Mullinax v. Texarkana Indep Sch ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41061
Summary Calendar
JANIS MULLINAX,
Plaintiff-Appellant,
versus
TEXARKANA INDEPENDENT SCHOOL DISTRICT; ET AL.,
Defendants.
TEXARKANA INDEPENDENT SCHOOL DISTRICT; LARRY SULLIVAN, DR.,
Superintendent, Texarkana Independent School District,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(5:99-CV-190)
April 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This appeal presents the question of the issue preclusive
effect of findings by a Texas state independent hearing examiner in
a teacher’s termination proceeding. The district court granted
summary judgment to the defendants on plaintiff’s claims of
*
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should not be published and is not precedent except under the limited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.
termination in retaliation for exercise of protected First
Amendment rights. The district court held that the hearing
examiner’s finding that the defendant school district had “good
cause” to terminate the plaintiff’s employment precluded the
plaintiff from relitigating the issue of retaliatory discharge. We
reverse in part and affirm in part.
I
Plaintiff Janis Mullinax was a physical education teacher at
a public elementary school in Texarkana, Texas. She was also the
faculty sponsor of a school dance club and was involved in various
other school and community organizations. In 1998 and early 1999,
Mullinax raised a number of complaints and grievances regarding
various actions by the school and other teachers. At least one of
these grievances was resolved in Mullinax’s favor by defendant
Larry Sullivan, the Superintendent of the Texarkana Independent
School District. In March 1999, her employment contract was
renewed.
One of the complaints Mullinax raised was that the school had
forbidden her use of Christian music in the school dance club’s
routines. Dr. Sullivan told Mullinax that school policy did not
permit her to use Christian music in the dance club’s routines.
Later, on about April 20, 1999, Mullinax and several students were
interviewed by a local newspaper about the dance club and their use
of Christian music. Mullinax alleges that her discussions with the
2
newspaper made the administration of the school district concerned
about negative publicity in advance of an upcoming bond issue.
On April 22, 1999, Mullinax led a class of third grade
students on a nature hike. During that hike, some of the students
ingested a wild plant called sour weed and became ill.1 Within a
day of this incident, Mullinax was suspended. Pursuant to the
procedure established by Texas law,2 Dr. Sullivan recommended to
the School District Board of Trustees that Mullinax be fired. The
School Board accepted the recommendation, and Mullinax was given
notice of the proposed decision. Mullinax invoked her right to
appeal the decision of the School Board to a Hearing Examiner, who
would make findings of fact and recommend either termination or
reinstatement to the School Board.
After an extensive hearing, the Hearing Examiner issued her
report to the School Board. The Hearing Examiner’s duty was to
determine whether or not Mullinax should be terminated. The only
basis for termination claimed by the School Board was “good
cause.”3 The Hearing Examiner made findings of fact regarding
whether the sour weed incident constituted good cause to terminate
Mullinax’s employment; the Hearing Examiner made no findings
1
Mullinax contends that sour weed is harmless and is commonly chewed by
children and adults.
2
See Tex. Educ. Code § 21.211 et seq.
3
Texas law allows termination “for good cause” or because of “financial
exigency.” Tex. Educ. Code § 21.211.
3
regarding Mullinax’s claims that she was termination in retaliation
for protected activity. The Hearing Examiner concluded that the
School Board had good cause to terminate Mullinax’s contract and
recommended termination.
The School Board, after reviewing the Hearing Examiner’s
report, accepted the recommendation and terminated Mullinax.
Mullinax chose not to appeal the decision to the Texas Commissioner
of Education. Instead, she filed suit in U.S. District Court
alleging deprivation of due process and retaliatory discharge under
Section 19834 and violations of the Texas Whistleblower Act5 and the
right to grieve.6
The defendants moved for summary judgment, making two
arguments: that her due process claim fails because she failed to
utilize available state remedies, and that the Hearing Examiner’s
findings collaterally estop her from arguing that the defendants
had an improper motive in terminating her employment. The district
court granted summary judgment on all claims. Mullinax appeals the
ruling on all claims except her due process claim.
