Chavez v. Brownsville Independent School District , 135 F. App'x 664 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-40465
DINO CHAVEZ,
Plaintiff-Appellant,
versus
BROWNSVILLE INDEPENDENT SCHOOL DISTRICT; ET AL
Defendants
BROWNSVILLE INDEPENDENT SCHOOL DISTRICT; NOE SAUCEDA, in his
official capacity
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
Civil Action No. 1:02-CV-128
--------------------
Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
*
FORTUNATO P. BENAVIDES, Circuit Judge:
In this direct civil appeal, Plaintiff-Appellant Dino Chavez
challenges the district court’s rulings granting motions to
dismiss and summary judgment on behalf of Defendants-Appellees
Noe Sauceda and the Brownsville Independent School District
*
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that this opinion should not be published and is not precedent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
(“BISD”). For the reasons that follow, we affirm.
I. FACTUAL BACKGROUND
The BISD maintained an optional Section 125 Cafeteria Plan
through which school employees could purchase insurance policies
with pre-tax income. Chavez, as a regional manager for the
American Family Life Assurance Company (“AFLAC”), administered
the plan each year, starting in 1998, and received commissions
from AFLAC for selling insurance policies to BISD employees.
The parties dispute what position, other than agent for
AFLAC, Chavez held with regard to the administration of the
BISD’s cafeteria plan. Specifically, the BISD contests Chavez’s
assertion that he served the BISD as the de facto Third Party
Administrator (“TPA”) of the plan. Under Texas law, a TPA is “a
person who collects premiums or contributions from or who adjusts
or settles claims in connection with life, health, and accident
benefits.” TEX. INS. CODE § 21.07-6(1). It appears that Chavez
performed the duties of a TPA without compensation so he could
sell AFLAC’s products to the BISD’s employees. However, it is
clear that the BISD did not have a contractual relationship with
Chavez for these services, Chavez held himself out as an agent of
AFLAC, and AFLAC viewed Chavez as its agent when he dealt with
the BISD and its employees.
In fall 2001, the BISD issued a Request for Qualifications
for a TPA to service its cafeteria plan. Chavez responded by
2
submitting an AFLAC proposal to the BISD’s Insurance Committee to
become the TPA for the plan. It appears that Chavez worried
that, instead of AFLAC winning the TPA bid, a rival company,
National Plan Administrators (“NPA”), would receive it. This
motivated him to engage in numerous communications with Insurance
Committee representatives. He also spoke at meetings of the BISD
Board of Trustees to encourage them to select AFLAC. In response
to Chavez’s communications, BISD Superintendent Sauceda contacted
AFLAC and stated that he would not permit it to submit a bid if
Chavez remained the liaison to the BISD. Sauceda also informed
Chavez that he was no longer allowed on BISD property. He cited
unprofessional and unethical conduct on the part of Chavez.
AFLAC had a different agent present its bid to the Insurance
Committee, which it accepted by a vote of 44-1. Chavez contends
that Sauceda’s communications caused AFLAC to terminate him as a
Regional Sales Coordinator.
II. PROCEDURAL HISTORY
On May 31, 2002, Chavez filed a lawsuit in Texas state court
against the BISD, Sauceda, and several school board members,
alleging First Amendment free speech and Fourteenth Amendment due
process violations. He also asserted Sauceda committed torts
under state law. Defendants removed the case to federal district
court. Chavez filed an amended complaint dropping claims against
the board members on August 5, 2002. The BISD and Sauceda filed
3
Rule 12(b)(6) motions to dismiss. The district court granted
Defendants’ motions as to the due process claims on January 16,
2003. On September 25, 2003, the BISD and Sauceda filed separate
motions for summary judgment as to all remaining claims. The
district court granted the motions on January 7, 2004. On
February 3, 2004, Chavez filed notice of appeal. The district
court issued a memorandum opinion regarding its summary judgment
on September 3, 2004.
III. LEGAL STANDARDS
We review de novo Federal Rule of Civil Procedure 56 summary
judgment motions, applying the same standards as the district
court. Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999). All disputed facts are viewed in the light most
favorable to the nonmovant. Id. The existence of a question of
material fact precludes summary judgment. Peel & Co. v. Rug
Mkt., 238 F.3d 391, 394 (5th Cir. 2001). The movant has the
burden of showing an absence of material fact by demonstrating
that “the evidence in the record would not permit the nonmovant
to carry its burden of proof at trial.” Smith v. Brenoettsy, 158
F.3d 908, 911 (5th Cir. 1998).
We also review Federal Rule of Civil Procedure 12(b)(6)
motions to dismiss for failure to state a claim de novo. Gregson
v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003). We
view the defendant’s 12(b)(6) motion with disfavor and construe
4
the plaintiff’s complaint liberally in his favor. Id.
IV. DISCUSSION
Chavez argues that the district court erred (1) in granting
the motions for summary judgment with regard to the First
Amendment claims against the BISD and Sauceda; (2) in granting
the motions to dismiss with regard to his due process claims; and
(3) in granting the motion for summary judgment with regard to
Chavez’s state law claims. We address these assertions in turn.
A. Section 1983 First Amendment Retaliation
The district court found that Chavez failed to establish a
fact issue as to the 42 U.S.C. § 1983 claims against the BISD and
Sauceda because his speech in this case was not on a matter of
public concern. Alternatively, it ruled that the BISD could not
be held liable for Sauceda’s actions because Sauceda was not an
authorized policymaker in this matter and no policy was
established by the BISD with regard to Chavez. We agree.
1. Free Speech Retaliation Claim
We must first determine whether we should view Chavez’s
relationship to the BISD as that of a private citizen or as that
of an employee. A different First Amendment analysis will be
appropriate depending on Chavez’s status. See Blackburn v. City
of Marshall, 42 F.3d 925, 931-32 (5th Cir. 1995). If Chavez was
merely an ordinary citizen, we apply the standard set forth by
the Supreme Court in Perry v. Sindermann, 408 U.S. 593 (1972); if
5
he was more like a public employee, we apply the test in
Pickering v. Board of Education, 391 U.S. 563 (1968). See id.
