Chavez v. Brownsville Independent School District , 135 F. App'x 664 ( 2005 )


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  •                                                        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, 2005
    Charles R. Fulbruge III
    Clerk
    No. 04-40465
    DINO CHAVEZ,
    Plaintiff-Appellant,
    versus
    BROWNSVILLE INDEPENDENT SCHOOL DISTRICT; ET AL
    Defendants
    BROWNSVILLE INDEPENDENT SCHOOL DISTRICT; NOE SAUCEDA, in his
    official capacity
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    Civil Action No. 1:02-CV-128
    --------------------
    Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
    *
    FORTUNATO P. BENAVIDES, Circuit Judge:
    In this direct civil appeal, Plaintiff-Appellant Dino Chavez
    challenges the district court’s rulings granting motions to
    dismiss and summary judgment on behalf of Defendants-Appellees
    Noe Sauceda and the Brownsville Independent School District
    *
    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    that this opinion should not be published and is not precedent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
    (“BISD”).    For the reasons that follow, we affirm.
    I. FACTUAL BACKGROUND
    The BISD maintained an optional Section 125 Cafeteria Plan
    through which school employees could purchase insurance policies
    with pre-tax income.    Chavez, as a regional manager for the
    American Family Life Assurance Company (“AFLAC”), administered
    the plan each year, starting in 1998, and received commissions
    from AFLAC for selling insurance policies to BISD employees.
    The parties dispute what position, other than agent for
    AFLAC, Chavez held with regard to the administration of the
    BISD’s cafeteria plan.    Specifically, the BISD contests Chavez’s
    assertion that he served the BISD as the de facto Third Party
    Administrator (“TPA”) of the plan.     Under Texas law, a TPA is “a
    person who collects premiums or contributions from or who adjusts
    or settles claims in connection with life, health, and accident
    benefits.”    TEX. INS. CODE § 21.07-6(1).   It appears that Chavez
    performed the duties of a TPA without compensation so he could
    sell AFLAC’s products to the BISD’s employees.      However, it is
    clear that the BISD did not have a contractual relationship with
    Chavez for these services, Chavez held himself out as an agent of
    AFLAC, and AFLAC viewed Chavez as its agent when he dealt with
    the BISD and its employees.
    In fall 2001, the BISD issued a Request for Qualifications
    for a TPA to service its cafeteria plan.      Chavez responded by
    2
    submitting an AFLAC proposal to the BISD’s Insurance Committee to
    become the TPA for the plan.   It appears that Chavez worried
    that, instead of AFLAC winning the TPA bid, a rival company,
    National Plan Administrators (“NPA”), would receive it.   This
    motivated him to engage in numerous communications with Insurance
    Committee representatives.    He also spoke at meetings of the BISD
    Board of Trustees to encourage them to select AFLAC.   In response
    to Chavez’s communications, BISD Superintendent Sauceda contacted
    AFLAC and stated that he would not permit it to submit a bid if
    Chavez remained the liaison to the BISD.   Sauceda also informed
    Chavez that he was no longer allowed on BISD property.    He cited
    unprofessional and unethical conduct on the part of Chavez.
    AFLAC had a different agent present its bid to the Insurance
    Committee, which it accepted by a vote of 44-1.   Chavez contends
    that Sauceda’s communications caused AFLAC to terminate him as a
    Regional Sales Coordinator.
    II. PROCEDURAL HISTORY
    On May 31, 2002, Chavez filed a lawsuit in Texas state court
    against the BISD, Sauceda, and several school board members,
    alleging First Amendment free speech and Fourteenth Amendment due
    process violations.   He also asserted Sauceda committed torts
    under state law.   Defendants removed the case to federal district
    court.   Chavez filed an amended complaint dropping claims against
    the board members on August 5, 2002.    The BISD and Sauceda filed
    3
    Rule 12(b)(6) motions to dismiss.     The district court granted
    Defendants’ motions as to the due process claims on January 16,
    2003.    On September 25, 2003, the BISD and Sauceda filed separate
    motions for summary judgment as to all remaining claims.     The
    district court granted the motions on January 7, 2004.      On
    February 3, 2004, Chavez filed notice of appeal.     The district
    court issued a memorandum opinion regarding its summary judgment
    on September 3, 2004.
    III. LEGAL STANDARDS
    We review de novo Federal Rule of Civil Procedure 56 summary
    judgment motions, applying the same standards as the district
    court.   Olabisiomotosho v. City of Houston, 
    185 F.3d 521
    , 525
    (5th Cir. 1999).   All disputed facts are viewed in the light most
    favorable to the nonmovant.    
    Id. The existence
    of a question of
    material fact precludes summary judgment.      Peel & Co. v. Rug
    Mkt., 
    238 F.3d 391
    , 394 (5th Cir. 2001).     The movant has the
    burden of showing an absence of material fact by demonstrating
    that “the evidence in the record would not permit the nonmovant
    to carry its burden of proof at trial.”      Smith v. Brenoettsy, 
    158 F.3d 908
    , 911 (5th Cir. 1998).
    We also review Federal Rule of Civil Procedure 12(b)(6)
    motions to dismiss for failure to state a claim de novo.         Gregson
    v. Zurich Am. Ins. Co., 
    322 F.3d 883
    , 885 (5th Cir. 2003).        We
    view the defendant’s 12(b)(6) motion with disfavor and construe
    4
    the plaintiff’s complaint liberally in his favor.    
    Id. IV. DISCUSSION
    Chavez argues that the district court erred (1) in granting
    the motions for summary judgment with regard to the First
    Amendment claims against the BISD and Sauceda; (2) in granting
    the motions to dismiss with regard to his due process claims; and
    (3) in granting the motion for summary judgment with regard to
    Chavez’s state law claims.   We address these assertions in turn.
    A. Section 1983 First Amendment Retaliation
    The district court found that Chavez failed to establish a
    fact issue as to the 42 U.S.C. § 1983 claims against the BISD and
    Sauceda because his speech in this case was not on a matter of
    public concern.   Alternatively, it ruled that the BISD could not
    be held liable for Sauceda’s actions because Sauceda was not an
    authorized policymaker in this matter and no policy was
    established by the BISD with regard to Chavez.   We agree.
    1. Free Speech Retaliation Claim
    We must first determine whether we should view Chavez’s
    relationship to the BISD as that of a private citizen or as that
    of an employee.   A different First Amendment analysis will be
    appropriate depending on Chavez’s status.   See Blackburn v. City
    of Marshall, 
    42 F.3d 925
    , 931-32 (5th Cir. 1995). If Chavez was
    merely an ordinary citizen, we apply the standard set forth by
    the Supreme Court in Perry v. Sindermann, 
    408 U.S. 593
    (1972); if
    5
    he was more like a public employee, we apply the test in
    Pickering v. Board of Education, 
    391 U.S. 563
    (1968).     See 
    id. The district
    court concluded that Chavez was more akin to an
    employee and applied Pickering.    We agree.
    The Supreme Court has extended the application of Pickering
    to independent contractors.   See Bd. of County Comm’rs v. Umbehr,
    
