denying IIED claim where insurer denied coverage and made false statements
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- denying IIED claim where insurer denied coverage and made false statements
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The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2008
No. 08-50224 Charles R. Fulbruge III
Summary Calendar Clerk
LESLIE VICARI
Plaintiff – Appellant
v.
YSLETA INDEPENDENT SCHOOL DISTRICT; DENNIS MILLER
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-cv-00131
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Leslie Vicari appeals the district court’s grant of summary judgment in
favor of Defendant Dennis Miller on her due process claim under 42 U.S.C. §
1983. Because Vicari never invoked Ysleta Independent School District’s
established process for addressing wage and earnings grievances, she cannot
now claim that she was denied due process. Therefore, we affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-50224
I.
Leslie Vicari was employed by Ysleta Independent School District (“YISD”)
as a Level 308 “regular high school assistant principal” during the 2004-2005
school year, although she had been involuntarily transferred to an alternative
school within the district during the prior school year. Her salary for the 2004-
2005 school year was $67,206.27. Because she was not notified prior to 45 days
before the expiration of the 2004-2005 school year whether her contract with
YISD would be renewed, Texas law deemed her to be “employ[ed] in the same
professional capacity for the following year.” Tex. Educ. Code § 21.206(a)-(b)
(Vernon 2007). The following year was the 2005-2006 school year.
However, well before that time, namely, in August 2004, YISD notified
Vicari that her salary would be reduced in the 2005-2006 school year. She did
not respond to this notification. In July 2005, Vicari’s position was changed to
a Level 307 “assistant principal at an alternative campus,” and her salary was
reduced to $63,734.26 for the 2005-2006 school year. In December 2005, Dennis
Miller, YISD’s Compensation Supervisor, informed Vicari that her salary had
been reduced in error. YISD reinstated her higher salary and provided her with
backpay for the months that she had been paid at the lower salary level.
In April 2006, Vicari filed suit against YISD in federal district court,
alleging that she was subjected to sexual harassment, a discriminatory job
reassignment, and retaliation in violation of Title VII. In May 2006, she
amended her complaint to include an allegation that Miller deprived her of a
property right to her higher salary without due process of law in violation of the
Fourteenth Amendment and 42 U.S.C. § 1983. The district court granted
summary judgment to the defendants on all of Vicari’s claims. As to the claim
against Miller, the district court held that he was entitled to qualified immunity
against Vicari’s Section 1983 claim. Vicari appeals only the dismissal of her due
process claim against Miller.
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No. 08-50224
II.
The district court held that Miller was entitled to qualified immunity
because Vicari did not have a constitutionally protected property interest in a
salary for the 2005-2006 school year that would be identical to her salary for the
2004-2005 school year. Alternatively, the district court found that, even if Vicari
had such a property interest, she could not prevail on her due process claim
because she neither availed herself of YISD’s grievance procedure nor alleged
that the procedure was constitutionally inadequate. The district court reasoned
that Miller was entitled to qualified immunity under either analysis because
Vicari could not establish that her constitutional right to due process had been
violated. See Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir. 2004) (“If no
constitutional right has been violated, the inquiry ends and the defendants are
entitled to qualified immunity.”). We review this decision de novo. Greenwell
v. State Farm Mut. Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007).
Whether Vicari enjoyed a constitutionally protected property interest in
a particular “professional capacity” and that capacity’s concomitant salary for
the 2005-2006 school year is unclear. The authorities cited by YISD are far from
dispositive on this issue. However, we need not embrace the district court’s
analysis nor resolve the issue ourselves because we agree with that court on its
alternative holding: even if Vicari had a property interest in a particular salary
for the 2005-2006 school year, she did not take advantage of available procedures
that would have prevented a deprivation of her property without the process
due. Browning v. City of Odessa, 990 F.2d 842, 844 (5th Cir. 1993).
The alternative holding is well supported by the record. YSID formally
notified Vicari of its decision to reduce her salary ten months in advance of the
actual reduction. At any point after this notification, Vicari could have invoked
YISD’s grievance procedure in order to correct what she perceived to be an
improper salary reduction. The grievance policy permits an employee to file a
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No. 08-50224
grievance “concerning an employee’s wages, hours, or conditions of work.” It
provides for three levels of review: (1) an initial conference with the employee’s
principal or supervisor, (2) followed by a conference with the school district
superintendent, and, finally, (3) an appeal to the school board. Each of these
steps must be completed within a prescribed time frame. The policy also
provides for a hearing before the school board at which time the employee may
present a grievance. This procedure satisfies the requirements of due process.
See id. Vicari admits that she never invoked this procedure. Had she done so,
she would have obtained adequate pre-deprivation process, including a hearing.
Vicari argues that she was not required to exhaust state administrative
remedies because she alleged a violation of her constitutional rights. Vicari has
identified the general rule that an aggrieved individual need not exhaust state
remedies before filing suit in federal court to vindicate a state deprivation of her
constitutional rights. Rathjen v. Litchfield, 878 F.2d 836, 840 (5th Cir. 1989).
However, Vicari’s case falls within an exception to this rule that applies when
the alleged constitutional deprivation is the denial of procedural due process.
She complains of an absence of process, but she did not use the sufficient process
provided. “An employee cannot ignore the process duly extended to him and
later complain that he was not accorded due process.” Galloway v. Louisiana,
817 F.2d 1154, 1158 (5th Cir. 1987).
Because Vicari has not shown a violation of any constitutional right, Miller
is entitled to qualified immunity from her suit. Judgment is AFFIRMED.
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