The district court concluded that Chavez was more akin to an
employee and applied Pickering. We agree.
The Supreme Court has extended the application of Pickering
to independent contractors. See Bd. of County Comm’rs v. Umbehr,
518 U.S. 668 (1996); O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712 (1996). And we have indicated that, when
a public official terminates even a non-contractual, economic
relationship with a service provider, Pickering should be applied
so long as the speech at issue “relate[d] to the relationship
from which [the plaintiff] was terminated.” Blackburn, 42 F.3d
at 934. In general, so long as there existed a relationship,
“sufficiently ‘analogous to an employment relationship,’”
Pickering will apply. Kinney v. Weaver, 367 F.3d 337, 359 (5th
Cir. 2004) (quoting Blackburn, 42 F.3d at 932). We find Chavez’s
relationship to the BISD to be sufficiently analogous to an
employment relationship to warrant application of Pickering. Cf.
id., 367 F.3d at 357-61.
To establish his § 1983 free speech retaliation claim under
Pickering, Chavez must show: (1) he suffered an adverse
employment action; (2) his speech dealt with a matter of public
concern; (3) his interest in his speech outweighs the
government’s interest in efficiency; and (4) his speech led to
6
the adverse employment action. Alexander v. Eeds, 392 F.3d 138,
142 (5th Cir. 2004). The district court ruled that Chavez’s
speech was not on a matter of public concern and therefore not
constitutionally protected. We agree.
Speech on a Public Concern
“We have used two tests, sometimes in conjunction with one
another, to determine whether speech relates to a public concern;
both tests derive from language in Connick v. Myers, 461 U.S.
138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).” Kennedy v.
Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th
Cir. 2000). See also Daniels v. City of Arlington, 246 F.3d 500,
503-04 (5th Cir. 2001) (discussing the two Connick-derived
tests). In one test, we examine “the content, form, and context
of a given statement” to determine “[w]hether an employee’s
speech addresses a matter of public concern.” Connick, 461 U.S.
at 147-48. See also Bradshaw v. Pittsburg Indep. Sch. Dist., 207
F.3d 814, 818 (5th Cir. 2000); Teague v. City of Flower Mound,
179 F.3d 377, 383 (5th Cir. 1999). “The second, ‘shorthand’ test
is the citizen-employee test.” Kennedy, 224 F.3d at 366. It
also comes from language in Connick:
[W]hen a public employee speaks not as a citizen upon
matters of public concern, but instead as an employee
upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a
personnel decision taken by a public agency allegedly in
reaction to the employee’s behavior.
7
Connick, 461 U.S. at 147; Finch v. Fort Bend Indep. Sch. Dist.,
333 F.3d 555, 563-64 (5th Cir. 2003). We determine whether the
plaintiff “[spoke] primarily in his role as a citizen rather than
as an employee addressing matters only of personal concern.”
Fiesel v. Cherry, 294 F.3d 664, 668 (5th Cir. 2002).
When an employee speaks purely on a matter of personal
interest, clearly no constitutional protection attaches. See
Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir.
1998) (“[R]eview by a federal court is improper where the speech
involves matters of solely personal interest.”); Wilson v. Univ.
of Tex. Health Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992) (“[The
Supreme] Court removed from First Amendment protection only that
speech that is made only as an employee, and left intact
protection for speech that is made both as an employee and as a
citizen.”). However, in Kennedy, we signaled that we will easily
find “mixed speech,” i.e., where “the employee . . . speaks from
multiple motives.” See 224 F.3d at 367. In Teague, a panel of
this Circuit criticized earlier holdings indicating that so long
as speech had a mixed quality it could receive constitutional
protection: “The mere insertion of a scintilla of speech
regarding a matter of public concern would make a federal case
out of a wholly private matter fueled by private, non-public
interests.” 179 F.3d at 382. Kennedy questioned this position,
noting that Connick only categorically denied First Amendment
8
protection to public employees speaking “‘upon matters only of
personal interest.’” 224 F.3d at 370 n.13 (quoting Connick, 461
U.S. at 417) (emphasis added in Kennedy). It thus appears that
in the instant case, as in nearly all involving public employees,
because at least a scintilla of public interest exists in such a
dispute with public servants, the communications at issue must be
treated as “mixed speech.” See Ayoub v. Tex. A & M Univ., 927
F.2d 834, 837 (5th Cir. 1991) (noting that “‘almost anything that
occurs within a public agency could be of concern to the
public.’”) (quoting Terrell v. Univ. of Texas Sys. Police, 792
F.2d 1360, 1362 (5th Cir. 1986)).
Mixed speech cases are often difficult. “The existence of
an element of personal interest on the part of an employee in the
speech does not prevent finding that the speech as a whole raises
issues of public concern.” Dodds v. Childers, 933 F.2d 271, 273
(5th Cir. 1991). See also Kinney, 367 F.3d at 361 (“The weight
of the First Amendment interest is, of course, not measured
solely by the [speakers’] own personal gain, if any, from
speaking.”); Thompson v. City of Starkville, 901 F.2d 456, 463
(5th Cir. 1990) (“The existence of an element of personal
interest on the part of an employee in his or her speech does not
. . . dictate a finding that the employee’s speech does not
communicate on a matter of public concern.”). “On the other
hand, an employee cannot transform a personal conflict into an
9
issue of public concern simply by arguing that individual
concerns might have been of interest to the public under
different circumstances.” Dodds, 933 F.2d at 273. See also
Foley v. Univ. of Houston Sys., 355 F.3d 333, 341 (5th Cir. 2003)
(“Speech that is primarily motivated by, or primarily addresses,
the employee’s own employment status rather than a matter of
public concern does not give rise to a cause of action under §
1983.”). But see Denton v. Morgan, 136 F.3d 1038, 1043 (5th Cir.
