Garcia v. Brownsville Independ

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 1997
• Docket: 96-40606
• Status: Unpublished

Opinion

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

3 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

6 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.