    518 U.S. 668
    (1996); O’Hare Truck Serv., Inc. v. City of
    Northlake, 
    518 U.S. 712
    (1996).   And we have indicated that, when
    a public official terminates even a non-contractual, economic
    relationship with a service provider, Pickering should be applied
    so long as the speech at issue “relate[d] to the relationship
    from which [the plaintiff] was terminated.”    
    Blackburn, 42 F.3d at 934
    .   In general, so long as there existed a relationship,
    “sufficiently ‘analogous to an employment relationship,’”
    Pickering will apply.   Kinney v. Weaver, 
    367 F.3d 337
    , 359 (5th
    Cir. 2004) (quoting 
    Blackburn, 42 F.3d at 932
    ).   We find Chavez’s
    relationship to the BISD to be sufficiently analogous to an
    employment relationship to warrant application of Pickering.     Cf.
    
    id., 367 F.3d
    at 357-61.
    To establish his § 1983 free speech retaliation claim under
    Pickering, Chavez must show: (1) he suffered an adverse
    employment action; (2) his speech dealt with a matter of public
    concern; (3) his interest in his speech outweighs the
    government’s interest in efficiency; and (4) his speech led to
    6
    the adverse employment action.   Alexander v. Eeds, 
    392 F.3d 138
    ,
    142 (5th Cir. 2004).   The district court ruled that Chavez’s
    speech was not on a matter of public concern and therefore not
    constitutionally protected.   We agree.
    Speech on a Public Concern
    “We have used two tests, sometimes in conjunction with one
    another, to determine whether speech relates to a public concern;
    both tests derive from language in Connick v. Myers, 
    461 U.S. 138
    , 
    75 L. Ed. 2d 708
    , 
    103 S. Ct. 1684
    (1983).”     Kennedy v.
    Tangipahoa Parish Library Bd. of Control, 
    224 F.3d 359
    , 366 (5th
    Cir. 2000).   See also Daniels v. City of Arlington, 
    246 F.3d 500
    ,
    503-04 (5th Cir. 2001) (discussing the two Connick-derived
    tests).   In one test, we examine “the content, form, and context
    of a given statement” to determine “[w]hether an employee’s
    speech addresses a matter of public concern.”     
    Connick, 461 U.S. at 147-48
    .    See also Bradshaw v. Pittsburg Indep. Sch. Dist., 
    207 F.3d 814
    , 818 (5th Cir. 2000); Teague v. City of Flower Mound,
    
    179 F.3d 377
    , 383 (5th Cir. 1999).   “The second, ‘shorthand’ test
    is the citizen-employee test.”   
    Kennedy, 224 F.3d at 366
    .    It
    also comes from language in Connick:
    [W]hen a public employee speaks not as a citizen upon
    matters of public concern, but instead as an employee
    upon matters only of personal interest, absent the most
    unusual circumstances, a federal court is not the
    appropriate forum in which to review the wisdom of a
    personnel decision taken by a public agency allegedly in
    reaction to the employee’s behavior.
    7
    
    Connick, 461 U.S. at 147
    ; Finch v. Fort Bend Indep. Sch. Dist.,
    
    333 F.3d 555
    , 563-64 (5th Cir. 2003).   We determine whether the
    plaintiff “[spoke] primarily in his role as a citizen rather than
    as an employee addressing matters only of personal concern.”
    Fiesel v. Cherry, 
    294 F.3d 664
    , 668 (5th Cir. 2002).
    When an employee speaks purely on a matter of personal
    interest, clearly no constitutional protection attaches.    See
    Benningfield v. City of Houston, 
    157 F.3d 369
    , 375 (5th Cir.
    1998) (“[R]eview by a federal court is improper where the speech
    involves matters of solely personal interest.”); Wilson v. Univ.
    of Tex. Health Ctr., 
    973 F.2d 1263
    , 1269 (5th Cir. 1992) (“[The
    Supreme] Court removed from First Amendment protection only that
    speech that is made only as an employee, and left intact
    protection for speech that is made both as an employee and as a
    citizen.”).   However, in Kennedy, we signaled that we will easily
    find “mixed speech,” i.e., where “the employee . . . speaks from
    multiple motives.”   
    See 224 F.3d at 367
    .   In Teague, a panel of
    this Circuit criticized earlier holdings indicating that so long
    as speech had a mixed quality it could receive constitutional
    protection: “The mere insertion of a scintilla of speech
    regarding a matter of public concern would make a federal case
    out of a wholly private matter fueled by private, non-public
    
    interests.” 179 F.3d at 382
    .   Kennedy questioned this position,
    noting that Connick only categorically denied First Amendment
    8
    protection to public employees speaking “‘upon matters only of
    personal 
    interest.’” 224 F.3d at 370
    n.13 (quoting 
    Connick, 461 U.S. at 417
    ) (emphasis added in Kennedy).   It thus appears that
    in the instant case, as in nearly all involving public employees,
    because at least a scintilla of public interest exists in such a
    dispute with public servants, the communications at issue must be
    treated as “mixed speech.” See Ayoub v. Tex. A & M Univ., 
    927 F.2d 834
    , 837 (5th Cir. 1991) (noting that “‘almost anything that
    occurs within a public agency could be of concern to the
    public.’”) (quoting Terrell v. Univ. of Texas Sys. Police, 
    792 F.2d 1360
    , 1362 (5th Cir. 1986)).
    Mixed speech cases are often difficult.    “The existence of
    an element of personal interest on the part of an employee in the
    speech does not prevent finding that the speech as a whole raises
    issues of public concern.”   Dodds v. Childers, 
    933 F.2d 271
    , 273
    (5th Cir. 1991).   See also 
    Kinney, 367 F.3d at 361
    (“The weight
    of the First Amendment interest is, of course, not measured
    solely by the [speakers’] own personal gain, if any, from
    speaking.”); Thompson v. City of Starkville, 
    901 F.2d 456
    , 463
    (5th Cir. 1990) (“The existence of an element of personal
    interest on the part of an employee in his or her speech does not
    . . . dictate a finding that the employee’s speech does not
    communicate on a matter of public concern.”).   “On the other
    hand, an employee cannot transform a personal conflict into an
    9
    issue of public concern simply by arguing that individual
    concerns might have been of interest to the public under
    different circumstances.”   
    Dodds, 933 F.2d at 273
    .   See also
    Foley v. Univ. of Houston Sys., 
    355 F.3d 333
    , 341 (5th Cir. 2003)
    (“Speech that is primarily motivated by, or primarily addresses,
    the employee’s own employment status rather than a matter of
    public concern does not give rise to a cause of action under §
    1983.”).   But see Denton v. Morgan, 
    136 F.3d 1038
    , 1043 (5th Cir.
    1998) (“Neither the accuracy of the speech, nor the motivation of
    the speaker, plays a role in determining whether the expression
    involves a matter of public concern.”).1
    1
    In so far as Denton stands for the proposition that the
    speaker’s motivation, i.e., whether the speech is the result of a
    personal dispute or whether it arises out of civic concern, is
    always irrelevant to our First Amendment analysis, it is clearly
    an outlier in our jurisprudence. See Markos v. City of Atlanta,
    
