IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50983

DON POWERS; KARON WERNLI, 

 Plaintiffs - Appellants

v.

NORTHSIDE INDEPENDENT SCHOOL DISTRICT; BRIAN T. WOODS, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Plaintiffs-Appellants Don Powers and Karon Wernli filed suit against 

their former employer, Northside Independent School District (NISD) and its 

superintendent Brian Woods, asserting free speech and retaliation claims in 

violation of their First Amendment rights under 42 U.S.C. § 1983; Article 1, 

Section 8 of the Texas Constitution; and the Texas Whistleblower Act. On 

appeal, Plaintiffs challenge several of the district court’s rulings, as well as its 

final judgment in favor of Defendants. We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2020

Lyle W. Cayce

Clerk

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I.

Powers and Wernli, formerly the principal and assistant principal, 

respectively, of Adams Hill Elementary School, were employed by NISD, 

pursuant to two-year term contracts that were set to expire at the end of the 

2014–15 school year. During the 2012–13 school year, Plaintiffs, along with 

three other Adams Hill educators, served on a committee (the 504 committee) 

which was convened for the purpose of implementing regulations under 

Section 504 of the Rehabilitation Act of 1973.1

Plaintiffs’ Section 504 Practices

In May 2013, the 504 committee met to conduct an evaluation of J.B., a 

student diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The 

504 committee determined that J.B. had a reading disability and was therefore 

entitled to an oral administration accommodation for the upcoming STAAR 

test.2 However, on June 20, 2013, Anna Draker, who was NISD’s Section 504 

program coordinator at the time, reviewed J.B.’s Section 504 documentation. 

After concluding that J.B. did not meet the criteria to qualify for oral 

administration on state tests, Draker notified Plaintiffs that J.B. would not be 

given the accommodation for the STAAR test.

Following this incident, NISD conducted an investigation of Adams Hill’s 

Section 504 files and 2013 STAAR testing procedures. In July 2013, Draker 

and the NISD investigative team met with Wernli and later with Powers to 

inform them of potential STAAR testing errors and Section 504 violations at 

Adams Hill. After his meeting with NISD, Powers called the Texas Education 

1 Section 504 requires federally-funded school districts to “conduct an evaluation . . . 

of any [student] who, because of handicap, needs or is believed to need special education or 

related services . . . .” 34 C.F.R. § 104.35; see also 29 U.S.C. § 794(a).

2 The STAAR test is a Texas standardized test used to measure students’ academic 

performance. 

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Agency (TEA)3 to validate that he and Wernli were “on the right approach for 

accommodations on the 504 for oral administration.” The following day, Wernli 

also called the TEA because she “felt adamant to report . . . that [NISD] had 

violated the law by taking J.B.’s rights away from him.” Wernli and Powers 

both placed several subsequent calls to the TEA to validate their Section 504 

procedures and to report NISD’s allegedly unlawful conduct.

Thereafter, on July 24 and July 30, 2013, respectively, NISD suspended 

Powers and Wernli pending the outcome of their investigation into Plaintiffs’ 

Section 504 and STAAR administrative practices. Upon the investigation’s 

conclusion, NISD filed an incident report with the TEA setting forth the 

investigative team’s findings that Plaintiffs intentionally authorized 

inappropriate student testing accommodations based on a misapplication of 

Section 504 eligibility requirements.

Administrative Proceedings

In early September 2013, Plaintiffs filed grievances asserting that NISD 

imposed their suspensions in retaliation for Plaintiffs reporting NISD’s 

conduct to the TEA. After hearing Plaintiffs’ grievances, NISD’s 

superintendent, Brian Woods, denied their requested remedies. Woods then

sent Plaintiffs follow-up letters informing them that he would be 

recommending their termination during an upcoming meeting of the NISD 

Board of Trustees (the Board).4 In advance of the upcoming termination 

proceeding, the Board held a hearing on Plaintiffs’ grievances, after which the 

Board too denied Plaintiffs’ requested remedies. On December 10, 2013, 

3 The TEA is the state agency that oversees primary and secondary public education 

in Texas.

4 The Board is the body with decision-making authority over employment decisions 

concerning campus-level administrators. 

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during the Board’s regular meeting, Woods recommended that Plaintiffs’ 

employment be terminated, and the Board voted in favor of termination.