1998) (“Neither the accuracy of the speech, nor the motivation of
the speaker, plays a role in determining whether the expression
involves a matter of public concern.”).1
1
In so far as Denton stands for the proposition that the
speaker’s motivation, i.e., whether the speech is the result of a
personal dispute or whether it arises out of civic concern, is
always irrelevant to our First Amendment analysis, it is clearly
an outlier in our jurisprudence. See Markos v. City of Atlanta,
364 F.3d 567, 572 (5th Cir. 2004) (noting that the Fifth
Circuit’s precedent “support[s] the principle that an employee’s
motivation in speaking is relevant to the [First Amendment]
inquiry at hand”); Bradshaw, 207 F.3d at 818 (finding speech
unprotected because it was “more of an effort by Ms. Bradshaw to
clear her name rather than some contribution to a public
dialogue”); Teague, 179 F.3d at 383-84 (“Although interspersed
with apparently genuine concerns regarding police wrongdoing,
Teague’s and Burkett’s grievances were primarily motivated by,
and primarily addressed, concerns particular to their private
interests.”); Victor v. McElveen, 150 F.3d 451, 456 (5th Cir.
1998) (“Victor spoke as a citizen on a matter of public concern,
not as an employee upon matters only of personal interest. At
the time of his remarks, Victor was well pleased with his
position as a courtroom bailiff; there was no evidence that he
was a disgruntled employee or had any personal reason to protest
what he perceived to be the potential racially discriminatory
effects of the sheriff’s approach to the new program.” (citation
omitted)); Warnock v. Pecos County, 116 F.3d 776, 780 (5th Cir.
1997) (“By reporting specific wrongs and abuses within the county
10
Armed with the two Connick-derived tests, some panels of
this Circuit, ruling on mixed speech cases, have opted to focus
on the content-form-context test and to perform the citizen-
employee analysis in the alternative. See, e.g., Thompson, 901
F.2d at 461-66. For instance, in Teague, we applied both tests,
government, Warnock was attempting to improve the quality of
government. Her allegations hardly suggest a merely personal
concern for her working conditions, job security, and the
like.”); Forsyth v. City of Dallas, 91 F.3d 769, 773 (5th Cir.
1996) (“Further, it does not appear that [plaintiffs] were
primarily motivated by personal and not public concerns in
publicizing their allegations.”); Caine v. Hardy, 943 F.2d 1406,
1416 (5th Cir. 1991) (“Dr. Caine did not object to the award of
an exclusive anesthesia contract solely, or even primarily,
because of his concern as a citizen for the sound management of
his local hospital.”); Dorsett v. Bd. of Trs. for State Colleges
& Univs., 940 F.2d 121, 124 (5th Cir. 1991) (“We must assess,
therefore, Dorsett’s primary motivation in complaining to the
administration.”); Dodds, 933 F.2d at 273 (“The court may
therefore be required to assess the primary motivation of the
speaker in evaluating whether her speech addresses a matter of
public concern.”); Gomez v. Tex. Dep’t of Mental Health & Mental
Retardation, 794 F.2d 1018, 1021 (5th Cir. 1986) (“Plainly,
Gomez’ purpose in relating the information was to advise the
employee of expected reductions in the length of time patients
would remain at the State Center and to warn of the additional
burden the change would place on Gomez’ interlocutor and on the
County Center generally.”); Day v. South Park Indep. Sch. Dist.,
768 F.2d 696, 700 (5th Cir. 1985) (“The district court correctly
concluded that Day’s complaint was ‘purely a private matter.’
She was primarily concerned about her principal’s negative
evaluation of her performance and his failure to explain her
evaluation to her satisfaction.”). Such a position strikes at
the heart of the citizen-employee test as courts could not
inquire into whether the employee was speaking in his role as a
citizen or as an employee. Indeed, Gonzalez v. Benavides, the
case cited by Denton for this proposition, merely argues for the
existence of speech with “‘mixed’ issues of both public and
private concern.” 774 F.2d 1295, 1301 (5th Cir. 1985). And we
have never cited Denton to support the position that the reasons
for the plaintiff’s speech are entirely unimportant.
11
noting that “more often than not the ‘citizen versus employee’
test will point us in the right direction, and so we consider it
here, in conjunction with the more lengthy three-factor balancing
test . . . .” 179 F.3d at 382. The content of the speech in
Teague was “predominantly public,” but the form and context were
private. See id. at 383. Thus, we concluded that the statements
at issue were “primar[il]y of private concern.” Id. We then
also applied the “‘citizen versus employ[ee]’” test and reached
the same conclusion. See id. Similarly, in Kennedy, though we
indicated that “we [were] not obligated to apply the citizen-
employee test in mixed speech cases,” we still did so and, as in
Teague, observed that we reached the same conclusion. See 224
F.3d at 375-76.
Other panels have incorporated the citizen-employee test
into the content discussion of the content-form-context test.
Generally, courts view content abstractly to determine whether it
is of legitimate interest to an informed citizenry. See, e.g.,
Davis v. Ector County, 40 F.3d 777, 783 (5th Cir. 1994)
(“‘Reports of sexual harassment perpetrated’ on public employees
is of serious public import. The fact that he also sought to
strengthen the credibility of his wife does nothing to dilute the
public interest inherent in the letter’s contents.”) (emphasis
added); Moore v. City of Kilgore, 877 F.2d 364, 370 (5th Cir.
1989) (“If staffing shortages potentially threaten the ability of
12
the Fire Department to perform its duties, people in the
community want to receive such information. The public had an
interest in hearing the content of Moore’s speech.”). However,
in some opinions, we have focused on the personal interest the
speaker held in his speech’s content. This methodology may
reflect the Supreme Court’s implicit admonition in Connick that
matters of public concern are generally “not tied to a personal
employment dispute.” 461 U.S. at 148 n.8. See, e.g., Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216, 222 (5th Cir. 1999)
(noting that the plaintiffs’ general (and legitimately public)
interest in an “improvement of the educational environment” at
their school differs critically from quintessentially personal
interests, such as “an underlying personal dispute” or “an
employment related squabble with [a] supervisor.”). But see
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996)
(commenting “that speech made in the role as employee is of
public concern . . . in limited cases: those involving the report
of corruption or wrongdoing to higher authorities”).
