Ross v. Judson Indep. Sch. Dist.

• Decision Date: 01 April 2021
• Docket Number: No. 20-50250,20-50250
• Citation: 993 F.3d 315
• Parties: Caroline ROSS, Plaintiff—Appellant, v. JUDSON INDEPENDENT SCHOOL DISTRICT, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

993 F.3d 315

Caroline ROSS, Plaintiff—Appellant,

v.JUDSON INDEPENDENT SCHOOL DISTRICT, Defendant—Appellee.

No. 20-50250

United States Court of Appeals, Fifth Circuit.

April 1, 2021

Laurence Wade Watts, Watts & Company Lawyers, Limited, Missouri City, TX, for Plaintiff - Appellant.

Katie Elizabeth Payne, Donald Craig Wood, Attorney, Walsh Gallegos Trevino Russo Kyle, San Antonio, TX, for Defendant - Appellee.

Before Elrod, Willett, and Engelhardt, Circuit Judges.

Don R. Willett, Circuit Judge:

Caroline Ross was employed by Judson Independent School District as principal of Metzger Middle School. JISD learned that Ross had violated several district policies, and, after an investigation and hearing, the Board of Trustees voted not to renew Ross's term contract. Ross sued JISD, bringing race, sex, and age discrimination claims under the Texas Commission on Human Rights Act as well as retaliation and due process claims under 42 U.S.C. § 1983. The district court granted summary judgment in JISD's favor on all claims. Ross now appeals the grant of summary judgment for her state discrimination and federal due process claims.¹ We affirm.

I

Caroline Ross, an African American woman born in 1961, served as principal of Metzger Middle School, part of the Judson Independent School District, from 2010 to 2016. Ross had a term employment contract for the 2015–2016 school year; the contract required Ross to perform her assigned duties "with reasonable care, skill, and diligence" and to comply with all JISD policies and state and federal laws. Among other things, those duties included the proper collection, disbursement, and control of campus activity funds as well as the proper expenditure of those funds. Ross's contract also specifically reserved JISD's right not to renew the contract.

When JISD conducted an annual review of Metzger's expenditures from the 2014–2015 school year, the review raised concerns about several checks that were not countersigned by two individuals, as required by JISD policy, and several transactions that did not have all of the required documentation. Because these transactions were part of Ross's duties, JISD placed Ross on paid administrative leave while it conducted further investigation into possible mishandling of funds at Metzger.

That investigation revealed that Ross had violated JISD's financial management policies and the terms of her employment contract: (1) Ross permitted and authorized her secretary to sign Ross's name to campus activity fund checks; (2) Ross charged, or permitted faculty to charge, students to attend pep rallies, choir concerts, theater productions, and to get temporary student IDs; (3) Ross charged, or permitted faculty to charge, students to purchase composition books that had been paid for by JISD funds; (4) Ross charged faculty to wear jeans; and (5) Ross deposited the proceeds from student events and faculty jeans days in a petty cash fund, which she used to pay for non-JISD authorized expenses.

The investigation also uncovered further violations of JISD policy: (1) the vice principal observed a bottle of alcohol in Ross's car while her car was parked on school property; (2) an assistant principal said that Ross had appeared to be drunk during a school ceremony for parents and students; (3) Ross had shared her passwords with her secretary and other JISD employees and had them perform her duties on JISD software; (4) Ross had her secretary run personal errands for her during work hours; (5) Ross, who was a partner in a film production company, worked on a film during school hours; and (6) Ross permitted and promoted a non-curricular student Bible study group, which did not comply with the requirements of federal law or JISD policy.

On May 19, 2016, the JISD Board of Trustees proposed not to renew Ross's contract at the end of the 2015–2016 school year. JISD sent Ross a Notice of Proposed Nonrenewal, which included a list of reasons for nonrenewal, notified Ross of her right to request a hearing, and provided Ross with the policies that governed the hearing process and some of the evidence supporting her nonrenewal. Ross requested an open, public hearing before the Board. Before the hearing, JISD informed Ross that Ross's secretary had resigned and refused to appear at the hearing.

On June 17, the Board held Ross's nonrenewal hearing. Ross and JISD called and cross-examined witnesses. Although JISD presented testimony from Ross's secretary, which was not in-person testimony, Ross did not raise a hearsay objection at the hearing. After the hearing, the Board voted not to renew Ross's employment contract. On June 27, Ross appealed to the Texas Commissioner of Education. The Commissioner upheld the Board's decision.