    364 F.3d 567
    , 572 (5th Cir. 2004) (noting that the Fifth
    Circuit’s precedent “support[s] the principle that an employee’s
    motivation in speaking is relevant to the [First Amendment]
    inquiry at hand”); 
    Bradshaw, 207 F.3d at 818
    (finding speech
    unprotected because it was “more of an effort by Ms. Bradshaw to
    clear her name rather than some contribution to a public
    dialogue”); 
    Teague, 179 F.3d at 383-84
    (“Although interspersed
    with apparently genuine concerns regarding police wrongdoing,
    Teague’s and Burkett’s grievances were primarily motivated by,
    and primarily addressed, concerns particular to their private
    interests.”); Victor v. McElveen, 
    150 F.3d 451
    , 456 (5th Cir.
    1998) (“Victor spoke as a citizen on a matter of public concern,
    not as an employee upon matters only of personal interest. At
    the time of his remarks, Victor was well pleased with his
    position as a courtroom bailiff; there was no evidence that he
    was a disgruntled employee or had any personal reason to protest
    what he perceived to be the potential racially discriminatory
    effects of the sheriff’s approach to the new program.” (citation
    omitted)); Warnock v. Pecos County, 
    116 F.3d 776
    , 780 (5th Cir.
    1997) (“By reporting specific wrongs and abuses within the county
    10
    Armed with the two Connick-derived tests, some panels of
    this Circuit, ruling on mixed speech cases, have opted to focus
    on the content-form-context test and to perform the citizen-
    employee analysis in the alternative.   See, e.g., 
    Thompson, 901 F.2d at 461-66
    .   For instance, in Teague, we applied both tests,
    government, Warnock was attempting to improve the quality of
    government. Her allegations hardly suggest a merely personal
    concern for her working conditions, job security, and the
    like.”); Forsyth v. City of Dallas, 
    91 F.3d 769
    , 773 (5th Cir.
    1996) (“Further, it does not appear that [plaintiffs] were
    primarily motivated by personal and not public concerns in
    publicizing their allegations.”); Caine v. Hardy, 
    943 F.2d 1406
    ,
    1416 (5th Cir. 1991) (“Dr. Caine did not object to the award of
    an exclusive anesthesia contract solely, or even primarily,
    because of his concern as a citizen for the sound management of
    his local hospital.”); Dorsett v. Bd. of Trs. for State Colleges
    & Univs., 
    940 F.2d 121
    , 124 (5th Cir. 1991) (“We must assess,
    therefore, Dorsett’s primary motivation in complaining to the
    administration.”); 
    Dodds, 933 F.2d at 273
    (“The court may
    therefore be required to assess the primary motivation of the
    speaker in evaluating whether her speech addresses a matter of
    public concern.”); Gomez v. Tex. Dep’t of Mental Health & Mental
    Retardation, 
    794 F.2d 1018
    , 1021 (5th Cir. 1986) (“Plainly,
    Gomez’ purpose in relating the information was to advise the
    employee of expected reductions in the length of time patients
    would remain at the State Center and to warn of the additional
    burden the change would place on Gomez’ interlocutor and on the
    County Center generally.”); Day v. South Park Indep. Sch. Dist.,
    
    768 F.2d 696
    , 700 (5th Cir. 1985) (“The district court correctly
    concluded that Day’s complaint was ‘purely a private matter.’
    She was primarily concerned about her principal’s negative
    evaluation of her performance and his failure to explain her
    evaluation to her satisfaction.”). Such a position strikes at
    the heart of the citizen-employee test as courts could not
    inquire into whether the employee was speaking in his role as a
    citizen or as an employee. Indeed, Gonzalez v. Benavides, the
    case cited by Denton for this proposition, merely argues for the
    existence of speech with “‘mixed’ issues of both public and
    private concern.” 
    774 F.2d 1295
    , 1301 (5th Cir. 1985). And we
    have never cited Denton to support the position that the reasons
    for the plaintiff’s speech are entirely unimportant.
    11
    noting that “more often than not the ‘citizen versus employee’
    test will point us in the right direction, and so we consider it
    here, in conjunction with the more lengthy three-factor balancing
    test . . . 
    .” 179 F.3d at 382
    .    The content of the speech in
    Teague was “predominantly public,” but the form and context were
    private.   See 
    id. at 383.
      Thus, we concluded that the statements
    at issue were “primar[il]y of private concern.”      
    Id. We then
    also applied the “‘citizen versus employ[ee]’” test and reached
    the same conclusion.   See 
    id. Similarly, in
    Kennedy, though we
    indicated that “we [were] not obligated to apply the citizen-
    employee test in mixed speech cases,” we still did so and, as in
    Teague, observed that we reached the same conclusion.       
    See 224 F.3d at 375-76
    .
    Other panels have incorporated the citizen-employee test
    into the content discussion of the content-form-context test.
    Generally, courts view content abstractly to determine whether it
    is of legitimate interest to an informed citizenry.        See, e.g.,
    Davis v. Ector County, 
    40 F.3d 777
    , 783 (5th Cir. 1994)
    (“‘Reports of sexual harassment perpetrated’ on public employees
    is of serious public import.     The fact that he also sought to
    strengthen the credibility of his wife does nothing to dilute the
    public interest inherent in the letter’s contents.”) (emphasis
    added); Moore v. City of Kilgore, 
    877 F.2d 364
    , 370 (5th Cir.
    1989) (“If staffing shortages potentially threaten the ability of
    12
    the Fire Department to perform its duties, people in the
    community want to receive such information.     The public had an
    interest in hearing the content of Moore’s speech.”).        However,
    in some opinions, we have focused on the personal interest the
    speaker held in his speech’s content.    This methodology may
    reflect the Supreme Court’s implicit admonition in Connick that
    matters of public concern are generally “not tied to a personal
    employment 
    dispute.” 461 U.S. at 148
    n.8.     See, e.g., Harris v.
    Victoria Indep. Sch. Dist., 
    168 F.3d 216
    , 222 (5th Cir. 1999)
    (noting that the plaintiffs’ general (and legitimately public)
    interest in an “improvement of the educational environment” at
    their school differs critically from quintessentially personal
    interests, such as “an underlying personal dispute” or “an
    employment related squabble with [a] supervisor.”).      But see
    Wallace v. Texas Tech Univ., 
    80 F.3d 1042
    , 1051 (5th Cir. 1996)
    (commenting “that speech made in the role as employee is of
    public concern . . . in limited cases: those involving the report
    of corruption or wrongdoing to higher authorities”).
    In Markos, we looked at issues of personal interest, i.e.,
    the speaker’s motivation, within the “content” portion of the
    first test.   
    See 364 F.3d at 571
    .   Specifically, we noted that
    “[s]tatements made to exonerate one’s own professional reputation
    address a matter of personal concern.”    
    Id. However, “speech
    on
    behalf of a coworker” was public in nature.     
    Id. This 13
    distinction appears to be based purely on the speaker’s
    interests, not society’s.2
    Similarly, in Dodds, a panel of this circuit appeared to
    inject the citizen-employee test into the content portion of the
    content-form-context analysis.     
    See 933 F.2d at 274
    .   The case
    involved speech by a community college employee who alleged that
    one of her colleagues received special treatment because of a
    familial relationship with the president of the college’s board
    of trustees.    See 
    id. at 272.
      The opinion set forth the citizen-
    employee test, 
    id. at 273,
    and recognized that because of the
    public interests implicated by the speech, “nepotism, favoritism,
    and misallocation of public funds,” this was indeed a case of
    mixed speech.   
    Id. at 274.
      However, it found that the plaintiff
    did not speak predominantly as a citizen:
    Dodds’s comments indicate her primary concern as the
    effect of the favoritism shown to Bolden on her own
    employment, not its potential effect on the public
    interest. . . . Her protest about not creating jobs
    “based on personal gain and political expediency” arose
    in reference to her fear that Bolden was being groomed to
    take her job. . . . While she may have privately
    considered creating a program for Bolden to be a misuse
    of public funds, she expressed this belief only after
    filing suit.
    
