first of all whether or not then superintendent terry greer was a policymaker for the houston independent school district i believe that he was not believe that the reasons that he was order attach to my response to that will be six first of all i want to say though that we're going to end any of the argument any further that at jefferson elementary school although counsel points out that there were nineteen teachers who were apparently accused of those nineteen there was no testing irregularities down to jefferson and that the only time that  at the end of the day that greer superintendent greer attempted to justify the investigation and his actions in there he said that researchers this on public radio researchers agreed that  to be under investigation are you asking for x punishment that in her record you're asking for some kind of damages but we are we're we're asking but the clock b donald but and that which was done to her be the big knowledged and that the that she be given first of all she ought to be able to go back to jefferson she's not in a state and i realize that's not the issue that you're dealing with whether or not she's in a place where that's desirable or not but and that was pointed out think so in another case but of and she she's asking for relief that it should be available through the district court and we have to be sent back to do that the you you sort of caught me off a the adverse action here is that she's been transferred to a place that that she was for transfer to places she would see it transferred her who did determine who made the decision to transfer her the only person that could make the decision to but i mean basically you know the defendant you named is h i s d and only s h i s t right you have not named superintending career individually nor if you name the principal that he entered into with a trustee i'm september the eleventh two thousand and nine carol galloway the board member was to the district's representatives and the signatory for the district and that contract it record on appeal three thirty four and three thirty nine as the end paragraph two point six exhibit twenty three states the board bought policy and by this contract has delegated to the superintendent the authority to determine the terms of employment of all employees of the district except the superintendent it then states also that the board delegated the authority to employ all contract and non contract employees for positions authorized by the board that means that have been budgeted and to direct assign reassign and transfer all employees in the manner which in his judgment best cern's the november the fourteenth of of two thousand and nine when he spoke to state representatives when he spoke to the of the community in the fifth ward when he spoke to the established we wanted to agree with you i don't know how we're going to saddest case but assume we wanted to agree with you and we were writing a published opinion how would we deal with the very  not my point is that i should not give you a chance to answer it i did cut you off but but what i'm trying to what i'm asking is we have case law on the books that that that's is as clear as it possibly could be and we're bound by that case law we can't just go off and and make exceptions how how would how would we write that in a coherent way they show also states that well first of all the state law says that th the school board can can delegate authority it has the right to contract that's what that's what your case law is built upon it's built it's built on the concept that the school board is the the administrative agency of the district but the administrative agency of the district has the ability to contract in this particular case they did they exercise a contract that the laws of the state of texas gave you one size doesn't fit all i mean this is a case where where you say  exactly what was done to the group but but in the in this case this school district for whatever reason they wanted him so badly that they gave up their absolute of pop their absolute power in the areas of the contract and the contract is before you in the record of this this case and precisely what did greer do visibly this plaintive he called for an investigation and when the investigation was completed they concluded the investigation but it was not greer who personally transferred the plaintiff to the other school right at the big rear so you're saying greer every single personal decision made with any choice during the generally recommended make recommendations to the board in the board acts upon those recommendations really didn't have to do that he cut the middle man up he was hire fire anybody here all he did was call for an investigation which you allege is retaliatory because this lady was an active member of the union but she was investigated along with eighteen other people you know i'm not saying that the investigation was retaliatory of what i'm saying is that what is retaliatory is that and and i think that's going to be a substantive due process issue but i think that when i get to it but the point is that if you look at the timeline the everything that happened after november the fifteenth when she was perp walked off the premises and placed in the in a field house to pick up truck when she was taken out of her her job function everything that happened after that didn't they take all of the other teachers out of their job function during the course of the investigation and they is is that realistic today except it's going to carry it on the h s t website i wanted to say also that the adverse action is a transfer that's good though and that's also something that was superintendent the power to hire that duty the board is the one determines who gets heart what about that the responsibility of transfers is that some of the board gets involved in or is it up to the superintendent well to determine transfers my name is chris coburn i had the honor to represent the houston into the school district in this appeal this was a case that could