The Board’s first vote to terminate entitled Plaintiffs to a hearing before 

an independent hearing examiner (IHE)5 appointed by the TEA. The hearing 

was held before the IHE on March 18, 19, 20, and 24, 2014. Over those four 

days, the parties presented witnesses, offered exhibits, and cross-examined 

opposing witnesses. On April 14, 2014, the IHE issued his findings of fact and 

conclusions of law and found that NISD was justified and met the standard of 

good cause in proposing termination of Plaintiffs’ employment contracts. At 

the following Board meeting on April 22, 2014, the Board adopted the IHE’s 

recommendation and unanimously voted to terminate Plaintiffs’ employment.6

District Court Proceedings

On May 22, 2014, Plaintiffs filed suit against NISD in Texas state court, 

alleging NISD terminated their employment in violation of the Texas 

Whistleblower Act. Plaintiffs later amended their state court petition to name 

Woods as a defendant and to raise additional causes of action under the Texas 

and United States Constitutions, 42 U.S.C. § 1983, the Rehabilitation Act, and 

the Americans with Disabilities Act. Thereafter, Defendants timely filed a 

notice of removal. On August 4, 2015, Plaintiffs filed their First Amended 

Complaint, raising the following claims against NISD: (1) violation of the 

Texas Whistleblower Act, TEX. GOV’T CODE § 554.002(a); (2) violation of 

Plaintiffs’ First Amendment free speech rights under § 1983; and (3) violation 

5 The IHE presides over a quasi-judicial hearing, administered in accord with Texas 

Rules of Civil Procedure and Rules of Evidence, and makes findings of fact, conclusions of 

law, and a recommendation to the Board.

6 Following their termination for good cause, Plaintiffs filed an appeal with the Texas 

Commissioner of Education; however, on June 10, 2014, Plaintiffs voluntarily dismissed their 

appeal.

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of Plaintiffs’ free speech rights under Article I, Section 8 of the Texas 

Constitution. In their First Amended Complaint, Plaintiffs also raised a § 1983 

claim against Woods.

On October 29, 2015, the district court dismissed Plaintiffs’ First 

Amendment retaliation claims against Woods on the basis of qualified 

immunity. On January 27, 2016, the district court granted in part and denied 

in part NISD’s motion for summary judgment. The district court granted 

summary judgment on Plaintiffs’ free speech claims under the First 

Amendment and the Texas Constitution.7 However, the district court 

concluded that genuine issues of material fact precluded summary judgment 

on Plaintiffs’ Texas Whistleblower claims against NISD. Consequently, only 

Plaintiffs’ Texas Whistleblower Act claims against NISD survived for trial. On 

January 19, 2018, the district court also granted NISD’s motion for summary 

judgment on its affirmative defense of Plaintiffs’ failure to mitigate their 

economic damages under the Texas Whistleblower Act, finding that Plaintiffs 

had failed to identify competent evidence of their efforts to obtain substantially 

equivalent employment since their discharge.

Plaintiffs’ remaining claims under the Texas Whistleblower Act went to 

a jury trial. During the trial, the district court informed the jury that the IHE’s 

findings of fact from the administrative hearing have a preclusive effect, 

meaning the jury must accept those facts as true but was still tasked with 

determining whether retaliation was the reason for Plaintiffs’ terminations. 

The written jury charge likewise incorporated a preclusive effect instruction as 

to questions three and seven of the verdict form.

7 In their briefs, Plaintiffs appeal the district court’s summary judgment of their free 

speech claims under only the First Amendment. Accordingly, any free speech claims 

Plaintiffs previously asserted under the Texas Constitution are deemed waived on appeal. 

See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing FED.

R. APP. P. 28(a)(9)(A)). 

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After the close of evidence, the jury returned a unanimous verdict in 

favor of NISD, finding that Plaintiffs’ conversations with the TEA about 

NISD’s denial of a student’s test-taking accommodations were not reports of a 

violation of law made in good faith. Thereafter, the district court entered 

judgment on the verdict in favor of Defendants. On November 20, 2018, 

Plaintiffs timely filed their notice of appeal.

II.