In Markos, we looked at issues of personal interest, i.e.,
the speaker’s motivation, within the “content” portion of the
first test. See 364 F.3d at 571. Specifically, we noted that
“[s]tatements made to exonerate one’s own professional reputation
address a matter of personal concern.” Id. However, “speech on
behalf of a coworker” was public in nature. Id. This
13
distinction appears to be based purely on the speaker’s
interests, not society’s.2
Similarly, in Dodds, a panel of this circuit appeared to
inject the citizen-employee test into the content portion of the
content-form-context analysis. See 933 F.2d at 274. The case
involved speech by a community college employee who alleged that
one of her colleagues received special treatment because of a
familial relationship with the president of the college’s board
of trustees. See id. at 272. The opinion set forth the citizen-
employee test, id. at 273, and recognized that because of the
public interests implicated by the speech, “nepotism, favoritism,
and misallocation of public funds,” this was indeed a case of
mixed speech. Id. at 274. However, it found that the plaintiff
did not speak predominantly as a citizen:
Dodds’s comments indicate her primary concern as the
effect of the favoritism shown to Bolden on her own
employment, not its potential effect on the public
interest. . . . Her protest about not creating jobs
“based on personal gain and political expediency” arose
in reference to her fear that Bolden was being groomed to
take her job. . . . While she may have privately
considered creating a program for Bolden to be a misuse
of public funds, she expressed this belief only after
filing suit.
Id. Again, Dodds focuses on the plaintiff’s interest in her
2
Markos did separately examine the plaintiff’s motivations
outside of the realm of content, though. See 364 F.3d at 572-74.
Indeed, it viewed them as separate inquiries: “In this case, the
fact that the content of the speech and Markos’ motivations were
partially private is not enough to remove this speech from the
realm of public concern.” Id. at 574 (emphasis added).
14
speech’s content. In this way, it seems the panel in Dodds
merged the citizen-employee test with the content portion of the
content-form-context test. See also Dorsett, 940 F.2d at 124-25
(discerning plaintiff’s “primary motivation” through examining
the content of his speech, in addition to other evidence, and
then analyzing separately the speech’s form and context). But
see Moore, 877 F.2d at 371-72 (examining plaintiff’s motivations
during form analysis).
A third approach taken by panels of the Fifth Circuit is to
focus on “the hat worn by the employee,” the citizen-employee
test, and to look at content, context, or form only to assist in
that endeavor. Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th
Cir. 1993). Although the plaintiff in Gillum spoke on issues of
“corruption in an internal affairs department” of a police
department–“a matter of public concern” “to be sure”–we did not
find public speech because “Gillum’s focus was . . . on this
issue only insofar as it impacted his wish to continue his
investigation.” Id. In addition to the public content of the
speech, we also noted its essentially private form. Id. See
also Caine, 943 F.2d at 1416 (finding dispositive, in a case of
speech with arguably public context and content and private form,
that “Dr. Caine did not object to the award of an exclusive
anesthesia contract solely, or even primarily, because of his
concern as a citizen for the sound management of his local
15
hospital. Rather, his objections stemmed from his perfectly
normal, but private interest as a hospital staff member that his
job be as remunerative as possible.”).
As this discussion shows, no single approach to determining
the existence of speech on a public concern predominates in the
Fifth Circuit. Indeed, other panels of this Court have noted the
lack of precision inherent in such a fact-intensive and holistic
analysis. See Thompson, 901 F.2d at 461 (noting that “the
definition of the term ‘public concern’ is far from clear-cut”);
Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 798 (5th
Cir. 1989) (“The definition of ‘matters of public concern[’] is
imprecise.”).3 Ever mindful of Connick’s core principles, in
3
This is most likely why some panels have found it useful to
assemble the various factual scenarios that have or have not led
courts to find protected speech. We did so in Kirkland:
[P]rotesting the President’s policies by commenting
favorably upon an assassination attempt against his life
is a matter of “public concern” meriting protection.
Similarly, a public school teacher may publicly protest
the school board’s allocation of resources between
athletics and academics, or a school’s alleged racially
discriminatory policy in a private conversation with the
principal, without suffering retaliatory dismissal. We
have held that public employees raise matters of public
concern if they criticize the special attention paid by
the police to a wealthy neighborhood, or the
implementation of a federally funded reading program.
Moreover, the quality of nursing care given to a group of
people, including inmates, is a matter of public concern,
as is the adequacy of a fire department’s level of
manpower. However, public employees raise matters of
“private concern” if they criticize the morale problems
or transfer policies at the district attorney’s office;
or criticize the performance of co-employees and
supervisors; or protest an employer’s unfavorable job
16
this case, we think the best approach is to apply all three forms
of analysis in conjunction to ensure that we come to the clearest
constitutional understanding of Chavez’s speech.
The district court identified seven instances of speech by
Chavez: (1) November 9, 2001, Memorandum to Insurance Committee
Campus Representative; (2) November 12, 2001, Memorandum to
Insurance Committee Campus Representative; (3) November 19, 2001,
Memorandum to Insurance Committee Campus Representative; (4)
“Corrected Cafeteria Plan Comparison Chart”; (5) “Why AFLAC?”
Flyer; (6) November 13, 2001, BISD meeting; (7) November 20,
2001, BISD meeting. We review each.
(1) November 9, 2001, Memorandum
The memorandum was faxed by Chavez to insurance committee
evaluation.
890 F.2d at 798 n.10 (citations omitted). This was also our
approach in Kennedy:
Having thus canvassed our mixed speech precedent, we
discern three reliable principles. First, the content of
the speech may relate to the public concern if it does
not involve solely personal matters or strictly a
discussion of management policies that is only
interesting to the public by virtue of the manager’s
status as an arm of the government. If releasing the
speech to the public would inform the populace of more
than the fact of an employee’s employment grievance, the
content of the speech may be public in nature. Second,
speech need not be made to the public, but it may relate
to the public concern if it is made against the backdrop
of public debate. And third, the speech cannot be made
in furtherance of a personal employer-employee dispute if
it is to relate to the public concern.
