United States Court of Appeals

Fifth Circuit



## FILED

June 5, 2003

Charles R. Fulbruge III

Clerk REVISED JUNE 5, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-20924

__________________________

PATSY FINCH,

Plaintiff - Appellee,

versus

FORT BEND INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants,

DON HOOPER, Individually and in his official capacity;

ARTHUR CULVER, Individually and in his official capacity,

Defendants - Appellants.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

___________________________________________________

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Superintenden t s o f a school district appeal the interlocutory order denying their motion for

summary judgment predicated on qualified immunit y, where a former middle school principal sued2

the superintendents and school district following her alleged con st ructive discharge. The former

principal brought claims for: violation of her rights under the United States Constitution to freedom

of speech and association and to procedural and substantive due process; violation of her rights under

the Texas Constitution to freedom of spee ch and association; breach of contract; and intentional

inflict ion of emotional distress. We REVERSE IN PART the order of the district court denying

summary judgment as it pertained to all constitutional claims, and DISMISS the appeal as it pertains

to the Texas tort law claim.

I. FACTS AND PROCEEDINGS

Prior to the events at issue in this litigation, Patsy Finch (“Finch”) worked for the Houston

Independent School District for 27 years, including 6 years as a t eacher, 2 y ears as an assistant

principal, and 21 years as a secondary principal.

Arthur Culver (“Cu lver”) actively recruited Finch for 2 years to join Fort Bend Independent

School District (“FBISD”). Finch ultimately accepted Culver (and FBISD)’s offer, which included

the position of principal at her choice of middle schools. Finch started as principal of Lake Olympia

Middle School under a on e-y ear probationary contract. S ee T EX

. E DUC

. C ODE A NN

. § 21.102(a)

(1996). As Superintendent of Area I, Culver supervised Finch.

In the fall of the probationary year, Culver directed Finch to write a proposal for a “School Wit hin

a School” program to address issues that had been discussed at an Area I principals’ meeting. The

program involved placing students whose age exceeded the corresponding grade level by as much as

three years in separate classrooms with an enriched curriculum. Finch presented her written proposal

to Culver later that fall. No formal action was taken on the proposal that school year.

At the end of the probationary year, Culver evaluated Finch: “Overall, Mrs. Finch has done an3

outstanding job. She has overcome many obstacles in order to make [Lake Olympia Middle School]

a better place for teaching/learning to take place. There was a high turnover rat e wit h teachers,

however, that is no rmal when you bring in a strong instructional leader with high expectations &

accountability. Change & turnover was needed.” Finch received a two-year term contract.

In November of the first year under the term contract, Don Hooper (“Hooper”), Superintendent

over all of FBISD (and Culver’s direct supervisor), invited Finch to pres ent her “School Within a

School” proposal to the FBISD executive cabinet, which comprised Hooper, all area superintendents

(including Culver), and all associate superintendents. The minutes from that meeting state:

A considera ble amount of time was spent for the presentation and dialogue about

different aspects of the proposal. [The associate superintendent fo r budget and

finance] suggested that Finch meet with someon e from his staff to review her

proposed budget, and [the then Area III superintendent] suggested [Finch] review a

program at Hodges Bend Middle School that has a similar concept. In conclusion,

Dr. Hooper commended Finch for her work and desire to address the needs of these

children. He also asked that she review certain areas of the proposal and provide

greater detail and descriptions of how the program will be different, and thus prove

successful for these students.

Three months later, Finch’s employment situation abruptly chang ed. On February 25, Culver

informed Finch that Hooper wanted Finch to resign, effective at the end of the school year. Hooper

sugg e sted Finch would be reassigned if she did not resign. The request stunned Finch. She and

Culver went to see Hooper. According to Finch’s deposition, Hooper opened the conversation by

stating: “I just don’t like you, and I made a mistake in bringing you here from [Houston] ISD. We

need to cut our losses, and you need to leave. You need to resign[.]” Hooper stated Finch was not

keeping the parents of her students under control. Hooper expressed displeasure about contemporary

media reports that a few years earlier, when Finch was principal of Pershing Middle School, the coach1 Finch’s deposition regarding the February 25, 1999, meeting reads:

Q. When Dr. Hooper came into the office, what happened?

A. He sat down in a chair.

Q. And what happened?

A. And he leaned over and put his hand on his head; and he said something to the

effect about, “I just don’t like you, and I made a mistake in bringing you here

from HISD. We need to cut our losses, and you need to leave. You need to

resign,” something to that effect.

. . .

