The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40114
Summary Calendar
SILVESTRE MORENO JR.,
Plaintiff-Appellant,
VERSUS
THE WESLACO INDEPENDENT SCHOOL DISTRICT,
JAMES D. LEHMANN, AND DR. HILLARY DUFNER
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(M 94 CV 32)
( September 14, 1995 )
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Silvestre Moreno, Jr. ("Moreno") appeals the
dismissal of his civil rights action against Appellees Weslaco
Independent School District ("WISD"), James D. Lehmann ("Lehmann")
and Hillary Dufner ("Dufner"). We affirm.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Proceeding pro se, Moreno, a school teacher, filed a civil
rights complaint against WISD, Lehmann, the Superintendent of WISD,
and Dr. Hillary Dufner, the principal of the Cuellar Middle School
("Cuellar"), which is located in WISD, alleging that Lehmann and
Dufner conspired to force his resignation by engaging in
discrimination, harassment, intimidation, and libel in violation of
Moreno's constitutional rights.
MORENO'S CONTENTIONS
Moreno alleged the following facts in his amended complaint:
During the 1991-92 school year, while employed at the Hoge
Middle School, Moreno was appointed to be that school's
representative on a textbook recommendation committee. Dufner was
the district's administrator in charge of textbook adoption.
Moreno and several other teachers engaged in "heated discussions"
with Dufner about the preferable history textbook to be used.
Dufner thereafter adopted an adversarial attitude toward Moreno and
retaliated by engaging in discriminatory conduct.
Dufner became the principal of Cuellar in 1993, and Moreno was
assigned to teach at Cuellar. In August 1993, Superintendent
Lehmann met with several teachers at Cuellar to discuss complaints
that had been made concerning Dufner's policies. Moreno was very
vocal about his grievances during the meeting. Lehmann and Cuellar
have conspired to violate Moreno's rights since that meeting
occurred.
Moreno received a memorandum from Dufner in December 1993,
directing Moreno to prepare a "Growth Plan" pertaining to a
2
particular teaching assignment. Moreno responded that such a
requirement was in violation of a Texas statute, known as the
Paperwork Reduction Act. Lehmann was made aware of the dispute but
took no action on the matter. Dufner sent Moreno a second
memorandum advising him to prepare a Growth Plan. Moreno
resubmitted his original response, and Dufner responded that his
objection and refusal to submit a Growth Plan had been noted in
Moreno's file. Moreno alleged that this act was "libel per se" and
defamed his character and reputation. Moreno filed a series of
grievances relating to the notation in his file, which were denied.
Moreno eventually received a memorandum from Dufner stating that he
was removing the notation from Moreno's file because the Texas
Association of School Boards and the Texas Education Agency could
not provide any precedent on the issue.
Dufner also used the "Texas Teacher Appraisal System," a
statutorily created evaluation system, to violate Moreno's equal
protection rights. Dufner targeted him and "another Hispanic
teacher on the same campus" by giving them both the lowest
evaluation scores. He and the other Hispanic teacher had opposed
Dufner's textbook recommendation two years earlier. Before this
evaluation, Moreno had received high evaluation scores in his ten
years as a teacher.
Moreno responded to the low evaluation scores by filing
another grievance alleging that Dufner abused his duties as an
evaluator. During the post-observation conference, Dufner advised
Moreno that he would not be recommended to teach at Cuellar during
3
the upcoming 1994-95 school year. Moreno requested an observation
by another appraiser. Dufner appointed Ana de Leon, one of his
subordinates, and instructed her to cite Moreno for deficiencies to
insure that he would again receive low evaluation scores.
Moreno subsequently met with Dufner and de Leon. Dufner
reprimanded Moreno for showing a video that had not been approved
by his department head, and Moreno responded that he had received
permission to show it. Dufner instructed de Leon to cite Moreno
for "any fictitious reason" and Moreno left the office to avoid
further confrontations. Moreno attempted to meet with Lehmann, who
told him that he was too busy to meet with him.
Dufner continued to harass him after he filed the instant
complaint. Dufner "wrote up" Moreno for failing to attend a
Departmental Meeting although he was not required to do so by
statute. Moreno applied to take a "school business day" in order
to attend a court hearing, and Dufner treated it as a "personal
day". Dufner also demanded that Moreno attend a "summative
conference," which would involve a review of Moreno's appraisal and
performance during the school year. Moreno declined to do so
because his appraisal was part of his federal complaint and he did
not wish to compromise his constitutional rights.
Moreno alleges generally that Appellees' actions were racially
motivated, but recites no facts that would support that conclusion.