224 F.3d at 372 (citations omitted). We find such distillations
of this Circuit’s holdings helpful in our analysis, as well.
17
representatives who were, in turn, encouraged to distribute it to
other BISD employees. It concerned a “change in the group health
coverage” for BISD employees. In doing so it accused “[s]ome of
[the] elected board members and hired administrators” of
attempting to make a decision harmful to the employees’ interests
and even implied that they may have misrepresented AFLAC’s
services. The stated purpose of the memorandum was “to set the
record straight directly with the people who should have control
over the say so of employee benefits - employees.” It went on to
detail the benefits of AFLAC.
Under both the citizen-employee and content-form-context
tests, this instance of speech is easily characterized as private
and undeserving of constitutional protection. The notion that by
writing this memorandum Chavez was acting any differently than
“an employee embroiled in a personal employment dispute” need not
be seriously debated. Gillum, 3 F.3d at 121. Clearly, his sole
purpose was to preserve AFLAC’s business relationship with BISD
employees. Chavez cannot reasonably argue that he spoke
predominantly as a citizen. See Dodds, 933 F.2d at 274.
The content of the communication is also largely private. A
view of content that looks at the speaker’s interest in his own
speech shows that Chavez’s concern was predominately private.
See Dorsett, 940 F.2d at 124 (“Dorsett’s complaints at the time
of the alleged harassment reflected predominantly his concerns
18
about the assignment of summer and overload classes to himself
and to his friends in the department. These concerns are matters
of private, not public, interest.”) See also Markos, 364 F.3d at
571 (“Statements made to exonerate one’s own professional
reputation address a matter of personal concern.”) Even a purely
abstract inquiry into the community’s interest in this speech
yields results unfavorable to Chavez. Because of its
distribution to public employees this matter could be of interest
to members of the community. See Terrell, 792 F.2d at 1362.
However, Chavez cannot reasonably contend that its contents are
“of great consequence to the public,” Branton v. City of Dallas,
272 F.3d 730, 740 (5th Cir. 2001), or that “the information
conveyed is of ‘relevance to the public’s evaluation of the
performance of governmental agencies.’” Coughlin v. Lee, 946
F.2d 1152, 1157 (5th Cir. 1991) (quoting Day, 768 F.2d at 700).
And, contrary to Chavez’s assertions, the memorandum never
accuses public officials of corruption or misdeeds. Cf. Denton,
136 F.3d at 1043 (“[S]peech reporting official misconduct,
wrongdoing, or malfeasance on the part of public officials
involves matters of public concern.”).
The form and context of Chavez’s speech are even more
clearly private in nature. The form of this speech was private
as the memorandum was only distributed to BISD employees. See
Alexander, 392 F.3d at 143 (“The form of these questions was
19
clearly private, as they were not leaked to a reporter or sent to
an elected state official.”). Furthermore, Chavez signed the
memorandum as “Regional Sales Coordinator” and typed it on AFLAC
letterhead. See Bradshaw, 207 F.3d at 817 (“The form of the
memoranda provides further support that Bradshaw drafted the
documents in her capacity as a public employee rather than as a
public citizen. Each of them was signed by Bradshaw as ‘High
School Principal.’ At least two of the memoranda were on
Pittsburg High School Letterhead.”). Finally, the speech was not
“made against the backdrop of ongoing commentary and debate in
the press.” Kennedy, 224 F.3d at 373. See also Gomez, 794 F.2d
at 1021 (finding that ongoing discussions among the “employees of
the agencies involved” does not mean something is “a matter of
public debate”). Thus, the context of the speech was also
private.
The memorandum of November 9, 2001, is therefore unprotected
speech.
(2) November 12, 2001, Memorandum
This memorandum simply updates the previous one. It
informed insurance committee representatives that any decision on
this issue had been postponed and worried that “employees will be
forced to make cafeteria plan decisions with little or no
notice.” For the purposes of our analysis, it does not differ
materially from the first memorandum. Thus, for the reasons
20
discuss supra, it is not entitled to constitutional protection.
(3) November 19, 2001, Memorandum
The November 19, 2001, memorandum does not differ materially
from that of November 9, 2001. The only difference is that it
informs insurance committee representatives that it has been
recommended to the school board that NPA become the TPA and this
is “definitely not . . . in the best interest of employees.” It
then discusses the advantages of AFLAC over NPA, lifting most of
the text verbatim from the first memorandum. Again, for the
reasons that memorandum was not speech on a public concern, this
memorandum is not either.
(4) “Corrected Cafeteria Plan Comparison Chart”
The corrected cafeteria plan comparison chart was attached
to the November 9, 2001, memorandum. It is a chart of unknown
origins, discussing AFLAC’s services. It was originally
distributed to BISD employees, unbeknownst to Chavez. On the
copy circulated, Chavez penciled in corrections to the
information presented. In most instances he indicated that
services the chart claimed AFLAC charged for are in fact free.
Chavez also stated explicitly on the copy: “There are no fees
associated with AFLAC’s cafeteria plan services. BISD does not
pay a fee. Employees do not pay a fee.” The chart corrections
suffer the same constitutional infirmities as the
memoranda–Chavez wrote and distributed the chart as an AFLAC
21
salesman, not as a citizen, and the content, form, and context
(which are essentially the same as the memoranda) show this
document to be a private, constitutionally-unprotected
communication.
