* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50560

_____________________

LUIS TEIJEIRO, JOSE ARMENDARIZ

and LIONEL NAVA,

Plaintiffs-Appellants,

versus

YSLETA INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Texas

(EP-91-CV-12)

_______________________________________________________

July 29, 1996

Before REAVLEY, KING and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellants Luis Teijeiro, Jose Armendariz, and

Lionel Nava, Hispanic administrators in defendant-appellee Ysleta

Independent School District (Ysleta), appeal the judgment as a

matter of law entered against them on their claims of national

origin discrimination in promotion and retaliation for filing

grievances and this lawsuit. The plaintiffs also appeal the

dismissal of two claims on limitations grounds and various
 

1 Article 5221k was repealed and is now codified as Tex.

Labor Code Ann. § 21.051 (Vernon 1994) (effective September 1,

1993). Because the plaintiffs filed their complaint before

September 1, 1993, we look to article 5221k.

2

evidentiary rulings made by the district court. After a careful

review of the record, we affirm.

PROCEDURAL HISTORY

The plaintiffs originally brought this case in state court

in 1987, alleging employment discrimination in violation of

Tex.Rev.Civ.Stat.Ann. art. 5221k.1 On January 4, 1991, the

plaintiffs filed their Third Amended Original Petition in state

court, adding a federal claim that Ysleta had violated 42 U.S.C.

§ 1983 by retaliating against the plaintiffs for having brought

the original state lawsuit. Ysleta removed to federal district

court, after which the plaintiffs filed a Fourth Amended

complaint, expanding the § 1983 claims and adding allegations of

violations of 42 U.S.C. § 1981.

On July 18, 1991, the federal district court dismissed

Teijeiro’s art. 5221k claims, based on an earlier ruling by the

state court dismissing his claims for having been brought more

than one year after filing a complaint with the Texas Commission

on Human Rights.

On June 19, 1995, Ysleta renewed its motion to dismiss the §

1983 claims on limitations grounds after the plaintiffs’ pretrial

order indicated an intent to pursue claims relating to only six
 

2 Braden v. Texas A&M Univ. Sys., 636 F.2d 90 (5th Cir.

1981).

3

jobs. The court dismissed two of the § 1983 claims on

limitations grounds, to be discussed below. After this ruling,

the trial centered on discrimination in filling the following

four positions:

Plaintiff Position Date

Teijeiro Asst. Principal, Riverside H.S. 5/28/86

Teijeiro Principal, Hanks H.S. 8/8/89

Nava & Armen. Principal, Parkland H.S. 2/10/87

Armen. Principal, Scotsdale Elem. School 8/26/86

At the close of the Plaintiffs’ case in chief, the district

court granted Ysleta’s motion for judgment as a matter of law. 

This appeal followed.

ANALYSIS

I. Dismissal of Claims Based on the Statute of Limitations

The district court dismissed claims of discrimination in

promotion (1) by Nava and Armendariz, to the principalship of

Hanks High School on August 28, 1987; and (2) by Nava, to the

principalship of Ysleta Middle School on February 14, 1989. It

is well established that in Texas a two-year statute of

limitations applies to § 1983 claims,2 and that the clock begins

to run when the plaintiff knew the position he sought had been
 

3 See Chardon v. Fernandez, 102 S.Ct. 28, 29 (1981) (clock

begins to run when the discriminatory act occurs).

 

4 Fed.R.Civ.P. 15(c) states in pertinent part:

c. Relation Back of Amendments. An amendment of a pleading

relates back to the date of the original pleading when

. . . (2) the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in

the original pleading . . .

 

5 See Fed.R.Civ.P. 50(a).

4

filled.3 The plaintiffs did not raise a claim concerning the two

positions above until they filed their Fourth Amended Petition on

April 24, 1991, more than two years after they knew that they had

not received the promotions.

The plaintiffs argue that the new claims relate back to the

original petition under Fed.R.Civ.P. 15(c)(2) because they arise

out of the same ongoing discriminatory conduct set forth in the

original pleadings.4 The actions complained of in the amended

complaint did not “arise out of” and were not consequences of the

discriminatory acts alleged originally. Instead, the claims in

the amended complaint are best characterized as separate,

discriminatory acts, not acts resulting from one continuous

wrong. There is no relation back, and the district court

properly dismissed the claims on limitations grounds.

II. Judgment As a Matter of Law

The district court entered judgment as a matter of law5 on

the plaintiffs’ claims for failure to promote and retaliation. 
 

6 Wheat v. Pfizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994).

 

7 Id.

 

8 Monell v. Dept. of Social Servs. of City of N.Y., 98 S.Ct.

2018, 2036 (1978); Webster v. City of Houston, 735 F.2d 838, 841

(5th Cir. 1984) (en banc) (adopting a definition of “official

policy”), modified on other grounds on reh’g, 739 F.2d 993 (5th

Cir. 1984) (en banc).

