Thomas-Powell v. Galveston Indep Sch ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-40491
Summary Calendar
SUSAN THOMAS-POWELL,
Plaintiff-Appellant,
versus
GALVESTON INDEPENDENT SCHOOL DISTRICT; LYNN HALE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-595
--------------------
Before KING, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Susan Thomas-Powell appeals from the denial of her motion to
remand and the dismissal of her state law claims pursuant to FED.
R. CIV. P. 12(b)(6). We review both rulings de novo. Boone v.
Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005); Priester v.
Lowndes County, 354 F.3d 414, 418 (5th Cir.), cert. denied, 543
U.S. 829 (2004).
The district court’s determination that it had removal
jurisdiction was not erroneous given that Thomas-Powell’s second
*
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this opinion should not be published and is not precedent except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.
No. 05-40491
-2-
amended petition expressly alleged that her rights under the
Family Medical Leave Act, 29 U.S.C. § 2601, et seq., had been
violated. See PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418
F.3d 535, 543 (5th Cir. 2005). We also find no error with regard
to the district court’s Rule 12(b)(6) dismissal of Thomas-
Powell’s whistleblower claim. We agree with the district court’s
characterization of Thomas-Powell’s “whistleblower letter” as
merely a request for workers’ compensation as opposed to a report
involving a violation of law, the latter of which is required to
state a claim under TEX. GOV’T CODE ANN. § 544.022 (Vernon 2004).
See Scott v. Godwin, 147 S.W.3d 609, 621 (Tex. Ct. App. 2004).
The district court determined that Thomas-Powell’s third
amended complaint did not state a claim for intentional
infliction of emotional distress because she had failed to allege
that the students’ assaultive behavior was intentionally or
recklessly caused by the defendants, as is required under Texas
law. See Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438,
445 (Tex. 2004). On appeal, Thomas-Powell failed to challenge
the district court’s determination that she had failed to plead
the requisite causation element, and its review is therefore
waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Thomas-Powell has also inadequately briefed the dismissal
of her fraud and breach of contract claims, and, therefore, their
review is also waived. Id.No. 05-40491
-3-
Thomas-Powell’s motion for reconsideration of the clerk’s
order granting the appellees’ request to file record excerpts in
excess of the page limit is DENIED.
AFFIRMED.