Plaintiffs contend that the district court erred by dismissing their claims 

against Defendant Woods based on qualified immunity. We review de novo a 

motion to dismiss for failure to state a claim under Rule 12(b)(6), applying the 

same standard as the district court. In re Katrina Canal Breaches Litig., 495 

F.3d 191, 205 (5th Cir. 2007). “The court accepts all well-pleaded facts as true, 

viewing them in the light most favorable to the plaintiff.” Id. (internal 

quotation marks omitted). However, the plaintiff must plead “specific facts, 

not mere conclusory allegations” to state a claim for relief that is facially 

plausible. Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 

1994). “A claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

The factual allegations need not be detailed, but they must be enough to raise 

a right to relief above the speculative level, assuming all the allegations are 

true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

As superintendent, Woods is entitled to qualified immunity from suit 

under § 1983 unless Plaintiffs can demonstrate that Woods’ actions violated 

clearly established constitutional law. See Salas v. Carpenter, 980 F.2d 299, 

305 (5th Cir. 1992). Our qualified immunity determination ordinarily requires 

a two-step analysis: (1) whether Plaintiffs have stated a violation of their First 

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Amendment rights8; and if so, (2) whether Woods’ conduct was objectively 

reasonable in light of clearly established law. See Salas, 980 F.2d at 305–06.

We need not determine whether Plaintiffs have adequately stated a First 

Amendment retaliation claim because even assuming Plaintiffs succeed on the 

first prong of our qualified immunity analysis, they fail on the second prong.

See Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018) (per curiam)

(electing to skip the first prong of the qualified immunity analysis because the 

case could be resolved on the second prong). “The second prong of the qualified 

immunity test is better understood as two separate inquiries: whether the 

allegedly violated constitutional rights were clearly established at the time of 

the incident; and, if so, whether the conduct of the defendant[] was objectively 

unreasonable in the light of that then clearly established law.” Hare v. City of 

Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998). In the context of First 

Amendment retaliation claims, our law was previously ambiguous as to 

whether an individual who recommends an adverse employment decision but 

is not a final decision-maker can be liable for retaliation under Section 1983. 

See Culbertson, 790 F.3d at 627; see also Sims, 894 F.3d at 641. 

In concluding that this area of the law was unsettled, the Culbertson

court discussed the tension in our precedents’ application of Beattie v. Madison 

County School District, 254 F.3d 595 (5th Cir. 2001). Culbertson, 790 F.3d at 

625–27. In Beattie, a school secretary sued the principal and superintendent, 

among other defendants, for First Amendment retaliation after they 

recommended her termination to the school board, which unanimously voted 

to terminate her employment. 254 F.3d at 599. The Beattie court held that 

8 To state a claim for First Amendment retaliation, Plaintiffs must allege (1) they 

suffered an adverse employment decision; (2) their speech involved a matter of public 

concern; (3) their interest in speaking outweighed Woods’ interest in promoting efficiency; 

and (4) their speech motivated Woods’ conduct. See Culbertson v. Lykos, 790 F.3d 608, 617 

(5th Cir. 2015) (citing Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc)).

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“[b]ecause the board fired Beattie for permissible, constitutional motives 

independently of [the defendants’] recommendation, that superseding cause 

shields [the defendants] from liability.” Id. at 605. Although the Beattie court 

did not necessarily hold that the principal and superintendent were not

individually liable because they were not the final decision-makers, some later 

decisions “have interpreted Beattie to hold that only final decision-makers may 

be held liable for First Amendment retaliation under § 1983.” Culbertson, 790 

F.3d at 626 (citing Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004)); 

see also Whiting v. Univ. of S. Miss., 451 F.3d 339, 350–51 (5th Cir. 2006) 

(holding that university president could not be liable for First Amendment 

retaliation because he was not responsible for the final decision to deny 

professor’s tenure). Yet, such an interpretation of Beattie runs contrary to our 

earlier and controlling decision in Jett v. Dallas Independent School District, 

which required only that the plaintiff show “an affirmative causal link” 

between the school principal’s recommendation and the school district’s 

decision. See Culbertson, 790 F.3d at 626 (quoting Jett v. Dall. Indep. Sch. 

Dist., 798 F.2d 748, 758 (5th Cir. 1986)); see also Sims, 894 F.3d at 641.

Because of the uncertainty created by these decisions, our law on this 

issue remained unsettled until 2018 when the Sims court provided “overdue 

clarification.” Sims, 894 F.3d at 641. There, our court held that there is no 

absolute bar on liability for individuals who are not final decision-makers in a 

First Amendment retaliation claim. Id. The Sims court further held that the 

“causal link” standard in Jett controls and sets the causation requirement on 

such a claim. Id. Nevertheless, like in Sims, this clarification of the law 

provides no recourse to the plaintiffs in the instant case because the law was 

not clearly established at the time the incident occurred. See id. When Powers 

and Wernli were terminated in April 2014, the inconsistency in our law as to 

whether First Amendment liability can attach to a public official who did not 

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make the final employment decision had not yet been resolved. See Culbertson, 

790 F.3d at 627 (concluding that the law remained unsettled in June 2015). 

Accordingly, the district court did not err in dismissing Plaintiffs’ claims 

against Woods based on qualified immunity.

