IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 00-60545

_______________

JOY BEATTIE,

Plaintiff-Appellant,

VERSUS

MADISON COUNTY SCHOOL DISTRICT;

MADISON COUNTY BOARD OF EDUCATION;

BERT JACKSON, IN HIS OFFICIAL CAPACITY;

KEN MCCOY, IN HIS OFFICIAL CAPACITY;

SHIRLEY SIMMONS, IN HER OFFICIAL CAPACITY;

MARY MCDONALD, IN HER OFFICIAL CAPACITY;

LEE MILLER, IN HIS OFFICIAL CAPACITY;

KEN ACTON, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES;

MARIA A. JONES, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________

July 5, 2001
2

Before REYNALDO G. GARZA,

HIGGINBOTHAM, and SMITH,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Joy Beattie, an at-will employee, was fired

as a secretary for Madison County Schools,

allegedly in retaliation for her support of Michael Kent’s candidacy for school superintendent in opposition to the incumbent, Maria

Jones. Beattie sued the school district, the superintendent, the principal, and the school

board members for First Amendment retaliation under 42 U.S.C. § 1983 and for violation

of MISS. CODE ANN. § 23-15-871, which prohibits certain actions by employers regarding

employee’s voting rights. Beattie asked for a

permanent injunction, reinstatement, punitive

damages, and compensatory damages for lost

past and future wages, mental anguish, emotional stress, and loss of reputation. The district court dismissed the state law claim without prejudice and granted summary judgment

for the defendants on the § 1983 claim on the

basisthat Beattie had failed to establish a causal connection between her political activityand

her discharge, an essential element of her

§ 1983 claim.1

Beattie appeals, contending that the district

court erred in concluding that she failed to

prove causation and erred in denying her motion to conduct additional discovery under

FED. R. CIV. P. 56(f). We affirm.

I.

From1994-96, Beattie worked assecretary

to Mike Kent, principal of Rosa Scott Middle

School. From 1996 until her termination, she

worked for Ken Acton, the principal of Olde

Towne Middle School. Beattie claims she had

no history of disciplinary problems, but school

board members indicated that parents had

complained about her rudeness. On April 6,

1999, Acton wrote a letter recommending her

for annual re-employment.

Later that month, Larry Roberts, a city alderman and parent, came into the office and

discussed the upcoming election forschoolsuperintendent. Acton suggested a reason that

Roberts should not vote for Kent, and Beattie

interjected her opinion to the contrary. Acton

orally reprimanded Beattie and instructed her

that as a school employee, she owed the current superintendent her loyalty. Beattie testified in her deposition that Acton instructed

her not to express her opinions about Kent’s

candidacy “out of the office or anywhere because it was perceived . . . as coming from me

[Acton].” Acton supported Jones in the election.

In June 1999, Jones visited the school and

informed Beattie that she had heard that Beattie had made negative comments about her position on a proposed bond issue to build a new

high school. Shortly thereafter, Jones asked

Beattie to stuff envelopes for her campaign at

work, which Beattie did. Jones never delivered the envelopes. A few days later, Acton

drafted a letter recommending that Beattie be

transferred “not based on Joy’s ability to do

the job but on philosophical differences on

how a middle school should operate,” such as

her support of Who’s Who Among American

High School Students, her opposition to Acton’s proposals on cheerleaders and the dance

1

See, e.g., Sharp v. City of Houston, 164 F.3d

923, 932 (5thCir. 1999) (listing elements of a First

Amendment retaliation claim under § 1983 as (1)

engaging in a protected activity; (2) suffering an

adverse employment action; (3) a causal connection

between the two; and (4) the execution of a city

policy causing the adverse action).
3

team, and her support of membership in the

Little Six Conference for the football team. 

Beattie put up signsin her yard to show her

support for Kent. When Jones was campaigning in the neighborhood, she allegedly commented to one of Beattie’s neighborsthat “Joy

Beattie has two signs in her yard [supporting

Kent] and I’m going to her house to find out

why.” Jones did not confront Beattie about

the signs.