    Id. Again, Dodds
    focuses on the plaintiff’s interest in her
    2
    Markos did separately examine the plaintiff’s motivations
    outside of the realm of content, though. 
    See 364 F.3d at 572-74
    .
    Indeed, it viewed them as separate inquiries: “In this case, the
    fact that the content of the speech and Markos’ motivations were
    partially private is not enough to remove this speech from the
    realm of public concern.” 
    Id. at 574
    (emphasis added).
    14
    speech’s content.    In this way, it seems the panel in Dodds
    merged the citizen-employee test with the content portion of the
    content-form-context test.      See also 
    Dorsett, 940 F.2d at 124-25
    (discerning plaintiff’s “primary motivation” through examining
    the content of his speech, in addition to other evidence, and
    then analyzing separately the speech’s form and context).       But
    see 
    Moore, 877 F.2d at 371-72
    (examining plaintiff’s motivations
    during form analysis).
    A third approach taken by panels of the Fifth Circuit is to
    focus on “the hat worn by the employee,” the citizen-employee
    test, and to look at content, context, or form only to assist in
    that endeavor.    Gillum v. City of Kerrville, 
    3 F.3d 117
    , 121 (5th
    Cir. 1993).   Although the plaintiff in Gillum spoke on issues of
    “corruption in an internal affairs department” of a police
    department–“a matter of public concern” “to be sure”–we did not
    find public speech because “Gillum’s focus was . . . on this
    issue only insofar as it impacted his wish to continue his
    investigation.”     
    Id. In addition
    to the public content of the
    speech, we also noted its essentially private form.      
    Id. See also
    Caine, 943 F.2d at 1416 
    (finding dispositive, in a case of
    speech with arguably public context and content and private form,
    that “Dr. Caine did not object to the award of an exclusive
    anesthesia contract solely, or even primarily, because of his
    concern as a citizen for the sound management of his local
    15
    hospital.   Rather, his objections stemmed from his perfectly
    normal, but private interest as a hospital staff member that his
    job be as remunerative as possible.”).
    As this discussion shows, no single approach to determining
    the existence of speech on a public concern predominates in the
    Fifth Circuit.   Indeed, other panels of this Court have noted the
    lack of precision inherent in such a fact-intensive and holistic
    analysis.   See 
    Thompson, 901 F.2d at 461
    (noting that “the
    definition of the term ‘public concern’ is far from clear-cut”);
    Kirkland v. Northside Indep. Sch. Dist., 
    890 F.2d 794
    , 798 (5th
    Cir. 1989) (“The definition of ‘matters of public concern[’] is
    imprecise.”).3   Ever mindful of Connick’s core principles, in
    3
    This is most likely why some panels have found it useful to
    assemble the various factual scenarios that have or have not led
    courts to find protected speech. We did so in Kirkland:
    [P]rotesting the President’s policies by commenting
    favorably upon an assassination attempt against his life
    is a matter of “public concern” meriting protection.
    Similarly, a public school teacher may publicly protest
    the school board’s allocation of resources between
    athletics and academics, or a school’s alleged racially
    discriminatory policy in a private conversation with the
    principal, without suffering retaliatory dismissal. We
    have held that public employees raise matters of public
    concern if they criticize the special attention paid by
    the   police   to  a   wealthy   neighborhood,   or   the
    implementation of a federally funded reading program.
    Moreover, the quality of nursing care given to a group of
    people, including inmates, is a matter of public concern,
    as is the adequacy of a fire department’s level of
    manpower.   However, public employees raise matters of
    “private concern” if they criticize the morale problems
    or transfer policies at the district attorney’s office;
    or criticize the performance of co-employees and
    supervisors; or protest an employer’s unfavorable job
    16
    this case, we think the best approach is to apply all three forms
    of analysis in conjunction to ensure that we come to the clearest
    constitutional understanding of Chavez’s speech.
    The district court identified seven instances of speech by
    Chavez: (1) November 9, 2001, Memorandum to Insurance Committee
    Campus Representative; (2) November 12, 2001, Memorandum to
    Insurance Committee Campus Representative; (3) November 19, 2001,
    Memorandum to Insurance Committee Campus Representative; (4)
    “Corrected Cafeteria Plan Comparison Chart”; (5) “Why AFLAC?”
    Flyer; (6) November 13, 2001, BISD meeting; (7) November 20,
    2001, BISD meeting.   We review each.
    (1) November 9, 2001, Memorandum
    The memorandum was faxed by Chavez to insurance committee
    
