IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40487

Summary Calendar

DOREATHA WALKER,

Plaintiff - Appellant

v.

HITCHCOCK INDEPENDENT SCHOOL DISTRICT,

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No: 3:11-CV-219

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Doreatha Walker appeals the district court’s order denying her motion for

partial summary judgment and granting defendant Hitchcock Independent

School District’s motion for summary judgment on her Title VII retaliation and

race discrimination claims, her 42 U.S.C. § 1983 claim that she was denied due

process, and her Texas Whistleblowers Act (“TWA”) claim. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 18, 2013

Lyle W. Cayce

Clerk

 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.

 Case: 12-40487 Document: 00512117726 Page: 1 Date Filed: 01/18/2013
No. 12-40487

FACTS AND PROCEEDINGS

Walker was employed as the Director of Kids First Head Start for

Hitchcock under a one-year probationary contract for the 2008-09 school year. 

As Director, it was her job to facilitate collegial relationships between staff and

communication between the Superintendent, staff, parents, and the Head Start

Policy Council. 

1

In February 2009, Walker filed a complaint with the county health

department. She reported that there was mold and poor air quality in the Head

Start Building where she worked, which she thought was a violation of law. She

believed that the mold had made her ill and had sought medical treatment

shortly before she filed her complaint. She requested leave under the Family

Medical Leave Act (“FMLA”), but the Superintendent informed her in early

March that she did not qualify for FMLA leave because she had been employed

by Hitchcock for less than one year. She also filed a Texas Workers’

Compensation Act claim establishing her inability to work and the conditions

under which she could return to work, which was processed by her doctor. At

the same time these events were unfolding, the Superintendent recommended

to the district’s Board of Trustees that Walker’s contract be renewed for the

following school year.

On March 20, Hitchcock received a return-to-work slip from Walker’s

doctor, indicating that Walker could return to work on March 23, but could not

return to the Head Start Building. The Superintendent did not initially notice

this restriction, and notified Walker that Hitchcock would allow her to return to

work. After realizing his error, the Superintendent sent Walker a letter on

March 24 explaining that the district would not permit her to return to work

The Policy Council is composed of parents and makes employment recommendations about 1

whether to terminate or renew the Director’s contract to the district’s Board of Trustees, which is the

ultimate decision maker.

2

 Case: 12-40487 Document: 00512117726 Page: 2 Date Filed: 01/18/2013
No. 12-40487

until she could resume her duties in the Head Start Building. Walker, however,

reported for work on March 26. The Superintendent was away, but his assistant

in charge told Walker that she needed to leave campus until she could provide

Hitchcock with a medical release without the restriction. Walker refused to

leave, and the police were called to escort her off campus.

On April 6, Walker met with the Superintendent to discuss her

employment status. Walker told the Superintendent during the meeting that

she felt she had been treated unfairly on account of her race when she was

denied FMLA leave and when she was escorted off campus by police. On May

1, Walker and the Superintendent had a second meeting in which they discussed

her conduct and several complaints co-workers had made against her. On May

3, Walker filed a report with the Texas Education Agency alleging that

Hitchcock filed fraudulent claims for reimbursement expenses for students who

had not used district-provided transportation. On May 4, the Superintendent

placed her on administrative leave with pay, citing her insubordination and

inability to facilitate collegial relationships with Head Start staff and parents. 

Walker countered that it was her staff that was insubordinate. On May 6, she

filed a discrimination charge with the Equal Employment Opportunity

Commission (“EEOC”).

The Policy Council voted in August to recommend to the Board that

Walker’s contract not be renewed. The Superintendent made the same

suggestion to the Board, which followed these recommendations. It informed 2

Walker that her contract would not be renewed, gave the bases for its decision,

and told her of her right to appeal to the Texas Education Agency. Walker did

appeal her proposed termination and was heard by a hearing examiner. The

Walker amended her EEOC claim to include a claim for retaliation for her reports to the health 2

department and education agency after learning of these recommendations.

