IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40161

Summary Calendar

EVEN THOMAS, III, 

Plaintiff - Appellant

v.

BEAUMONT INDEPENDENT SCHOOL DISTRICT, 

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:13-CV-572

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Even Thomas, III, proceeding pro se, appeals the district court’s 

summary judgment dismissing all of his claims. After reviewing the district 

court’s opinion, the record, and the applicable law, we agree with the district 

court. Accordingly, we AFFIRM.

 

* 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

October 5, 2015

Lyle W. Cayce

Clerk

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I. Factual Background

Thomas was initially hired by Beaumont ISD (“BISD”) in 1993. During 

the relevant period, the 2012-2013 and 2013-2014 school years, Thomas taught 

second grade. The record shows that Thomas had performance problems, 

including: (1) tardiness and attendance; (2) following the school’s grading 

policy; and (3) insubordination. Additionally, parents and staff had concerns 

about Thomas’s conduct and his classroom instruction. Because of Thomas’s 

conduct and performance, he was not recommended for a contract renewal. 

Thomas sued BISD asserting a number of claims, including contract 

nonrenewal under state law, retaliation and hostile work environment under 

Title VII, disability discrimination under the American with Disabilities Act 

(the “ADA”), and violations of his Weingarten and First, Fourth, Fifth, and 

Fourteenth Amendment rights. Magistrate Judge Keith Giblin granted 

summary judgment in favor of BISD. On appeal, Thomas contends that Judge 

Giblin was biased against him, that fact issues exist in regard to his hostile 

work environment claim, and that BISD withheld exculpatory evidence and 

violated the district court’s scheduling order. 

II. Standard of Review

A district court’s grant of summary judgment is reviewed de novo on 

appeal. Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 635 (5th Cir. 

2002). Summary judgment is proper when there is no genuine issue as to any 

material fact. Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. 

Coll., 719 F.3d 356, 362 (5th Cir. 2013). 

III. Discussion

A. Judge Giblin’s alleged bias is not a proper basis for appeal.

Generally, one seeking disqualification of a judge must do so as soon as 

the basis for disqualification is apparent. See United States v. Sanford,

157 F.3d 987, 988 (5th Cir. 1998) (quoting Travelers Ins. Co. v. Liljeberg 

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Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)). “The most egregious delay—

the closest thing to per se untimeliness—occurs when a party already knows 

the facts purportedly showing an appearance of impropriety but waits until 

after an adverse decision has been made by the judge before raising the issue 

of recusal.” Id. at 988–89. Because Thomas’s bias claim is based on Judge 

Giblin’s recusal from Thomas’s previous lawsuit against BISD, Thomas 

evidently had knowledge of a possible reason for disqualification as soon as 

this case was assigned to Judge Giblin. Yet, Thomas waited until he received

an adverse ruling to raise the recusal issue. In addition to untimely raising 

the issue, Thomas has not identified any evidence of bias. Accordingly, this

court will not disturb the district court’s judgment based on Thomas’s untimely

and unsubstantiated claim of bias. 

B. Thomas did not exhaust his nonrenewal of contract claim.

In Texas, a plaintiff must exhaust all remedies under the applicable 

administrative scheme if the party’s claim: concerns the administration of 

school laws and involves a question of fact. Nairn v. Killeen Indep. Sch. Dist., 

366 S.W.3d 229, 241 (Tex. App.—El Paso 2012, no pet.) (citing Mission Indep. 

Sch. Dist. v. Diserens, 188 S.W.2d 568, 570 (Tex. 1945)). Under the Term 

Contract Nonrenewal Act, a teacher who is aggrieved by the nonrenewal of a 

term contract must exhaust administrative remedies before seeking judicial 

redress. Id. at 241 (citing Tex. Educ. Code § 21.209 (West 2006)). “[T]he last 

step in the administrative process is an appeal to the Commissioner of 

Education.” Id.

Here, there is no evidence that Thomas exhausted his administrative 

remedies, specifically, that he appealed to the Commissioner of Education. The 

district court properly dismissed Thomas’s nonrenewal of contract claim. 

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C. Thomas did not establish all the elements of his hostile work 

environment claim.

To prevail on a hostile work environment claim under Title VII, Thomas 

must establish that: (1) he belongs to a protected class; (2) he was subject to 

unwelcome harassment; (3) the harassment was based on the protected 

characteristic; and (4) the harassment was so serious as to affect a “‘term, 

condition, or privilege’ of employment.” See E.E.O.C. v. Boh Bros, 731 F.3d 

444, 453 (5th Cir. 2013) (en banc) (quoting Lauderdale v. Tex. Dep’t of Criminal 

Justice, 512 F.3d 157, 162–63 (5th Cir. 2007)). 

Thomas did not allege, or identify any evidence, that the alleged adverse 

treatment occurred because he was a member of a protected class. As a result, 

Thomas cannot establish that he was harassed based on a protected 

characteristic—the first and third elements of his claim. 

D. Thomas failed to proffer evidence of pretext to establish his 

retaliation claim.

 To survive summary judgment, Thomas must first establish a prima 

facie retaliation case by demonstrating: (1) that he engaged in protected 

activity under Title VII; (2) that BISD subjected Thomas to an adverse 

employment action; and (3) “but for” causation between the protected activity 

and the adverse employment action. Scrivener v. Socorro Indep. Sch. Dist., 

169 F.3d 969, 972 (5th Cir. 1999); Long v. Eastfield College, 88 F.3d 300, 305 

n.4 (5th Cir. 1996). If Thomas establishes a prima facie case, the court next 

engages in the McDonnell Douglas burden-shifting framework. See Fierros v. 