II
Issue preclusion, also called collateral estoppel, “prevents
relitigation of particular fact issues already resolved in a prior
4
42 U.S.C. § 1983.
5
Tex. Gov’t Code § 554.001 et seq.
6
Tex. Gov’t Code § 617.005.
4
suit in a subsequent action upon a different cause.”7 Issue
preclusion applies to rulings by administrative agencies “when the
agency is acting in a judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an
adequate opportunity to litigate.”8 In the case before us, it is
undisputed that the Hearing Examiner’s findings were made in a
judicial capacity and thus are entitled to issue preclusive
effect.9
The Hearing Examiner made the following relevant findings of
fact and legal conclusions: Mullinax made several complaints
regarding incidents at her school, including a formal grievance
with Dr. Sullivan; Dr. Sullivan heard her grievance and resolved it
in her favor; Mullinax took third graders on a hike, and some had
to be sent to the nurse after ingesting sour weed; Dr. Sullivan
investigated the sour weed incident and “determined as a result of
the investigation that he could no longer place students in Ms.
Mullinax’s care without any confidence”10; Dr. Sullivan recommended
Mullinax’s termination to the School Board; the School Board voted
7
Muckelroy v. Richardson Indep. School Dist., 884 S.W.2d 825, 830 (Tex.
App.—Dallas 1994). Under federal law, a federal court gives a state court
judgment the same preclusive effect as would be given under the law of state
under which the judgment was entered. See Gammage v. West Jasper School Bd. of
Educ., 179 F.3d 952, 954 (5th Cir. 1999).
8
Muckelroy, 884 S.W.2d at 830 (internal quotation marks omitted).
9
The Texas Education Code states that the Hearing Examiner must conduct
the hearing “in the same manner as a trial without a jury in a district court of
the state.” Tex. Educ. Code § 21.256(e).
10
Presumably, the Hearing Examiner meant “with any confidence.”
5
to accept the recommendation of Dr. Sullivan; the sour weed
incident “is sufficient and does rise to the level of good cause
for termination”; and “Ms. Mullinax’s employment with the Texarkana
Independent School District should be terminated.”11
These findings preclude the relitigation of these issues in
Mullinax’s federal lawsuit. But they do not compel summary
judgment in favor of the defendants on Mullinax’s retaliation
claims. Both Section 1983 and Texas’s Whistleblower Act12
incorporate the Mt. Healthy13 burden-shifting framework for proving
termination in retaliation for protected activity. Under this
framework, the plaintiff must show that her protected activity was
a “substantial” or “motivating” factor in the defendant’s decision
to terminate her.14 It need not be the only factor.15 The burden
11
Defendants contend, citing Montgomery Independent School District v.
Davis, 34 S.W.3d 559, 566-68 (Tex. 2000), that the failure of the Hearing
Examiner to make a finding on the issue of retaliation is an implicit finding
that no retaliation occurred. We disagree. Montgomery Independent School
District makes clear that no inference can be drawn from the silence of the
Hearing Examiner; when evidence is presented at the hearing, but the Hearing
Examiner makes no finding, it could be that the Hearing Examiner simply found the
evidence “not material” to the issues before it. Id. at 566. On the other hand,
if “evidence is conflicting and credibility is in issue,” the Hearing Examiner
may decline to make a finding because she is unpersuaded by the evidence
presented. Id. at 568. In this case, the failure of the Hearing Examiner to
make findings regarding Mullinax’s claims of retaliation—when the only issue
before the Hearing Examiner was good cause—creates no inference that a finding
was made.
12
Tex. Gov’t Code § 554.001 et seq.
13
See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977); see also Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 632-37
(Tex. 1995).
14
Mt. Healthy, 429 U.S. at 287.
15
Hinds, 904 S.W.2d at 634.