    evaluation. 890 F.2d at 798
    n.10 (citations omitted). This was also our
    approach in Kennedy:
    Having thus canvassed our mixed speech precedent, we
    discern three reliable principles. First, the content of
    the speech may relate to the public concern if it does
    not involve solely personal matters or strictly a
    discussion   of   management   policies  that   is   only
    interesting to the public by virtue of the manager’s
    status as an arm of the government. If releasing the
    speech to the public would inform the populace of more
    than the fact of an employee’s employment grievance, the
    content of the speech may be public in nature. Second,
    speech need not be made to the public, but it may relate
    to the public concern if it is made against the backdrop
    of public debate. And third, the speech cannot be made
    in furtherance of a personal employer-employee dispute if
    it is to relate to the public 
    concern. 224 F.3d at 372
    (citations omitted). We find such distillations
    of this Circuit’s holdings helpful in our analysis, as well.
    17
    representatives who were, in turn, encouraged to distribute it to
    other BISD employees.   It concerned a “change in the group health
    coverage” for BISD employees.    In doing so it accused “[s]ome of
    [the] elected board members and hired administrators” of
    attempting to make a decision harmful to the employees’ interests
    and even implied that they may have misrepresented AFLAC’s
    services.    The stated purpose of the memorandum was “to set the
    record straight directly with the people who should have control
    over the say so of employee benefits - employees.”    It went on to
    detail the benefits of AFLAC.
    Under both the citizen-employee and content-form-context
    tests, this instance of speech is easily characterized as private
    and undeserving of constitutional protection.     The notion that by
    writing this memorandum Chavez was acting any differently than
    “an employee embroiled in a personal employment dispute” need not
    be seriously debated.    
    Gillum, 3 F.3d at 121
    .   Clearly, his sole
    purpose was to preserve AFLAC’s business relationship with BISD
    employees.   Chavez cannot reasonably argue that he spoke
    predominantly as a citizen.     See 
    Dodds, 933 F.2d at 274
    .
    The content of the communication is also largely private.      A
    view of content that looks at the speaker’s interest in his own
    speech shows that Chavez’s concern was predominately private.
    See 
    Dorsett, 940 F.2d at 124
    (“Dorsett’s complaints at the time
    of the alleged harassment reflected predominantly his concerns
    18
    about the assignment of summer and overload classes to himself
    and to his friends in the department.    These concerns are matters
    of private, not public, interest.”)     See also 
    Markos, 364 F.3d at 571
    (“Statements made to exonerate one’s own professional
    reputation address a matter of personal concern.”)    Even a purely
    abstract inquiry into the community’s interest in this speech
    yields results unfavorable to Chavez.    Because of its
    distribution to public employees this matter could be of interest
    to members of the community.   See 
    Terrell, 792 F.2d at 1362
    .
    However, Chavez cannot reasonably contend that its contents are
    “of great consequence to the public,” Branton v. City of Dallas,
    
    272 F.3d 730
    , 740 (5th Cir. 2001), or that “the information
    conveyed is of ‘relevance to the public’s evaluation of the
    performance of governmental agencies.’”    Coughlin v. Lee, 
    946 F.2d 1152
    , 1157 (5th Cir. 1991) (quoting 
    Day, 768 F.2d at 700
    ).
    And, contrary to Chavez’s assertions, the memorandum never
    accuses public officials of corruption or misdeeds.       Cf. 
    Denton, 136 F.3d at 1043
    (“[S]peech reporting official misconduct,
    wrongdoing, or malfeasance on the part of public officials
    involves matters of public concern.”).
    The form and context of Chavez’s speech are even more
    clearly private in nature.   The form of this speech was private
    as the memorandum was only distributed to BISD employees.      See
    
    Alexander, 392 F.3d at 143
    (“The form of these questions was
    19
    clearly private, as they were not leaked to a reporter or sent to
    an elected state official.”).    Furthermore, Chavez signed the
    memorandum as “Regional Sales Coordinator” and typed it on AFLAC
    letterhead.   See 
    Bradshaw, 207 F.3d at 817
    (“The form of the
    memoranda provides further support that Bradshaw drafted the
    documents in her capacity as a public employee rather than as a
    public citizen.    Each of them was signed by Bradshaw as ‘High
    School Principal.’    At least two of the memoranda were on
    Pittsburg High School Letterhead.”).    Finally, the speech was not
    “made against the backdrop of ongoing commentary and debate in
    the press.”   
    Kennedy, 224 F.3d at 373
    .    See also 
    Gomez, 794 F.2d at 1021
    (finding that ongoing discussions among the “employees of
    the agencies involved” does not mean something is “a matter of
    public debate”).    Thus, the context of the speech was also
    private.
    The memorandum of November 9, 2001, is therefore unprotected
    speech.
    (2) November 12, 2001, Memorandum
    This memorandum simply updates the previous one.     It
    informed insurance committee representatives that any decision on
    this issue had been postponed and worried that “employees will be
    forced to make cafeteria plan decisions with little or no
    notice.”   For the purposes of our analysis, it does not differ
    materially from the first memorandum.     Thus, for the reasons
    20
    