 

9 Webster, 735 F.2d at 841.

5

We review that action de novo.6 Judgment as a matter of law is

appropriate if the evidence at trial points so strongly and

overwhelmingly in the movant’s favor that reasonable jurors could

not reach a contrary conclusion.7

A. Claims under 42 U.S.C. §§ 1981 and 1983

The plaintiffs brought claims against Ysleta under 42 U.S.C.

§§ 1981 and 1983 alleging discrimination in promotion and

retaliation for filing grievances and this lawsuit. In order to

hold a governmental unit liable for discrimination or

retaliation, a plaintiff must prove that the conduct occurred

pursuant to official policy.8 Official policy is either:

(1) A policy statement, ordinance, regulation, or decision

that is officially adopted and promulgated by the

municipality’s lawmaking officers or by an official to whom

the lawmakers have delegated policy-making authority; or (2)

A persistent, widespread practice of city officials or

employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents

municipal policy.9
 

10 Jett v. Dallas I.S.D., 7 F.3d 1241, 1245 (5th Cir. 1993).

6

In Texas, the school board of trustees is the final

policymaker for the school district.10 The issue, then, is

whether the plaintiffs introduced evidence sufficient for a

rational jury to conclude that the Board of Trustees

discriminated against or retaliated against the plaintiffs, or

whether the discrimination was so widespread as to constitute a

custom of the school district.

The evidence indicates that in 1986 the board initiated the

use of committees in hiring and promoting administrative

personnel. The board adopted the new policy after Plaintiff

Teijeiro was denied an assistant principal position. Under the

new policy, a committee was formed for each opening. The members

of the committee were selected at board meetings open to the

public. The committee members were made up of parents, members

of the community, teachers, and other administrators. Members of

a given committee would interview applicants, review the

applicants’ records, and then score applicants based on various

criteria, such as experience, knowledge of the job, and

communication skills. Committee members were not allowed to see

the scores of other members. The committee members’ individual

scores were used to compute an overall score for each candidate,

and the candidates were then ranked in numerical order. The

superintendent had the power to override a committee’s choice and

recommend a different applicant to the board, but the

superintendent did not do so in any of the four jobs at issue in
 

11 See Gonzalez v. Ysleta I.S.D., 996 F.2d 745, 760 (5th

Cir. 1993).

7

this trial. The board made all final selections. In the four

positions at issue in this trial, the board hired the candidate

scored highest by the committee.

There was no credible evidence that the committees for the

four jobs at issue discriminated against the plaintiffs on the

basis of national origin. Even if the committees did so

discriminate, however, the board’s approval of the committees’

recommendations would not constitute official policy unless the

approval was made with deliberate indifference to the plaintiffs’

rights.11 There was no credible evidence that the board was

deliberately indifferent to discrimination with respect to the

four jobs at issue in this case.

Nor was there evidence that the committee system produced

discrimination so widespread as to constitute a custom of the

district. The plaintiffs themselves introduced a statistical

study made by the defendant’s statistical expert, Dr. Edward

George, strongly indicating a lack of discrimination. This study

examined the 1,060 applicants for 55 administrative positions

level 7 and higher during the relevant time period. Of these

applicants, 420 were Hispanic and 640 were Anglos. Of the 55

successful candidates, 26 were Hispanic and 29 were Anglos. The

study indicates that Hispanics were successful at a slightly

higher rate than Anglos were, but that the difference was

statistically insignificant.
8

The plaintiffs attempted to deflect the force of this

evidence through the testimony of Richard Sida, a personnel

expert who was an associate superintendent for Ysleta from

January of 1989 to August of 1990 but who has no expertise in

statistics. Sida testified that about 2/3 of the successful

Anglos in Dr. George’s study received the best jobs (level 10 or

higher), while only 1/3 of the successful Hispanics received such

jobs. This difference cannot give rise to an inference of

discrimination, however, because Sida provided no statistics

about the racial characteristics of the applicant pool for the

positions at level 10 or higher. We simply have no way to

determine whether Hispanics were rejected for those positions at

a higher rate than Anglos were.

Finally, there was a lack of credible evidence that the

plaintiffs were retaliated against by the board. The plaintiffs

never did make clear exactly what acts by the district

constituted retaliation, and exactly what the plaintiffs did that

caused the district to retaliate against them. Most of the

testimony regarding retaliation concerned Plaintiff Teijeiro’s

problems with assistant superintendent Tom Scrivner. Teijeiro

testified that Scrivner undermined his authority as principal

through various means, including overruling his disciplinary

decisions and encouraging his staff to take their complaints to

Scrivner rather than him. Teijeiro filed written complaints

against Scrivner and sent copies to the superintendent and the

board, neither of whom took any action against Scrivner.
 

12 See Farrington v. Sysco Food Servs., Inc., 865 S.W.2d

247, 250-51 (Tex.App.--Houston [1st Dist.] 1993, writ denied)

(utilizing the McDonnell Douglas framework of proof in an art.

5221k claim); Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 822-23

(Tex.App.--Austin 1990, writ denied) (same).