III.

Next, Plaintiffs contend that the district court erroneously granted 

summary judgment on their First Amendment claims, upon concluding that 

Plaintiffs’ complaints to the TEA regarding NISD’s application of Section 504 

accommodations were activities performed pursuant to Plaintiffs’ official 

duties.

We review de novo a grant of summary judgment. Goudeau v. Nat’l 

Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015). Summary judgment is 

appropriate when the movant is entitled to judgment as a matter of law, and 

there is no genuine dispute of material fact. FED. R. CIV. P. 56(a). “An issue of 

material fact is genuine if a reasonable jury could return a verdict for the 

nonmovant.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th 

Cir. 2010).

We “draw all reasonable inferences in favor of the nonmoving party, and 

avoid credibility determinations and weighing of the evidence.” Goudeau, 793 

F.3d at 474. “However, a party cannot defeat summary judgment with 

conclusory allegations, unsubstantiated assertions, or only a scintilla of 

evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 

2007) (internal quotation marks and citation omitted). The party opposing 

summary judgment must go beyond the pleadings and identify specific 

evidence in the record showing that there is a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). The movant is entitled to summary 

judgment if “the nonmoving party has failed to make a sufficient showing on 

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an essential element of her case with respect to which she has the burden of 

proof.” Id. at 323.

In reviewing a free speech claim brought by a public employee, we 

conduct a two-step inquiry. First, we must “determin[e] whether the employee 

spoke as a citizen on a matter of public concern. If the answer is no, the 

employee has no First Amendment cause of action based on his or her 

employer’s reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410, 418 

(2006) (internal citation omitted). If the answer is yes, the question becomes 

“whether the relevant government entity had an adequate justification for 

treating the employee differently from any other member of the general 

public.” Id. The first step in that analysis “sets out two predicates for publicemployee speech to receive First Amendment protection”: the speech must be 

(1) made as a citizen and (2) on a matter of public concern. Gibson v. Kilpatrick, 

773 F.3d 661, 667 (5th Cir. 2014). 

“The ‘as a citizen’ requirement draws a distinction between when public 

employees speak in their private capacities and when they speak ‘pursuant to 

their official duties.’” Id. (quoting Garcetti, 547 U.S. at 421). When public 

employees speak pursuant to their official duties, they are not speaking as 

citizens for First Amendment purposes, and their speech is not protected. Id.

(citing Garcetti, 547 U.S. at 421). Although the Supreme Court articulated no 

comprehensive framework for determining whether speech is within the scope 

of an employee’s official duties, it did state that neither job descriptions nor the 

fact that the speech concerns the subject matter of the employment are 

dispositive. Id. (citing Garcetti, 547 U.S. at 421, 424–25). The Court further 

advised that the proper inquiry should be practical and focused on the scope of 

the employee’s professional duties. Id. (citing Garcetti, 547 U.S. at 424–25).

Here, Plaintiffs placed several calls with the TEA to validate their 

Section 504 procedures and report NISD’s allegedly unlawful conduct. It is 

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undisputed that Plaintiffs’ job duties included implementing Section 504 for 

students at Adam Hill. Yet, Plaintiffs contend that their job duties did not 

include reporting NISD’s alleged misconduct to a higher level authority, e.g.

the TEA; therefore, their calls to the TEA constitute private, protected speech. 

We find this argument unconvincing. Both Powers and Wernli were members 

of the school’s committee that was tasked with implementing and ensuring

compliance with Section 504. Indeed, as members of the 504 committee, 

Plaintiffs participated in the meeting specifically convened to determine 

whether student J.B. was eligible for Section 504 accommodations. It then 

follows that Plaintiffs’ calls to TEA regarding Section 504 construction and 

application at Adams Hill were clearly “activities undertaken in the course of 

performing [their] job[s],” such that they were pursuant to Plaintiffs’ official 

duties. See Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693–94 (5th Cir. 

2007) (holding that a school athletic director’s memoranda expressing concern 

regarding the handling of school athletic funds were not protected speech 

because they were “part-and-parcel of his concerns about the program he ran”). 

Such activities are not protected by the First Amendment; accordingly, the 

district court did not err in granting summary judgment on Plaintiffs’ First 

Amendment claims.9

IV.