3

 Case: 12-40487 Document: 00512117726 Page: 3 Date Filed: 01/18/2013
No. 12-40487

examiner upheld the Board’s decision and the Texas Commissioner adopted the

examiner’s recommendation.3

While her EEOC charge was pending, Walker brought a TWA lawsuit in

state court. A jury found that her reports to the county health department

concerning the mold and air quality in the Head Start building and her reports

to the state education agency alleging that Hitchcock filed fraudulent

transportation reimbursement requests were not made in good faith. It also

found that these reports were not a cause of her suspension or the

Superintendent’s recommendation to the Board not to renew her contract.

Walker filed a separate suit claiming Title VII retaliation and

discrimination, denial of due process, and violation of the TWA in state court.4

Hitchcock removed this case to federal court on December 9, 2010. On December

2, 2011, Walker filed a partial motion for summary judgment on her due process

claim. Hitchcock responded on December 15 by filing a cross-motion for

summary judgment on all claims. On March 21, 2012, the district court granted

Hitchcock’s motion in full and denied Walker’s motion.

DISCUSSION

Walker claims that she established genuine issues of material fact with

respect to each of her claims, so her claims should have survived summary

judgment. She also alleges that the district court made various procedural

errors that necessitate reversal. Hitchcock disputes both contentions. 

1. Standard of review

Hitchcock continued to pay Walker her salary until the Board accepted the hearing examiner’s 3

decision.

It is unclear from the record why Walker’s state court cases were separate, particularly as they 4

were both allege violations of the TWA stemming from the same set of events and were both originally

filed in Galveston County, Texas. Nevertheless, they are separate causes. The case tried to a jury was

No. 09-CV-1439, while this case, before it was removed, was No. 10-CV-1583 in state court.

4

 Case: 12-40487 Document: 00512117726 Page: 4 Date Filed: 01/18/2013
No. 12-40487

We “review a district court’s grant of summary judgment de novo, applying

the same standard as did the district court.” Stults v. Conoco, Inc., 76 F.3d 651,

654 (5th Cir. 1996). Summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004). “We view facts in

the light most favorable to the non-movant and draw all reasonable inferences

in its favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996). But we “may

affirm summary judgment on any legal ground raised below, even if it was not

the basis for the district court’s decision.” Performance Autoplex II Ltd. v.

Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003). Finally, “[a]lthough

we liberally construe briefs of pro se litigants and apply less stringent standards

to parties proceeding pro se than to parties represented by counsel, pro se parties

must still brief the issues and reasonably comply with the standards of Rule 28.” 

Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citation omitted).5

2. Preliminary issues 

First, Walker argues in her appeal that 98 of her exhibits were omitted

from the district court record and the district court erred in not considering

these exhibits when it ruled on the parties’ summary judgment motions. But the

district court found that Walker did not file a complete list of all the exhibits

listed as she now claims. It also found that many of the 98 exhibits were

duplicates of other filed exhibits. Walker provides no argument or evidence to

the court from which we could conclude that these findings are clearly erroneous

or that the district court’s denial of her subsequent motion to supplement the

record with the exhibits was an abuse of discretion. See United States v.

Campbell, 73 F.3d 44, 46-47 (5th Cir. 1996). Moreover, Walker fails to explain

how the information in these exhibits establishes a genuine issue of fact material

Walker provides scant argument for her many claims of error by the district court. We 5

nevertheless consider her claims as best we can without the benefit of further elaboration.

5

 Case: 12-40487 Document: 00512117726 Page: 5 Date Filed: 01/18/2013
No. 12-40487

to her claims. Therefore, the alleged omission, if in fact erroneous, was harmless

error. Id. at 47.

Second, Walker claims that the district court erred when it did not give

her notice of the submission date for filing her response to Hitchcock’s motion for

summary judgment. The district court did not err, because it is not required to

give such notice. Federal Rule of Civil Procedure 56 “merely requires the court

to give the non-movant an adequate opportunity to respond prior to a ruling. .

. . [T]he adverse party must have at least ten days to respond to the motion for

summary judgment.” Widnall, 99 F.3d at 713 (internal quotation marks

omitted). Hitchcock filed its motion for summary judgment on December 15,

2011. The court did not rule on it until March 21, 2012, long after ten days had

elapsed. Furthermore, Walker did file a response to Hitchcock’s motion on

December 29, 2011, so even if the district court had erred, the error would be

harmless.