Q. So on February 25, 1999 when Dr. Hooper met with you after saying that he

just didn’t like you and wanted to cut his losses, what was your response?

A. I started crying.

Q. Did you question him?

A. Of course.

. . .

Q. And what was his response?

A. He told me that I was one of 50-some-odd principal s in the distri ct that

couldn’t control their parents . . . . He told me [about] the recent television

story [regarding the alleged rape at Pershing]

. . . and he said, “Any ripple out

in the community could have an adverse effect on me.” He didn’t like that.

And he told me I was strong but h e had made a mistake in bringing me out

there and that he wanted me to resign effective at the end of the contract year

or he would reassign me to a position like transportation, in the transportati on

department; and then he told me that he would help me find another job.

Q. Anything else?

A. He mentioned Jackie Gilbert.

4 of Pershing’s female basketball team allegedly raped a member of the team during a school function.

Hooper further expressed concern that Finch had defended Jackie Gilbert, a physical education

teacher Finch had brought with her from Pershing, who had recently resigned following charges of

impropriety. Hooper also told Finch that “he didn’t like the School Wit hin a School proposal, that

he was absolutely sick of [it].” 1Q. What about that did he mention?

A. He was unhappy about that.

Q. What did he say that he was unhappy about?

A. I don’t recall. I don’t recall right at this moment . I have recalled it

previously, but I don’t know. And there were probably other things that were

said during that very short meeting.

Q. How long a meeting do you think it was?

A. It was short. Maybe 10 minutes.

He also said -- is it okay, if I remember something, that I tell you?

Q. Yes.

A. He also said that he -- after I talked with him about it

-- he told me he didn’t

like the School Wit hin a School proposal, that he was absolutely sick of that.

So I said, “Well, that can be withdrawn.”

5 After the meeting, Culver had additional contact with Finch during the workday and in to th e

evening (via telephone) to determine whether Finch would resign. The following morning, Friday,

February 26, a FBISD police car blocked Finch in her driveway. The police officer delivered a letter

from the associate superintendent of human resources reassigning Finch to an unspecified position,

instructing Finch to meet with Hooper on Monday morning, and directing Finch not to go to Lake

Olympia Middle Scho o l. On Monday, Finch met Hooper and was assigned to the maintenance

department.

Later that week, Hooper provided Finch with written notice that she was being reassigned to the

specific position of Facilitator for Classified Staff Development. The written notice provided reasons

for the reassignment:

1. Failure to maintain an effective wo rking relationship with FBISD

administrators/colleagues;

2. Failure to co o perate with and to timely prepare documents needed in

connection with a special education matter;2 Finch asserts an additional Level III grievance hearing between Hooper and Finch occurred

on March 10. Finch’s attorney appeared part-way through that meeting. Nothing turns on how the

March 10 meeting is classified.

3 Finch’s complaint includes an additional count of violation of a liberty interest in her good

name. In Paul v. Davis , 424 U.S. 693, 711-12 (1976), the Supreme Court held that mere injury to

re putation, even if defamatory, does not constitute the deprivation of a liberty interest. S ee also

Conn. Dep’t of Pub. Safety v. Doe

,

__ U.S.

__, 123 S.Ct. 1160, 1164 (2003) (discussing reputati on

in context of Megan’s law); c ompare Rosenstein v. City of Dallas

, 876 F.2d 392, 395 (5th Cir. 1989),

w ith id. at 399-401 (Jolly, J., dissenting).

6 3. Failure to follow established policies and procedures; and

4. Insubordination.

In addition, the notice informed Finch she could present any concerns she had regarding t he

reassignment through the FBISD grievance process. Finch’s salary remained unchanged.

Finch filed a grievance. In April, Hooper conducted a Level III grievance hearing, with Finch

represented by counsel. Following an adverse result, Finch appealed the Level III grievance hearing

to the FBISD board of trustees. 2 The board held an evidentiary hearing, referred to as a Level IV

grievance hearing, in May, with both sides represented b y co unsel. The board ultimately took no

action on Finch’s grievance, which effectively upheld the Level III decision. Finch resigned from

FBISD in July.

Finch sued the Superintendents and FBISD in federal cour t , bringing: (1) a procedural due

process claim alleging that Finch was entitled to, but did not receive, a pre-termination hearing; (2)

a substantive due process claim; (3) First Amendment claims based on Finch’s speech regarding the

“School Wit hin a School” proposal and her associations with members of the school board; (4) claims

under t he Texas Constitution that track her First Amendment claims; (5) a state law claim fo r

intentional infliction of emotional distress; and (6) a state law claim for breach of contract. 37

The Superintendents moved for summ ary judgment predicated on qualified immunity. The

district court denied the motion, finding Finch was given virtually no prior notice of the reassignment

and finding a genuine issue of fact over whether Finch’s reassignment was a demotion. The

Superintendents appealed.