6
then shifts to the defendant to prove that it would have made the
termination decision even in the absence of the protected conduct.16
The findings of the Hearing Examiner do not address the
elements of the Mt. Healthy framework. They only establish that
one legitimate, motivating factor in Mullinax’s termination
decision was her conduct in the sour weed incident. There is no
finding that Mullinax’s allegedly protected conduct was not a
“substantial” or “motivating” factor in her termination. Nor is
there any finding that Dr. Sullivan would have recommended
Mullinax’s termination, or that the School Board would have
accepted the recommendation, even in the absence of her allegedly
protected conduct. Summary judgment against Mullinax is improper
because, as we have stated, “the question is not whether the
employer justifiably could have made the same decision [in the
absence of the protected conduct] but whether it actually would
have done so.”17
Thus, the Hearing Examiner’s factual findings do not destroy
any genuine issues of material fact in this case that would
16
Mt. Healthy, 429 U.S. at 287. Hinds did not shift the burden of proof
of this issue to the defendant. See Hinds, 904 S.W.2d at 637. However,
amendments to the Texas Whistleblower Act in 1995 made the showing that the
defendant would have terminated the employee even in the absence of the protected
conduct an affirmative defense. See Tex. Gov’t Code § 554.004 (2001).
Regardless of any differences in the burdens of proof, the same elements are
required by Mt. Healthy and Hinds.
17
Professional Ass’n of College Educators v. El Paso County Community
College Dist., 730 F.2d 258, 265 (5th Cir. 1984).
7
otherwise exist.18 Since defendants raise no other basis for
granting summary judgment,19 the district court’s granting of
summary judgment on Mullinax’s Section 1983 and Texas Whistleblower
Act claims were error, and we reverse these rulings.20
The district court’s grant of summary judgment on Mullinax’s
claim based on Texas Government Code § 617.005 was not, however,
error.21 This section protects the rights of public employees to
present grievances, but it requires no more than that an employee
has “access to those in a position of authority in order to air
their grievances.”22 Mullinax has not alleged that she did not have
access to Dr. Sullivan or the School Board in ventilating her
18
Cf. Gammage v. West Jasper School Bd. of Educ., 179 F.3d 952 (5th Cir.
1999) (affirming summary judgment on grounds of issue preclusion when the state
court had explicitly ruled against plaintiff on essential elements of the
plaintiff’s claim).
19
All parties agree in their submissions to this Court that issue
preclusion is the only grounds proferred for affirming summary judgment.
Further, the defendants’ reply to plaintiff’s response to the motion for summary
judgment expressly disclaimed any claim that there was no evidence sufficient to
create a genuine issue of material fact as to any element of her claims.
20
The magistrate judge’s report and recommendation stated that the Hearing
Examiner’s finding that the School Board had good cause “breaks any possible
chain of causation,” noting that Mt. Healthy held that the “fact that
constitutionally protected conduct played a substantial part in the decision not
to rehire a teacher did not necessarily amount to a constitutional violation.”
The magistrate judge correctly cited Mt. Healthy, but the fact that protected
conduct allegedly played a substantial part in the decision does not necessarily
amount to a constitutional violation does not justify a summary judgment ruling
that it cannot amount to a constitutional violation. The Hearing Examiner’s
findings simply do not address the issue of whether the School Board would have
fired Mullinax in the absence of her allegedly protected conduct.
21
Mullinax argues that the district court did not enter summary judgment
on her state law claims. This is incorrect. The district court expressly
dismissed her entire lawsuit when it entered summary judgment for the defendants.
22
Corpus Christi Indep. School Dist. v. Padilla, 709 S.W.2d 700, 707 (Tex.
App.—Corpus Christi 1986).
8
concerns and complaints. Further, for this claim, the Hearing
Examiner’s findings preclude any relief under this statute. The
Hearing Examiner expressly found that Mullinax had access to and
utilized the School District’s procedures for raising grievances.
We affirm the district court’s grant of summary judgment on this
claim.
III
We agree with the district court that the factual findings of
the Hearing Examiner are entitled to issue preclusive effect. We
AFFIRM the district court’s grant of summary judgment on the
plaintiff’s claim under Texas Government Code Section 617.005. We
REVERSE the district court’s grant of summary judgment on
plaintiff’s claims under section 1983 for retaliatory discharge and
under the Texas Whistleblower Act, because the findings of the
Hearing Examiner, although issue preclusive, do not establish that
the defendants must prevail as a matter of law. We REMAND to the
district court for further proceedings consistent with this
opinion.
9