker, however,
reported for work on March 26. The Superintendent was away, but his assistant
in charge told Walker that she needed to leave campus until she could provide
Hitchcock with a medical release without the restriction. Walker refused to
leave, and the police were called to escort her off campus.
       On April 6, Walker met with the Superintendent to discuss her
employment status. Walker told the Superintendent during the meeting that
she felt she had been treated unfairly on account of her race when she was
denied FMLA leave and when she was escorted off campus by police. On May
1, Walker and the Superintendent had a second meeting in which they discussed
her conduct and several complaints co-workers had made against her. On May
3, Walker filed a report with the Texas Education Agency alleging that
Hitchcock filed fraudulent claims for reimbursement expenses for students who
had not used district-provided transportation. On May 4, the Superintendent
placed her on administrative leave with pay, citing her insubordination and
inability to facilitate collegial relationships with Head Start staff and parents.
Walker countered that it was her staff that was insubordinate. On May 6, she
filed a discrimination charge with the Equal Employment Opportunity
Commission (“EEOC”).
       The Policy Council voted in August to recommend to the Board that
Walker’s contract not be renewed.                  The Superintendent made the same
suggestion to the Board, which followed these recommendations.2 It informed
Walker that her contract would not be renewed, gave the bases for its decision,
and told her of her right to appeal to the Texas Education Agency. Walker did
appeal her proposed termination and was heard by a hearing examiner. The



       2
        Walker amended her EEOC claim to include a claim for retaliation for her reports to the health
department and education agency after learning of these recommendations.

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examiner upheld the Board’s decision and the Texas Commissioner adopted the
examiner’s recommendation.3
        While her EEOC charge was pending, Walker brought a TWA lawsuit in
state court. A jury found that her reports to the county health department
concerning the mold and air quality in the Head Start building and her reports
to the state education agency alleging that Hitchcock filed fraudulent
transportation reimbursement requests were not made in good faith. It also
found that these reports were not a cause of her suspension or the
Superintendent’s recommendation to the Board not to renew her contract.
        Walker filed a separate suit claiming Title VII retaliation and
discrimination, denial of due process, and violation of the TWA in state court.4
Hitchcock removed this case to federal court on December 9, 2010. On December
2, 2011, Walker filed a partial motion for summary judgment on her due process
claim.       Hitchcock responded on December 15 by filing a cross-motion for
summary judgment on all claims. On March 21, 2012, the district court granted
Hitchcock’s motion in full and denied Walker’s motion.
                                           DISCUSSION
        Walker claims that she established genuine issues of material fact with
respect to each of her claims, so her claims should have survived summary
judgment. She also alleges that the district court made various procedural
errors that necessitate reversal. Hitchcock disputes both contentions.
1. Standard of review




        3
            Hitchcock continued to pay Walker her salary until the Board accepted the hearing examiner’s
decision.

        4
          It is unclear from the record why Walker’s state court cases were separate, particularly as they
were both allege violations of the TWA stemming from the same set of events and were both originally
filed in Galveston County, Texas. Nevertheless, they are separate causes. The case tried to a jury was
No. 09-CV-1439, while this case, before it was removed, was No. 10-CV-1583 in state court.

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       We “review a district court’s grant of summary judgment de novo, applying
the same standard as did the district court.” Stults v. Conoco, Inc., 76 F.3d 651,
654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We view facts in
the light most favorable to the non-movant and draw all reasonable inferences
in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996). But we “may
affirm summary judgment on any legal ground raised below, even if it was not
the basis for the district court’s decision.” Performance Autoplex II Ltd. v.
Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003). Finally, “[a]lthough
we liberally construe briefs of pro se litigants and apply less stringent standards
to parties proceeding pro se than to parties represented by counsel, pro se parties
must still brief the issues and reasonably comply with the standards of Rule 28.”
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citation omitted).5
2. Preliminary issues
       First, Walker argues in her appeal that 98 of her exhibits were omitted
from the district court record and the district court erred in not considering
these exhibits when it ruled on the parties’ summary judgment motions. But the
district court found that Walker did not file a complete list of all the exhibits
listed as she now claims. It also found that many of the 98 exhibits were
duplicates of other filed exhibits. Walker provides no argument or evidence to
the court from which we could conclude that these findings are clearly erroneous
or that the district court’s denial of her subsequent motion to supplement the
record with the exhibits was an abuse of discretion. See United States v.
Campbell, 73 F.3d 44, 46-47 (5th Cir. 1996). Moreover, Walker fails to explain
how the information in these exhibits establishes a genuine issue of fact material


       5
          Walker provides scant argument for her many claims of error by the district court. We
nevertheless consider her claims as best we can without the benefit of further elaboration.