Ross then filed suit against JISD in Texas state court, alleging sex, race, and age discrimination under the Texas Commission on Human Rights Act (TCHRA). Ross alleged that JISD's Assistant Superintendent, Elida Bera, who is a Hispanic woman, wanted to terminate Ross because Ross and African American students received preferential treatment from Superintendent Mackey, an African American male. Ross claimed that Bera planned to replace Ross as principal with either Lisa Guerrero, a Hispanic woman, or Loretta Davidson, a Caucasian woman, but that Bera was advised to proceed slowly as long as Ross had an active dispute with JISD. While Ross was on paid administrative leave, JISD appointed Debbie Grady, an African American woman who is two years older than Ross, as the interim principal of Metzger. After the Board decided not to renew Ross's contract, JISD appointed Tracey Valree, an African American woman who is six years younger than Ross, as principal of Metzger. Valree was principal for three years; Loretta Davidson became principal after Valree.

Ross amended her complaint to add two § 1983 claims, alleging that JISD retaliated against her for engaging in protected speech and deprived her of protected constitutional interests without due process. JISD then removed the case to federal court and moved for summary judgment.² The district court granted summary judgment in favor of JISD on all claims.³ Ross timely appealed.

II

We review summary judgment de novo.⁴ Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."⁵ We view all facts and draw all reasonable inferences in favor of the nonmovant.⁶

III

Ross argues that the district court erred in granting summary judgment in favor of JISD. We address Ross's state-law discrimination claims and then her federal-law due process claim.

A

Ross brought her race, sex, and age discrimination claims against JISD under the TCHRA, which prohibits employment discrimination based on "race, color, disability, religion, sex, national origin, or age."⁷ The Supreme Court of Texas has instructed Texas courts to consult judicial interpretations of Title VII and follow the approach of the United States Supreme Court in interpreting Title VII when reviewing TCHRA claims.⁸ That means a plaintiff can prove discriminatory intent with direct evidence of what the defendant did or said or with circumstantial evidence under the McDonnell Douglas burden-shifting framework.⁹ Under McDonnell Douglas , a plaintiff has the initial burden of establishing a prima facie case of discrimination.¹⁰ If she does so, the burden then shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its action.¹¹ If the defendant can provide a reason, then the burden shifts back to the plaintiff to prove that the reason is pretextual.¹²

To establish a prima facie case of discrimination under the TCHRA, the plaintiff must establish that "she (1) was a member of the protected class ..., (2) was qualified for the position at issue, (3) suffered a final, adverse employment action, and (4) was either (a) replaced by someone [outside the protected class] or (b) otherwise treated less favorably than others who were similarly situated but outside the protected class."¹³ Because the parties do not dispute the first three elements, we only address the last element of Ross's race, sex, and age discrimination claims.

We start with Ross's race discrimination claim. For the first time on appeal, Ross argues that she established her prima facie case through direct evidence. Because Ross did not present this argument to the district court, we cannot consider it.¹⁴ Thus, to survive summary judgment, Ross has to rely on circumstantial evidence under the McDonnell Douglas framework, as she did below. Only the fourth element of her prima facie claim is disputed, so Ross must show either that she was replaced by someone outside her protected class or treated less favorably than similarly situated individuals who were outside her protected class. Ross fails to show either.

First, Ross claims that she has shown that she was replaced by Loretta Davidson, who is Caucasian and thus outside Ross's racial protected class. But the undisputed facts refute this argument. Debbie Grady, the interim replacement while Ross was on paid administrative leave, is African American. And Tracy Valree, who became the principal after the Board voted not to renew Ross's employment contract, is also African American. Ross contends that we should not consider Grady or Valree because they were temporary replacements; instead, she says that we should consider only her permanent replacement, Loretta Davidson, who is Caucasian.¹⁵ Ross provides no evidence that Valree was deemed a temporary replacement by JISD, that JISD told Valree she was a temporary replacement, or that any faculty at Metzger viewed Valree as a temporary replacement. Moreover, Valree served as principal for three years before Davidson became principal. Because all the evidence indicates that Valree was Ross's permanent replacement, the undisputed facts establish that Ross was not replaced by someone outside her...