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.

 Reyes makes no arguments as to any other individual defendant or the Weslaco 1

Independent School District. Accordingly, any arguments regarding the remaining defendants

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40231

MANUEL REYES,

Plaintiff-Appellant

v.

WESLACO INDEPENDENT SCHOOL DISTRICT; RICHARD RIVERA;

RUBEN ALEJANDRO; DANIEL DE LOS SANTOS; DAVID FOX; JOE

MARINES; RAYMOND GIVILANCZ; RAMON MONTALVO; BUCKLEY

SANCHEZ, 

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

(06-CV-372)

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Manuel Reyes (“Reyes”) appeals the district court’s grant of summary

judgment on his First Amendment freedom of association claims against

defendant Richard Rivera in his individual capacity. First, Reyes claims the 1

United States Court of Appeals

Fifth Circuit

F I L E D

December 3, 2009

Charles R. Fulbruge III

Clerk
No. 09-40231

have been waived. Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th

Cir. 2008) (failure to advance arguments on appeal as to a given defendant constitutes a

waiver as to that defendant). 

2

district court erred when it concluded Reyes failed to raise a genuine issue of

material fact regarding whether he was retaliated against based on his

association with his wife. Second, Reyes appeals the district court’s conclusion

that the First Amendment does not provide an associational right to engage in

extramarital affairs. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Reyes worked as a bus driver for the Transportation Department of

Weslaco Independent School District (“Weslaco ISD”) on and off for a period of

more than twenty years beginning in 1982. During his employment, Reyes

engaged in a lengthy affair with a fellow bus driver. In September 2004, Reyes’s

wife, Norma Reyes, contacted Weslaco ISD Superintendent Richard Rivera

(“Rivera”) about the affair. She was extremely upset and demanded that Rivera

terminate both Reyes and the employee with whom Reyes was having the affair.

Rivera directed Buckley Sanchez (“Sanchez”), Weslaco ISD’s Transportation

Director, and Assistant Superintendent Ruben Alejandro (“Alejandro”) to meet

with both employees to discuss the importance of avoiding disruptions to the

efficient operation of the Transportation Department. Additionally, Rivera met

with Reyes separately to express his displeasure at the situation. Reyes

voluntarily resigned his position a short time later on October 6, 2004. 

After some negotiation, Reyes was hired back as a substitute bus driver

on a probationary basis which was then converted to a regular basis after the

probationary period ended at the start of the 2005-2006 school year. In August

2005, Reyes attended a mandatory “in service” meeting for members of Weslaco

ISD’s Transportation Department. At the meeting, Reyes raised an issue

regarding the policies governing bus driver management of disruptive students
No. 09-40231

3

on school buses. Sanchez, who led the meeting, informed Reyes that he would

only discuss the matter privately with him. In order to protest “being refused

an answer and direction from [Sanchez],” Reyes signed “George Washington” to

an acknowledgment form handed out at the “in service” meeting. Reyes also

alleges that he was later falsely accused of having signed “George Washington”

to a second form. 

As a result of this conduct, Sanchez recommended to Rivera and Alejandro

that Reyes be terminated. Nothing in the record suggests Sanchez’s

recommendation was based upon Reyes’s prior extramarital affair. Rivera

accepted Sanchez’s recommendation, and, shortly thereafter, Reyes received a

letter from Sanchez notifying him of the termination of his employment. Reyes

objected to his termination through Weslaco ISD’s grievance process. During the

grievance process, Reyes was represented by legal counsel, as was the district.

After extensive hearings, Reyes’s grievances were denied at each level of the

process. Reyes has not advanced any evidence that the denial of his grievances

was related to his prior extramarital affair. 

On December 28, 2006, Reyes brought a 42 U.S.C. § 1983 suit against

Weslaco ISD, Rivera, Sanchez, Alejandro, and ISD Board members Daniel De

Los Santos, David Fox, Joe Marines, Raymond Givilanez, and Ramon Montalvo.