    discuss supra
    , it is not entitled to constitutional protection.
    (3) November 19, 2001, Memorandum
    The November 19, 2001, memorandum does not differ materially
    from that of November 9, 2001.   The only difference is that it
    informs insurance committee representatives that it has been
    recommended to the school board that NPA become the TPA and this
    is “definitely not . . . in the best interest of employees.”      It
    then discusses the advantages of AFLAC over NPA, lifting most of
    the text verbatim from the first memorandum.    Again, for the
    reasons that memorandum was not speech on a public concern, this
    memorandum is not either.
    (4) “Corrected Cafeteria Plan Comparison Chart”
    The corrected cafeteria plan comparison chart was attached
    to the November 9, 2001, memorandum.    It is a chart of unknown
    origins, discussing AFLAC’s services.    It was originally
    distributed to BISD employees, unbeknownst to Chavez.    On the
    copy circulated, Chavez penciled in corrections to the
    information presented.   In most instances he indicated that
    services the chart claimed AFLAC charged for are in fact free.
    Chavez also stated explicitly on the copy: “There are no fees
    associated with AFLAC’s cafeteria plan services.    BISD does not
    pay a fee.   Employees do not pay a fee.”   The chart corrections
    suffer the same constitutional infirmities as the
    memoranda–Chavez wrote and distributed the chart as an AFLAC
    21
    salesman, not as a citizen, and the content, form, and context
    (which are essentially the same as the memoranda) show this
    document to be a private, constitutionally-unprotected
    communication.
    (5) “Why AFLAC?” Flyer
    Chavez typed the “Why AFLAC?” flyer and distributed it at
    meetings of the Board of Trustees.    The one-page flyer consists
    of five numbered paragraphs.   Four of the paragraphs have content
    similar to the memoranda.   They extol AFLAC’s quality of service,
    low cost, flexibility, and in-person, local contact.   This
    content is not a public concern for the reasons the memoranda’s
    is not.   The other paragraph is not as obviously private in
    nature.   It reads:
    According to the Texas Attorney General’s Office in their
    [sic] legal opinions dated May 8, 1987 and April 4, 2000,
    granting an agent of record designation to an insurance
    agent or agency is illegal when the value of the contract
    is more than $10,000. Moreover, granting an individual
    an agent of record letter for the purpose of soliciting
    optional retirement investments or annuities is also
    illegal.     Approving agenda Item #24 that reads,
    “Recommend approval to award RFQ#012-02 to National Plan
    Administrators / Insurance Associates of the Valley...”
    would be illegal as there [sic] proposal calls for an
    agent of record designation.
    Assuming for the purposes of this analysis Chavez’s statement is
    correct, we find that it alone does not elevate the flyer to the
    status of speech on a public concern.
    The citizen-employee test yields the same results it did
    above.    Chavez is speaking as an insurance representative trying
    22
    to win business for AFLAC–hence, the title of the title of the
    flyer, “Why AFLAC?,” and the other four paragraphs.   We dealt
    with a similar situation in Knowlton v. Greenwood Independent
    School District.   
    957 F.2d 1172
    (5th Cir. 1992).   The speech by
    school district employees included allegations of a Fair Labor
    Standards Act (FLSA) violation, being made to work without pay.
    See 
    id. at 1178.
      We found this was insufficient to make the
    speech’s content a public concern: “The record reflects that the
    workers’ concern was the effect of the meal program on their
    employment and personal lives, rather than public interest in
    FLSA violations.   They did object to working without pay; but
    equal, if not greater, concerns arose from interference with
    family life . . . .”   
    Id. Similarly, Chavez’s
    primary concern
    was being able to sell AFLAC, not the BISD’s compliance with
    legal memoranda generated by the Texas AG’s office.   Chavez was
    speaking as an AFLAC sales representative, not as a citizen.
    An application of the content-form-context test does not
    persuade us that the result of the citizen-employee test is
    incorrect.   A content analysis that incorporates the citizen-
    employee test shows that Chavez’s words were calculated to secure
    business for AFLAC, not to ensure compliance with Texas law.
    That he found new additional reasons for why the company he
    represented should receive the business cannot transform a wholly
    private interest into a public one.    See 
    Bradshaw, 207 F.3d at 23
    817 (“Bradshaw is not entitled to insert a few references to an
    activity fund and claim that her speech was primarily that of a
    citizen rather than a disgruntled employee.”)    See also Davis v.
    W. Cmty. Hosp., 
    755 F.2d 455
    , 462 (5th Cir. 1985) (“[N]o
    particular statement touching upon a matter of potential public
    concern must be treated separately out of context and thereby
    given first amendment protection.”).   We acknowledge that an
    abstract view of the content does show the speech to be of
    interest to the public.   However, we find that this is trumped by
    the private form and context of the speech.     See 
    Teague, 179 F.3d at 383
    .   Chavez did not seek to distribute this flyer to the
    press or the citizenry at large outside of the school district.
    See 
    Dodds, 933 F.2d at 274
    (“Dodds did not address her complaints
    to anyone outside the College . . . .”).   Even though it is
    possible that members of the public could have been at the
    meetings where the flyer was distributed, any publicization was
    incidental.   Nor was the speech “made against a backdrop of
    widespread debate in the . . . community.”    Tompkins v. Vickers,
    