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to her claims. Therefore, the alleged omission, if in fact erroneous, was harmless
error. Id. at 47.
        Second, Walker claims that the district court erred when it did not give
her notice of the submission date for filing her response to Hitchcock’s motion for
summary judgment. The district court did not err, because it is not required to
give such notice. Federal Rule of Civil Procedure 56 “merely requires the court
to give the non-movant an adequate opportunity to respond prior to a ruling. .
. . [T]he adverse party must have at least ten days to respond to the motion for
summary judgment.”        Widnall, 99 F.3d at 713 (internal quotation marks
omitted). Hitchcock filed its motion for summary judgment on December 15,
2011. The court did not rule on it until March 21, 2012, long after ten days had
elapsed. Furthermore, Walker did file a response to Hitchcock’s motion on
December 29, 2011, so even if the district court had erred, the error would be
harmless.
        Third, Walker alleges that the district court disposed of her case on
summary judgment to clear its docket. She provides no evidence or argument
to support this claim, so it is waived. See Cuellar, 59 F.3d at 525 (“[A pro se
appellant’s] failure to articulate any appellate argument therefore deprived the
[defendants] of their opportunity to address fully all the issues and prejudiced
their ability to prepare and present arguments to this Court. Consequently, we
will not excuse his noncompliance with Rule 28.”).
        Fourth, Walker claims that the district court did not provide reasons when
it denied her partial motion for summary judgment on her § 1983 claim.
However, in granting Hitchcock’s motion on the same claim, the district court
necessarily set forth its reasons for denying Walker’s motion, because it
explained how Hitchcock’s position succeeded and Walker’s failed as a matter of
law.
3. Title VII retaliation claim

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      To establish a prima facie case that Hitchcock retaliated against her in
violation of Title VII, Walker must show that “(1) she engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Walker claims
that Hitchcock fired her because she complained to the county health
department about the mold and poor air quality in the Head Start Building and
reported Hitchcock’s allegedly fraudulent transportation reports to the state
education agency.
      We assume for the sake of argument that Walker has established a prima
facie case of retaliation. In response, Hitchcock must provide a legitimate,
non-retaliatory reason for the discharge. See Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 (5th Cir. 1997). If Hitchcock does, the burden is placed on
Walker to “offer evidence from which the jury may infer that retaliation, in
whole or in part, motivated the adverse employment action.” Roberson v. Alltel
Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004). Hitchcock sent Walker a letter
that contained eighteen performance-related reasons warranting her
termination. Performance deficiencies are a legitimate, non-retaliatory reason
for discharge. See Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986).
Walker points to the fact that she was fired in relative close temporal proximity
to making her complaints and asserts that Hitchcock’s decision to fire her was
based on a retaliatory motive. That, standing alone, is insufficient to sustain
Walker’s burden to respond to Hitchcock’s non-retaliatory justifications for the
discharge. See Swanson, 110 F.3d at 1188. The district court correctly granted
Hitchcock’s motion for summary judgment on Walker’s retaliation claim.
4. Title VII discrimination claim
      To establish a prima facie case of racial discrimination in employment,
Walker must show that (1) she is a member of a protected class, (2) she was