PROCEEDINGS IN THE DISTRICT COURT
Following a hearing, the district court dismissed Moreno's
42 U.S.C. § 1985 conspiracy claims, which order was not appealed
4
and denied the motion to dismiss his remaining claims without
prejudice. In compliance with the district court's order, Moreno
then filed his amended complaint.
At a subsequent hearing, the district court granted the
defendants' motion to dismiss the constitutional claims and
declined to exercise its supplemental jurisdiction over the state
law claims. The district court determined that Moreno was a member
of a protected class, being Hispanic-American, but that his
allegations of racism were conclusional and that he had failed to
allege that the defendants' conduct was related in any way to his
race or national origin. The district court concluded that Moreno
had failed to state an equal protection claim.
The district court further determined that Moreno had not
alleged a due process claim because his employment had not been
terminated, he had not been transferred, and his pay had not been
reduced. The district court also concluded that it was not
required to determine the issue of the school district's liability
or the issue of qualified immunity because Moreno failed to state
a constitutional violation.
STANDARD OF REVIEW
A dismissal for failure to state a claim upon which relief can
be granted under Federal Rule of Civil Procedure 12(b)(6) is
reviewed de novo using the same standard employed by the district
court. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th
Cir. 1994). "[A] claim may not be dismissed unless it appears
certain that the plaintiff cannot prove any set of facts in support
5
of his claim that would entitle him to relief." Id.
EQUAL PROTECTION
Moreno argues that the district court failed to protect his
"equal protection" rights because the facts alleged clearly
indicated that he was discriminated against because of his Hispanic
background. He contends that he is a member of a suspect class and
therefore the action of the defendants is subjected to a strict
scrutiny. He argues that Dufner treated him differently from other
teachers by constantly harassing him in order to force him to
resign, that Dufner discriminated against him and other Hispanic
teachers by giving Anglo teachers preferential treatment in
teaching assignments and other matters and by creating a hostile
working environment for Hispanics.
The Equal Protection Clause directs states to treat "all
persons similarly situated" alike. Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313
(1985). A claimant who alleges an equal protection violation has
the burden of proving the existence of purposeful discrimination.
McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d
262 (1987). "Discriminatory purpose. . .implies that the
decisionmaker singled out a particular group for disparate
treatment and selected his course of action at least in part for
the purpose of causing its adverse effect on an identifiable
group[.]" Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988)
(internal quotations, citations, and footnote omitted).
Classifications based on race, alienage, or national origin "are
6
subjected to strict scrutiny and will be sustained only if they are
suitably tailored to serve a compelling state interest." Cleburne,
473 U.S. at 440 (citation omitted).
"[A] plaintiff suing a public official under § 1983" fails to
state a claim unless his complaint "rests on more than conclusions
alone." Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995)(en
banc). Moreno's conclusional allegations of discrimination based
on his race do not allege facts reflecting that the defendant's
actions were racially motivated. Rather, Moreno specifically
alleged that Dufner retaliated against him because they disagreed
about the appropriate history book to be used in the school
district and because Moreno complained about Dufner's policies
after he became principal of Cuellar. These allegations did not
reflect that Dufner's actions were racially motivated.
However, Moreno alleged in his amended complaint that Dufner
had "targeted" Moreno and another Hispanic teacher because they had
opposed his earlier textbook recommendation. Moreno also made
general assertions in response to the defendants' motion to dismiss
that Dufner discriminated against two other Hispanic teachers by
denying their grievances and that Dufner gave preferential
treatment to Anglo teachers. Arguably, these assertions made in
response to the defendants's motion to dismiss should have been
construed by the district court as a motion to amend the complaint.
See Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972)
(opposition memorandum to summary judgment motion raised a new
issue and should have been construed as an amendment to the
7
complaint). However, any such error is harmless because Moreno has
failed to allege an equal protection claim even if the allegations
are considered. FED. R. CIV. P. 61.
"The equal protection clause is not violated solely because an
action has a racially disproportionate impact if it is not
motivated by a racially discriminatory purpose." Coleman v.
Franklin Parish Sch. Bd., 702 F.2d 74, 77 (5th Cir. 1983).
Moreno did not allege facts that would establish that Dufner
treated Hispanic teachers differently because of their national
origin. Moreno has not supported his assertion that Anglo teachers
are given preferential treatment with any specific factual
allegations. Nor has he alleged facts in his complaint showing
that a specific Hispanic teacher left his position at the school
based on Dufner's conduct. Moreno has failed to allege the
existence of discriminatory action that must be subjected to a
"strict scrutiny" test. Moreno's complaint failed to state an
equal protection claim.
