* Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40114

Summary Calendar

SILVESTRE MORENO JR.,

Plaintiff-Appellant,

VERSUS

THE WESLACO INDEPENDENT SCHOOL DISTRICT, 

JAMES D. LEHMANN, AND DR. HILLARY DUFNER

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(M 94 CV 32)

( September 14, 1995 )

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Appellant Silvestre Moreno, Jr. ("Moreno") appeals the

dismissal of his civil rights action against Appellees Weslaco

Independent School District ("WISD"), James D. Lehmann ("Lehmann")

and Hillary Dufner ("Dufner"). We affirm.
2

Proceeding pro se, Moreno, a school teacher, filed a civil

rights complaint against WISD, Lehmann, the Superintendent of WISD,

and Dr. Hillary Dufner, the principal of the Cuellar Middle School

("Cuellar"), which is located in WISD, alleging that Lehmann and

Dufner conspired to force his resignation by engaging in

discrimination, harassment, intimidation, and libel in violation of

Moreno's constitutional rights. 

MORENO'S CONTENTIONS

Moreno alleged the following facts in his amended complaint:

During the 1991-92 school year, while employed at the Hoge

Middle School, Moreno was appointed to be that school's

representative on a textbook recommendation committee. Dufner was

the district's administrator in charge of textbook adoption.

Moreno and several other teachers engaged in "heated discussions"

with Dufner about the preferable history textbook to be used.

Dufner thereafter adopted an adversarial attitude toward Moreno and

retaliated by engaging in discriminatory conduct. 

Dufner became the principal of Cuellar in 1993, and Moreno was

assigned to teach at Cuellar. In August 1993, Superintendent

Lehmann met with several teachers at Cuellar to discuss complaints

that had been made concerning Dufner's policies. Moreno was very

vocal about his grievances during the meeting. Lehmann and Cuellar

have conspired to violate Moreno's rights since that meeting

occurred. 

Moreno received a memorandum from Dufner in December 1993,

directing Moreno to prepare a "Growth Plan" pertaining to a
3

particular teaching assignment. Moreno responded that such a

requirement was in violation of a Texas statute, known as the

Paperwork Reduction Act. Lehmann was made aware of the dispute but

took no action on the matter. Dufner sent Moreno a second

memorandum advising him to prepare a Growth Plan. Moreno

resubmitted his original response, and Dufner responded that his

objection and refusal to submit a Growth Plan had been noted in

Moreno's file. Moreno alleged that this act was "libel per se" and

defamed his character and reputation. Moreno filed a series of

grievances relating to the notation in his file, which were denied.

Moreno eventually received a memorandum from Dufner stating that he

was removing the notation from Moreno's file because the Texas

Association of School Boards and the Texas Education Agency could

not provide any precedent on the issue. 

Dufner also used the "Texas Teacher Appraisal System," a

statutorily created evaluation system, to violate Moreno's equal

protection rights. Dufner targeted him and "another Hispanic

teacher on the same campus" by giving them both the lowest

evaluation scores. He and the other Hispanic teacher had opposed

Dufner's textbook recommendation two years earlier. Before this

evaluation, Moreno had received high evaluation scores in his ten

years as a teacher. 

Moreno responded to the low evaluation scores by filing

another grievance alleging that Dufner abused his duties as an

evaluator. During the post-observation conference, Dufner advised

Moreno that he would not be recommended to teach at Cuellar during
4

the upcoming 1994-95 school year. Moreno requested an observation

by another appraiser. Dufner appointed Ana de Leon, one of his

subordinates, and instructed her to cite Moreno for deficiencies to

insure that he would again receive low evaluation scores. 

Moreno subsequently met with Dufner and de Leon. Dufner

reprimanded Moreno for showing a video that had not been approved

by his department head, and Moreno responded that he had received

permission to show it. Dufner instructed de Leon to cite Moreno

for "any fictitious reason" and Moreno left the office to avoid

further confrontations. Moreno attempted to meet with Lehmann, who

told him that he was too busy to meet with him. 

Dufner continued to harass him after he filed the instant

complaint. Dufner "wrote up" Moreno for failing to attend a

Departmental Meeting although he was not required to do so by

statute. Moreno applied to take a "school business day" in order

to attend a court hearing, and Dufner treated it as a "personal

day". Dufner also demanded that Moreno attend a "summative

conference," which would involve a review of Moreno's appraisal and

performance during the school year. Moreno declined to do so

because his appraisal was part of his federal complaint and he did

not wish to compromise his constitutional rights.

Moreno alleges generally that Appellees' actions were racially

motivated, but recites no facts that would support that conclusion.