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qualified for her position, (3) she was the subject of an adverse employment
action, and (4) she was treated less favorably because she was a member of the
protected class than were other similarly situated employees who were not
members of the protected class. Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259
(5th Cir. 2009). In the district court and on appeal, Walker proffers no evidence,
either direct or circumstantial, see Russell v. McKinney Hosp. Venture, 235 F.3d
219, 222 (5th Cir. 2000) (“A plaintiff can prove a claim of intentional
discrimination by either direct or circumstantial evidence.”), to prove the fourth
element of her claim other than her subjective belief that she was treated
differently than white co-workers who were similarly situated. She simply
states that white employees were treated differently and points out her own
statements in the record that Hitchcock discriminated against her. Under this
court’s precedent, such a subjective belief of Walker’s is not sufficient to
establish a prima facie case of discrimination. See Byers v. Dallas Morning
News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (“Byers urges this Court to rely on
his subjective belief that Brown discriminated against him because he was
white. This Court will not do so.”) Because Walker failed to make a prima facie
showing, the district court did not err by granting summary judgment for
Hitchcock on this discrimination claim.
5. Section 1983 claim
      Procedural due process places constraints on governmental decisions that
deprive individuals of property interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment. Mathews v. Eldridge, 424 U.S.
319, 332 (1976).     “Under well-established federal law, the constitutional
minimums for due process require that the final decision maker must hear and
consider the employee’s story before deciding whether to discharge the
employee.” Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459, 465 (5th Cir.
2003).

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                                  No. 12-40487
      Walker claims that she was denied due process because she was not
allowed to attend the Policy Council meeting where the council decided whether
to recommend that her contract be renewed. Furthermore, she contends that the
Superintendent’s separate recommendation, which he made to the Board of
Trustees before the Policy Council made its recommendation, also violated her
Fourteenth Amendment due process rights. Although it is debatable whether
Walker’s probationary contract gave her a property interest in continued
employment, we need not decide this issue. See Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 578 (1972) (holding that where “the terms of the
respondent’s appointment secured absolutely no interest in re-employment for
the next year” and “supported absolutely no possible claim of entitlement to
re-employment. . . . he did not have a property interest sufficient to require the
University authorities to give him a hearing when they declined to renew his
contract of employment”). Even assuming that she had a property interest that
Hitchcock could not deprive her of without due process, Walker received all the
process she was due. The Board of Trustees notified her of its proposed decision
not to renew her contract and of her right to appeal. She did appeal and was
afforded the opportunity to present her case before a hearing examiner of the
Texas Education Agency. During the appeals process, Hitchcock continued to
pay her salary. Therefore, the final decision maker heard her story before
upholding the Board’s decision to terminate her contract. The Due Process
Clause of the Fourteenth Amendment requires nothing more, and the district
court did not err in granting Hitchcock’s motion for summary judgment on this
claim.
6. TWA claim
      Walker claims that the district court erred in granting Hitchcock’s motion
for summary judgment on her TWA claim that she was retaliated against after
she complained about mold and poor air quality in the Head Start Building to

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the county health agency and reported Hitchock’s purportedly fraudulent
reimbursement requests to the state education agency. The district court based
its grant of summary judgment on two grounds. First, it concluded that the
claim was barred by the Eleventh Amendment because, although the TWA
waives state sovereign immunity for claims brought under the Act in state court,
it does not waive sovereign immunity for claims filed in federal court. Second,
it determined that Walker’s required showing for her TWA claim was collaterally
estopped by the jury’s specific findings in her state court case.
        The district court was mistaken in concluding that the Eleventh
Amendment deprived it of jurisdiction over Walker’s TWA claim. Walker
originally filed this case in Texas state court. Therefore, by removing the case
to federal court, Hitchcock waived its immunity from suit in federal court. See
Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002) (holding
that a state’s act of removing a suit from state to federal court waives its
Eleventh Amendment immunity).
        Nonetheless, in exercising its jurisdiction over Walker’s TWA claim, the
district court properly granted summary judgment to Hitchcock. As the district
court noted, a successful TWA claim requires Walker to prove that she made her
reports in good faith. See TEX.GOV’T CODE ANN . § 554.002(a) (“A state or local
governmental entity may not suspend or terminate the employment of . . . a
public employee who in good faith reports a violation of law by the employing
governmental entity or another public employee to an appropriate law
enforcement authority.” (emphasis added)). Because a Texas jury had found that
Walker did not file her complaints in good faith, she was collaterally estopped
from arguing in this case that she had filed them in good faith.6 Allen v.



        6
          To the extent that Walker’s TWA claim in district court was identical to the claim she asserted
in state court, it is also barred by res judicata.

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McCurry, 449 U.S. 90, 94 (1980). Therefore, she could not prove her case and
summary judgment was appropriate.
                              CONCLUSION
     For the reasons given above, the district court’s order granting summary
judgment for Hitchcock is AFFIRMED.




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