The next Monday, Acton revised his letter

recommending Beattie’s transfer, proposing

instead that she be removed. Acton sent the

memo to Jones. Beattie claims that all the

reasons cited in the memo for her removal occurred before the April 6 letter. Beattie believes that four days later, Acton met with a

school district attorney, James Keith, and revised the letter to include additional reasons

for her termination, most notably an allegation

of a breach of confidence. 

Jones presented Acton’s recommendation

to the board, which on July 19, 1999, voted

unanimously to terminate Beattie. The board

previouslyhad discussed complaintsthat Beattie wasrude to teachers, parents, and students.

All board members testified in affidavits that

they were not aware of Beattie’s political

activities or any alleged misconduct by Jones

and Acton and that they were neutral in the

campaign for superintendent. Further, they

stated that theywould have terminated Beattie

without Acton’s recommendation.

II.

We review a grant ofsummaryjudgment de

novo, applying the same standard as did the

district court. E.g., Bos Dairy, L.C. v. United

States Dep’t of Agric., 209 F.3d 785, 786 (5th

Cir. 2000). “Summary judgment should be

used ‘most sparingly in . . . First Amendment

case[s] . . . involving delicate constitutional

rights, complex fact situations, disputed testimony, and questionable credibilities.’” Benningfield v. City of Houston, 157 F.3d 369,

377 (5th Cir. 1998) (quoting Porter v. Califano, 592 F.2d 770, 778 (5th Cir. 1979)). Summary judgment should be granted, however,

“when the nonmoving part y fails to meet its

burden to come forward with facts and law

demonstrating a basis for recovery that would

support a jury verdict.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1071 (5th Cir. 1994) (en

banc).

III.

Beattie contends that the district court

erred in deciding that she failed to present

summary judgment evidence that her political

speechand activitiesmotivated hertermination

and therefore that the school district was not

liable. She also argues that the court erred in

concluding that Acton and Jones did not cause

her adverse employment action. To prevail on

her First Amendment retaliation claim, Beattie

must show either that the school board acted

in retaliation or that the improper motives of

another actor can be imputed to it.2

To prove a First Amendment retaliation

claim, Beattie must show that (1) she suffered

an “adverse employment decision”; (2) her

2 Under § 1983, Beattie may sue a local governing body, such as the school district, or the

school board as policymaker for the district, for

monetary, declaratory, or injunctive relief if the

challenged action implements or executes a policy

officially adopted by that body’s officers. Neither

the school board nor the school district can be liable for the actions of Acton and Jones, if impermissible, under a respondeat superior theory.

See Monell v. New York City Dep’t of Soc. Servs.,

436 U.S. 658, 690, 694 (1978).
4

speech involved “a matter of public concern”;

(3) her “interest in commenting on matters of

public concern . . . outweigh[s] the Defendant’s interest in promoting efficiency”; and

(4) her speech motivated the adverse employment decision. Harris v. Victoria Indep. Sch.

Dist., 168 F.3d 216, 220 (5th Cir.), cert.

denied 528 U.S. 1022 (1999).3 The only

contested issue is causation. 

To prevail, Beattie must show that she engaged in protected conduct and that it was a

motivating factor in her discharge. Then, the

burden shifts to defendants to show by a preponderance of the evidence that they would

have come to the same conclusion in the absence of the protected conduct. Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977). Beattie has not met her

initial burden of demonstrating that herspeech

motivated her discharge.

A.

The parties do not contest that the board is

a policymakerfor the school district or that the

board fired Beattie. They appear to agree that

the district may be liable for the board’s actions because the board is a policymaker for

the school district in its capacity to terminate

employees.4 If the board acted in retaliation

against Beattie for her support of Kent, the

school district may be liable. 

Beattie’s evidence that the board violated

her rights is based on her assertion that she

had an excellent record with no reprimands.

She believes the conversation with Roberts

about the upcoming election precipitated her

difficulties at work and that the court should

infer improper motive from the timing of the

firing. Moreover, she asserts that the stated

reasonsfor her firingSSinsubordination, disclosure of confidential information, undermining

Acton, rudeness to parents and teachers,

violating school policy, and being disloyal to

ActonSSoccurred before Acton’s initial recommendation of re-employment. She states,

without corroborating evidence, that the allegations of breach of confidence and rudeness

have no basis in fact. Thus, she contends, Acton’srealmotive in changing the recommendation from a transfer to a removal (and Jones’s

real motive in accepting it) was retaliation.