DUE PROCESS
Moreno argues that the district court did not protect his "due
process" right to engage in his profession. He argues that the
defendants recklessly violated state statutes in order to create a
hostile work environment and that he has a liberty interest in
being free from a hostile working environment. He argues that the
defendants' conduct is subject to strict scrutiny. "To state a
substantive due process claim[,] a plaintiff must show that the
government's deprivation of a property interest was arbitrary or
8
not reasonably related to a legitimate governmental interest."
Williams v. Texas Tech. Univ. Health Sciences Ctr., 6 F.3d 290, 294
(5th Cir. 1993), cert. denied, 114 S. Ct. 1301 (1994).
Moreno has failed to allege facts that show that he has been
deprived of a protected property or liberty interest. Moreno is
complaining about administrative requirements imposed on him by
Dufner allegedly in violation of state law. Such administrative
decisions do not rise to the level of a constitutional violation.
See Dorsett v. Bd. of Trustees For State Colleges and Universities,
940 F.2d 121, 123 (5th Cir. 1991). "Judicial evaluation of
academic decisions requires deference and they are overturned only
if they are `such a substantial departure from accepted academic
norms as to demonstrate that the person or committee responsible
did not actually exercise professional judgment.'" Williams, 6
F.3d at 294 (citation omitted). Even if requiring Moreno to
prepare a Growth Plan prior to his appraisal was technically a
violation of state law, such administrative decision was not such
a "substantial departure from accepted academic norms" as to result
in a constitutional violation.
Moreno also complains about Dufner's placement of a notation
in Moreno's personnel file indicating his refusal to comply with
the request and about Dufner giving Moreno a poor teaching
evaluation. Moreno must show a "stigma" resulting from "concrete,
false factual representations or assertions, by a state actor, of
wrongdoing on the part of the claimant," and an "infringement" that
"significantly alter[ed] a life, liberty, or property interest
9
recognized and protected by state law or guaranteed by one of the
provisions of the Bill of Rights that have been incorporated." See
San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701-02 (5th Cir.
1991) (internal quotations and citations omitted).
Moreno does not contend that Dufner's notation that he refused
to submit a Growth Plan is a false statement and he acknowledged
that the notation has now been removed from his file. Although he
argues that Dufner's evaluation of his teaching ability is
baseless, Moreno does not allege that he has lost his teaching
position, his tenured status, or his salary and benefits as a
result of the evaluation or the notation in his personnel file.
Thus, he has not alleged facts indicating that he has been deprived
of a liberty or property interest as a result of false statements
made by Dufner.
Moreno's allegation that the defendants have created a hostile
working environment unaccompanied by an allegation that he has been
deprived of his teaching position does not give rise to a
substantive due process right. See Dorsett, 940 F.2d at 123 (the
alleged retaliatory acts were nothing more than decisions
concerning teaching assignments, administrative matters, and
department procedures and, although significant to the plaintiff
professor, did not rise to the level of a constitutional
violation); see Santiago de Castro v. Morales Medina, 943 F.2d 129,
130-31 (1st Cir. 1991) (the right to employment free from verbal
harassment does not warrant substantive due process protection).
Moreno argues that Dorsett and Santiago are distinguishable
10
from his case because "race" was not a factor in those cases and
the courts did not take a "strict scrutiny" approach. As
previously discussed, Moreno did not allege facts showing that
Dufner's actions were racially motivated. Further, the "strict
scrutiny" test is used in determining an equal protection claim and
is not applicable in determining whether an individual has a
liberty interest subject to due process protection.
Moreno also argues that his case is analogous to the sexual
harassment cases based on an employer's creation of a hostile work
environment for members of one sex. Although Moreno raises this
issue in conjunction with his substantive due process claim, it
actually raises an equal protection claim. The case relied on by
Moreno, Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st
Cir. 1988) recognized that sexual discrimination violates the equal
protection clause as well as Title VII and Title IX of the Civil
Rights Act of 1964. "To make out a prima facie case of hostile
environment harassment, the plaintiff must show that he or she was
subjected to unwelcome sexual advances so `severe or pervasive'
that it altered his or her working or educational environment."
Id. at 898 (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67
(1986)). Moreno's allegations concerning Dufner's conduct, even if
proved, did not show that the defendant engaged in discriminatory
conduct which was sufficiently severe so as to create an abusive
work environment for Moreno. Further, even if the defendant
created a hostile working environment, Moreno's allegations do not
reflect that the conduct was racially motivated. Moreno's
11
allegations do not support a claim based on a hostile working
environment.
Moreno also makes the closely related argument that Dufner's
used the "constructive discharge" method in order to compel him to
resign. A "constructive discharge" occurs "if the employer
deliberately makes an employee's working condition so intolerable
that the employee is forced into an involuntary resignation."
Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980).
