* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4.

-1- UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-40816

Consolidated with

No. 01-40817

IMELDA T. RODRIGUEZ,

Plaintiff – Appellant,

VERSUS

BOARD OF TRUSTEES OF THE LAREDO INDEPENDENT SCHOOL DISTRICT; PAUL

CRUZ, In His Official and Individual Capacities,

Defendants – Appellees.

Appeal from the United States District Court

for the Southern District of Texas, Laredo Division

(L-99-CV-22)

March 25, 2003

Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.

PER CURIAM: *

Imelda Rodriguez, the former Assistant Superintendent for

Curriculum and Pr ogram Accountability of the Laredo Independent

School District (“LISD”), filed this suit agains t LISD and1 See Rodriguez v. Laredo Indep. Sch. Dist.

, 82 F. Supp. 2d 679

(S.D. Tex. 2000) (“ Rodriguez I ”) (dismissing § 1983 claims against

LISD); Rodriguez v. Board of Trustees of the Laredo Indep. Sch.

Dist.

, 143 F. Supp. 2d 727 (S.D. Tex. 2001) (“ Rodriguez II ”)

(granting summary judgment on the Texas Whistleblower claim).

-2- Superintendent Paul Cruz under 42 U.S.C. § 1983 and the Texas

Whistleblower Act, T EX

. G OV ’ T C ODE § 554.002. She alleged that Cruz

and LISD retaliated against her in violation of her First Amendment

r ights and Texas law. More specifically, Rodriguez alleged that

she was demoted for demanding strict compliance with standardized

testing procedures, reporting deviations from those procedures, and

recommending that the district adop t new methods for assessing

student progress

— actions that conflicted with Cruz’s goal of

raising test scores.

The district court dismissed Rodriguez’s § 1983 claim against

LISD and Cruz under Rule 12(b)(6). At a later stage, the district

court granted LISD’s motion for summ ary judgment on the Texas

Whistleblower Act claim. For the reasons given by the district

court, we find that Rodriguez failed to state a claim for municipal

liability under § 1983 against LISD and that summary judgment was

proper on the Whistleblower claim. 1 Therefore, we summarily affirm

the district court’s judgment on those matters. However, we

reverse the district court’s dismissal of Rodriguez’s § 1983 First

Amendment claim against Superintendent Cruz under Rule 12(b)(6) and

remand for further proceedings.

Cruz’s brief suggested that the district court granted summary2 See Defs. Mot. Summ. J. at 2 (“[T]he only remaining issue

before this Court is plaintiff’s state law whistleb lower claim

against LISD.”).

3 Rodriguez II , 143 F. Supp. 2d at 728 n.1.

-3- judgment in his favor on the § 1983 First Amendment claim.

However, the only issue before the district court at the summary

judgme nt stage was the Texas Whistleblower Act claim. 2 After the

district court dismissed Rodriguez’s § 1983 claims, Rodriguez moved

for reconsideration. On February 20, 2001, the district court

indicated that it would grant the motion in part and treat the

defendants’ original motion to dismiss as one for summary judgment.

The district court changed course, however, and denied the motion

for reconsideration two months later. In its Memorandum and Order

denying the motion, the court spe cifically noted that it was

amending its February 2001 order and affirmed its earlier holding

that Rodriguez failed to state a First Amendment claim. 3 In short,

the record firmly establishes that we are reviewing a Rule 12(b)(6)

dismissal. Because this case is before us on a 12(b)(6) dismissal,

we refer only to the complaint for the facts.

THE ALLEGATIONS

The complaint alleges that Paul Cruz became the LISD

Superintendent in August 1998 . Shortly after his appointment,

Rodriguez met with him to discuss past testing irregularities

(including th e alleged disclosure of the writing prompt and the

recent report of improper assistance at an elementary school), the-4-

use of pacing and its recent discontinuance, declining test scores,

special education coding, and her insistence on strict compliance

with testing regulations. During this initial meeting, Rodriguez

recommended that the district administer other tests, including the

Gates-McGinitie test for sixth-grade re ading proficiency and the

Terra Nova norm-referenced test, to verify the accuracy of the TAAS

results and to assure that students were meeting national

standards.