(5) “Why AFLAC?” Flyer
Chavez typed the “Why AFLAC?” flyer and distributed it at
meetings of the Board of Trustees. The one-page flyer consists
of five numbered paragraphs. Four of the paragraphs have content
similar to the memoranda. They extol AFLAC’s quality of service,
low cost, flexibility, and in-person, local contact. This
content is not a public concern for the reasons the memoranda’s
is not. The other paragraph is not as obviously private in
nature. It reads:
According to the Texas Attorney General’s Office in their
[sic] legal opinions dated May 8, 1987 and April 4, 2000,
granting an agent of record designation to an insurance
agent or agency is illegal when the value of the contract
is more than $10,000. Moreover, granting an individual
an agent of record letter for the purpose of soliciting
optional retirement investments or annuities is also
illegal. Approving agenda Item #24 that reads,
“Recommend approval to award RFQ#012-02 to National Plan
Administrators / Insurance Associates of the Valley...”
would be illegal as there [sic] proposal calls for an
agent of record designation.
Assuming for the purposes of this analysis Chavez’s statement is
correct, we find that it alone does not elevate the flyer to the
status of speech on a public concern.
The citizen-employee test yields the same results it did
above. Chavez is speaking as an insurance representative trying
22
to win business for AFLAC–hence, the title of the title of the
flyer, “Why AFLAC?,” and the other four paragraphs. We dealt
with a similar situation in Knowlton v. Greenwood Independent
School District. 957 F.2d 1172 (5th Cir. 1992). The speech by
school district employees included allegations of a Fair Labor
Standards Act (FLSA) violation, being made to work without pay.
See id. at 1178. We found this was insufficient to make the
speech’s content a public concern: “The record reflects that the
workers’ concern was the effect of the meal program on their
employment and personal lives, rather than public interest in
FLSA violations. They did object to working without pay; but
equal, if not greater, concerns arose from interference with
family life . . . .” Id. Similarly, Chavez’s primary concern
was being able to sell AFLAC, not the BISD’s compliance with
legal memoranda generated by the Texas AG’s office. Chavez was
speaking as an AFLAC sales representative, not as a citizen.
An application of the content-form-context test does not
persuade us that the result of the citizen-employee test is
incorrect. A content analysis that incorporates the citizen-
employee test shows that Chavez’s words were calculated to secure
business for AFLAC, not to ensure compliance with Texas law.
That he found new additional reasons for why the company he
represented should receive the business cannot transform a wholly
private interest into a public one. See Bradshaw, 207 F.3d at
23
817 (“Bradshaw is not entitled to insert a few references to an
activity fund and claim that her speech was primarily that of a
citizen rather than a disgruntled employee.”) See also Davis v.
W. Cmty. Hosp., 755 F.2d 455, 462 (5th Cir. 1985) (“[N]o
particular statement touching upon a matter of potential public
concern must be treated separately out of context and thereby
given first amendment protection.”). We acknowledge that an
abstract view of the content does show the speech to be of
interest to the public. However, we find that this is trumped by
the private form and context of the speech. See Teague, 179 F.3d
at 383. Chavez did not seek to distribute this flyer to the
press or the citizenry at large outside of the school district.
See Dodds, 933 F.2d at 274 (“Dodds did not address her complaints
to anyone outside the College . . . .”). Even though it is
possible that members of the public could have been at the
meetings where the flyer was distributed, any publicization was
incidental. Nor was the speech “made against a backdrop of
widespread debate in the . . . community.” Tompkins v. Vickers,
26 F.3d 603, 607 (5th Cir. 1994).
Thus, we find Chavez’s flyer to be predominantly private and
not meriting constitutional protection.
(6) November 13, 2001, BISD Board of Trustees Meeting
Chavez spoke about this issue during the public comments
portion of the Board of Trustees meeting on November 13, 2001.
24
Chavez introduced himself as a citizen and as a taxpayer. The
general thrust of his speech is difficult to decipher. It seems
that he was upset at the members of the Board for their “extreme
politics” regarding the Cafeteria Plan, although he stated that
he really did not know what was going on. And he urged the head
of the insurance committee to come to a decision soon regarding
the plan. In general, it seems like he was trying to complain
about the process of selecting the Cafeteria Plan administrator.
For the same reasons we did not find speech on a public
concern in the prior instances, we find this speech to be
predominantly private. Under the citizen-employee test, Chavez
spoke primarily as an AFLAC representative–in this case, a
clearly aggrieved one. Terrell, 792 F.2d at 1363 (“Terrell was
not terminated for speaking ‘as a citizen upon matters of public
concern[,]’ Connick, 103 S. Ct. at 1690, or for ‘speak[ing] out
as a citizen on a matter of general concern, not tied to a
personal employment dispute,’ id. at 1691 n.8 (emphasis
added).”). He cannot simply introduce himself as a citizen in
order to transform his complaints about the BISD’s treatment of
AFLAC into a public concern. Any allusions to the behavior of
public officials in Chavez’s speech were limited to its impact on
AFLAC’s sales. See Gillum, 3 F.3d at 121 (“To be sure,
corruption in an internal affairs department is a matter of
public concern. Gillum’s focus was, however, on this issue only
25
insofar as it impacted his wish to continue his investigation.”).
The district court described Chavez’s speech as “akin to the
ranting of a disgruntled employee attempting to draw attention to
his proposal because he believes his proposal offers employees
the best option.” We agree with this characterization.
The content-form-context test buttresses this conclusion. A
view of content weighing the speaker’s personal interests leads
to a conclusion that the content is predominantly private.
Chavez’s concern about the Board’s dealings was limited to his
ability to sell AFLAC’s product. See Bradshaw, 207 F.3d at 817
(“Although partially about the fund, which may be a matter with
some public concern, plaintiff wrote the memoranda, investigated
the fund and chastised Board members in an effort to protect her
name and her job.”). Admittedly, though, an abstract view of
Chavez’s speech does lead us to conclude that citizens would find
it interesting. Outweighing this factor is the largely private
nature of the form and context. As noted supra, although his
comments could have been heard by members of the public, Chavez
addressed the Board as the gatekeeper to his customers, not as
elected public servants, and any information those outside of the
BISD would have gleaned from his statements was purely
incidental. Additionally, there is no evidence of any ongoing
public debate on this issue.
