Garcia v. Brownsville Independ

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40606
_____________________
NATALIA R GARCIA ,
Plaintiff-Appellant,
v.
BROWNSVILLE INDEPENDENT SCHOOL DISTRICT (BISD); CESAR
CISNEROS; ADAN SALINAS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(B-93-CV-102)
_________________________________________________________________
April 11, 1997
Before KING, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Natalia R. Garcia appeals the district court’s order
granting summary judgment in favor of Brownsville Independent
School District (“BISD”), Cesar Cisneros, and Adan Salinas.
Finding no error, we affirm.
I. BACKGROUND
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be publised and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Garcia was a sixth grade teacher for the BISD during the
1990-91 school year. Cisneros was a BISD administrator, and
Salinas was the principal at the elementary school in which
Garcia worked. During the year, Garcia was involved in two
incidents that raised the attention of Cisneros and Salinas, her
supervisors at the BISD. One incident involved Garcia allegedly
pulling the hair of one student and shoving paper in the face of
another in December 1990. The other incident occurred in April
1991, when Garcia allegedly slammed a clipboard on a student’s
desk and thereby cut the student’s hand.
BISD began an investigation of Garcia upon learning of the
second incident. At the end of the investigation BISD proposed
Garcia’s termination because it determined that she had
repeatedly violated BISD policy. Garcia resigned at the hearing
in which her termination was to be discussed. The BISD Board of
Trustees accepted her resignation.
Garcia appealed the Board’s action, claiming constructive
termination, to the Texas Commissioner of Education. Garcia
claimed that her termination was actually the result of her
public criticism of Cisneros’s hiring of a family member. The
Commissioner found that Garcia’s claims were without merit.
Garcia subsequently brought suit on April 23, 1993, in state
district court in Cameron County, Texas. Defendants removed the
case to federal district court.
2
The district court granted summary judgment in favor of
BISD, Salinas, and Cisneros. It found that it did not have
jurisdiction to hear the claims Garcia had raised before the
Commissioner and that Garcia’s claims were insufficient as a
matter of law. Garcia appeals the judgment to this court.
Garcia also asks this court for an “abatement” of its action on
the appeal until her FED. R. CIV. P. 60(b) Motion for Relief from
Judgment or Order can be addressed by the district court.
Garcia, however, has not filed a Rule 60(b) motion, so this court
will not consider her request for abatement.
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. See Texas Medical Ass’n v. Aetna Life Ins. Co., 80
F.3d 153, 156 (5th Cir. 1996). The entry of summary judgment is
mandated “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c).
III. DISCUSSION
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Although discerning Garcia’s claims is difficult,1 this
court reads Garcia’s pleadings to raise the following claims: (1)
breach of contract; (2) infringement of her constitutional right
to free speech; (3) intentional infliction of emotional distress;
(4) common law torts; (5) constitutional torts; (6) denial of due
process; (7) denial of equal protection; and (8) defamation.
Garcia has not pursued the denial of due process, equal
protection and defamation claims in her appeal to this court, and
therefore they are waived. See Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994) (“appellant abandons all issues not raised
and argued in its initial brief on appeal”).
A. State Law Claims
The breach of contract, intentional infliction of emotional
distress, and common law tort claims are state law claims. See,
e.g., In re Besing, 981 F.2d 1488, 1493-1495 (5th Cir. 1993)
(discussing the valuation of state law tort and contract claims
of a Texas debtor in bankruptcy). Garcia’s failure to comply
with the requirements of the Administrative Procedure and Texas
Register Act (“APTRA”) precludes the district court from
exercising its jurisdiction over these claims. See Grounds v.
Tolar Indep. School Dist., 707 S.W.2d 889, 893 (Tex. 1986).
1
The magistrate judge twice had to call for a more specific
pleading by Garcia. The causes of action which this court
addresses are gleaned from “Plaintiff’s Third Amended Complaint.”
4
APTRA § 192 requires a person initiating judicial review
after an adverse administrative determination to file a petition
in a Travis County district court3 no later than 30 days after
the date on which the decision of the administrative agency
becomes final and appealable. A decision is final and appealable
under the APTRA when the time expires for filing a motion for
rehearing or such a motion is filed on time and is overruled.4
Garcia did not file a motion for rehearing after she
received the Commissioner’s determination. Garcia admits to
having received the Commissioner’s order through the mail by July
20, 1992.5 Under APTRA, Garcia had 20 days to file a motion for
rehearing, and failing action within that period she had 30 days
from the end of that period in which to institute judicial review
2
Now codified at TEX. GOV’T CODE ANN. § 2001.176 (Vernon 1997).
3
The statute requires a filing in Travis County unless
excepted elsewhere by statute. No exception applies in this
case.
4
These requirements are set out in § 16(c) of the APTRA, now
codified at TEX. GOV’T CODE ANN. § 2001.144. The third provision
for qualifying a decision as final--i.e., a state agency finding
that imminent peril to the public health, safety, or welfare
requires an immediate effect of a decision or order--does not
apply in this instance.
5
Garcia states in her affidavit, included in the summary
judgment evidence, that she complained to the Commissioner in
writing on July 20, 1992. She notes that this was “[w]ithin one
or two days after receiving the Commissioner’s ruling.” Garcia
does not contend that her complaint in writing addressed to the
Commission was sufficient to constitute a motion for rehearing.
See APTRA § 16(c),(e), now codified at TEX. GOV’T CODE ANN. §
2001.146.
5
of the Commissioner’s decision. Garcia failed to take action
within this period. Moreover, when Garcia did file her suit, it
was not in a Travis County district court. Therefore, the
district court was correct in granting summary judgment on the
state law claims because it was without jurisdiction on such
claims. See Grounds v. Tolar Indep. School Dist., 707 S.W.2d at
893.
B. Federal Law Claims
Garcia’s federal law claims are likewise insufficient to
survive BISD’s summary judgment motion.
Garcia alleges that her termination was the result of her
criticism of Cisneros’s allegedly illegal hiring of a family
member to a position with BISD. To establish a violation of the
First Amendment, Garcia must show that her speech was protected.
See Dodds v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). “A
public employee’s speech is entitled to judicial protection under
the First Amendment only if it addresses a matter of ‘public
concern.’” Id. (citing Connick v. Myers, 461 U.S. 138, 147
(1983). Garcia’s speech did not address a matter of public
concern. See id. at 274 (holding that an employee’s speech
addressing the issue of nepotism was not sufficiently a matter of
public concern to state a violation of the First Amendment).
Even if the speech has a mixed motive, both a personal
grievance and an issue of public import, Garcia must show that
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she spoke predominantly as a citizen in order to trigger First
Amendment protection. See id. Garcia has failed to show in the
summary judgment evidence that her speech was primarily motivated
by her role as a citizen or that it would be of “relevance to the
public’s evaluation of the performance of governmental agencies.”
See id. at 273 (quoting Day v. South Park Indep. School Dist.,
768 F.2d 696, 700 (5th Cir. 1985)). As a threshold matter,
Garcia has the initial burden of showing such protected speech.
See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).
Moreover, the fact that Garcia’s comments resulted in a
newspaper article is insufficient to establish, as a matter of
law, that her speech was on a matter of “public concern.” Cf.
Ayoub v. Texas A & M Univ., 927 F.2d 834, 837 (5th Cir. 1991),
(quoting Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360,
1362 (5th Cir. 1982) (noting that “the mere fact that the topic
of the employee’s speech was one in which the public might or
would have had a great interest is of little moment”).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
7