The complaint further alleges that in September 1998, Cruz

denied Rodriguez permission to attend a meeting of administrators

with curriculum res ponsibility. Cruz explained that another

adminis trator would represent LISD at the meeting and that

financial constraints would not permit him to approve more than one

administrator for travel to any one event. The complaint alleges

that Cruz’s explanation was pretextual because he later permitted

three administrators to travel to a band competition.

According to the complaint, Rodrig uez continued to advocate

for norm-referenced testing in the fall of 1998. But despite

Rodriguez’s advocacy, Cruz told LISD principals in October 1998

that he would not req uire norm-referenced testing. Soon

thereafter, Cruz announced at a School Board committee meeting that

test scores would improve significantly under his leadership, so

much so that the LISD would qualify for “exemplary district” status

within five years. The complaint alleges that this five-year

prediction, along with the rejection of mandatory norm-referenced4 Complaint ¶ 4.93.

-5-

testing, indicated that Cruz’s “emphasi s would be on testing

scores, not on compliance with the requirements of the testing and

other programs.” 4

The complaint alleges that earlier on the same day that he

made his prediction to the Board, Cruz issued a memorandum removing

Rodriguez from her Assistant Superintendent post and assigning her

to a previously non-existent administrative position, which placed

her in charge of textbooks and janitorial services. This

reassignment conflicted with LISD policy because the School Board

had not approved the new position at a public meeting.

Rodriguez filed a timely grievance protesting her

reassignment. When Cruz denied the grievance, she appealed to the

School Board. The Board permitted Rodriguez to make a ten-minute

presentation before it, but ultimately took no action. Rodriguez

then filed suit against LISD and Cruz, and they moved to dismiss

her complaint for failur e to state a claim. The district court

granted the motion with respect to Rodriguez’s § 1983 claim against

Cruz, finding that Rodriguez had not alleged the violation of a

right secured by the First Amendment in her complaint and that Cruz

was therefore entitled to qualified immunity. Rodriguez appealed.

ANALYSIS

A Rule 12(b)(6) dismissal for failure to state a claim upon

which relief can be granted is subject to de novo review and will5 Conley v. Gibson

, 355 U.S. 41, 45-46 (1957).

6 Kennedy v. Tangipahoa Parish Library Bd. of Control

, 224 F.3d

359, 365 (5th Cir. 2000).

7 Serna v. City of San Antonio

, 244 F.3d 479, 482 (5th Cir.

2001); Kennedy , 224 F.3d at 366.

-6- not be affirmed “unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” 5 “ To ascertain whether a complaint states

a claim, we must construe the complaint liberally in the

p laintiff’s favor and accept all factual allegations in the

complaint as true.” 6

In order to state a First Amendment retaliation claim under §

1983, a public employee must allege facts that could establish that

(1) the employee suffered an adverse e mployment action; (2) the

employee spoke on a matter of public concern; (3) the employee’s

interest in speaking outweighs his employer’s interest in

efficiency; and (4) the employee’s speech motivated the adverse

employment action. 7

Properly limiting our focus to Rodriguez’s complaint, we find

that it satisfies the minimal pleading standard for each of the

elements of a First Amendment retaliation claim. The district

cour t therefore erred in dismissing Rodriguez’s First Amendment

claim under Rule 12(b)(6). Likewise, the district court’s finding

of qualified immunity in this case at the pleading stage was

premature. We do not comment on the merits of the case and leave8 Rodrigue z also appeals the district court’s order awarding

costs to LISD and Cruz. Our partial reversal on the merits

operates to reverse the entire costs award. See 10 J AMES W M

. M OORE

ET AL

., M OORE ’ S F EDERAL P RACTICE § 54.100[4][c] (3d ed. 2001).

-7- it to the district court to decide what further proceedings are

appropriate.

CONCLUSION

The judgment of the district court is affirmed in part and

reversed in part, and the case is remanded to the district court

for further proceedings not inconsistent with this opinion. 8

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.