## II. STANDARD OF REVIEW

By way of motion, Finch contends the Court is deprived of jurisdiction to consider this appeal.

To deny a summary judgment motion based on qualified immunity, a district court must determine

both (1) that certain conduct “ vio lat e[d] clearly established statutory rights of which a reasonable

person would have known,” Harlow v. Fitzgerald

, 457 U.S. 800, 818 (1982), and (2) that a genuine

issue of fact exists regarding whether the defendant engaged in such conduct. S ee Kinney v. Weaver

,

301 F.3d 253, 261 (5th Cir. 2002). On interlocutory appeal, this Court may review only the first

question. S ee Johnson v. Jones

, 515 U.S. 304, 313, 319 (1995); W agner v. Bay City

, 227 F.3d 316,

320 ( 5th Cir. 2000) (“[W]e can revi ew the m ateriality of any factual disputes, but not their

genuineness .”) (emphasis in original). The court below denied the motion for summary judgment

“[b]ecause genuine issues of mat erial fact exist[.]” (emphasis added). Thus, this Court has

jurisdiction to hear this interlocutory appeal insofar as it challenges the district court’s determination

of materiality.

In this situation, the Court reviews de novo

. S ee Benningfield v. City of Houston

, 157 F.3d 369,

374 (5th Cir. 1998). “In making [a] legal determination on the materiality of the facts at issue, we

review the complaint and record to determine whether, assuming that the plaintiff’s version of the

facts is true

, those facts are materially sufficient to establish that the defendants acted in an objectively8

unreasonable manner in light of clearly established law.” K inney

, 301 F.3d at 261 (internal citations

omitted, emphasis added).



## III. DISCUSSION

The court must engage in a two -st ep analysis to determine whether an official is entitled to

qualified immunity. First, the court must determine whether the plaintiff’s allegations make o ut a

violation of a clearl

y established constitutional right. If such a right is shown, the court must

determine if the right was clearly established at the time of the events in question. Saucier v. Katz

,

533 U.S. 194, 201 (2001). Even if the official’s conduct violated a clearly established constitutional

right, the official is nonetheless entitled to qualified immunit y if his conduct was objectively

reasonable. S ee Lukan v. North Forest Indep. Sch. Dist. , 183 F.3d 342, 346 (5th Cir. 1999). Our

disc ussio n focuses on whether plaintiff’s allegations make out a violation of a clearly established

constitutional right.

A.

Finch contends that her reassignment effected a constructive dis charge that counts as a

“termination,” such that she was entitled to a pre-termination hearing under Texas law. She argues

that Hooper and Culver's failur e t o afford her a pre-termination hearing violated her right to

procedural due process. Although our cases indicate that pre-termination hearings apply t o a

constructive discharge only where an employer forces its employee to choose between resigning or

being fired, see Fowler v. Carrollton Pub. Library

, 799 F.2d 976, 980 (5th Cir. 1986), and such was

not the case here, Finch's argument fails o n t he mo re elementary ground that she was not

constructively discharged on the date she claims.9

To show constructive discharge, an employee must offer evidence that the employer made

the employee's working conditions so intolerable that a reasonable employee would feel compelled

to resign. Barrow

v. New Orleans S.S. Ass'n , 10 F.3d 292, 297 (5th Cir. 1994). Finch argues that

she was constructively discharged from her employment with FBISD on the date of her reassignment,

but many of the working conditions she relies on to show constructive discharge developed during

the 4 1/2 month period between her reassignment and her resignation. Thus, Finch’s own account

of the facts does not support a finding that she was constructively discharged on the earlier date. Her

a ccount establishes instead that the working conditions in the maintenance department became

intolerable to her around the time that she resigned.

The essential requirements of procedural due process under the Constitution are notice and

an opportuni ty to respond. C leveland Bd. of Educ. v. Loudermill

, 470 U.S. 532, 542 (1985). There

is no dispute that: Finch met with Culver and Ho o per prior to her reassignment; Finch received

written notice of the reasons for her reassignment; Finch received written notice informing her of the

opportunity to use the grievance process; Finch had at least one Level III grievance hearing before

Hooper, with counsel representing Finch; and Finch had a Level IV grievance hearing in front of the

school board, wit h co unsel representing Finch and with Finch testifying under oath. Because the

grievance process gave Finch an opportuni ty to pres ent her basic argument—that she should be

working as a s cho o l principal rather than in the maintenance department—and the process was

complete before she resigned, procedural due process is satisfied.