When viewing the “record as a whole,” we reach the same
26
conclusion as the district court–Chavez’s speech at the Board
meeting does not qualify as speech on a public concern. Stewart
v. Parish of Jefferson, 951 F.2d 681, 683 (5th Cir. 1992).
(7) November 20, 2001, BISD Board of Trustees Meeting
Chavez again spoke during the public comments portion of a
meeting of the BISD Board of Trustees. He introduced himself as
an AFLAC representative: “Board members, my name is Dino Chavez,
I represent AFLAC. . . . I’m here tonight to explain to you five
reasons why you should choose AFLAC.” Chavez then provided the
same five reasons contained in the “Why AFLAC?” flyer discussed
supra: legality, low cost, flexibility, service and personal
contact with local representatives. The only portion of Chavez’s
speech that merits our attention is his statement about the
legality of selecting NPA as the Agent of Record: “Legality,
which is the most important one. I’m not an attorney, and I
don’t claim to be, but according to the Texas Attorney General’s
Office in their [sic] legal opinions dated May 8th, 1987 and
April 4th, 2000, Granting an Agent of Record designation to an
insurance agent or agency is illegal . . . .”
For the same reasons the “Why AFLAC?” flyer was not an
instance of public speech, neither was Chavez’s nearly identical
testimony. The citizen-employee test is even easier as Chavez
identified himself as “an AFLAC representative” and, again,
provided the reason for his speech: “why you should choose
27
AFLAC.” The central interest that Chavez expressly implicates in
his speech is that of his potential BISD customers to get the
best deal on personal insurance. This is private in orientation
and supports the contention that he was speaking predominantly as
an AFLAC representative, not as a concerned citizen. The
content-form-context test does not seriously undermine this
conclusion. The subjective content examination shows that
Chavez’s interest in his speech was predominantly, if not purely,
personal. And, while we concede that some of the information
contained in his speech, when viewed abstractly, is of public
concern, the form and context were predominantly private, for the
reasons stated supra. We also emphasize that, at the meeting,
Chavez did not allege any corruption or malfeasance on the part
of public officials. Cf. Brawner v. City of Richardson, 855 F.2d
187, 191-92 (5th Cir. 1988) (“The disclosure of misbehavior by
public officials is a matter of public interest and therefore
deserves constitutional protection . . . .”).
Thus, we conclude that Chavez has not shown that he engaged
in speech on a public concern. We agree with the district
court’s conclusions and affirm its summary judgment with regard
to his § 1983 lawsuit against Sauceda and the BISD.
2. Liability of the BISD
We also agree with the district court’s conclusion that
Chavez did not create a fact issue as to the BISD’s liability,
28
even if he had shown that Sauceda violated his rights. Section
1983 allows for recovery from the BISD, Sauceda’s employer, if
Chavez’s alleged injuries occurred “under color of any statute,
ordinance, regulation, custom or usage” of the school district.
42 U.S.C. § 1983. Since Chavez does not point to an offending
statute or regulation, he must show that a policy or practice of
the BISD caused his alleged injury. See Foust v. McNeill (In re
Foust), 310 F.3d 849, 861 (5th Cir. 2002). “To establish
liability for a policy or practice, a plaintiff must prove that
(1) the local government or official promulgated a policy; (2)
the decision displayed ‘deliberate indifference’ and proved the
government’s culpability; and (3) the policy decision lead to the
particular injury.” Id.
We have set forth what constitutes an “official policy”
under § 1983 for the purposes of municipal liability:
1. A policy statement, ordinance, regulation, or decision
that is officially adopted and promulgated by the
municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making
authority; or
2. A persistent, widespread practice of city officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents
municipal policy.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en
banc) (per curiam), cert. denied, 472 U.S. 1016, 105 S. Ct. 3476,
87 L. Ed. 2d 612 (1985). Accord Johnson v. Deep E. Tex. Reg’l
Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir.
29
2004); Cozzo v. Tangipahoa Parish Council-President Gov’t, 279
F.3d 273, 289 (5th Cir. 2002). It is clear here that Sauceda’s
action is best characterized as a single decision, rather than as
a regulation, policy statement, ordinance, or widespread
practice. For an isolated decision to constitute a policy for
the purposes of § 1983, we require a plaintiff to show that “the
decision was made by an authorized policymaker in whom final
authority rested regarding the action ordered.” Cozzo, 279 F.3d
at 289. See also City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988) (“We have assumed that an unconstitutional
governmental policy could be inferred from a single decision
taken by the highest officials responsible for setting policy in
that area of the government’s business.”).
Naturally, based on the facts presented in this case, Chavez
could meet his burden on the policy prong by showing that Sauceda
was the policymaker with final authority in this matter.
Conversely, if final policymaking authority rested not with
Sauceda, but with the BISD Board of Trustees, Chavez could
establish municipal liability if the Board officially ratified or
granted it imprimatur to Sauceda’s decision. See Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Sauceda as Policymaker
The district court found that Chavez failed to present
evidence showing that Sauceda held policymaking authority in this
30
matter. We agree.
Our opinion in Jett v. Dallas Independent School District
established that the Board of Trustees of a Texas independent
school district holds sole policymaking authority for the
district. 7 F.3d 1241 (5th Cir. 1993). We stated:
[F]inal policymaking authority in an independent school
district . . . rests with the district’s board of
trustees. Texas Education Code § 23.01 provides that
“The public schools of an independent school district
shall be under the control and management of a board of
seven trustees.” The Education Code further provides
that “the trustees shall have the exclusive power to
manage and govern the public free schools of the
district,” id. § 23.26(b) (emphasis added), and that “the
trustees may adopt such rules, regulations, and by-laws
as they may deem proper.” Id. § 23.26(d). Nothing in
the Texas Education Code purports to give the
Superintendent any policymaking authority or the power to
make rules or regulations . . . .
7 F.3d at 1245.4 Chavez responds that the BISD Board of Trustees
delegated to the superintendent the authority to make unilateral
decisions regarding the hiring or termination of the TPA.
