Nunez v. Simms

• Decision Date: 30 July 2003
• Docket Number: No. 02-50625.,02-50625.
• Citation: 341 F.3d 385
• Parties: Ruth NUNEZ, Plaintiff-Appellant, v. Patricia SIMMS; Glenna Archer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

341 F.3d 385

Ruth NUNEZ, Plaintiff-Appellant, v. Patricia SIMMS; Glenna Archer, Defendants-Appellees.

No. 02-50625.

United States Court of Appeals, Fifth Circuit.

July 30, 2003.

Mark Berry (argued), El Paso, TX, for Plaintiff-Appellant.

S. Anthony Safi (argued), Mounce, Green, Myers, Safi & Galatzan, El Paso, TX, for Defendants-Appellees.

Cheryl Tremaine Mehl, Schwartz & Eichelbaum, Austin, TX, for Texas Association of School Boards Legal Assistance Fund, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN, District Judge.¹

GARWOOD, Circuit Judge:

Plaintiff Ruth Nunez (Nunez) appeals the district court's judgment on the pleadings in accordance with FED.R.CIV.P. 12(c) in favor of defendants. We affirm.

Factual and Procedural Background

Nunez was hired as a school teacher by the El Paso Independent School District (District) in 1996. At that time, Nunez was issued a probationary contract in accordance with Chapter 21, Subchapter C, of the Texas Education Code because she did not qualify for a standard teaching certificate. Nunez had obtained a temporary emergency permit from the State Board of Educator Certification on August 1, 1996. These emergency permits expire three years after their issuance, meaning that Nunez's permit expired in August of 1999.

After a teacher has been employed under a probationary contract for at least three consecutive years, state law permits a school district to employ a teacher under a continuing contract. Tex. Educ.Code Ann. § 21.153. On April 7, 1998, the District issued Nunez a continuing contract pursuant to the provisions of section 21.153 of the Texas Education Code.

Nunez claims that on October 31, 2000, she spoke with Farah Green (Green), a certification officer for the District, who allegedly told her she could continue teaching as a "permanent substitute" until she passed the EXET exam needed to obtain standard certification. Nunez received a letter from defendant Glenna Archer (Archer) dated October 30, 2000, advising her that, because her emergency permit had expired and because she did not therefore meet certification requirements, she was being terminated from full-time employment effective November 1, 2000. Nunez alleges she received this letter on November 2, 2000, while appellees claim she was given the letter on October 30.

Nunez filed a civil rights suit on September 12, 2001, against Patricia Simms (Simms), the school principal at Western Hills Elementary School where Nunez taught, and Glenna Archer, Interim Associate Superintendent for Human Resources for the District, alleging that her discharge violated her procedural due process rights insofar as she did not receive proper notice and an opportunity to be heard. The defendants answered, claiming the affirmative defense of qualified immunity and arguing Nunez had no property interest in her contract because her certification had expired by its terms. After Nunez filed a second amended complaint and answer to the defendants' affirmative defenses, the defendants moved for judgment on the pleadings in accordance with FED. R. CIV. P. 12(c), maintaining that Nunez had not alleged the violation of a clearly established constitutional right as she had no property interest in continued employment with the District.

On May 17, 2002, the district court granted the defendants' motion to dismiss all claims. The court concluded, pursuant to Texas law, that absent certification, Nunez could not be employed as a teacher, that the employment contract was therefore void, and that Nunez consequently had no property interest in continued employment. The district court further found that the conduct of the defendants in terminating Nunez was objectively reasonable. Nunez timely filed notice of appeal.

Discussion

In analyzing a claim of qualified immunity we first determine whether the plaintiff has alleged the violation of a clearly established federal constitutional right. Hare v. City of Corinth, Miss., 135 F.3d 320, 325 (5th Cir.1998). If the plaintiff does so, the court must then assess whether the defendant's conduct was objectively reasonable in light of clearly established law. Id. at 326. The plaintiff's showing of a violation of a clearly established constitutional right is a "prerequisite" to overcoming the qualified immunity defense; failure to do so obviates the need to address the second step of the analysis. Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 576-77 (5th Cir.2002).