B.

Public officials violate substantive due process rights if they act arbitrarily or capriciously. See

Delahoussaye v. City of New Iberia

, 937 F.2d 144, 149 (5th Cir. 1991); Fowler v. Smith

, 68 F.3d10

124, 128 (5th Cir. 1995). To the extent Finch’s substantive due process claim is based on her First

Amendment claims, the merits o f t his argument stand or fall based on the merits of the First

Amendment argument discussed infra

. See Fowler , 68 F.3d at 128.

To the extent Finch’s substantive due process claim is not based on First Amendment claims, this

Court must determine whether an action was a rational means of advancing a legitimate government

purpose. S ee Fowler

, 68 at 128. Finch appears to argue the Superintendent s acted arbitrarily or

capriciously when they reassigned her, given that she: did nothing wrong; followed instructions; had

an evaluation of “outstanding”; received a raise; obtained a two-year term contract; and had nothing

negative in her employment file. Although the Superintendents provide evidence allegedly showing

Finch’s poor job performance, they do not (and cannot under our standard of review, which construes

the evidence in the light m o st favo rable to the plaintiff) base their argument in favor of qualified

immunity on it. Instead, they assert that in light of their evidence, Hooper had sufficient reason to

believe Finch had engaged in such activity. See Fowler , 68 F.3d at 128.

Finch’s evidence shows that at the February 25 meeting, Hooper expressed concern over Finch’s

compatibility with Hooper, Finch’s abilit y to control parents, Finch’s defense of Jackie Gilbert, and

the possibility t hat news coverage of an alleged rape at Finch’s old school might damage Hooper.

In light of Hooper’s negative appra isals o f Finch’s ability to interact with parents and to exercise

judgment in hiring, Finch’s reassignment to a position with minimal parental interaction and hiring

authority was a rational means of advancing a legitimate governmental purpose.



### C.

Finch asserts the Superintendents violated her rights to freedom of speech and association under4 Although the Texas Constitution grants broader protection to speech than does the United

States Constitution, see Matthew s v. Wozencraft

, 15 F.3d 432, 440 (5th Cir. 1994), Fi nch has not

included in her brief any argument conce rning how this broader scope affects her claims.

Consequently, we analyze Finch’s claims under the United States Constitution.

11 both the United States and Texas Constitutions. 4 The government may not constitutionally compel

persons to relinquish their First Amendment rights as a condition of public employment

. H arris v.

Victoria Indep. Sch. Dist. , 168 F.3d 216, 220 (5th Cir. 1999).

1.

A plaint iff must satisfy four elements to recover for a free speech retaliation claim: (1) the plaint iff

must suffer an adverse employment decision; (2) the plaint iff’s speech must involve a matter of public

concern; (3) the plaintiff’s interest in commenting on matters of public concern must outweigh the

defendant’s interest in promoting efficiency; and (4) the plaintiff’s speech must have motivated the

defendant’s actions. Harris , 168 F.3d at 216.

We assume that Finch’s reassignment constitutes an adverse employment decision, such that she

satisfies the first element of Harris

.

“[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 pe rso nnel decision

taken by a public agency allegedly in reaction to the employee’s behavior.” See Connick v. Myers

,

461 U.S. 138, 147 (1983). This Court looks at the content, form, and context of speech, as revealed

by the whole record, in determining whether speech addresses a matter of public concern. I d. at 147-

48; Wallace v. Tex. Tech. Univ.

, 80 F.3d 1042, 1050 (5th Cir. 1996). Finch drafted a proposal and

presented it on two occasions, first to her immediate supervisor, and second to the FBISD executive5 Under narrow circumstances, an employee’s speech as employee qualifies as spe ech on

matters of public concern, wh ere t he speech involves the report of corruption or wrongdoing to

higher authorities. S ee Wallace

, 80 F.3d at 1050-51 (enumerating examples, such as a whistle blower

or a police chief rep o rting suspected criminal activity by a city council member). There is no

allegation or evidence to suggest Finch’s “School Wit hin a School” advocacy involved a report of

corruption or wrongdoing.

