UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-40816 Consolidated with No. 01-40817
IMELDA T. RODRIGUEZ,
Plaintiff – Appellant,
VERSUS
BOARD OF TRUSTEES OF THE LAREDO INDEPENDENT SCHOOL DISTRICT; PAUL CRUZ, In His Official and Individual Capacities,
Defendants – Appellees.
Appeal from the United States District Court for the Southern District of Texas, Laredo Division (L-99-CV-22) March 25, 2003
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:*
Imelda Rodriguez, the former Assistant Superintendent for
Curriculum and Program Accountability of the Laredo Independent
School District (“LISD”), filed this suit against LISD and
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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- Superintendent Paul Cruz under 42 U.S.C. § 1983 and the Texas
Whistleblower Act, TEX. GOV’T CODE § 554.002. She alleged that Cruz
and LISD retaliated against her in violation of her First Amendment
rights and Texas law. More specifically, Rodriguez alleged that
she was demoted for demanding strict compliance with standardized
testing procedures, reporting deviations from those procedures, and
recommending that the district adopt new methods for assessing
student progress — actions that conflicted with Cruz’s goal of
raising test scores.
The district court dismissed Rodriguez’s § 1983 claim against
LISD and Cruz under Rule 12(b)(6). At a later stage, the district
court granted LISD’s motion for summary judgment on the Texas
Whistleblower Act claim. For the reasons given by the district
court, we find that Rodriguez failed to state a claim for municipal
liability under § 1983 against LISD and that summary judgment was
proper on the Whistleblower claim.1 Therefore, we summarily affirm
the district court’s judgment on those matters. However, we
reverse the district court’s dismissal of Rodriguez’s § 1983 First
Amendment claim against Superintendent Cruz under Rule 12(b)(6) and
remand for further proceedings.
Cruz’s brief suggested that the district court granted summary
1 See Rodriguez v. Laredo Indep. Sch. Dist., 82 F. Supp. 2d 679 (S.D. Tex. 2000) (“Rodriguez I”) (dismissing § 1983 claims against LISD); Rodriguez v. Board of Trustees of the Laredo Indep. Sch. Dist., 143 F. Supp. 2d 727 (S.D. Tex. 2001) (“Rodriguez II”) (granting summary judgment on the Texas Whistleblower claim).
-2- judgment in his favor on the § 1983 First Amendment claim.
However, the only issue before the district court at the summary
judgment stage was the Texas Whistleblower Act claim.2 After the
district court dismissed Rodriguez’s § 1983 claims, Rodriguez moved
for reconsideration. On February 20, 2001, the district court
indicated that it would grant the motion in part and treat the
defendants’ original motion to dismiss as one for summary judgment.
The district court changed course, however, and denied the motion
for reconsideration two months later. In its Memorandum and Order
denying the motion, the court specifically noted that it was
amending its February 2001 order and affirmed its earlier holding
that Rodriguez failed to state a First Amendment claim.3 In short,
the record firmly establishes that we are reviewing a Rule 12(b)(6)
dismissal. Because this case is before us on a 12(b)(6) dismissal,
we refer only to the complaint for the facts.
THE ALLEGATIONS
The complaint alleges that Paul Cruz became the LISD
Superintendent in August 1998. Shortly after his appointment,
Rodriguez met with him to discuss past testing irregularities
(including the alleged disclosure of the writing prompt and the
recent report of improper assistance at an elementary school), the
2 See Defs. Mot. Summ. J. at 2 (“[T]he only remaining issue before this Court is plaintiff’s state law whistleblower claim against LISD.”). 3 Rodriguez II, 143 F. Supp. 2d at 728 n.1.
-3- use of pacing and its recent discontinuance, declining test scores,
special education coding, and her insistence on strict compliance
with testing regulations. During this initial meeting, Rodriguez
recommended that the district administer other tests, including the
Gates-McGinitie test for sixth-grade reading proficiency and the
Terra Nova norm-referenced test, to verify the accuracy of the TAAS
results and to assure that students were meeting national
standards.
The complaint further alleges that in September 1998, Cruz
denied Rodriguez permission to attend a meeting of administrators
with curriculum responsibility. Cruz explained that another
administrator would represent LISD at the meeting and that
financial constraints would not permit him to approve more than one
administrator for travel to any one event. The complaint alleges
that Cruz’s explanation was pretextual because he later permitted
three administrators to travel to a band competition.
