* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50224

Summary Calendar

LESLIE VICARI

Plaintiff – Appellant

v.

YSLETA INDEPENDENT SCHOOL DISTRICT; DENNIS MILLER

Defendants – Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:06-cv-00131

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Leslie Vicari appeals the district court’s grant of summary judgment in

favor of Defendant Dennis Miller on her due process claim under 42 U.S.C. §

1983. Because Vicari never invoked Ysleta Independent School District’s

established process for addressing wage and earnings grievances, she cannot

now claim that she was denied due process. Therefore, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2008

Charles R. Fulbruge III

Clerk
No. 08-50224

2

I.

Leslie Vicari was employed by Ysleta Independent School District (“YISD”)

as a Level 308 “regular high school assistant principal” during the 2004-2005

school year, although she had been involuntarily transferred to an alternative

school within the district during the prior school year. Her salary for the 2004-

2005 school year was $67,206.27. Because she was not notified prior to 45 days

before the expiration of the 2004-2005 school year whether her contract with

YISD would be renewed, Texas law deemed her to be “employ[ed] in the same

professional capacity for the following year.” Tex. Educ. Code § 21.206(a)-(b)

(Vernon 2007). The following year was the 2005-2006 school year. 

However, well before that time, namely, in August 2004, YISD notified

Vicari that her salary would be reduced in the 2005-2006 school year. She did

not respond to this notification. In July 2005, Vicari’s position was changed to

a Level 307 “assistant principal at an alternative campus,” and her salary was

reduced to $63,734.26 for the 2005-2006 school year. In December 2005, Dennis

Miller, YISD’s Compensation Supervisor, informed Vicari that her salary had

been reduced in error. YISD reinstated her higher salary and provided her with

backpay for the months that she had been paid at the lower salary level.

In April 2006, Vicari filed suit against YISD in federal district court,

alleging that she was subjected to sexual harassment, a discriminatory job

reassignment, and retaliation in violation of Title VII. In May 2006, she

amended her complaint to include an allegation that Miller deprived her of a

property right to her higher salary without due process of law in violation of the

Fourteenth Amendment and 42 U.S.C. § 1983. The district court granted

summary judgment to the defendants on all of Vicari’s claims. As to the claim

against Miller,the district court held that he was entitled to qualified immunity

against Vicari’s Section 1983 claim. Vicari appeals only the dismissal of her due

process claim against Miller.
No. 08-50224

3

II.

The district court held that Miller was entitled to qualified immunity

because Vicari did not have a constitutionally protected property interest in a

salary for the 2005-2006 school year that would be identical to her salary for the

2004-2005 school year. Alternatively, the district court found that, even if Vicari

had such a property interest, she could not prevail on her due process claim

because she neither availed herself of YISD’s grievance procedure nor alleged

that the procedure was constitutionally inadequate. The district court reasoned

that Miller was entitled to qualified immunity under either analysis because

Vicari could not establish that her constitutional right to due process had been

violated. See Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir. 2004) (“If no

constitutional right has been violated, the inquiry ends and the defendants are

entitled to qualified immunity.”). We review this decision de novo. Greenwell

v. State Farm Mut. Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007).

Whether Vicari enjoyed a constitutionally protected property interest in

a particular “professional capacity” and that capacity’s concomitant salary for

the 2005-2006 school year is unclear. The authorities cited by YISD are far from

dispositive on this issue. However, we need not embrace the district court’s

analysis nor resolve the issue ourselves because we agree with that court on its

alternative holding: even if Vicari had a property interest in a particular salary

for the 2005-2006 school year, she did not take advantage of available procedures

that would have prevented a deprivation of her property without the process

due. Browning v. City of Odessa, 990 F.2d 842, 844 (5th Cir. 1993).

The alternative holding is well supported by the record. YSID formally

notified Vicari of its decision to reduce her salary ten months in advance of the

actual reduction. At any point after this notification, Vicari could have invoked

YISD’s grievance procedure in order to correct what she perceived to be an

improper salary reduction. The grievance policy permits an employee to file a
No. 08-50224

4

grievance “concerning an employee’s wages, hours, or conditions of work.” It

provides for three levels of review: (1) an initial conference with the employee’s

principal or supervisor, (2) followed by a conference with the school district

superintendent, and, finally, (3) an appeal to the school board. Each of these

steps must be completed within a prescribed time frame. The policy also

provides for a hearing before the school board at which time the employee may

present a grievance. This procedure satisfies the requirements of due process.

See id. Vicari admits that she never invoked this procedure. Had she done so,

she would have obtained adequate pre-deprivation process, including a hearing.

Vicari argues that she was not required to exhaust state administrative

remedies because she alleged a violation of her constitutional rights. Vicari has

identified the general rule that an aggrieved individual need not exhaust state

remedies before filing suit in federal court to vindicate a state deprivation of her

constitutional rights. Rathjen v. Litchfield, 878 F.2d 836, 840 (5th Cir. 1989).

However, Vicari’s case falls within an exception to this rule that applies when

the alleged constitutional deprivation is the denial of procedural due process.

She complains of an absence of process, but she did not use the sufficient process

provided. “An employee cannot ignore the process duly extended to him and

later complain that he was not accorded due process.” Galloway v. Louisiana,

817 F.2d 1154, 1158 (5th Cir. 1987). 

Because Vicari has not shown a violation of any constitutional right, Miller

is entitled to qualified immunity from her suit. Judgment is AFFIRMED.