Third, Walker alleges that the district court disposed of her case on

summary judgment to clear its docket. She provides no evidence or argument

to support this claim, so it is waived. See Cuellar, 59 F.3d at 525 (“[A pro se

appellant’s] failure to articulate any appellate argument therefore deprived the

[defendants] of their opportunity to address fully all the issues and prejudiced

their ability to prepare and present arguments to this Court. Consequently, we

will not excuse his noncompliance with Rule 28.”).

Fourth, Walker claims that the district court did not provide reasons when

it denied her partial motion for summary judgment on her § 1983 claim. 

However, in granting Hitchcock’s motion on the same claim, the district court

necessarily set forth its reasons for denying Walker’s motion, because it

explained how Hitchcock’s position succeeded and Walker’s failed as a matter of

law.

3. Title VII retaliation claim

6

 Case: 12-40487 Document: 00512117726 Page: 6 Date Filed: 01/18/2013
No. 12-40487

To establish a prima facie case that Hitchcock retaliated against her in

violation of Title VII, Walker must show that “(1) she engaged in protected

activity; (2) an adverse employment action occurred; and (3) a causal link exists

between the protected activity and the adverse employment action.” Turner v.

Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Walker claims

that Hitchcock fired her because she complained to the county health

department about the mold and poor air quality in the Head Start Building and

reported Hitchcock’s allegedly fraudulent transportation reports to the state

education agency. 

We assume for the sake of argument that Walker has established a prima

facie case of retaliation. In response, Hitchcock must provide a legitimate,

non-retaliatory reason for the discharge. See Swanson v. Gen. Servs. Admin.,

110 F.3d 1180, 1188 (5th Cir. 1997). If Hitchcock does, the burden is placed on

Walker to “offer evidence from which the jury may infer that retaliation, in

whole or in part, motivated the adverse employment action.” Roberson v. Alltel

Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004). Hitchcock sent Walker a letter

that contained eighteen performance-related reasons warranting her

termination. Performance deficiencies are a legitimate, non-retaliatory reason

for discharge. See Davis v. W. Cmty. Hosp., 786 F.2d 677, 683 (5th Cir. 1986). 

Walker points to the fact that she was fired in relative close temporal proximity

to making her complaints and asserts that Hitchcock’s decision to fire her was

based on a retaliatory motive. That, standing alone, is insufficient to sustain

Walker’s burden to respond to Hitchcock’s non-retaliatory justifications for the

discharge. See Swanson, 110 F.3d at 1188. The district court correctly granted

Hitchcock’s motion for summary judgment on Walker’s retaliation claim.

4. Title VII discrimination claim

To establish a prima facie case of racial discrimination in employment,

Walker must show that (1) she is a member of a protected class, (2) she was

7

 Case: 12-40487 Document: 00512117726 Page: 7 Date Filed: 01/18/2013
No. 12-40487

qualified for her position, (3) she was the subject of an adverse employment

action, and (4) she was treated less favorably because she was a member of the

protected class than were other similarly situated employees who were not

members of the protected class. Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259

(5th Cir. 2009). In the district court and on appeal, Walker proffers no evidence,

either direct or circumstantial, see Russell v. McKinney Hosp. Venture, 235 F.3d

219, 222 (5th Cir. 2000) (“A plaintiff can prove a claim of intentional

discrimination by either direct or circumstantial evidence.”), to prove the fourth

element of her claim other than her subjective belief that she was treated

differently than white co-workers who were similarly situated. She simply

states that white employees were treated differently and points out her own

statements in the record that Hitchcock discriminated against her. Under this

court’s precedent, such a subjective belief of Walker’s is not sufficient to

establish a prima facie case of discrimination. See Byers v. Dallas Morning

News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (“Byers urges this Court to rely on

his subjective belief that Brown discriminated against him because he was

white. This Court will not do so.”) Because Walker failed to make a prima facie

showing, the district court did not err by granting summary judgment for

Hitchcock on this discrimination claim.

5. Section 1983 claim

Procedural due process places constraints on governmental decisions that

deprive individuals of property interests within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment. Mathews v. Eldridge, 424 U.S.