PROCEEDINGS IN THE DISTRICT COURT

Following a hearing, the district court dismissed Moreno's

42 U.S.C. § 1985 conspiracy claims, which order was not appealed
5

and denied the motion to dismiss his remaining claims without

prejudice. In compliance with the district court's order, Moreno

then filed his amended complaint. 

At a subsequent hearing, the district court granted the

defendants' motion to dismiss the constitutional claims and

declined to exercise its supplemental jurisdiction over the state

law claims. The district court determined that Moreno was a member

of a protected class, being Hispanic-American, but that his

allegations of racism were conclusional and that he had failed to

allege that the defendants' conduct was related in any way to his

race or national origin. The district court concluded that Moreno

had failed to state an equal protection claim.

The district court further determined that Moreno had not

alleged a due process claim because his employment had not been

terminated, he had not been transferred, and his pay had not been

reduced. The district court also concluded that it was not

required to determine the issue of the school district's liability

or the issue of qualified immunity because Moreno failed to state

a constitutional violation. 

STANDARD OF REVIEW

A dismissal for failure to state a claim upon which relief can

be granted under Federal Rule of Civil Procedure 12(b)(6) is

reviewed de novo using the same standard employed by the district

court. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th

Cir. 1994). "[A] claim may not be dismissed unless it appears

certain that the plaintiff cannot prove any set of facts in support
6

of his claim that would entitle him to relief." Id. 

EQUAL PROTECTION

Moreno argues that the district court failed to protect his

"equal protection" rights because the facts alleged clearly

indicated that he was discriminated against because of his Hispanic

background. He contends that he is a member of a suspect class and

therefore the action of the defendants is subjected to a strict

scrutiny. He argues that Dufner treated him differently from other

teachers by constantly harassing him in order to force him to

resign, that Dufner discriminated against him and other Hispanic

teachers by giving Anglo teachers preferential treatment in

teaching assignments and other matters and by creating a hostile

working environment for Hispanics. 

The Equal Protection Clause directs states to treat "all

persons similarly situated" alike. Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313

(1985). A claimant who alleges an equal protection violation has

the burden of proving the existence of purposeful discrimination.

McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d

262 (1987). "Discriminatory purpose. . .implies that the

decisionmaker singled out a particular group for disparate

treatment and selected his course of action at least in part for

the purpose of causing its adverse effect on an identifiable

group[.]" Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988)

(internal quotations, citations, and footnote omitted).

Classifications based on race, alienage, or national origin "are
7

subjected to strict scrutiny and will be sustained only if they are

suitably tailored to serve a compelling state interest." Cleburne,

473 U.S. at 440 (citation omitted).

"[A] plaintiff suing a public official under § 1983" fails to

state a claim unless his complaint "rests on more than conclusions

alone." Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995)(en

banc). Moreno's conclusional allegations of discrimination based

on his race do not allege facts reflecting that the defendant's

actions were racially motivated. Rather, Moreno specifically

alleged that Dufner retaliated against him because they disagreed

about the appropriate history book to be used in the school

district and because Moreno complained about Dufner's policies

after he became principal of Cuellar. These allegations did not

reflect that Dufner's actions were racially motivated.

However, Moreno alleged in his amended complaint that Dufner

had "targeted" Moreno and another Hispanic teacher because they had

opposed his earlier textbook recommendation. Moreno also made

general assertions in response to the defendants' motion to dismiss

that Dufner discriminated against two other Hispanic teachers by

denying their grievances and that Dufner gave preferential

treatment to Anglo teachers. Arguably, these assertions made in

response to the defendants's motion to dismiss should have been

construed by the district court as a motion to amend the complaint.

See Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972)

(opposition memorandum to summary judgment motion raised a new

issue and should have been construed as an amendment to the
8

complaint). However, any such error is harmless because Moreno has

failed to allege an equal protection claim even if the allegations

are considered. FED. R. CIV. P. 61.

"The equal protection clause is not violated solely because an

action has a racially disproportionate impact if it is not

motivated by a racially discriminatory purpose." Coleman v.

Franklin Parish Sch. Bd., 702 F.2d 74, 77 (5th Cir. 1983). 

Moreno did not allege facts that would establish that Dufner

treated Hispanic teachers differently because of their national

origin. Moreno has not supported his assertion that Anglo teachers

are given preferential treatment with any specific factual

allegations. Nor has he alleged facts in his complaint showing

that a specific Hispanic teacher left his position at the school

based on Dufner's conduct. Moreno has failed to allege the

existence of discriminatory action that must be subjected to a

"strict scrutiny" test. Moreno's complaint failed to state an

equal protection claim.