Plaintiffs also appeal the district court’s grant of summary judgment 

barring Plaintiffs from recovering for lost wages under the Texas 

Whistleblower Act.10 The Texas Whistleblower Act permits a successful 

plaintiff to receive “compensation for wages lost during the period of 

9 Because we conclude that Plaintiffs’ speech was made pursuant to their official 

duties, we need not determine whether the speech was a matter of public concern. 

10 Our standard of review on a motion for summary judgment has been set forth supra.

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suspension or termination.” TEX. GOV’T CODE ANN. § 554.003(b)(2) (West 

2019). The statute allows for recovery of back pay, as well as front pay, when 

job reinstatement is not feasible. See Dall. Cty. v. Glasco, No. 05-03-01330-CV, 

2004 WL 1202008, at *4 (Tex. App.—Dallas June 2, 2004, no pet.) (mem. op.); 

City of Hous. v. Levingston, 221 S.W.3d 204, 232 (Tex. App.—Houston [1st 

Dist.] 2006, no pet.). However, a plaintiff must use reasonable diligence to 

mitigate damages by seeking other employment which is substantially 

equivalent to the job from which the plaintiff was discharged. Office of the 

Attorney Gen. of Tex. v. Rodriguez, 535 S.W.3d 54, 84 (Tex. App.—El Paso 2017, 

pet. granted). Employment is substantially equivalent when it “affords 

virtually identical promotional opportunities, compensation, job 

responsibilities, working conditions, and status” as the position from which the 

plaintiff has been terminated. West v. Narbors Drilling USA, Inc., 330 F.3d 

379, 393 (5th Cir. 2003). In a wrongful discharge case, the defendant has the 

burden of proving plaintiff’s failure to mitigate damages. Id. However, if the 

defendant establishes that the plaintiff has not made reasonable efforts to 

obtain work, the defendant is not required to prove that evidence of equivalent 

work exists and is available. Id. 

In the instant case, both Powers and Wernli, instead of seeking 

comparable employment, retired and began taking annuity payments from the 

Texas Teacher Retirement System after their termination. Plaintiffs contend 

that by doing this, they exercised reasonable care to minimize their damages. 

We disagree. Our court has recognized that the appropriate focus for 

mitigation of damages is on Plaintiffs’ efforts to obtain other employment. See 

Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1468 (5th Cir. 

1989) (finding plaintiff was clearly not entitled to back pay after he stopped 

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looking for work). For four years following their termination, neither Powers 

nor Wernli made reasonable efforts to look for work.11 

Plaintiffs justify their lack of efforts to obtain comparable employment

by contending that any efforts they could have made would have been futile. 

However, Plaintiffs’ unilateral decision that their job-seeking efforts would be 

futile does not absolve them of their duty to mitigate damages. See Johnston 

v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1579, n.3 (5th Cir. 1989) 

(reversing an award of back pay where the plaintiff did not try to obtain other 

employment and, thus, did not fulfill his duty to exercise reasonable diligence 

to mitigate his damages, because he had unilaterally determined the job search 

would be pointless). Because Plaintiffs have failed to exercise reasonable 

diligence to mitigate their damages, they are not entitled to recovery of lost 

wages.

Lastly on this issue, Plaintiffs contend that the district court erred in 

denying Plaintiffs’ motion for rescission or modification, which they filed 

nearly seven months after the district court’s order denying Plaintiffs’ recovery 

of lost wages, after the close of discovery, and only three months before trial. 

Yet, a review of the record reveals that Plaintiffs’ “new evidence” of their efforts 

seeking employment was not previously unavailable. See In re Benjamin 

Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002); FED. R. CIV. P. 59(e). Plaintiffs 

had the opportunity to raise evidence of their efforts to obtain comparable 

employment prior to the district court’s ruling on the original motion for 

summary judgment. Instead, because Plaintiffs had not made such efforts, 

they rested on their futility argument. Plaintiffs cannot relitigate the issue by 

subsequently creating new evidence. Cf. Rosenzweig v. Azurix Corp., 332 F.3d 

11 In their later motion for rescission, Plaintiffs raise “changed circumstances” alleging 

they sought comparable employment, though notably, not until after the court’s order

denying Plaintiffs’ recovery of lost wages.

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854, 863 (5th Cir. 2003) (“[A] motion to alter or amend the judgment under 

Rule 59(e) . . . cannot be used to raise arguments which could, and should have 

been made before the judgment issued.”). Accordingly, the district court did 

not err in denying Plaintiffs’ motion for rescission or modification.

V.