12 cabinet almost a year later. Finch also discussed the proposal with members of the school board. The

content of Finch’s speech deals with the internal administrative approach to running a school. The

speech came in the form of a proposal delivered to Finch’s superiors. Although Finch attempts to

place her proposal in the context of the national debate over school choice, she fails to show how her

proposal was actually aired or considered in any “widespread debate in the community.” S ee Harris

,

168 F.3d at 226 (Smith, J., dissentin g). To t he co ntrary, the record indicates Finch’s speech first

arose in the context of follow-up to a meeting among Area I principals in the FBISD. Thus, Finch

fails to satisfy the second element of Harris , and her free speech retaliation claim fails. 5

2.

Finch alleges the violation of various purported associational rights. First, she argues that being

reassigned to a position where she was isolated and being instructed to not return to Lake Olympia

Middle School violated her freedom of association. Second, she argues that she was punished for

speaking to members of the media and meeting with parents and school board members. Some of

these alleged violations of associational rights occurred after Finch was reassigned. It is untenable

to argue Finch’s reassignment was taken in retaliation for such associations. In any event, Finch does

not provide any case law explaining how restraining these types of interactions implicates the rights

of intimate or expressive association protected by the Constitution. S ee Roberts v. United States

Jaycees , 468 U.S. 609, 618-23 (1984).13 D.

The Superintendents argue that, notwithstanding any constitutional violations that may have

occurred, they are entitled to qualified immunity because their conduct was objectively reasonable.

See Lukan

, 183 F.3d at 346; H arlow

, 457 U.S. at 818; Anderson v. Creighton

, 483 U.S. 635, 638-39

(1987) (noting public official s are pro t ected from personal monetary liability only so long as their

actions do not violate “clearly established stat ut o ry o r constitutional rights of which a reasonable

person would have known”). Because the evidence, when construed in the light most favorable to

Finch, demonstrates none of her constitution al rights were violated, we do not address the

Superintendents’ argument.

E.

The Superintendents assert this Court should reach the question of whether they are immune from

Finch’s intentional inflict ion of emotional distress cla im and that the Court should grant them

professional immunit y. Finch responds that this issue cannot be reached because the Superintendents

failed to include it in their notice of appeal. Federal Rule of Appellate Procedure 3(c) states: “The

notice of appeal must . . . designate the judgment, order, or part thereof being appealed”. F ED

. R.

A PP

. P. 3(c). When an appellant chooses to appeal specific determinations of the district court–rather

than simply appealing from an entire judgment–only the specified issues may be raised on appeal. S ee

Pope v. MCI Telecomm. Corp. , 937 F.2d 258, 266 (5th Cir. 1991). The notice of appeal states:

Notice is hereby given that Don Hooper and Arthur Culver

. . . appeal to the United

States Court for the Fifth Circui t pursuant to 28 U.S.C. § 1291 from the Order

entered in this action on August 1, 2002, denying Defendants’ Moti on for Summary

Judgment asserting the defense of qualified immunit y against Plaint iff’s claims b rought

pursuant to 42 U.S.C. § 1983.

Finch argues that this notice only appeals the qualified immunit y i ssues and not the professional14

immunit y issue. To the contrary, it is clear that where the notice of appeal uses the phrase “asserting

the defense of qualified immunity,” it is describing the defendants’ summary judgment motion, and

not the district court’s August 1 order which denied all of the Superintendents’ arguments based on

immunit y.

Although th e no t ice of appeal includes the professional immunity issue, this Court does not

automatically h ave jurisdiction to consider interlocutory appeals of questions of professional

immunit y. Rather, we have discretion to exercise pendent jurisdiction. S ee Morin v. Caire

, 77 F.3d

116, 119 (5th Cir. 1996) (“Although the immunit y exception does not apply to the decision to deny

the plaint iff’s state law claims, we also may have jurisdiction to review that decision. In the interest

o f judicial economy, this court may exercise its discretion to consider under pendent appellat e

jurisdiction claims that are closely related to the issue properly before us.”).

Finch brought two claims under state law: intentional inflict ion of emotional distress and breach

of contract. The Superintendents do not assert they are immune from the contract claim. There is

little judicial economy in our exercising pendent jurisdiction over t he state law tort where the

government o fficials must continue to participate in the proceedings. This is particularly true in light

of the sparse briefing of this issue by both parties. We decline to exercise pendent jurisdiction.

IV. CONCLUSION

For the reasons stated, we REVERSE IN PART the order of the district court denying summary

judgment and hold that the Superintendents are entitled to qualified im munit y from Finch’s

constitutional claims. We DISMISS the appeal as it relates to the issue of professional immunit y from

the intentional infliction of emotional distress claim.

Finch’s motion to file a sur-reply is GRANTED; the Superintendents’ motion to dismiss for lack15

of subject matter jurisdiction is DENIED.