Kaplan v. City of Arlington ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-10247
Summary Calendar
_______________________
ALISE KAPLAN,
Plaintiff-Appellant,
versus
CITY OF ARLINGTON,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth Division
01-CV-134
_________________________________________________________________
September 12, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Alise Kaplan appeals from the district court’s grant of
summary judgment for the defendant, the City of Arlington. For the
following reasons, the judgment is AFFIRMED.
Title VII retaliation. The dispositive question is
whether Kaplan’s filing of internal grievances constitute protected
activity under Title VII. We have long held that an employee’s
conduct in opposition to what she sincerely believes are unlawful
*
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opinion should not be published and is not precedent except under the limited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.
employment practices may be so disruptive or inappropriate as to
fall outside the scope of protected activity. See, e.g., Douglas
v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372-74 (5th
Cir. 1998). The tone of Kaplan’s grievances is unprofessional, to
put it mildly. Kaplan frequently complained of minor
inconveniences that she believed were part of a campaign of
“methodical persecution,” and her memoranda are replete with
personal attacks on her co-workers and supervisors. Having read
the grievances included in the record, and comparing the facts of
this case to Fifth Circuit precedent, we hold that Kaplan’s
grievances (in terms of tone, content, and frequency) were so
unreasonable under the circumstances that, as a matter of law, her
actions cannot be deemed “protected activity” under Title VII.
Due process. Kaplan contends that the district court
erred in granting the City’s Rule 12(c) motion for judgment on the
pleadings on her due process claim. In a § 1983 action against a
municipality, the plaintiff must plead facts showing a policy or
custom that was the motivating force for a constitutional
violation. See Spiller v. City of Texas City Police Dep’t, 130
F.3d 162, 167 (5th Cir. 1997). Because Kaplan failed to plead such
facts, her due process claims under § 1983 were properly dismissed.
AFFIRMED.
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