have been a lot of things that could have developed into a lot of different issues but it didn't because the district followed twelve  and judge bennett granted and that's why we have a fairly limited record in this appeal although you want us to amend it for more drama no your honor i would prefer that you not do that but what's interesting is the contract and i would encourage you to read the contract this is a no no case and there are lots of different ways obviously that you can find liability on behalf of the government entity trat with he did he attach the contract to the complaint yes your honor it's he cited from and i've got it right here page three thirty nine  sorry it was not cited it wasn't attached to the complaint it was attached to his response to the twenty six diary number of legal theories under modelling which you can hold a governmental entity liable most of them are not at issue in this  case because the board never took any action and as judge smith noted there is a legion of case law from this circuit stating that at least with regard to texas school districts the school board is the policy maker that's jet versus dallas ice tea that sparrow versus green the you can delegate but to date i'm not aware of any case that is ever actually found that at least with respect to school districts that a school board actually delegated policy making authority as opposed to decision making authority to anyone the superintendent or anyone else that was the argument in jet and if you look at jet jet talks about that is the difference between decision makers and and policy makers the mr watts would have you believe that terri greer was some sort of unique and different superintendent he was a superintendent of a school district just like every other superintendent texas law actually makes the superintendent the final voice on a number of employment issues including the issue of recommending terminations that's the barricades that's what they looked at in that case but in both jet and in barrow this  found that just because you have the final say on things like transfers jet is a transfer case the superintendent and jets dallasites the the superintendent and jet had the absolute final say on making transfers but this court found that wasn't a delegation of policy making authority that was simply a delegation of decision making or based on the fact that section eleven point zero five one of the education code specifically says that it's the board the school board that has the authority and the ability to manage and govern texas school systems barrow which was decided in two thousand and seven went back and looked at changes in the education code since then there had been changes that had made it under state law more clear that the superintendent is the one who needs to be making implement recommendations and barrow said that doesn't again that's not evidence of the delegation policy making frankly it's actually evidence that it is simply decision making authority th mix similarly states that the authority to make fun municipal policy is necessarily the authority to make final policy when in officials discretionary decisions are constrained by policy is not about officials making these policies rather than the supporters departures from them are the act of the municipality and then in barrow thirteen fourteen years later this court said similarly an official whose discretionary decisions on a particularly particular matter final and unreviewable meaning they can't be overturned is constrained if another entity has ultimate power to guide that discretion at least prescriptively whether or not that power is exercised that's what happened here there are only seven factual allegations in the amended complaint that deal at all with terri greer in this alleged delegation of policymaking authority the key ones and the one that mr  which is deals with comp employment contract and on contract employees this says this is the second half of the paragraph that says pacifically the superintendent has been delegated the authority to employ all contractor non contract employees for positions authorized by the board and to direct assign reassign and transfer all employees in the manner which in his judgment best serve the district subject to guidelines established in policy by the board that's the constraining language that both jet and barrow pointed to carry greer did not have unlimited authority to do whatever he wanted to he could make disemployment decisions subject to the guidelines the transfers decision making authority just like in jet and just like in parrot and must follow the policy adopted by the by the board exactly so again if if if the superintendent does something else and goes against policy and makes employment decisions that's the exact kind of respond it's a carrier liability that noone else and you can't attribute to a government went do i do think it's important to acknowledge is the court did that this was an investigation to me that's what they were doing they were looking to see whether anything happened here a lot of the arguments that the  argues you know that certain evidence was found as part of the investigation and that that evidence proved that she couldn't have have cheated on the exam which is what we eventually found and that that evidence therefore showed she never should have been part of the investigation and therefore somehow it was sinister that she was but that's what investigation does it finds evidence and then decides does this evidence show guilt or or does it show innocence mr watts i'm not sure it matters but just curious he says that  there show that she's under investigation that is he may be correct about that that isn't a spire that's an internal thing that teachers can access to look at their spire bonus which the district doesn't do anymore these fire bonuses been the subject of other litigation that i'm not involved in but it's my understanding that they're they're not they're not going forward with that kind of bonuses anymore it's an internal