319, 332 (1976). “Under well-established federal law, the constitutional

minimums for due process require that the final decision maker must hear and

consider the employee’s story before deciding whether to discharge the

employee.” Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459, 465 (5th Cir.

2003). 

8

 Case: 12-40487 Document: 00512117726 Page: 8 Date Filed: 01/18/2013
No. 12-40487

Walker claims that she was denied due process because she was not

allowed to attend the Policy Council meeting where the council decided whether

to recommend that her contract be renewed. Furthermore, she contends that the

Superintendent’s separate recommendation, which he made to the Board of

Trustees before the Policy Council made its recommendation, also violated her

Fourteenth Amendment due process rights. Although it is debatable whether

Walker’s probationary contract gave her a property interest in continued

employment, we need not decide this issue. See Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 578 (1972) (holding that where “the terms of the

respondent’s appointment secured absolutely no interest in re-employment for

the next year” and “supported absolutely no possible claim of entitlement to

re-employment. . . . he did not have a property interest sufficient to require the

University authorities to give him a hearing when they declined to renew his

contract of employment”). Even assuming that she had a property interest that

Hitchcock could not deprive her of without due process, Walker received all the

process she was due. The Board of Trustees notified her of its proposed decision

not to renew her contract and of her right to appeal. She did appeal and was

afforded the opportunity to present her case before a hearing examiner of the

Texas Education Agency. During the appeals process, Hitchcock continued to

pay her salary. Therefore, the final decision maker heard her story before

upholding the Board’s decision to terminate her contract. The Due Process

Clause of the Fourteenth Amendment requires nothing more, and the district

court did not err in granting Hitchcock’s motion for summary judgment on this

claim.

6. TWA claim

Walker claims that the district court erred in granting Hitchcock’s motion

for summary judgment on her TWA claim that she was retaliated against after

she complained about mold and poor air quality in the Head Start Building to

9

 Case: 12-40487 Document: 00512117726 Page: 9 Date Filed: 01/18/2013
No. 12-40487

the county health agency and reported Hitchock’s purportedly fraudulent

reimbursement requests to the state education agency. The district court based

its grant of summary judgment on two grounds. First, it concluded that the

claim was barred by the Eleventh Amendment because, although the TWA

waives state sovereign immunity for claims brought under the Act in state court,

it does not waive sovereign immunity for claims filed in federal court. Second,

it determined thatWalker’s required showing for her TWA claim was collaterally

estopped by the jury’s specific findings in her state court case.

The district court was mistaken in concluding that the Eleventh

Amendment deprived it of jurisdiction over Walker’s TWA claim. Walker

originally filed this case in Texas state court. Therefore, by removing the case

to federal court, Hitchcock waived its immunity from suit in federal court. See

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002) (holding

that a state’s act of removing a suit from state to federal court waives its

Eleventh Amendment immunity). 

Nonetheless, in exercising its jurisdiction over Walker’s TWA claim, the

district court properly granted summary judgment to Hitchcock. As the district

court noted, a successful TWA claim requires Walker to prove that she made her

reports in good faith. See TEX.GOV’T CODE ANN. § 554.002(a) (“A state or local

governmental entity may not suspend or terminate the employment of . . . a

public employee who in good faith reports a violation of law by the employing

governmental entity or another public employee to an appropriate law

enforcement authority.” (emphasis added)). Because a Texas jury had found that

Walker did not file her complaints in good faith, she was collaterally estopped

from arguing in this case that she had filed them in good faith. Allen v. 6

To the extent that Walker’s TWA claim in district court was identical to the claim she asserted

6

in state court, it is also barred by res judicata.

10

 Case: 12-40487 Document: 00512117726 Page: 10 Date Filed: 01/18/2013
No. 12-40487

McCurry, 449 U.S. 90, 94 (1980). Therefore, she could not prove her case and

summary judgment was appropriate.

CONCLUSION

For the reasons given above, the district court’s order granting summary

judgment for Hitchcock is AFFIRMED. 

11

 Case: 12-40487 Document: 00512117726 Page: 11 Date Filed: 01/18/2013