    26 F.3d 603
    , 607 (5th Cir. 1994).
    Thus, we find Chavez’s flyer to be predominantly private and
    not meriting constitutional protection.
    (6) November 13, 2001, BISD Board of Trustees Meeting
    Chavez spoke about this issue during the public comments
    portion of the Board of Trustees meeting on November 13, 2001.
    24
    Chavez introduced himself as a citizen and as a taxpayer.     The
    general thrust of his speech is difficult to decipher.      It seems
    that he was upset at the members of the Board for their “extreme
    politics” regarding the Cafeteria Plan, although he stated that
    he really did not know what was going on.    And he urged the head
    of the insurance committee to come to a decision soon regarding
    the plan.    In general, it seems like he was trying to complain
    about the process of selecting the Cafeteria Plan administrator.
    For the same reasons we did not find speech on a public
    concern in the prior instances, we find this speech to be
    predominantly private.    Under the citizen-employee test, Chavez
    spoke primarily as an AFLAC representative–in this case, a
    clearly aggrieved one.    
    Terrell, 792 F.2d at 1363
    (“Terrell was
    not terminated for speaking ‘as a citizen upon matters of public
    concern[,]’ 
    Connick, 103 S. Ct. at 1690
    , or for ‘speak[ing] out
    as a citizen on a matter of general concern, not tied to a
    personal employment dispute,’ 
    id. at 1691
    n.8 (emphasis
    added).”).    He cannot simply introduce himself as a citizen in
    order to transform his complaints about the BISD’s treatment of
    AFLAC into a public concern.    Any allusions to the behavior of
    public officials in Chavez’s speech were limited to its impact on
    AFLAC’s sales.    See 
    Gillum, 3 F.3d at 121
    (“To be sure,
    corruption in an internal affairs department is a matter of
    public concern.    Gillum’s focus was, however, on this issue only
    25
    insofar as it impacted his wish to continue his investigation.”).
    The district court described Chavez’s speech as “akin to the
    ranting of a disgruntled employee attempting to draw attention to
    his proposal because he believes his proposal offers employees
    the best option.”   We agree with this characterization.
    The content-form-context test buttresses this conclusion.         A
    view of content weighing the speaker’s personal interests leads
    to a conclusion that the content is predominantly private.
    Chavez’s concern about the Board’s dealings was limited to his
    ability to sell AFLAC’s product.       See 
    Bradshaw, 207 F.3d at 817
    (“Although partially about the fund, which may be a matter with
    some public concern, plaintiff wrote the memoranda, investigated
    the fund and chastised Board members in an effort to protect her
    name and her job.”).   Admittedly, though, an abstract view of
    Chavez’s speech does lead us to conclude that citizens would find
    it interesting.   Outweighing this factor is the largely private
    nature of the form and context.    As 
    noted supra
    , although his
    comments could have been heard by members of the public, Chavez
    addressed the Board as the gatekeeper to his customers, not as
    elected public servants, and any information those outside of the
    BISD would have gleaned from his statements was purely
    incidental.   Additionally, there is no evidence of any ongoing
    public debate on this issue.
    When viewing the “record as a whole,” we reach the same
    26
    conclusion as the district court–Chavez’s speech at the Board
    meeting does not qualify as speech on a public concern.     Stewart
    v. Parish of Jefferson, 
    951 F.2d 681
    , 683 (5th Cir. 1992).
    (7) November 20, 2001, BISD Board of Trustees Meeting
    Chavez again spoke during the public comments portion of a
    meeting of the BISD Board of Trustees.     He introduced himself as
    an AFLAC representative: “Board members, my name is Dino Chavez,
    I represent AFLAC. . . .   I’m here tonight to explain to you five
    reasons why you should choose AFLAC.”     Chavez then provided the
    same five reasons contained in the “Why AFLAC?” flyer 
    discussed supra
    : legality, low cost, flexibility, service and personal
    contact with local representatives.     The only portion of Chavez’s
    speech that merits our attention is his statement about the
    legality of selecting NPA as the Agent of Record: “Legality,
    which is the most important one.     I’m not an attorney, and I
    don’t claim to be, but according to the Texas Attorney General’s
    Office in their [sic] legal opinions dated May 8th, 1987 and
    April 4th, 2000, Granting an Agent of Record designation to an
    insurance agent or agency is illegal . . . .”
    For the same reasons the “Why AFLAC?” flyer was not an
    instance of public speech, neither was Chavez’s nearly identical
    testimony.   The citizen-employee test is even easier as Chavez
    identified himself as “an AFLAC representative” and, again,
    provided the reason for his speech: “why you should choose
    27
    AFLAC.”   The central interest that Chavez expressly implicates in
    his speech is that of his potential BISD customers to get the
    best deal on personal insurance.       This is private in orientation
    and supports the contention that he was speaking predominantly as
    an AFLAC representative, not as a concerned citizen.      The
    content-form-context test does not seriously undermine this
    conclusion.   The subjective content examination shows that
    Chavez’s interest in his speech was predominantly, if not purely,
    personal.   And, while we concede that some of the information
    contained in his speech, when viewed abstractly, is of public
    concern, the form and context were predominantly private, for the
    reasons 
    stated supra
    .    We also emphasize that, at the meeting,
    Chavez did not allege any corruption or malfeasance on the part
    of public officials.    Cf. Brawner v. City of Richardson, 
    855 F.2d 187
    , 191-92 (5th Cir. 1988) (“The disclosure of misbehavior by
    public officials is a matter of public interest and therefore
    deserves constitutional protection . . . .”).
    Thus, we conclude that Chavez has not shown that he engaged
    in speech on a public concern.    We agree with the district
    court’s conclusions and affirm its summary judgment with regard
    to his § 1983 lawsuit against Sauceda and the BISD.
    2. Liability of the BISD
    We also agree with the district court’s conclusion that
    Chavez did not create a fact issue as to the BISD’s liability,
    28
    even if he had shown that Sauceda violated his rights.   Section
    1983 allows for recovery from the BISD, Sauceda’s employer, if
    Chavez’s alleged injuries occurred “under color of any statute,
    ordinance, regulation, custom or usage” of the school district.
    42 U.S.C. § 1983.   Since Chavez does not point to an offending
    statute or regulation, he must show that a policy or practice of
    the BISD caused his alleged injury.    See Foust v. McNeill (In re
    Foust), 
    310 F.3d 849
    , 861 (5th Cir. 2002).   “To establish
    liability for a policy or practice, a plaintiff must prove that
    (1) the local government or official promulgated a policy; (2)
    the decision displayed ‘deliberate indifference’ and proved the
    government’s culpability; and (3) the policy decision lead to the
    particular injury.”   
    Id. We have
    set forth what constitutes an “official policy”
    under § 1983 for the purposes of municipal liability:
    1. A policy statement, ordinance, regulation, or decision
    that is officially adopted and promulgated by the
    municipality’s lawmaking officers or by an official to
    whom   the   lawmakers   have   delegated  policy-making
    authority; or
    2. A persistent, widespread practice of city officials or
    employees, which, although not authorized by officially
    adopted and promulgated policy, is so common and well
    settled as to constitute a custom that fairly represents
    municipal policy.
    Bennett v. City of Slidell, 
    735 F.2d 861
    , 862 (5th Cir. 1984) (en
    banc) (per curiam), cert. denied, 
    472 U.S. 1016
    , 
    105 S. Ct. 3476
    ,
    
