### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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
p a rt ial 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. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary18 , 20 13 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-40487 Document: 00512117726 Page: 1 Date Filed: 01/18/2013No. 12-40487 FACTS AND PROCEEDINGS Walker was employed as the Director of Kids Fir s t Head Start for Hitchcock under a o n e - 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, W a l k e r 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 h a d s o u ght medical treatment shortly before she filed her complaint. She requested leave un d e r the Family M e dical 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 p r o c e ssed by her doctor. At the same time these events were unfolding, the Superintendent recommended t o th e district’s Board of Trustees that Walker’s contract be renewed fo r th e following school year. On March 20, Hitchcock received a return-to- w ork 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

w o rk

. After realizing his error, the Superintendent sent Walker a letter on March 24 explaining that the district woul d n o t p e r m it her to return to work

The Policy Cou ncil is com po sed of pare nts and makes emp loym e nt reco mme ndation s about 1 whe ther to terminate or ren e w the Dire ctor’s con tract to the district’s Board of Trustees, w hich is the ultimate dec ision maker. 2 Case: 12-40487 Document: 00512117726 Page: 2 Date Filed: 01/18/2013No. 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 r e f u s e d 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 l e ave 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-provi d e d transportation. On May 4, the Superintendent placed her on administrative leave with pay, c iting 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 E m p l oyment Opportunity Commission (“EEOC”). The Policy Council voted in August to recommend t o the Board that Walker’s contract not b e r e newed. The Superintendent made the same suggestion to the Board, which followed these recommen d a t i o ns. 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 he ar d b y a hearing examiner. The

Walker amen de d her EEOC claim to include a claim fo r retaliation fo r her rep orts to the health 2 de partmen t and education ag enc y afterlearningof the se reco mme ndation s. 3 Case: 12-40487 Document: 00512117726 Page: 3 Date Filed: 01/18/2013No. 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 j u ry 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 th a t Hitchcock filed fraudulent t r a n s portation reimbursement requests were not made in good faith. It al s o found that these reports w e r e n o t 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-mo t i o n 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 mat e ri al 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 con tinued to pay Walker her salary until the Board accep ted the hearin g ex aminer ’s 3 de cision.

It is uncle ar fro m the reco rd why Walker’s state cou rt cases we re separate, particularly as they

4

we re both allege violation s of the TWA stemming fro m the same set of ev ents and we re both originally filed in Galve ston Cou nty, Texas. Ne ve rthele ss , they are separate causes. The case tried to a jury was No . 09-CV-1439, while this case, befo re it was remo ve d, was No . 10-CV-1583 in st ate cou rt. 4 Case: 12-40487 Document: 00512117726 Page: 4 Date Filed: 01/18/2013No. 12-40487

We “review a district court’s grant of summary judgm ent de novo , applying the same standard as did the district court.” Stults v. Conoco, Inc. , 76 F.3d 651, 654 (5th C i r . 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. 200 4). “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 deci s i o n.” Performance Autoplex II Ltd. v. Mid-Continent Cas. Co. , 322 F.3d 847, 853 (5th Cir. 2003). Finally, “[a]lthough

we liberally construe briefs ofpro 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 i n her appeal that 98 of her exhibits were omitted from the district court record and th e di s t rict court erred in not considering these exhibits when it ruled on the parties’ summary judgment motions. But the district co u rt f

o u n d 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 materi al

Walker pro vide s sc a n t a r gu m ent fo r her many claims of erro r by the district cou rt. We 5

nev erthe less consider h er claims as bestwecan witho ut the ben ef it of fu rther e laboration. 5 Case: 12-40487 Document: 00512117726 Page: 5 Date Filed: 01/18/2013No. 12-40487

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

error. Id. at 47. Second, Walker claims th a t th e 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 o p p o rtunity to respond prior to a ruling.

.

. . [T]he adverse party must have at least ten days to respond to the motion for summary judgm e n t .” Widnall , 99 F.3d at 713 (internal quotation marks

om itted). 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. Furthermo r e, Walker did file a response to Hitchcock’s motion on December 29, 2011, so even if th e di strict court had erred, the error would be harmless. Th i r d , W a l ker alleges that the district court disposed of her case on

s u m mary judgment to clear its docket. She provides no evidence or argum e n t t o support this claim, so it is waived. See Cuellar , 59 F.3d at 525 (“[A p r o s e 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 m o t i o n for summary judgment on her § 1983 claim. However, in granting Hitchcock’s motion on the sa m e c l ai m, the district court necessarily set forth its r e a s o n s 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

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To establish a prima facie case that Hitchcock retaliated against he r in violation of Title VII, Walker must show that “(1) she engag e d i n p rotected 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 fir e d h e r 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 f a cie case of retaliation. In response, Hitchcock must provide a legitim a t e , non-retaliatory reason for the disch a r ge. See Swanson v. Gen. Servs. Admin. , 110 F.3d 1180, 1188 (5th Cir. 1997). If Hitchcock does, the burden is placed on Walker to “o f

f e r 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. 2 0 04). Hitchcock sent Walker a letter that contained eighteen performance-rel a ted reasons warranting her termination. Performance deficiencies are a legitimate, non-retaliatory reason for discharge. See Davis v. W. Cmty. Hosp. , 7 8 6 F

. 2 d 6 77, 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 base d o n 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 p rima facie case of racial discrimination in employment, Wal k e r m u s t show that (1) she is a member of a protected class, (2) she was

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qu a lif i ed 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
p r o tected 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 p r o ve a claim of intentional discrimination by either direct or circumstantial evidence.”), to prove the fourth element of her claim other than h e r s ubj e ctive belief that she was treated diff e r e n tly 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 W al ker’s is not sufficient to establish a p ri m a 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 discrimi n a t e d a gainst 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 s u m m a ry j udgment 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 c o n s titutional minimums for due process require that the final decision maker must hear and consider the employee’s story before deciding wheth e r t o discharge the employee.” Coggin v . L o ng v i e w Indep. Sch. Dist. , 337 F.3d 459, 465 (5th Cir. 2003).

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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 r e c o mmendation, 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 “th e t e r m s o f the respondent’s appointment secured absolutely no interest in re-employment for the next year” and “supported absolute ly 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

no t t o renew her contract and of her right to appeal. She did appeal and was afforded the opportunity to present her c a s e before a hearing examiner of the Texas Education Agency. During the appeals process, H i t c h cock continued to pay her salary. Therefore, the final decision maker heard her story before upholding the Board’s decision to terminate her contract. Th e D ue Process Clause of the Fourteenth Amend m e n t 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 St a rt B uil di ng to

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the county hea l th 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 det er min e d th at Walker’s required showing for her TWA claim was collaterally estopped by the jury’s specific findings in her state court case. The di s trict 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 exerc i s i n g 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 T E X .G O V’ T C O D E AN N

. § 554.002(a) (“A state or local governmental en t i ty may not suspend or terminate the employment of

. . . a public e m p l o y e e who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” (e mp h a s i s a d de d) )

. B ecause a Texas jury had found that Walker did not file her complaints in good faith, she was co l l a t e r al ly estopped from arguing in th i s c a s e th at she had filed them in good faith. Allen v. 6

To the extent that Walker’s TWA claim in district cou rt was iden tical to the claim she ass erte d 6 in state co urt, it isalso barred by re s judicata. 10 Case: 12-40487 Document: 00512117726 Page: 10 Date Filed: 01/18/2013No. 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.

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