Even if Beattie is correct, her reasoning

bears no relation to the school board’sliability

unless either the board acted in retaliation independently or the improper motives (if proven) of Jones and Acton can be imputed to the

board. Acton and Jones cannot be liable independently if they did not make the final decision.5

 If, however, the board adopted the allegedly impermissible motives of Acton and

Jones through acting on the recommendation

or delegated its policymaking authority in the

area of at-will employment to Jones, it may be

liable. 

1.

Municipal liability for constitutional torts

arises when the execution of an official policy

causes the injury. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978). “[A] single

3

See also Sharp, 164 F.3d at 932.

4 Cf., e.g., Harris, 168 F.3d at 225 (finding that

a board’s decision to affirma superintendent’srecommendation to transfer a teacher was an act of

official policy, noting that “[o]n at least two

occasions, we have held that the board of trustees

of an independent school district . . . is a policymaker for purposes of § 1983”).

5 Beattie has abandoned all claims against Acton and Jones individually.
5

action by a municipal official possessing final

policymaking authority regarding the action in

question constitutes the official policy of the

municipality and . . . the determination of

whether a municipal official wields final

policymaking authority regarding a particular

action constitutes a question of state law.”

Brady v. Fort Bend County, 145 F.3d 691,

698 (5th Cir. 1998) (citing McMillan v.

Monroe County, 520 U.S. 781 (1997)). In

Mississippi, the school board has the power

“[t]o select all school district personnel.”

MISS. CODE ANN. § 37-7-301(p) (2000). The

question, then, is whether the board delegated

that authority to Jones.

Municipal liability attaches only where

the decisionmaker possesses final

authority to establish municipal

authority with respect to the action

ordered. The fact that a particular

officialSSeven a policymaking

officialSShas discretioninthe exercise of

particular functions does not, without

more, give rise to municipal liability

based on an exercise of that discretion.

The official must also be responsible for

establishing final government policy

respecting such activity before the

municipality can be held liable.12

12 Thus, for example, the County

Sheriffmayhave discretion to hire

and fire employees without also

being the count y official

responsible for establishing county

employment policy. If this were

the case, the Sheriff’s decisions

respecting employment would not

give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the

official policymaker, would give

rise to municipal liability. Instead,

if county employment policy was

set by the Board of County

Commissioners, only that body’s

decisions would provide a basis

for county liability. This would be

true even if the Board left the

Sheriff discretion to hire and fire

employees and the Sheriff

exercised that discretion in an

unconstitutional manner; the

decision to act unlawfully would

not be a decision of the Board.

Id. (quoting Pembaur v. City of Cincinnati,

475 U.S. 469, 484 & n.12 (1986)). Beattie

argues that the board’s deference to the superintendent’s recommendations on at-will

employment matters exhibits a delegation of

policymaking authority and suggests that this

alleged complete control over a particular area

makes Jones an official policymaker whose

liability can be imputed to the district and the

board. 

An official may be a policymaker for the

county in a particular area or on a particular

issue.6 In Brady, we noted that discretion

alone is not enough; the official also must create policy. The official in Brady, however, received his authority from a state statute that

granted him final policymaking power. Even

more importantly, his authority was unreview6

See Brady, 145 F.3d at 699 (internal citations

omitted) (citing City of St. Louis v. Praprotnik,

485 U.S. 112, 123 (1988) (plurality opinion) (observing that “the challenged action must have been

taken pursuant to a policy adopted by the official

or officials responsible under state law for making

policy in that area”)).
6

able by any other body. Id. at 700.7

The board oversaw Jones’s employment

decisionsSSan indication that she may not be a

final policymaker. The mere existence of

oversight, however, is not enough; the

oversight must pertain to the area of authority

in question. Brady, 145 F.3d at 701. For

example, a superintendent’s transfer of a

teacher to another position might be a final

policy decision if that action was

unreviewable, even if the superintendent did

not have complete control over the hiring and

firing of district personnel. See id. at 701

(citing Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701 (1989)). 