thing i suppose if somebody did make a public information act requests for every record that ever had anything to do with his teacher they might find that's highly unlikely and i can explain why my client doesn't fix that but the result of the investigation and you've got that evidence is also in the record very clearly shows that she was absolved and transferred to another school so this was an investigation it wasn't just her it was actually about one thousand people and if you actually look at the memo i think it is judge jones made a good point although the appellant keeps trying to blame terry greer for everything that happened in this most of the allegations about terry greer specifically in the complaint are either about things that happened in a different case involving a principal which is not this case different school different that he was more involved in and then things that happened after the investigation was in full swing when the union caused a lot of hullabaloo in the local media and then people responding to media was there precious little allegations very few that say that terri grier had anything to do with selecting is going solace to be part of the investigation placing her on leave transferring her or any of those things in fact the memo and it's referenced a couple times in the brief that actually started this is the september twelfth two thousand and thirteen memo it's page three ninety of the record this is the memo that started the investigation it terry greer is not part of this moment this is from carla loria who's the chief school officer for elementary schools smith who was the head of the office of school support so terry greer was involved in that even if you buy the delegation argument second of all this memo doesn't have anything to do with the appellant this me actually doesn't a den of find any teachers it simply says that there were concerns because there had been rumors among the parents that some teachers were helping kids cheat there was one teacher who came forward and said she doesn't really have any proof but she had heard some things in the in the in the from sort of an earlier phase of was there cheating is there a problem to even know who's involved to now we think we know who's involved we need to move forward and in the record it also shows this is page two sixty five of the record that the reason the plaintiff was involved as part of the investigation is she was a den of five by a student as having helped her cheat now apparently that student was ultimately wrong that's the point of the investigation but it wasn't terry greer who said hey let's make this person part of the investigation she was done if i was a student during the early part of the investigation moving on to substantive merits no judge bennett below resolve this case on the no that was his only real ruling but obviously this court under previous president can affirm the district court's ruling on a twelve b six under any it's grounds that were certain blown supported by the record and we did move to dismiss on the merits the first amendment claim the liberty interest claim the due process claim and the protection plain and sole touch briefly on those the first amendment claim if you look at the allegations many of the allegations involving this rodriguez happened years before this incident at jefferson elementary school at a different school  different administrators and there are no allegations that the people involved in this investigation even knew about any of those previous incidents that she had had so there's a causation issue we do believe and we asserted below that there is no or there was no adverse employment action mr watts is correct that transfers under certain circumstances can be considered an adverse employment action but this court in burnside versus kalen said that those transfers are only adverse at the objective lee equivalent to a discharged emotional reprimand the ms rodrigues is transferred from jefferson elementary to barrack elementary which is where she ended up that's a t finish it's a teacher position both schools that's not objectively a demotion with respect to the investigation this court said in both pierce versus tax department or texas department of criminal justice and bro versus city of garland that accusations false allegations investigations are not adverse when in the end the persons absolved which is what happened here so we don't believe that there were really any adverse employment actions for purposes of the first amendment complaint there's a causation issue of the very fact that causation is usually fact issue but if you look at the facts that are played in this there's a causation issue both because many of the about as i said before a lot of what happened that they allege happened a lot of her alleged protected speech happened years before  different school under different ministre there's no allegation that any of the people involved in this that investigation knew about all of that more importantly a lot of the protected speech that she alleges she gauged in was complaining about this investigation after november all of that speech that happened after that couldn't motivated her inclusion in the transfers backwards the causation backwards nothing happened after that other than her being absolved so there's no adverse employment action there either lastly we don't believe that the allegations as put forward show that her speech was on a matter of public concern now if you look carefully at what she alleges she said there's a lot of allegations that the union was speaking out on various issues related to this overall investigation there really aren't any allegations that the appellant did that what she focuses on and to the extent she did it all happened after the investigation started and after she was transferred and put on an essential in history of leave sort of tries to make it seem like more than it was you can tell from the allegations that that grievance was a grievance about her own medical restrictions she had been on