According to the complaint, Rodriguez continued to advocate
for norm-referenced testing in the fall of 1998. But despite
Rodriguez’s advocacy, Cruz told LISD principals in October 1998
that he would not require norm-referenced testing. Soon
thereafter, Cruz announced at a School Board committee meeting that
test scores would improve significantly under his leadership, so
much so that the LISD would qualify for “exemplary district” status
within five years. The complaint alleges that this five-year
prediction, along with the rejection of mandatory norm-referenced
-4- testing, indicated that Cruz’s “emphasis would be on testing
scores, not on compliance with the requirements of the testing and
other programs.”4
The complaint alleges that earlier on the same day that he
made his prediction to the Board, Cruz issued a memorandum removing
Rodriguez from her Assistant Superintendent post and assigning her
to a previously non-existent administrative position, which placed
her in charge of textbooks and janitorial services. This
reassignment conflicted with LISD policy because the School Board
had not approved the new position at a public meeting.
Rodriguez filed a timely grievance protesting her
reassignment. When Cruz denied the grievance, she appealed to the
School Board. The Board permitted Rodriguez to make a ten-minute
presentation before it, but ultimately took no action. Rodriguez
then filed suit against LISD and Cruz, and they moved to dismiss
her complaint for failure to state a claim. The district court
granted the motion with respect to Rodriguez’s § 1983 claim against
Cruz, finding that Rodriguez had not alleged the violation of a
right secured by the First Amendment in her complaint and that Cruz
was therefore entitled to qualified immunity. Rodriguez appealed.
ANALYSIS
A Rule 12(b)(6) dismissal for failure to state a claim upon
which relief can be granted is subject to de novo review and will
4 Complaint ¶ 4.93.
-5- not be affirmed “unless it appears beyond doubt that the plaintiff
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 01-40816 Consolidated with No. 01-40817
IMELDA T. RODRIGUEZ,
Plaintiff – Appellant,
VERSUS
BOARD OF TRUSTEES OF THE LAREDO INDEPENDENT SCHOOL DISTRICT; PAUL CRUZ, In His Official and Individual Capacities,
Defendants – Appellees.
Appeal from the United States District Court for the Southern District of Texas, Laredo Division (L-99-CV-22) March 25, 2003
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:*
Imelda Rodriguez, the former Assistant Superintendent for
Curriculum and Program Accountability of the Laredo Independent
School District (“LISD”), filed this suit against LISD and
* 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- Superintendent Paul Cruz under 42 U.S.C. § 1983 and the Texas
Whistleblower Act, TEX. GOV’T CODE § 554.002. She alleged that Cruz
and LISD retaliated against her in violation of her First Amendment
rights and Texas law. More specifically, Rodriguez alleged that
she was demoted for demanding strict compliance with standardized
testing procedures, reporting deviations from those procedures, and
recommending that the district adopt new methods for assessing
student progress — actions that conflicted with Cruz’s goal of
raising test scores.
The district court dismissed Rodriguez’s § 1983 claim against
LISD and Cruz under Rule 12(b)(6). At a later stage, the district
court granted LISD’s motion for summary judgment on the Texas
Whistleblower Act claim. For the reasons given by the district
court, we find that Rodriguez failed to state a claim for municipal
liability under § 1983 against LISD and that summary judgment was
proper on the Whistleblower claim.1 Therefore, we summarily affirm
the district court’s judgment on those matters. However, we
reverse the district court’s dismissal of Rodriguez’s § 1983 First
Amendment claim against Superintendent Cruz under Rule 12(b)(6) and
remand for further proceedings.
Cruz’s brief suggested that the district court granted summary
1 See Rodriguez v. Laredo Indep. Sch. Dist., 82 F. Supp. 2d 679 (S.D. Tex. 2000) (“Rodriguez I”) (dismissing § 1983 claims against LISD); Rodriguez v. Board of Trustees of the Laredo Indep. Sch. Dist., 143 F. Supp. 2d 727 (S.D. Tex. 2001) (“Rodriguez II”) (granting summary judgment on the Texas Whistleblower claim).
-2- judgment in his favor on the § 1983 First Amendment claim.
However, the only issue before the district court at the summary
judgment stage was the Texas Whistleblower Act claim.2 After the
district court dismissed Rodriguez’s § 1983 claims, Rodriguez moved
for reconsideration. On February 20, 2001, the district court
indicated that it would grant the motion in part and treat the
defendants’ original motion to dismiss as one for summary judgment.
The district court changed course, however, and denied the motion
for reconsideration two months later. In its Memorandum and Order
denying the motion, the court specifically noted that it was
amending its February 2001 order and affirmed its earlier holding
that Rodriguez failed to state a First Amendment claim.3 In short,
the record firmly establishes that we are reviewing a Rule 12(b)(6)
dismissal. Because this case is before us on a 12(b)(6) dismissal,
we refer only to the complaint for the facts.