Reyes’s complaint went through various motions to dismiss, amendments, and

additional motions to dismiss before the district court finally heard the motion

for summary judgment underlying this appeal. By that time, Reyes’s case had

been reduced to the following claims: 1) Reyes’s § 1983 First Amendment

retaliation and Equal Protection claims against Weslaco ISD stemming from his

final termination in 2005 and his denied grievances that followed; 2) Reyes’s §

1983 First Amendment retaliation and Equal Protection claims against Rivera,

Sanchez, and Alejandro in their individual capacities; and 3) Reyes’s claims
No. 09-40231

 Appellees argue Reyes has waived any argument respecting his right to associate

2

with his wife. We disagree. In order to preserve an error for appeal, “the argument must be

raised to such a degree that the trial court may rule on it.” In re Fairchild Aircraft Corp., 6

F.3d 1119, 1128 (5th Cir. 1993). Here, though the district court construed his arguments

otherwise, Reyes met this very low threshold. Reyes clearly asserted that his claims flowed

from his right to “intimate association” with his wife and that “his associations with his wife

ultimately led to Superintendent Rivera’s recommendation that [Reyes] not be rehired.” As

4

arising under the Texas Constitution. The district court granted summary

judgment on all of these remaining claims, and Reyes timely appealed. 

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same

standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th

Cir. 2006). Our inquiry “is limited to the summary judgment record before the

trial court.” Topalian v. Ehrman, 954 F.2d 1125, 1132 n.10 (5th Cir. 1992). We

must view the evidence in the light most favorable to the non-moving party,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and

the movant has the burden of showing this court that summary judgment is

appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary

judgment is appropriate where the competent summary judgment evidence

demonstrates that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Bolton, 472 F.3d at 263; see

FED. R. CIV. P. 56(c). 

III. DISCUSSION

A. First Amendment Retaliation Based on Reyes’s Marriage

Reyes first contends that the district court erred in granting summary

judgment because a genuine issue of material fact existed as to whether Reyes

was terminated in retaliation for exercising his right to associate with his wife.

We agree with the district court’s conclusion that “[t]he evidence does not

support a claim that Defendants terminated [Reyes]’s employment or denied his

grievance because of his relationship with his wife.” 

2
No. 09-40231

such, Reyes at least put the issue before the district court, even if the court later construed it

as referring only to the right engage in an extramarital affair. Appellees’ citation to Saddler

v. Quitman County School District, 278 F. App’x 412 (5th Cir. 2008) (unpublished), on this

point is unavailing. In Saddler, the district court construed the plaintiff’s complaint as

alleging federal, but not state, equal protection claims. Id. at 415. The court concluded that

the plaintiff waived any appellate argument as to her state equal protection claims because

she failed to challenge the district court’s construction either in the district court or in her

appellate briefing. Id. at 416. The instant case is distinguishable from Saddler in two ways.

First, Reyes’s summary judgment briefing at least asserted that his claims were grounded in

his right to associate with his wife whereas the Saddler plaintiff made no such argument to

the district court. Id. at 415 n.5. Second, the district court in this case was only construing

a single legal argument rather than the allegations in the underlying complaint. Though the

argument may not have been artfully presented, it was nonetheless advanced in the briefing

below. Accordingly, Reyes is entitled to argue it on appeal.

5

A retaliation claim predicated on freedom of association must satisfy three

elements: 1) the plaintiff suffered an adverse employment action; 2) the

plaintiff’s interest in “associating” outweighed the employer’s interest in

efficiency; and 3) the plaintiff’s protected activity was a substantial and

motivating factor in the adverse employment action. Hitt v. Connell, 301 F.3d

240, 246 (5th Cir. 2002). Reyes fails to point to a single piece of evidence

suggesting he was terminated for associating with his wife. On the contrary, the

record demonstrates that Rivera thought highly of Reyes’s wife and, if anything,

would have sought to punish Reyes exclusively for engaging in the affair. As

such, we find that Reyes has failed to raise a genuine issue of material fact as

to whether his association with his wife was a substantial and motivating factor

in his termination. 

B. First Amendment Retaliation Based on Reyes’s Extramarital Affair

Reyes also argues that Rivera’s conduct violated his purported First

Amendment right to engage in an extramarital affair with his fellow employee.

We need not address the merits of this claim as Reyes all but expressly admits

defeat notwithstanding his decision to appeal. The district court held that all of

the individual defendants, including Rivera, were entitled to qualified immunity

reasoning that no binding precedent existed finding that the First Amendment
No. 09-40231

6

affords protected status to extramarital affairs with co-workers such that such

a right, if any, was not “clearly established law.” See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982) (holding that qualified immunity shields a government

official from liability for discretionary acts “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.”). Reyes has completely failed to address

the district court’s grounds for decision. He makes no argument with respect to

qualified immunity. Additionally, he openly concedes that his claim is not

supported by clearly established law and asks us to extend a First Amendment

right in this case to provide him the relief he seeks. Accordingly, we find no

basis to reverse the district court’s conclusion that Rivera is entitled to qualified

immunity.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district

court.