In order to allege a due process deprivation of a property interest under the Fourteenth Amendment, the plaintiff must demonstrate a "legitimate claim of entitlement" to that interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In the employment context, the sufficiency of a claim of entitlement must be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).

In its Order of Dismissal, the district court found that the pleadings establish that Nunez's employment terminated because her temporary, emergency permit had expired, and she was not holding, and could not present, a standard Texas teaching certificate. The court stated, "Thus, pursuant to applicable provisions of the Texas Education Code, including Sections 21.003 and 21.053, she could not be employed as a classroom teacher, the employment contract that had been issued to her was not binding, and she could not be paid as a classroom teacher." The court therefore held:

"Under controlling authorities of the United States Court of Appeals for the Fifth Circuit, including Montez v. South San Antonio Independent School District, 817 F.2d 1124 (5th Cir.1987), of the Texas courts, Grand Prairie Independent School District v. Vaughan, 792 S.W.2d 944 (Tex.1990), and Swanson v. Houston Independent School District, 800 S.W.2d 630 (Tex.App. — Houston [14th Dist.] 1990, writ denied), and the Texas Commissioner of Education, Peters v. Dallas Independent School District, TEA Docket No. 087-R2-400 (Tex. Comm'r Educ.2000), and Pitts v. Houston Independent School District, TEA Docket No. 023b-R1-995 (Tex Comm'r Educ.1996), the employment contract that had been issued to the Plaintiff was void, and she had no property interest in continued employment. Plaintiff has failed to allege a violation of a clearly-established constitutional right. The conduct of the Defendants was objectively reasonable in light of clearly-established law. They did not violate any of Plaintiff's clearly-established constitutional rights."

This court reviews de novo a dismissal pursuant to Rule 12(c). Brittan Communications Int'l Corp. v. S.W. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir.2002). Heightened pleading in qualified immunity cases requires that plaintiffs rest their complaint on more than conclusions alone and plead their case with precision and factual specificity. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999).

On appeal Nunez argues that a property interest attached to her continuing contract when it was entered into, at which time she held valid emergency certification. A public school teacher has a constitutionally protected property interest in continued employment if he can demonstrate a reasonable expectation of continued employment. Coats v. Pierre, 890 F.2d 728, 732 (5th Cir.1989). Nunez contends that, once this constitutional property interest attached, it could only be removed through constitutionally adequate procedures.

The Texas Education Code defines "teacher" as a "classroom teacher, counselor, or other full-time professional employee who is required to hold a certificate issued under Subchapter B." Tex. Educ. Code Ann. § 21.101 (Vernon 1996). "A person may not be employed as a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, or counselor by a school district unless the person holds an appropriate certificate or permit issued as provided by Subchapter B." Id. at § 21.003. Subchapter B provides for the issuance of emergency certificates. Id. at § 21.041(b)(2). An "emergency certificate" under section 21.041 is equivalent to an "emergency permit." 19 Tex. Admin. Code. § 230.512 (West 1998).

The State Board for Educator Certification may issue emergency permits when a superintendent cannot secure an appropriately certified individual to fill a vacant position. Id. at § 230.501(a),(b). An emergency permit is valid for the remainder of the school year for which it is activated, and an individual may not serve more than two additional years in the same assignment. Id. at § 230.502(b),(d). An individual may also not serve as a classroom teacher for more than three years without obtaining standard certification. Id. at § 230.502(d).

After a "teacher" has been employed under a probationary contract for at least three consecutive years, the school district may elect to employ the teacher under a continuing contract. Tex. Educ.Code Ann. § 21.153 (Vernon 1996). Nunez alleges, and the defendants do not dispute, that she was issued an emergency permit on August 1, 1996, and that on April 7, 1998, she was issued a continuing contract following three years' employment under a probationary contract.

Section 21.154 of the Texas Education Code states that:

"Each teacher employed under a continuing contract is entitled to continue in the teacher's position or a position with the school district for future school years without the necessity for annual nomination or reappointment until the person:

1) Resigns;

2) retires under the Teacher Retirement System of Texas;

3) is released from employment by the school district at the end of a school year because of necessary reduction of personnel as provided by Section 21.157;

4) is discharged for good cause as defined by Section 21.156 and in accordance with the procedures provided by this chapter;

5)...