IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41503

Summary Calendar

ELIZABETH M. LEAL, 

 Plaintiff - Appellant

v.

CORPUS CHRISTI-NUECES COUNTY PUBLIC HEALTH DISTRICT; 

ANNETTE RODRIGUEZ, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CV-302

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

In this appeal, Elizabeth Leal challenges the district court’s dismissal of 

her First Amendment retaliation suit against the Corpus Christi-Nueces 

County Public Health District. Because Leal plausibly alleged that the Health 

District’s director was a final policymaker, we VACATE this portion of the 

district court’s judgment and REMAND.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 11, 2016

Lyle W. Cayce

Clerk

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BACKGROUND

Leal was employed by the Corpus Christi-Nueces County Public Health 

District as the Administrative Research Director. According to her complaint, 

in 2014, she told the Corpus Christi Police Department that she believed the 

Health District’s director was misusing taxpayer and grant funds and also not 

working hours she was being paid for. The director, Annette Rodriguez, 

allegedly retaliated against Leal for making this report. The acts of retaliation 

included unfairly scrutinizing the plaintiff’s time and attendance, instituting 

an ad hoc dress code on an employee supervised by plaintiff, questioning 

purchases made months earlier that had been made with Annette Rodriguez’s 

approval, undermining the plaintiff’s decisions, and unfairly criticizing the 

plaintiff’s job performance, and the performance of others who she supervised. 

Leal ultimately resigned from the Health District because she couldn’t take 

Rodriguez’s harassment anymore. She alleges that this was a constructive 

discharge in retaliation for her First Amendment protected report to law 

enforcement. She filed suit against the Health District alleging a violation of 

42 U.S.C. § 1983 for First Amendment retaliation and against Rodriguez 

alleging various state law claims. On the defendants’ motion, the district court 

dismissed all the claims with prejudice for failing to state a claim.

DISCUSSION

We review de novo the district court’s decision to dismiss for failing to 

state a claim. See Culbertson v. Lykos, 790 F.3d 608, 616 (5th Cir. 2015). Leal’s 

complaint “must contain sufficient factual matter, accepted as true, to state a 

claim for relief that is plausible on its face.” Id. (internal quotation marks 

omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 

(2009)). This court construes the complaint in the light most favorable to Leal

and draws all reasonable inferences in Leal’s favor. See Severance v. Patterson, 

566 F.3d 490, 501 (5th Cir. 2009). 

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As an initial matter, Leal only appeals the dismissal of her First 

Amendment retaliation claim against the Health District. The district court 

dismissed her entire suit, against both the Health District and Rodriguez 

individually, for failure to state a claim. In fact, the district court found that 

Leal had never even asserted a § 1983 claim against Rodriguez. In her opening 

brief, Leal only quarrels with the district court’s dismissal of the retaliation 

claim against the Health District. The brief even recites that “plaintiff has no 

issues with the other rulings in the district court’s order.” In reply, Leal 

attempts to revive her claims against Rodriguez by arguing that the same 

rationale for reversing the district court on the claim against the Health 

District applies to her claim against Rodriguez. That’s not true and, in any 

event, it is too late since this court does not consider arguments raised for the 

first time in a reply brief. See Spear Mktg., Inc. v. BancorpSouth Bank, 

791 F.3d 586, 602–03 (5th Cir. 2015). Thus, Leal has abandoned all her other 

arguments against the district court’s ruling.

Turning to this appeal’s sole issue, the Health District can only be liable

under § 1983 for the retaliatory actions of Rodriguez if those actions represent 

the District’s official policy in the area of retaliation—in this case, personnel 

or employee matters. See Bolton v. City of Dallas, 541 F.3d 545, 548 (5th Cir. 

2008) (per curiam). One way of showing that Rodriguez’s actions represent the 

District’s official personnel policy is by establishing that Rodriguez is the 

District’s final policymaker on personnel matters. See id. Final policymaking 

authority is often understood as the power to set the ultimate standards and 

rules for an organization. See Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 

377, 382 (5th Cir. 2007). The status of an official as the final policymaker is a 

matter of state and local law. See Bolton, 541 F.3d at 548. 

In this case, contrary to the district court’s conclusion, Leal has 

adequately alleged that Rodriguez is the Health District’s final policymaker in 

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personnel matters. As the district court rightly recognized, Leal’s allegation 

that Rodriguez is the “top level, final policy maker for Nueces County with 

respect to operating the Health District” is a legal conclusion that we do not 

credit in assessing the adequacy of her complaint. However, several other 

factual assertions plausibly allege Rodriguez’s final policymaker authority. 

First, Leal’s complaint asserts that Rodriguez is the Health District’s 

director. As her brief makes clear, the director of a public health district is a 

position created by state law. See Tex. Health & Safety Code § 121.045(b). 

That law provides that the director is the “chief administrative officer” of the 

district. See id. It is at least plausible that a person holding that position 

would be the final policymaker with respect to personnel matters. 

Second, Leal’s complaint details that Rodriguez instituted a dress code, 

that Rodriguez had the authority to scrutinize time, attendance, and 

purchasing records, and that complaints to the human resources director did 

not improve Leal’s situation. Taken together and drawing reasonable 

inferences in Leal’s favor, these factual assertions plausibly allege that 

Rodriguez had the ability to set personnel policies and that, in this regard, she 

may have outranked the human resources director.

Though our case law has found other head administrators to lack final 

policymaking authority, such a conclusion must rest on a nuanced analysis of 

the relevant state and local law and is generally made on summary judgment 

after factual development.1 See, e.g., Bolton, 541 F.3d at 550–51; Gelin v. Hous. 

Auth. of New Orleans, 456 F.3d 525, 528–31 (5th Cir. 2006). Thus, at least at 

 

1 The Health District attached its governing document to its motion to dismiss to show 

that Corpus Christi and Nueces County retain policymaking authority over the Health 

District. Since Leal did not refer to this document in her complaint and the district court did 

not consider it in its ruling below, this court does not consider it in this appeal. See Taylor v. 

City of Shreveport, 798 F.3d 276, 279 & n.4 (5th Cir. 2015).

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this stage, Leal’s complaint has plausibly alleged that Rodriguez has final 

policymaking authority for the Health District. 

For these reasons, we VACATE the judgment of the district court 

dismissing Leal’s § 1983 complaint against the Health District and REMAND

for further proceedings. 

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