9

Even assuming that Scrivner’s actions violated Teijeiro’s

constitutional rights, Ysleta cannot be held liable. There was

never any proof that Scrivner acted at the behest of the board. 

Nor, under the facts of this case, can the board’s failure to

take action on Teijeiro’s complaints give rise to an inference

that the board was deliberately indifferent to Teijeiro’s

constitutional rights.

B. art. 5221k claims

Nava and Armendariz brought art. 5221k claims concerning the

principalship of Parkland High School filled on February 10,

1987, and Armendariz brought an art. 5221k claim concerning the

principalship at Scotsdale Elementary filled on August 26, 1986. 

Contrary to the position of the plaintiffs, the district court

did not dismiss these art. 5221k claims prior to trial. Rather,

these claims were dismissed at the end of trial when the court

granted Ysleta’s motion for judgment as a matter of law. We

review the district court’s action de novo.

Disparate treatment claims under art. 5221k follow the

McDonnell Douglas-Burdine framework.12 Under this framework, the

plaintiff must first establish a prima facie case of

discrimination. Once established, the prima facie case raises an
 

13 Id.; Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-93

(5th Cir. 1996) (en banc).

 

14 Rhodes, 75 F.3d at 992-93.

 

15 Id. (citing Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.

1969) (en banc)).

 

16 Boeing, 411 F.2d at 375.

10

inference of unlawful discrimination. The burden of production

then shifts to the defendant to proffer a legitimate,

nondiscriminatory reason for the challenged employment action. 

If the defendant presents evidence which, if believed, would

support a finding that unlawful discrimination was not the cause

of the employment action, the presumption raised by the

plaintiff’s prima facie case disappears. However, the plaintiff

is accorded an opportunity to show that the defendant’s

articulated rationale was merely a pretext for discrimination.

Evidence of pretext will permit a trier of fact to infer that the

discrimination was intentional. The burden of persuasion remains

on the plaintiff at all times.13

A jury question is not presented in every case in which the

plaintiff meets the prima facie case.14 Instead, once the

presumption drops out, we test the evidence under the traditional

sufficiency-of-the-evidence analysis enunciated by Boeing Co. v.

Shipman.

15 Under Boeing, there must be a conflict in substantial

evidence to create a jury question.16 Substantial evidence is

defined as “evidence of such quality and weight that reasonable

and fair-minded men in the exercise of impartial judgment might
 

17 Id. at 374.

 

18 Neely v. Delta Brick and Tile Co., Inc., 817 F.2d 1224,

1226 (5th Cir. 1987).

 

19 The plaintiffs argue that in order to establish a prima

facie case of national origin discrimination under art. 5221k,

they must show that (1) they are members of a protected class;

(2) they applied for a job the employer was attempting to fill;

(3) though qualified, the plaintiffs were rejected by the

employer; and (4) thereafter, the employer hired or promoted

someone ostensibly less qualified and outside the plaintiff’s

protected class.

 It is not at all clear that the plaintiffs established a prima

facie case. Their argument that the positions they sought were

filled by others less qualified depends almost entirely on the fact

that the successful candidates had less experience than the

plaintiffs. Yet experience was only one factor upon which the

committees ranked the candidates.

11

reach different conclusions.”17 A mere scintilla of evidence is

not enough, and even if the evidence is more than a scintilla,

“Boeing assumes that some evidence may exist to support a

position which is yet so overwhelmed by contrary proof as to

yield to a directed verdict.”18

Assuming for the sake of argument that the plaintiffs

established a prima facie case,19

0. See Herrin v. Newton Cent. Appraisal Dist., 687 F.Supp. 1072,

1074 & n.1 (E.D.Tex. 1987) (citing cases).20 Ysleta met its burden

of production by showing that the successful candidates were

selected by the committees. Nava and Armendariz simply offered no

credible direct or circumstantial evidence that the committees

ranked them lower because of their national origin. Statistical

and testimonial evidence was overwhelming that the committee

members performed their duties honestly and were not motivated by
12

a discriminatory intent. Indeed, insofar as the plaintiffs raised

any doubts about the use of committees, it was that they were open

to “preselection” of candidates who were members of the “good old

boy” system. But by the plaintiffs’ own admission the “good old

boy” system included men and women, Anglos and Hispanics. While

promotion of those inside the good old boy system may be unfair, it

is not evidence of national origin discrimination. The district

court properly entered judgment as a matter of law in favor of

Ysleta.

III. Evidentiary Rulings

The plaintiffs complain that the district court abused its

discretion in upholding defense objections to various evidence the

plaintiffs sought to introduce. The district court admitted all

evidence relevant to the central questions: whether the failure to

promote the plaintiffs to the four jobs complained of was

discriminatory, and whether the plaintiffs were retaliated against

for filing grievances or this lawsuit. The district court also

gave the plaintiffs the opportunity to prove that national origin

discrimination was the custom of the school board. We see little,

if any, abuse of discretion in the myriad evidentiary rulings the

district court was forced to make in this case. And any error was

rendered harmless by the overwhelming lack of evidence in support

of the plaintiffs’ claims.
13

AFFIRMED.