DUE PROCESS

Moreno argues that the district court did not protect his "due

process" right to engage in his profession. He argues that the

defendants recklessly violated state statutes in order to create a

hostile work environment and that he has a liberty interest in

being free from a hostile working environment. He argues that the

defendants' conduct is subject to strict scrutiny. "To state a

substantive due process claim[,] a plaintiff must show that the

government's deprivation of a property interest was arbitrary or
9

not reasonably related to a legitimate governmental interest."

Williams v. Texas Tech. Univ. Health Sciences Ctr., 6 F.3d 290, 294

(5th Cir. 1993), cert. denied, 114 S. Ct. 1301 (1994). 

Moreno has failed to allege facts that show that he has been

deprived of a protected property or liberty interest. Moreno is

complaining about administrative requirements imposed on him by

Dufner allegedly in violation of state law. Such administrative

decisions do not rise to the level of a constitutional violation.

See Dorsett v. Bd. of Trustees For State Colleges and Universities,

940 F.2d 121, 123 (5th Cir. 1991). "Judicial evaluation of

academic decisions requires deference and they are overturned only

if they are `such a substantial departure from accepted academic

norms as to demonstrate that the person or committee responsible

did not actually exercise professional judgment.'" Williams, 6

F.3d at 294 (citation omitted). Even if requiring Moreno to

prepare a Growth Plan prior to his appraisal was technically a

violation of state law, such administrative decision was not such

a "substantial departure from accepted academic norms" as to result

in a constitutional violation. 

Moreno also complains about Dufner's placement of a notation

in Moreno's personnel file indicating his refusal to comply with

the request and about Dufner giving Moreno a poor teaching

evaluation. Moreno must show a "stigma" resulting from "concrete,

false factual representations or assertions, by a state actor, of

wrongdoing on the part of the claimant," and an "infringement" that

"significantly alter[ed] a life, liberty, or property interest
10

recognized and protected by state law or guaranteed by one of the

provisions of the Bill of Rights that have been incorporated." See

San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701-02 (5th Cir.

1991) (internal quotations and citations omitted). 

Moreno does not contend that Dufner's notation that he refused

to submit a Growth Plan is a false statement and he acknowledged

that the notation has now been removed from his file. Although he

argues that Dufner's evaluation of his teaching ability is

baseless, Moreno does not allege that he has lost his teaching

position, his tenured status, or his salary and benefits as a

result of the evaluation or the notation in his personnel file.

Thus, he has not alleged facts indicating that he has been deprived

of a liberty or property interest as a result of false statements

made by Dufner.

Moreno's allegation that the defendants have created a hostile

working environment unaccompanied by an allegation that he has been

deprived of his teaching position does not give rise to a

substantive due process right. See Dorsett, 940 F.2d at 123 (the

alleged retaliatory acts were nothing more than decisions

concerning teaching assignments, administrative matters, and

department procedures and, although significant to the plaintiff

professor, did not rise to the level of a constitutional

violation); see Santiago de Castro v. Morales Medina, 943 F.2d 129,

130-31 (1st Cir. 1991) (the right to employment free from verbal

harassment does not warrant substantive due process protection). 

Moreno argues that Dorsett and Santiago are distinguishable
11

from his case because "race" was not a factor in those cases and

the courts did not take a "strict scrutiny" approach. As

previously discussed, Moreno did not allege facts showing that

Dufner's actions were racially motivated. Further, the "strict

scrutiny" test is used in determining an equal protection claim and

is not applicable in determining whether an individual has a

liberty interest subject to due process protection. 

Moreno also argues that his case is analogous to the sexual

harassment cases based on an employer's creation of a hostile work

environment for members of one sex. Although Moreno raises this

issue in conjunction with his substantive due process claim, it

actually raises an equal protection claim. The case relied on by

Moreno, Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st

Cir. 1988) recognized that sexual discrimination violates the equal

protection clause as well as Title VII and Title IX of the Civil

Rights Act of 1964. "To make out a prima facie case of hostile

environment harassment, the plaintiff must show that he or she was

subjected to unwelcome sexual advances so `severe or pervasive'

that it altered his or her working or educational environment."

Id. at 898 (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67

(1986)). Moreno's allegations concerning Dufner's conduct, even if

proved, did not show that the defendant engaged in discriminatory

conduct which was sufficiently severe so as to create an abusive

work environment for Moreno. Further, even if the defendant

created a hostile working environment, Moreno's allegations do not

reflect that the conduct was racially motivated. Moreno's
12

allegations do not support a claim based on a hostile working

environment. 

Moreno also makes the closely related argument that Dufner's

used the "constructive discharge" method in order to compel him to

resign. A "constructive discharge" occurs "if the employer

deliberately makes an employee's working condition so intolerable

that the employee is forced into an involuntary resignation."

Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980).