Indeed, in this case, as in Jett, the Board did delegate
decision-making power to the district superintendent. However,
there exists a meaningful distinction between policymaking and
decision making. See 7 3d. at 1246 (noting that simply because
the superintendent “may have been delegated the final decision in
the cases of protested individual employee transfers does not
4
The Texas Education Code has since been amended. However,
for our purposes, these changes do not alter Jett’s conclusions
regarding the authority of superintendents under Texas law.
31
mean that he had or had been delegated the status of policymaker,
much less final policymaker, respecting employee transfers”).
See also Praprotnik, 485 U.S. at 129-30 (“‘[I]f [city] employment
policy was set by the [Mayor and Aldermen and by the Civil
Service Commission], only [those] bod[ies’] decisions would
provide a basis for [city] liability. This would be true even if
the [Mayor and Aldermen and the Commission] left the [appointing
authorities] discretion to hire and fire employees and [they]
exercised that discretion in an unconstitutional manner . . . .’
[Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12
(1986).]”). Granting Sauceda the authority to make individual
personnel decisions simply does not constitute an assignment of
policymaking power.
The BISD Board of Trustees
Alternatively, Chavez tried to show that the BISD Board of
Trustees, as the district’s policymaker, “intentionally deprived
[him] of a federally protected right.” Bd. of the County Comm’rs
v. Brown, 520 U.S. 397, 405 (1997). Chavez argues that the Board
in effect “adopted or approved” Sauceda’s decision and thereby
became the constitutional violator. We agree with the district
court that this theory is wholly unsupported by the record.
Chavez is unable to show that a policy or practice of the
BISD caused his alleged injuries. Therefore, we affirm the
district court’s summary judgment in favor of the BISD.
32
B. Due Process Claim
In Chavez’s first amended complaint, he asserted claims
against the BISD and Sauceda for violation of his Fourteenth
Amendment due process rights under § 1983. The district court
granted Defendants’ 12(b)(6) motions to dismiss for failure to
state a claim. After noting that property interests are created
by state law, it ruled that no such interest existed with regards
to Chavez’s desire to be AFLAC’s agent to the BISD: “Plaintiff
does not cite to any Texas cases, nor has the Court unearthed
any, in which the courts recognized a property interest in the
award of a government contract. To the contrary, case law
indicates that . . . a rejected bidder has no property right in
the award of the contract.” The district court concluded:
Plaintiff cannot establish a property interest because
his interest in the proposal itself is simply too
attenuated. Plaintiff was an employee of AFLAC. He was
not an independent contractor and received no direct
payment or formal benefits from BISD . . . . Despite the
fact that Plaintiff had previously administered the
insurance policy plans for BISD employees, he had no more
than a “unilateral expectation” that he could continue to
submit proposals and serve BISD employees.
As we recognized in Blackburn, a plaintiff like Chavez must
identify the independent source of his alleged property interest.
See 42 F.3d at 936-37 (“Property interests are not created by the
Constitution; rather, they stem from independent sources such as
state statutes, local ordinances, existing rules, contractual
provisions, or mutually explicit understandings.”). Like the
33
plaintiff in Blackburn, Chavez has failed to cite any legal
ruling or statute in Texas entitling him to the government
benefit, in this case the opportunity to present an insurance bid
to the BISD. See id. at 937 (“[Plaintiff] cites, and we have
found, no decision of any Texas court indicating that he had any
entitlement to be or remain on the on-call rotation list. Nor
does he cite . . . any Texas statute or administrative
regulation, or any ordinance . . . , which might be construed to
provide such an entitlement.”).
Thus, we affirm the district court’s dismissal of Chavez’s
due process claim.
C. State Law Claims
The district court granted summary judgment for Sauceda on
Chavez’s state law claims for tortious and intentional
interference with a business relationship, malice, fraud, libel
and slander, and intentional infliction of emotional distress,
because of Texas Education Code § 22.051’s grant of professional
immunity. The statutory provision clearly grants immunity to
superintendents. See TEX. ED. CODE § 22.051. However, it only
applies to school employees acting in the scope of their
employment. See Gonzalez v. Ison-Newsome, 68 S.W.3d 2, 5 (Tex.
Ct. App. 1999). Specifically, Sauceda and other defendants
asserting this defense must prove the following: “(1) they were
professional school employees, (2) acting incident to or within
34
the scope of their duties, (3) the complained-of action involved
the exercise of judgment or discretion on their part, and (4) did
not involve the discipline of a student.” Id.
Naturally, the first and fourth parts are not in dispute.
As to the second prong, it is hard to imagine that one could
seriously argue Sauceda’s actions with regard to Chavez were not
at least incident to his duties. “Whether one is acting within
the scope of his employment depends upon whether the general act
from which injury arose was in furtherance of the employer’s
business and for the accomplishment of the object for which the
employee was employed.” Chesshir v. Sharp, 19 S.W.3d 502, 504
(Tex. Ct. App. 2000). School superintendents are required to
“manag[e] the day-to-day operations of the district as its
administrative manger.” TEX. EDUC. CODE § 11.201(d)(5). Clearly,
Sauceda was managing the District’s operations by dealing with
the cafeteria plan. And his actions with regard to Chavez were
incident to that administrative duty.
Likewise, Sauceda’s actions in this matter cannot reasonably
be considered ministerial, instead of discretionary. Downing v.
Brown, 935 S.W.2d 112, 114 (Tex. 1996) (“Ministerial actions
require obedience to orders or the performance of a duty to which
the actor has no choice. On the other hand, if an action
involves personal deliberation, decision and judgment, it is
discretionary.” (citations omitted)). It is virtually axiomatic
35
that “[t]ermination and contract renewal decisions and employee
evaluations are duties that require the exercise of a school
supervisor’s judgment and discretion.” Carey v. Aldine Indep.
Sch. Dist., 996 F. Supp. 641, 656 (S.D. Tex. 1998).
Thus, we affirm the district court’s grant of summary
judgment for Sauceda on the state law claims.
V. CONCLUSION
For the foregoing reasons, we AFFIRM.
36