THE ALLEGATIONS
The complaint alleges that Paul Cruz became the LISD
Superintendent in August 1998. Shortly after his appointment,
Rodriguez met with him to discuss past testing irregularities
(including the alleged disclosure of the writing prompt and the
recent report of improper assistance at an elementary school), the
2 See Defs. Mot. Summ. J. at 2 (“[T]he only remaining issue before this Court is plaintiff’s state law whistleblower claim against LISD.”). 3 Rodriguez II, 143 F. Supp. 2d at 728 n.1.
-3- use of pacing and its recent discontinuance, declining test scores,
special education coding, and her insistence on strict compliance
with testing regulations. During this initial meeting, Rodriguez
recommended that the district administer other tests, including the
Gates-McGinitie test for sixth-grade reading proficiency and the
Terra Nova norm-referenced test, to verify the accuracy of the TAAS
results and to assure that students were meeting national
standards.
The complaint further alleges that in September 1998, Cruz
denied Rodriguez permission to attend a meeting of administrators
with curriculum responsibility. Cruz explained that another
administrator would represent LISD at the meeting and that
financial constraints would not permit him to approve more than one
administrator for travel to any one event. The complaint alleges
that Cruz’s explanation was pretextual because he later permitted
three administrators to travel to a band competition.
According to the complaint, Rodriguez continued to advocate
for norm-referenced testing in the fall of 1998. But despite
Rodriguez’s advocacy, Cruz told LISD principals in October 1998
that he would not require norm-referenced testing. Soon
thereafter, Cruz announced at a School Board committee meeting that
test scores would improve significantly under his leadership, so
much so that the LISD would qualify for “exemplary district” status
within five years. The complaint alleges that this five-year
prediction, along with the rejection of mandatory norm-referenced
-4- testing, indicated that Cruz’s “emphasis would be on testing
scores, not on compliance with the requirements of the testing and
other programs.”4
The complaint alleges that earlier on the same day that he
made his prediction to the Board, Cruz issued a memorandum removing
Rodriguez from her Assistant Superintendent post and assigning her
to a previously non-existent administrative position, which placed
her in charge of textbooks and janitorial services. This
reassignment conflicted with LISD policy because the School Board
had not approved the new position at a public meeting.
Rodriguez filed a timely grievance protesting her
reassignment. When Cruz denied the grievance, she appealed to the
School Board. The Board permitted Rodriguez to make a ten-minute
presentation before it, but ultimately took no action. Rodriguez
then filed suit against LISD and Cruz, and they moved to dismiss
her complaint for failure to state a claim. The district court
granted the motion with respect to Rodriguez’s § 1983 claim against
Cruz, finding that Rodriguez had not alleged the violation of a
right secured by the First Amendment in her complaint and that Cruz
was therefore entitled to qualified immunity. Rodriguez appealed.
ANALYSIS
A Rule 12(b)(6) dismissal for failure to state a claim upon
which relief can be granted is subject to de novo review and will
4 Complaint ¶ 4.93.
-5- not be affirmed “unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.”5 “To ascertain whether a complaint states
a claim, we must construe the complaint liberally in the
plaintiff’s favor and accept all factual allegations in the
complaint as true.”6
In order to state a First Amendment retaliation claim under §
1983, a public employee must allege facts that could establish that
(1) the employee suffered an adverse employment action; (2) the
employee spoke on a matter of public concern; (3) the employee’s
interest in speaking outweighs his employer’s interest in
efficiency; and (4) the employee’s speech motivated the adverse
employment action.7
Properly limiting our focus to Rodriguez’s complaint, we find
that it satisfies the minimal pleading standard for each of the
elements of a First Amendment retaliation claim. The district
court therefore erred in dismissing Rodriguez’s First Amendment
claim under Rule 12(b)(6). Likewise, the district court’s finding
of qualified immunity in this case at the pleading stage was
premature. We do not comment on the merits of the case and leave
5 Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 6 Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 365 (5th Cir. 2000). 7 Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir. 2001); Kennedy, 224 F.3d at 366.
-6- it to the district court to decide what further proceedings are
appropriate.
CONCLUSION
The judgment of the district court is affirmed in part and
reversed in part, and the case is remanded to the district court
for further proceedings not inconsistent with this opinion.8
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
8 Rodriguez also appeals the district court’s order awarding costs to LISD and Cruz. Our partial reversal on the merits operates to reverse the entire costs award. See 10 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 54.100[4][c] (3d ed. 2001).
-7-