    87 L. Ed. 2d 612
    (1985).    Accord Johnson v. Deep E. Tex. Reg’l
    Narcotics Trafficking Task Force, 
    379 F.3d 293
    , 309 (5th Cir.
    29
    2004); Cozzo v. Tangipahoa Parish Council-President Gov’t, 
    279 F.3d 273
    , 289 (5th Cir. 2002).   It is clear here that Sauceda’s
    action is best characterized as a single decision, rather than as
    a regulation, policy statement, ordinance, or widespread
    practice.   For an isolated decision to constitute a policy for
    the purposes of § 1983, we require a plaintiff to show that “the
    decision was made by an authorized policymaker in whom final
    authority rested regarding the action ordered.”   
    Cozzo, 279 F.3d at 289
    .   See also City of St. Louis v. Praprotnik, 
    485 U.S. 112
    ,
    123 (1988) (“We have assumed that an unconstitutional
    governmental policy could be inferred from a single decision
    taken by the highest officials responsible for setting policy in
    that area of the government’s business.”).
    Naturally, based on the facts presented in this case, Chavez
    could meet his burden on the policy prong by showing that Sauceda
    was the policymaker with final authority in this matter.
    Conversely, if final policymaking authority rested not with
    Sauceda, but with the BISD Board of Trustees, Chavez could
    establish municipal liability if the Board officially ratified or
    granted it imprimatur to Sauceda’s decision.   See Piotrowski v.
    City of Houston, 
    237 F.3d 567
    , 578 (5th Cir. 2001).
    Sauceda as Policymaker
    The district court found that Chavez failed to present
    evidence showing that Sauceda held policymaking authority in this
    30
    matter.   We agree.
    Our opinion in Jett v. Dallas Independent School District
    established that the Board of Trustees of a Texas independent
    school district holds sole policymaking authority for the
    district.   
    7 F.3d 1241
    (5th Cir. 1993).    We stated:
    [F]inal policymaking authority in an independent school
    district . . . rests with the district’s board of
    trustees. Texas Education Code § 23.01 provides that
    “The public schools of an independent school district
    shall be under the control and management of a board of
    seven trustees.”    The Education Code further provides
    that “the trustees shall have the exclusive power to
    manage and govern the public free schools of the
    district,” 
    id. § 23.26(b)
    (emphasis added), and that “the
    trustees may adopt such rules, regulations, and by-laws
    as they may deem proper.” 
    Id. § 23.26(d).
    Nothing in
    the Texas Education Code purports to give the
    Superintendent any policymaking authority or the power to
    make rules or regulations . . . 
    . 7 F.3d at 1245
    .4   Chavez responds that the BISD Board of Trustees
    delegated to the superintendent the authority to make unilateral
    decisions regarding the hiring or termination of the TPA.
    Indeed, in this case, as in Jett, the Board did delegate
    decision-making power to the district superintendent.     However,
    there exists a meaningful distinction between policymaking and
    decision making.      See 7 3d. at 1246 (noting that simply because
    the superintendent “may have been delegated the final decision in
    the cases of protested individual employee transfers does not
    4
    The Texas Education Code has since been amended. However,
    for our purposes, these changes do not alter Jett’s conclusions
    regarding the authority of superintendents under Texas law.
    31
    mean that he had or had been delegated the status of policymaker,
    much less final policymaker, respecting employee transfers”).
    See also 
    Praprotnik, 485 U.S. at 129-30
    (“‘[I]f [city] employment
    policy was set by the [Mayor and Aldermen and by the Civil
    Service Commission], only [those] bod[ies’] decisions would
    provide a basis for [city] liability.    This would be true even if
    the [Mayor and Aldermen and the Commission] left the [appointing
    authorities] discretion to hire and fire employees and [they]
    exercised that discretion in an unconstitutional manner . . . .’
    [Pembaur v. City of Cincinnati, 
    475 U.S. 469
    , 483 n.12
    (1986).]”).   Granting Sauceda the authority to make individual
    personnel decisions simply does not constitute an assignment of
    policymaking power.
    The BISD Board of Trustees
    Alternatively, Chavez tried to show that the BISD Board of
    Trustees, as the district’s policymaker, “intentionally deprived
    [him] of a federally protected right.”    Bd. of the County Comm’rs
    v. Brown, 
    520 U.S. 397
    , 405 (1997).    Chavez argues that the Board
    in effect “adopted or approved” Sauceda’s decision and thereby
    became the constitutional violator.    We agree with the district
    court that this theory is wholly unsupported by the record.
    Chavez is unable to show that a policy or practice of the
    BISD caused his alleged injuries.    Therefore, we affirm the
    district court’s summary judgment in favor of the BISD.
    32
    B. Due Process Claim
    In Chavez’s first amended complaint, he asserted claims
    against the BISD and Sauceda for violation of his Fourteenth
    Amendment due process rights under § 1983.    The district court
    granted Defendants’ 12(b)(6) motions to dismiss for failure to
    state a claim.   After noting that property interests are created
    by state law, it ruled that no such interest existed with regards
    to Chavez’s desire to be AFLAC’s agent to the BISD: “Plaintiff
    does not cite to any Texas cases, nor has the Court unearthed
    any, in which the courts recognized a property interest in the
    award of a government contract.    To the contrary, case law
    indicates that . . . a rejected bidder has no property right in
    the award of the contract.”   The district court concluded:
    Plaintiff cannot establish a property interest because
    his interest in the proposal itself is simply too
    attenuated. Plaintiff was an employee of AFLAC. He was
    not an independent contractor and received no direct
    payment or formal benefits from BISD . . . . Despite the
    fact that Plaintiff had previously administered the
    insurance policy plans for BISD employees, he had no more
    than a “unilateral expectation” that he could continue to
    submit proposals and serve BISD employees.
    As we recognized in Blackburn, a plaintiff like Chavez must
    identify the independent source of his alleged property interest.
    
    See 42 F.3d at 936-37
    (“Property interests are not created by the
    Constitution; rather, they stem from independent sources such as
    state statutes, local ordinances, existing rules, contractual
    provisions, or mutually explicit understandings.”).    Like the
    33
    plaintiff in Blackburn, Chavez has failed to cite any legal
    ruling or statute in Texas entitling him to the government
    benefit, in this case the opportunity to present an insurance bid
    to the BISD.   See 
    id. at 937
    (“[Plaintiff] cites, and we have
    found, no decision of any Texas court indicating that he had any
    entitlement to be or remain on the on-call rotation list.       Nor
    does he cite . . . any Texas statute or administrative
    regulation, or any ordinance . . . , which might be construed to
    provide such an entitlement.”).
    Thus, we affirm the district court’s dismissal of Chavez’s
    due process claim.
    C. State Law Claims
    The district court granted summary judgment for Sauceda on
    Chavez’s state law claims for tortious and intentional
    interference with a business relationship, malice, fraud, libel
    and slander, and intentional infliction of emotional distress,
    because of Texas Education Code § 22.051’s grant of professional
    immunity.   The statutory provision clearly grants immunity to
    superintendents.     See TEX. ED. CODE § 22.051.   However, it only
    applies to school employees acting in the scope of their
    employment.    See Gonzalez v. Ison-Newsome, 
    68 S.W.3d 2
    , 5 (Tex.
    Ct. App. 1999).    Specifically, Sauceda and other defendants
    asserting this defense must prove the following: “(1) they were
    professional school employees, (2) acting incident to or within
    34
    the scope of their duties, (3) the complained-of action involved
    the exercise of judgment or discretion on their part, and (4) did
    not involve the discipline of a student.”      
    Id. Naturally, the
    first and fourth parts are not in dispute.
    As to the second prong, it is hard to imagine that one could
    seriously argue Sauceda’s actions with regard to Chavez were not
    at least incident to his duties.      “Whether one is acting within
    the scope of his employment depends upon whether the general act
    from which injury arose was in furtherance of the employer’s
    business and for the accomplishment of the object for which the
    employee was employed.”     Chesshir v. Sharp, 
    19 S.W.3d 502
    , 504
    (Tex. Ct. App. 2000).   School superintendents are required to
    “manag[e] the day-to-day operations of the district as its
    administrative manger.”    TEX. EDUC. CODE § 11.201(d)(5).    Clearly,
    Sauceda was managing the District’s operations by dealing with
    the cafeteria plan.   And his actions with regard to Chavez were
    incident to that administrative duty.
    Likewise, Sauceda’s actions in this matter cannot reasonably
    be considered ministerial, instead of discretionary.         Downing v.
    Brown, 
    935 S.W.2d 112
    , 114 (Tex. 1996) (“Ministerial actions
    require obedience to orders or the performance of a duty to which
    the actor has no choice.    On the other hand, if an action
    involves personal deliberation, decision and judgment, it is
    discretionary.” (citations omitted)).     It is virtually axiomatic
    35
    that “[t]ermination and contract renewal decisions and employee
    evaluations are duties that require the exercise of a school
    supervisor’s judgment and discretion.”    Carey v. Aldine Indep.
    Sch. Dist., 
    996 F. Supp. 641
    , 656 (S.D. Tex. 1998).
    Thus, we affirm the district court’s grant of summary
    judgment for Sauceda on the state law claims.
    V. CONCLUSION
    For the foregoing reasons, we AFFIRM.
    36
    

Document Info

Docket Number: 04-40465

Citation Numbers: 135 F. App'x 664

Judges: King, Garza, Benavides

Filed Date: 6/15/2005

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

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