Plaintiffs contend the district court also erred by instructing the jury 

that the findings from the IHE administrative hearing had a preclusive effect. 

Questions three and seven of the jury charge and instructions read, in relevant 

part:

In answering this question, you are also bound to consider the 

findings of fact and conclusions of law contained in the 

independent hearing examiner’s recommendation of termination 

as true. In other words, you must take it as true that Northside 

ISD had good cause to terminate [the Plaintiffs’] employment 

contract. 

 

Additionally, at trial, the district court explained to the jury how this 

preclusive effect is applied: 

The findings of fact made in [the IHE] hearing could have been 

appealed but [were] not; therefore, it’s preclusive, a fancy word 

meaning it bounds everybody to exercise their legal rights. Those 

facts . . . you must accept on the termination, however, that does 

not have preclusive effect on the issue of whether or not they were 

. . . terminated as a result of the plaintiffs making complaint under 

the Whistle Blower Act . . . [y]ou will have to determine whether 

or not [Plaintiffs] were retaliated against and that was the reason 

for termination, not the findings of the state hearing officer nor the 

investigation of the school board and the reasons that the school 

board put forth for termination.

We review jury charges and instructions under the deferential abuse of 

discretion standard. Bagby Elevator Co., Inc. v. Schindler Elevator Corp., 609 

F.3d 768, 772 (5th Cir. 2010). District courts are given “wide latitude in 

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formulating jury charges.” Id. (quoting Carrizales v. State Farm Lloyds, 518 

F.3d 343, 348 (5th Cir. 2008)). Therefore, the challenging party has the burden 

of showing that “the instruction as a whole creates substantial doubt as to 

whether the jury was properly guided.” Id. (quoting Carrizales, 518 F.3d at 

348). Furthermore, even if we conclude that a jury instruction is erroneous, 

we will not reverse on that error if the challenged instruction could not have 

affected the outcome of the case.12 Id. (citing Dahlen v. Gulf Crews, Inc., 281 

F.3d 487, 494 (5th Cir. 2002)).

In Bradberry v. Jefferson County, Texas, our court articulated that a

Texas administrative agency’s findings can have preclusive effect when “the 

agency is acting in a judicial capacity and resolves disputed issues of fact 

properly before it which the parties have had an adequate opportunity to 

litigate.” 732 F.3d 540, 549 (5th Cir. 2013). Parties can be said to have had an 

“adequate opportunity to litigate” if they are represented by counsel; they have 

the opportunity to present witness testimony and to cross-examine opposing 

witnesses; and the respective rules of evidence are applied. Id. at 550. Like in 

Bradberry, the administrative proceedings here provided the parties with an 

adequate opportunity to litigate: the parties, through their attorneys, 

presented witnesses, offered exhibits, and cross-examined opposing witnesses 

over four days of testimony; at the hearing, the IHE applied the Texas Rules 

of Evidence; and, prior to the hearing, the parties engaged in written discovery, 

pursuant to the Texas Rules of Civil Procedure. The district court did not err 

by instructing the jury that the IHE’s findings were preclusive. 

12 This rule of law is significant to the instant case. Here, the challenged jury 

instruction pertains only to questions three and seven of the verdict form. The jury, however, 

never reached questions three and seven because they answered the preceding, dispositive 

questions one and five in favor of Defendant NISD. Consequently, the challenged instruction 

could not have affected the outcome of the case. However, even if it had, Plaintiffs’ argument 

fails on the merits, as well. 

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VI.

Finally, Plaintiffs contend the district court erred in relying upon the 

jury’s verdict that Plaintiffs did not report a violation of law in good faith. We 

disagree. Our court has long held that the jury’s role is to hear both sides and 

choose which witnesses and what evidence it believes. Polanco v. City of 

Austin, Tex., 78 F.3d 968, 980 (5th Cir. 1996). “It is not within the province of 

this court to disturb a jury’s finding which is supported by the record, even if 

this court would have been inclined to rule differently . . . .” Id. The district 

court in the instant case found that the record supported the jury’s finding and 

was obligated to affirm the jury’s verdict accordingly. See id. Based on the 

record, the jury, in weighing the testimony and evidence presented by the 

Plaintiffs with that of the Defendants, could have reasonably found the 

Defendants to be more credible and returned a verdict in the Defendants’ favor. 

For these reasons, Plaintiffs have failed to show that the district court 

committed reversible error with respect to any of the issues raised on appeal. 

Accordingly, the judgment of the district court is AFFIRMED.

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