Moreno's complaint does not reflect that he has resigned his
position. Further, his allegations do not reflect that Dufner
imposed working conditions that are so abusive that a reasonable
person would have felt compelled to resign his job. Moreno's
allegations of "constructive discharge" do not support a due
process claim.
PROCEDURAL DUE PROCESS
Moreno also argues that he was denied procedural due process
by the school district's policy of immunizing its supervisory
personnel from grievances in an attempt to avoid judicial
complaints. A governmental entity can be held liable under § 1983
only if official policy or custom caused the deprivation of a
constitutional right. Monell v. Dep't of Social Serv. of City of
New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d
611 (1978). Official policy includes a persistent, widespread
practice of officials, which, although not authorized by officially
adopted or promulgated policy, is so common and well-settled as to
constitute a custom that fairly represents policy. Fields v. South
12
Houston, 922 F.2d 1183, 1191-92 (5th Cir. 1991).
In his response to the defendants' motion to dismiss, Moreno
alleged that after discovery he will be able to prove that all
teachers' grievances against supervisors are processed by the
school district in a discriminatory manner. However, he further
asserted that his grievances and the grievances of two Hispanic
teachers were denied at all levels. Thus, it is not clear whether
Moreno is arguing that it is the policy of the school district to
rule against all teachers filing grievances against supervisors or
Hispanic teachers only.
However, under either scenario, Moreno has not alleged facts
to support his claim that the school district was biased in
addressing his grievances. "An impartial decisionmaker is a basic
constituent of minimum due process." Megill v. Bd. of Regents of
State of Fla., 541 F.2d 1073, 1079 (5th Cir. 1976). However,
Moreno's allegations that the school district was biased against
him is based solely on speculation regarding other Hispanic
teachers and the fact that all of his grievances were denied during
the grievance process. These allegations do not support a finding
of actual bias on the part of the school district members. Moreno
has failed to allege facts, which if proved, would show that the
school district has a policy of routinely denying grievances of
teachers who have been deprived of their constitutional rights by
their supervisors.
DELIBERATE INDIFFERENCE
Moreno argues that defendant Lehmann is liable to him because
13
he acted with deliberate indifference to Dufner's violation of
Moreno's constitutional rights. He argued that Lehmann knew or
should have known of his hostile work environment resulting from
Dufner's racial discrimination, bias, and harassment against
Moreno. He does not allege that Lehmann personally performed any
illegal acts.
A supervisory official can be held personally liable for
subordinate's constitutional violation if the claimant establishes
that the supervisory official learned of facts or a pattern of
constitutional deprivation and demonstrated deliberate indifference
by failing to take action. Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 454 (5th Cir. 1994)(en banc), cert. denied, 115 S. Ct. 70
(1994).
As previously discussed, Moreno has failed to allege facts
showing that Dufner engaged in conduct that violated Moreno's
constitutional rights. Thus, Lehmann could not have been aware of
facts reflecting that Moreno had been denied his constitutional
rights by Lehmann's subordinate. Moreno has failed to state a
claim against Lehmann in his supervisory capacity.
FIRST AMENDMENT
Although this case does not come to us in the posture of a
First Amendment claim, we view the facts as set out by the pro se
appellant's pleadings in that light. A pro se complaint is to be
construed liberally with all well-pleaded allegations taken as
true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). Even
a liberally construed pro se complaint, however, must set forth
14
facts giving rise to a claim on which relief may be granted. Id.
Moreno's pleadings, liberally construed, did not plead facts on
which relief could be granted on a First Amendment claim.
In order to succeed on a First Amendment claim, Moreno has to
establish that he spoke out on a matter of public concern and his
exercise of that right was a motivating factor in an adverse
employment decision. See Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471, 484
(1977). Moreno's pleadings allege that he spoke out about the
issue of the appropriate history textbook to be adopted for use in
a public school during a school district textbook selection
committee meeting. Any statements made by Moreno in that context
were protected by the First Amendment. However, because Moreno's
pleadings fail to allege an adverse employment decision, he has
stated no violation of the First Amendment.
LIBEL
Moreno argues the merits of his state law libel claim on
appeal. The district court declined to exercise its supplemental
jurisdiction over the state law claims. A district court may
decline to exercise supplemental jurisdiction over state-law claims
if the court has dismissed all claims over which it has original
jurisdiction. 18 U.S.C. § 1367(c)(3). Because the district court
properly dismissed all of the claims that provided it with original
jurisdiction in the case, the dismissal of the supplemental state-
law claims was not an abuse of discretion under § 1367. See Rhyne
v. Henderson County, 973 F.2d 386, 395 (5th Cir. 1992).
15
CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal of Moreno's
case.
16