Jones presented her recommendation to the

board, which terminated Beattie. Because the

board oversaw the precise action in question,

Jones did not have final policymaking power.

By the same analysis, Acton is not a final

policymaker: Jones oversaw each of his actions pertaining to Beattie’s discharge.

Therefore, neither the board nor the school

district is liable for their actions, unless their

allegedly improper motives can be imputed to

the board.

2.

Even if speech on a matter of public

concern was a substantial or motivating factor

in the termination, a defendant may escape liability by demonstrating that it would have taken the same action in the absence of the

protected conduct. Mt. Healthy, 429 U.S. at

287. As explained above, Beattie must prove

a causal connection between her constitutionally-protected activity and the board’s

decision.8 Because Acton and Jones are not

final policymakers, Beattie must impute their

allegedly improper motives to the board by

demonstrating that the board approved both

Jones’s decision and the basis for it.9 

All board members testified that they had

no idea that Beattie supported Kent in the

election and that they had remained neutral in

the campaign. They further testified to personal knowledge of complaints against Beattie,

such as those detailed in the letter

recommending her termination. The letter

maintained that Beattie refused to support

school polices and disclosed confidential em7

See also Reeves v. Claiborne County Bd. of

Educ., 828 F.2d 1096, 1102-03 (5th Cir. 1987)

(finding a superintendent liable for transferring a

teacher in retaliation for her testimony in a court

case and emphasizing the importance of oversight

by remanding for a determination of whether a

school board customarily deferred to the decisions

of the superintendent); Neubauer v. City of McAllen, 766 F.2d 1567, 1573-74 (5th Cir. 1985)

(holding a governmental entity liable under § 1983

“where the policy was made by an official to whom

the governing body had given policymaking

authority,” noting that the official’s decisions were

not subject to review), overruled on other grounds

by Walther v. Lone Star Gas Co., 952 F.2d 119,

126 (5th Cir. 1992). 

8

 See, e.g., City of Canton v. Harris, 489 U.S.

378, 385 (1989) (requiring a “direct causal link

between a municipal policy or custom and the

alleged constitutional deprivation”); PolkCounty v.

Dodson, 454 U.S. 312, 326 (1981) (holding that

“official policy must be ‘the moving force of the

constitutional violation’ in order to establish the

liability of a government body”) (citing Monell,

436 U.S. at 694).

9 E.g., Praprotnik, 485 U.S. at 127 (“If the authorized policymakers approved a subordinate’s

decision and the basis for it, their ratification

would be chargeable to the municipality because

their decision is final.”).
7

ployment information.10 Beattie does not dispute defendants’ position that the board saw

only this letter (not the previous draft

recommending a transfer) and had no actual

knowledge of her campaign activities.11 If

there is no evidence that the board knew ofthe

protected activity, Beattie cannot show that

the activity motivated retaliatory behavior.12

Beattie urges that Harris controls because

there, we found a board liable under § 1983

for approving a superintendent’s

recommendation; the board delegated

employment authority to the superintendent,

and in ratifying his decision through a

grievance hearing, the board assumed liability.

Harris, 168 F.3d at 225. During that

grievance procedure, however, the board

acquired actual knowledge of the basis for the

termination.13 Without a showing that the

board had actual knowledge of the alleged

improper basis of Jones’s and Acton’s

recommendation, the board cannot be liable

for the alleged retaliation. See Cabrol, 106

F.3d at 108.14

Even assuming the board did terminate

Beattie in retaliation for her campaign

activities, it can escape liability, because it

would have terminated her for other reasons.

Mt. Healthy, 429 U.S. at 287.15 Board

members testified that they would have voted

to terminate Beattie even without Acton’s

letter, based on the complaints they received

that she was rude to students, parents, and

teachers. Beattie offers no evidence to refute

10 Beattie allegedly discussed, with a teacher

applicant, namesthat had been recommended to the

board, before the board’s final decision, and sent

an e-mail to other teachers after a teacher had

resigned but before the board had had a chance to

act.