leave because of the car accident during spring when she came back in august she had to move from one study and help and the principal said no you can't have to study and help that the allegation in the complaint is the principal said nobody gets custodian help so she filed a grievance saying you're not paying any attention to my medical complaint she actually called the administration building and they called right over and said no give her give her help and so she she got help that's the grievance complaints about not honoring one's own medical restrictions simply is not a speech on a matter of public concern under any of the test of the supreme court of use and in fact we cited a case it's a district court case from new mexico west versus new mexico tax and revenue department but that was the exact allegation an issue in that case with respect to the liberty interest claim this court both the supreme court in this court repeatedly held that employees liberty interests is affected only when the employee is just charged in a way that stigmatizes their reputation and forecloses them from other employment that's board of regents from this court this court has repeatedly said that transfers are typically insufficient to create a liberty interest claim more verses or pair o t a versus would and in this case she hasn't been she wasn't just charged she's still employed by the district to this day and there's simply no there are no allegations that would support sufficient to rise to a liberty interest violation there are also no allegations that would rise to the level of the procedural due process violation again public employees do not have property interests in specific assignments that's jet vs dallasites the again in thomas first smith and being part of an investigation is not depriv employee of property rights or required the process that's what the supreme court held in s c c versus jerry t o brien because the investigation itself doesn't result in final action there would be something after that in this case that miss rodriguez had been found to be part of it if she'd been found to have cheated which she wasn't but if they had found that then they would have had to go through the regular chapter twenty one process into the education code she would have been entitled to the hearing so in the s e c case the supreme court said investigations don't fire allege what protected group she supposedly belonged to that supposedly motivated any of this anything that happened to her to the wrist to the effect to the extent that what she is alleging is that she was part of the union membership in a teacher organization does not involve a suspected class that was the holding by the sixth circuit in memphis a hefty versus board of education of memphis city schools for those reasons unless the court has any other questions i would be happy to yield a little bit of time back to the court i think you may all right first of all i want to tell you i'm not trying to put words on or ask you to construe words i think councils doing that look at exhibit twenty three of the contract look at the collection that he didn't read which says quite clearly bored by policy and by this contract has delegated to the superintendent the authority to determine the terms of employment of all employees of the district except the superintendent i don't have to be our scalloped figure out that what you're doing is giving the power to determine what the the terms of a relationship with the district are that's called policy the part that he says the rest of it which he would say is is the key the that would undo this gordian knot that the  least in a school district and have it somewhere where it can be understood he says that caleb best not even this case you know why use caleb because that's where spitz work greer came in in two thousand and nine and full discovery in twelve the six of them even in caleb and got depositions and got testimony and got affidavits and you benefited from a lot of those that's why i use caleb stuff but the call is caleb statements by the statements by greer are relevant to what he interpreted his power to date and that is what he did in heat how i how i played the game oct seventeenth he said well it just took time for us to figure out what the truth was what the the state law says that what you're going to do with your superintendent from the moment that you you get some sort of odd given some a moment that you get a reasonable basis to conduct an investigation that's the state law then what you do is conduct the investigation and you have seven days to get it all done by because of people's lives and careers are important and you have seven days to make that decision but we didn't even know they were doing an investigation none of the teachers knew they were that green was doing an investigation or through karl moore who was doing an investigation until november the fifteenth we had heard something about parents coming up to the school twenty fourth of april when they would start testing and she could have been there she nearly died when she was hit by the drunk driver she was out until june thirteenth and she didn't get off medical disability with the restrictions until later in affidavit he says well that's true but maybe it's possible that she could have come into the fifth grade on own own own april second or third and not her class she told third member she could come to the fifth grade and she could have achieved their well and unfortunately for them which they haven't talked to you about the haven't put anything in their brief about it order for teacher to go into a testing situation they have to have the the by the testing director and if any teacher goes into a classroom they're on video camera because all the schools have security for them all they had to do they never talk to the principal at that time period him and then i did my lady was not involved but they they drug it out they kept her in the field house picking up trash until the end of the school year but oh well i'm like to see