Moreno's complaint does not reflect that he has resigned his

position. Further, his allegations do not reflect that Dufner

imposed working conditions that are so abusive that a reasonable

person would have felt compelled to resign his job. Moreno's

allegations of "constructive discharge" do not support a due

process claim. 

PROCEDURAL DUE PROCESS

Moreno also argues that he was denied procedural due process

by the school district's policy of immunizing its supervisory

personnel from grievances in an attempt to avoid judicial

complaints. A governmental entity can be held liable under § 1983

only if official policy or custom caused the deprivation of a

constitutional right. Monell v. Dep't of Social Serv. of City of

New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d

611 (1978). Official policy includes a persistent, widespread

practice of officials, which, although not authorized by officially

adopted or promulgated policy, is so common and well-settled as to

constitute a custom that fairly represents policy. Fields v. South
13

Houston, 922 F.2d 1183, 1191-92 (5th Cir. 1991). 

In his response to the defendants' motion to dismiss, Moreno

alleged that after discovery he will be able to prove that all

teachers' grievances against supervisors are processed by the

school district in a discriminatory manner. However, he further

asserted that his grievances and the grievances of two Hispanic

teachers were denied at all levels. Thus, it is not clear whether

Moreno is arguing that it is the policy of the school district to

rule against all teachers filing grievances against supervisors or

Hispanic teachers only. 

However, under either scenario, Moreno has not alleged facts

to support his claim that the school district was biased in

addressing his grievances. "An impartial decisionmaker is a basic

constituent of minimum due process." Megill v. Bd. of Regents of

State of Fla., 541 F.2d 1073, 1079 (5th Cir. 1976). However,

Moreno's allegations that the school district was biased against

him is based solely on speculation regarding other Hispanic

teachers and the fact that all of his grievances were denied during

the grievance process. These allegations do not support a finding

of actual bias on the part of the school district members. Moreno

has failed to allege facts, which if proved, would show that the

school district has a policy of routinely denying grievances of

teachers who have been deprived of their constitutional rights by

their supervisors. 

DELIBERATE INDIFFERENCE

Moreno argues that defendant Lehmann is liable to him because
14

he acted with deliberate indifference to Dufner's violation of

Moreno's constitutional rights. He argued that Lehmann knew or

should have known of his hostile work environment resulting from

Dufner's racial discrimination, bias, and harassment against

Moreno. He does not allege that Lehmann personally performed any

illegal acts. 

A supervisory official can be held personally liable for

subordinate's constitutional violation if the claimant establishes

that the supervisory official learned of facts or a pattern of

constitutional deprivation and demonstrated deliberate indifference

by failing to take action. Doe v. Taylor Indep. Sch. Dist., 15 F.3d

443, 454 (5th Cir. 1994)(en banc), cert. denied, 115 S. Ct. 70

(1994). 

As previously discussed, Moreno has failed to allege facts

showing that Dufner engaged in conduct that violated Moreno's

constitutional rights. Thus, Lehmann could not have been aware of

facts reflecting that Moreno had been denied his constitutional

rights by Lehmann's subordinate. Moreno has failed to state a

claim against Lehmann in his supervisory capacity.

FIRST AMENDMENT 

Although this case does not come to us in the posture of a

First Amendment claim, we view the facts as set out by the pro se

appellant's pleadings in that light. A pro se complaint is to be

construed liberally with all well-pleaded allegations taken as

true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). Even

a liberally construed pro se complaint, however, must set forth
15

facts giving rise to a claim on which relief may be granted. Id.

Moreno's pleadings, liberally construed, did not plead facts on

which relief could be granted on a First Amendment claim. 

In order to succeed on a First Amendment claim, Moreno has to

establish that he spoke out on a matter of public concern and his

exercise of that right was a motivating factor in an adverse

employment decision. See Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471, 484

(1977). Moreno's pleadings allege that he spoke out about the

issue of the appropriate history textbook to be adopted for use in

a public school during a school district textbook selection

committee meeting. Any statements made by Moreno in that context

were protected by the First Amendment. However, because Moreno's

pleadings fail to allege an adverse employment decision, he has

stated no violation of the First Amendment. 

LIBEL 

Moreno argues the merits of his state law libel claim on

appeal. The district court declined to exercise its supplemental

jurisdiction over the state law claims. A district court may

decline to exercise supplemental jurisdiction over state-law claims

if the court has dismissed all claims over which it has original

jurisdiction. 18 U.S.C. § 1367(c)(3). Because the district court

properly dismissed all of the claims that provided it with original

jurisdiction in the case, the dismissal of the supplemental statelaw claims was not an abuse of discretion under § 1367. See Rhyne

v. Henderson County, 973 F.2d 386, 395 (5th Cir. 1992).
16

CONCLUSION

For the foregoing reasons, we AFFIRM the dismissal of Moreno's

case.