11 She does not suggest that the school policies

with which she openly disagreed are protected

speech on matters of public concern. 

12 SeeCabrol v. Town of Youngsville, 106 F.3d

101 (5th Cir. 1997) (affirming summary judgment

for a town and mayor who terminated an employee

who had challenged a cockfighting ordinance,

becauseno evidence indicated that they knewabout

his opposition to the ordinance).

13 Mississippi law provides that a terminated

employee of a school district may initiate a grievance hearing before the board to contest his termination. MISS. CODE ANN. § 37-9-111 (2000).

Neither party references this procedure, so pre-

(continued...)

13(...continued)

sumably Beattie did not avail herself of this privilege. 

14 There is an exception to this rule where the

final policymaker’s decision is merely a “rubber

stamp.” If an employee can demonstrate that the

subordinate’s evaluation was tainted by an illegal

intent and that it had sufficient influence or leverage over the ultimate decisionmaker, the motives

of the subordinate become relevant. See Rios v.

Rossotti, No. 00-50226, 2001 U.S. App. LEXIS

9420, at *19-*20 (5th Cir. 2001). Beattie

suggested that the board merely “rubber stamped”

the superintendent’s employment decisions, butshe

presented no evidence to support that assertion. 

15 See also Texas v. Lesage, 528 U.S. 18, 21

(1999) (“The government can avoid liability by

proving that it would have made the same decision

without the impermissible motive.”); White v.

South Park Indep. Sch. Dist., 693 F.2d 1163, 1169

(5th Cir. 1982) (“[E]ven if we assume the exercise

of protected first amendment activity played a

substantial part in the decision to terminate an

employee, the termination is not unconstitutional if

the employee would have been terminated

anyway.”).
8

these affidavits. Thus, the board’s

independent reason for her termination shields

it from liability under Mt. Healthy.

16

B.

Beattie claims that because she wasfired at

the recommendation of Acton and Jones, and

because they were retaliating against her for

support of a political candidate, they are independently liable. If Acton and Jones had fired

Beattie for the reasons she alleges, they may

have violated her First Amendment rights.

“[A] public employer cannot act against an

employee because ofthe employee’s affiliation

or support of a rival candidate unless the

employee’s activities in some way adversely

affect the government’s ability to provide services.” Vojvodich v. Lopez, 48 F.3d 879, 887

(5th Cir. 1995).17

1.

As we have noted, Acton and Jones did not

fire Beattie directly, but merely recommended

her termination to the board, which made the

final decision. If Acton and Jones did not

cause the adverse employment action, they

cannot be liable under § 1983, no matter how

unconstitutional their motives. Moreover,

even if the board adopted their

recommendation, that recommendation

exhibited no unconstitutional motive on its

face. Further, the evidence suggests that the

board fired Beattie for independent reasons,

and Beattie offers nothing but her own beliefs

to the contrary. 

“The Constitution requires only that an employee be placed in no worse a position than if

he had not engaged in the conduct.” White,

693 F.2d at 1169. Because the board fired

Beattie for permissible, constitutional motives

independently of Acton’s and Jones’s

recommendation, that superseding cause

shields them from liability.

2.

Beattie attemptsto connect the board’s decision, by its timing, to Acton’s and Jones’s

motives. Timing alone does not create an inference that the termination is retaliatory.18

Therefore, Beattie has not shown a causal

connection between Acton’s and Jones’s alleged retaliatory motives and her adverse employment action. Because the board made its

ultimate decision independently of these unproven unconstitutional aims, summary

judgment was proper.

IV.

Beattie contends that the district court erroneously denied her motion for additional

discovery under rule 56(f).19 We review for

16 See Gerhart v. Hayes, 217 F.3d 320, 322

(5th Cir.), cert. denied, 121 S. Ct. 573 (2000).

17 See also Reeves, 828 F.2d at 1103 (“[A]

government employer cannot retaliate against an

employee for the exercise of first amendment

rights.”).