Tex. Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001). Under this framework, 

BISD must then “articulate a legitimate, nondiscriminatory reason for the 

adverse employment action.” Byers v. Dall. Morning News, Inc., 209 F.3d 419, 

427 (5th Cir. 2000). Once BISD provides a lawful reason for the adverse 

employment action, Thomas must proffer evidence that BISD’s alleged lawful 

reason was pretextual. Id. 

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The district court correctly determined that Thomas’s claim failed as a 

matter of law. BISD proffered a lawful reason for taking adverse employment 

action against Thomas. The record shows that Thomas was frequently absent, 

did not comply with the school’s grading, attendance, and cell phone use 

policies, refused to meet with his superior, left his classroom unattended, and 

was the subject of several parent complains. With the burden shifted back to 

him, Thomas did not identify any evidence of pretext. Accordingly, the district 

court did not err in dismissing Thomas’s retaliation claim.

E. Thomas failed to exhaust his ADA claim.

Under the ADA “[n]o action . . . shall be brought . . . if administrative

remedies have not been exhausted.” 42 U.S.C. § 6104(e)(2). Here, Thomas’s 

E.E.O.C. charge does not expressly complain of disability discrimination. 

Moreover, a disability claim could not have reasonably grown out of the 

allegations in Thomas’s charge. This claim lacks any foundation in law.

F. Thomas is precluded from asserting a Weingarten claim. 

In Weingarten, the Supreme Court held that the National Labor 

Relations Act (the “NLRA”) “guarantees an employee’s right to the presence of 

a union representative at an investigatory interview in which the risk of 

discipline reasonably inheres.” Nat’l Labor Relations Bd. v. J. Weingarten, 

Inc., 420 U.S. 251, 262, 95 S. Ct. 959, 966 (1975). But the Texas Supreme Court 

has specifically held that “[t]here is no question that Section 7 of the NLRA 

and the Weingarten decision apply only to private-sector employees.” City of 

Round Rock v. Rodriguez, 399 S.W.3d 130, 143 (Tex. 2013) (citing 29 U.S.C. 

§ 152(2) (2012)) (emphasis added). We agree with the district court that as a

public school teacher, Thomas did not possess Weingarten representation 

rights. 

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G. Thomas proffered insufficient evidence to move his Constitutional 

claims beyond the summary judgment stage. 

First, to set forth a First Amendment speech retaliation claim against 

BISD, Thomas must show: (1) an adverse employment decision; (2) speech 

involving a matter of public concern; (3) Thomas’s interest in commenting on 

matters of public concern outweighs BISD’s interest in promoting efficiency; 

and (4) Thomas’s speech motivated the BISD’s actions. Teague v. City of 

Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999). As the district court 

correctly found, Thomas did not identify the speech at issue or how the 

unidentified speech involved a matter of public concern. Therefore, Thomas’s

claim fails.

Second, a municipality or similar entity cannot be held liable for the 

Fourth Amendment violations of its non-policymaking employees under a 

respondeat superior theory of liability. See Williams v. Kaufman County, 

352 F.3d 994, 1013 (5th Cir. 2003). But municipal liability can be established 

if the plaintiff identifies “(1) an official policy (or custom), of which (2) a 

policymaker can be charged with actual or constructive knowledge, and (3) a 

constitutional violation whose ‘moving force’ is that policy (or custom).” Pineda 

v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002). 

Thomas did not offer competent summary judgment evidence to move 

forward his Fourth Amendment claim. Thomas’s claim is premised on an 

incident where the school’s principal called the police to have Thomas removed

from school premises.1 Thomas, however, did not identify BISD’s 

unconstitutional policy or custom, nor did he proffer evidence indicating that 

 

1 The call was in response to Thomas’s agitated conduct around students in the 

cafeteria. 

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the school’s principal was a policy maker. He has not stated a claim against 

BISD.

Third, regarding Thomas’s claims under the Fifth and Fourteenth 

Amendments, the analysis begins with an inquiry into whether the challenged 

conduct affected a life, liberty, or property interest protected by the 

Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569–71, 92 S. Ct. 2701, 

2705–06 (1972). Here, Thomas did not indicate which liberty or property 

interest he was deprived of by BISD. Accordingly, the district court did not err 

in dismissing Thomas’s constitutional claims.

H. Thomas’s exculpatory evidence allegation does not warrant a 

reversal of the district court’s judgment.

Finally, Thomas contends that BISD withheld exculpatory evidence. 

Specifically, Thomas references tapes from his grievance hearing. Thomas also 

alleges that BISD violated the district court’s scheduling order. 

Thomas’s allegations are insufficient to set aside the district court’s 

ruling. The record shows that BISD produced the transcript and the audio 

recording from the grievance hearing. Moreover, Thomas does not provide the 

court with a reason why, or an explanation of how, the evidence would be 

dispositive in his favor. Finally, Thomas does not inform the court why BISD’s 

alleged violation of the scheduling order should change the outcome of the case. 

For the foregoing reasons, we AFFIRM the district court’s judgment. 

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