18 See Seaman v. CSPH, Inc., 179 F.3d 297,

301 (5th Cir. 1999) (holding that a retaliation

claim lacked merit where the employee mentioned

his EEOC filing minutes before his termination for

insubordination, but no other evidence suggested a

retaliatorymotive);see also O’Connor v. Chicago

Transit Auth., 985 F.2d 1362, 1370 (7th Cir.

1993) (“[T]he fact that protected speech may

precede an adverse employment decision alone does

not establish causation under Mt. Healthy.”).

19 The rule provides:

Should it appear from the affidavits of a

party opposing the motion that the party

(continued...)
9

abuse of discretion a decision to end

discovery.20

Rule 56(f) motions are generally favored

and should be liberally granted. Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518,

535 (5th Cir. 1999). Beattie “may not simply

rely on vague assertions that additional

discoverywillproduce needed, but unspecified

facts.” Krim, 989 F.2d at 1442 (internal citations omitted). She must show (1) why she

needs additional discovery and (2) how that

discovery will create a genuine issue of

material fact. Stearns, 170 F.3d at 535 (citing

Krim, 989 F.2d at 1442). If Beattie has not

diligently pursued discovery, however, she is

not entitled to relief under rule 56(f). See

Leatherman v. Tarrant County Narcotics Intelligence&Coordination Unit, 28 F.3d 1388,

1397 (5th Cir. 1994). We need not address

whether Beattie has shown why she needs additional discovery to create a genuine issue of

materialfact, because she was not diligent. Id.

at 1397. 

Beattie had several months, from the time

she sued, to depose the board members, who

are named defendants. She submits that she

did not depose themearlier because the parties

were in settlement negotiations, but a party

suspends discovery at his own risk. She claims

she did not become aware that she needed to

depose the board members until sixteen days

before the discovery deadline, and then the

parties could not find a mutually agreeable

time. She filed her rule 56(f) motion three

days after the defendantsfiled their motion for

summary judgment, the date at which she

alleges she first became aware of the

contradiction in testimony.21 

Defendants explain that Beattie knew, as

early as February 2000, when the fact was included in responsesto interrogatories, that the

board had voted to terminate her and had cited

her rudeness to parents and teachers as a reason for her dismissal. Moreover, Jones stated

in deposition that board members had received

complaints about Beattie. Furthermore,

Beattie became aware that she needed to

depose school board members as early as

March 15, giving her sixteen days before the

end of discovery to seek an extension.

Instead, she waited until after defendants had

filed their motion for summary judgment. 

19(...continued)

cannot for reasons stated present by affidavit facts essential to justify the party’s

opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained

or depositions to be taken or discovery to be

had or may make such other order as is just.

FED. R. CIV. P. 56(f). 

20 See Church of Scientology v. Cazares, 638

F.2d 1272, 1289 (5th Cir. Mar. 1981) (reviewing

decisions determining scope and effect of discovery

for abuse of discretion); Krim v. BancTexas

Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993)

(reviewing, for abuse of discretion, decisions to

preclude discovery before granting summary judgment).

21 Although Beattie claims that defendants,

shortly before the expiration of discovery, produced documents that warranted additional discovery, she has not indicated with specificity how

these documentsraised issues of materialfact. The

district court found that theymerely clarified issues

raised earlier in the depositions of Acton and Jones,

and Beattie received an extension of time to file her

response to the motion for summary judgment to

respond to those documents.
10

Even though rule 56(f) motions should be

liberally granted, “[a] district court has broad

discretion in all discovery matters, and such

discretion will not be disturbed ordinarily unless there are unusual circumstances showing

a clear abuse.” Kelley v. Syria Shell Petroleum Dev., B.V., 213 F.3d 841, 855 (5th Cir.)

(internal quotation marks omitted), cert. denied, 121 S. Ct. 426 (2000). Although

Beattie’s conduct during discovery does not

rise to the level disparaged in Leatherman,22

the district court acted within its discretion in

concluding that she had not pursued discovery

diligently enough to warrant relief under rule

56(f).

AFFIRMED.

22 In Leatherman, plaintiffs conducted very

little discovery for more than one year before filing

their rule 56(f) motion. Leatherman, 28 F.3d at

1397.