J. Umoren v. Plano Indep Sch Dist Bd Trst

Filing

UNPUBLISHED OPINION FILED. [11-40444 Affirmed ] Judge: PEH , Judge: WED , Judge: JWE Mandate pull date is 01/27/2012 [11-40444]

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Date Filed: 01/06/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
January 6, 2012

No. 11-40444
Summary Calendar

Lyle W. Cayce
Clerk

J. UMOREN,
Plaintiff-Appellant
v.
PLANO INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee

Appeal from the United States District Court
for the Eastern District of Texas
No. 4:09-CV-413

Before HIGGINBOTHAM , DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Pro se plaintiff J. Umoren appeals from the judgment of the district court
dismissing his case alleging employment discrimination on summary judgment
as well as multiple rulings made by the district court from the commencement
of the proceedings until the end. Finding no reversible error, we affirm.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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I.
Umoren was a substitute teacher in the Plano Independent School District
(PISD). He alleges that he was terminated after complaining about various
school district policies and practices related to substitute teachers, including
requiring them to cover classes they did not agree to cover or assigning them to
duties they did not agree to assume. After Umoren made complaints, he claims
he received negative work evaluations to justify his termination. He also made
claims that his race was a factor in these decisions.
Umoren sued the PISD, and its board of trustees, its human resources
director, its director of compensation and diversity, a teacher at Robinson Middle
School, and various unidentified defendants (collectively the Individual
Defendants).

Based on rulings made in response to defendants’ motion to

dismiss and motion for summary judgment, the district court dismissed all of
Umoren’s claims. Umoren appeals.
II.
Umoren has filed this appeal pro se. His brief requests, in part, the
adoption of previously filed legal and factual arguments in various district court
pleadings. Umoren has abandoned these arguments by failing to argue them in
the body of his brief. "Fed.R.App.P. 28(a)(4) requires that the appellant's
argument contain the reasons he deserves the requested relief ‘with citation to
the authorities, statutes and parts of the record relied on.' " Weaver v. Puckett,
896 F.2d 126, 128 (5th Cir.), cert. denied, 498 U.S. 966 (1990) (citations omitted).
"Although we liberally construe the briefs of pro se appellants, we also require
that arguments must be briefed to be preserved." Price v. Digital Equip. Corp.,
846 F.2d 1026, 1028 (5th Cir.1988) (citations omitted). Therefore, only the
issues presented and argued in Umoren’s briefs are addressed. See Yohey v.
Collins, 985 F.2d 222, 224-225 (5th Cir. 1993).

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Motion to Dismiss
Umoren argues first that the district court erred in granting the
defendants’ Motion to Dismiss. The district court dismissed all of Umoren’s
claims against Individual Defendant as well as all of the claims against the
PISD except for this Title VII retaliation claim. Umoren’s Title VII claims
against the Individual Defendants were properly dismissed because “relief under
Title VII is only available against an employer, not an individual supervisor or
fellow employee.” Foley v. Univ. of Houston Sys., 355 F.3d 333, 340 n. 8 (5th Cir.
2003)(citing 42 U.S.C. § 2000e(b)’s definition of “employer”). Umoren’s state law
claims of retaliatory discharge and negligent/ intentional infliction of emotional
distress are barred by the Texas Tort Claims Act which provides a limited
waiver of immunity for certain suits against governmental entitles. For school
districts, the waiver only encompasses tort claims involving the use or operation
of a motor vehicle. Bates v. Dallas Ind. Sch. Dist., 952 S.W.2d 543, 551 (Tex.
App.- Dallas 1997, writ denied.). Further, Tex.Civ. Prac. & Rem. Code § 101.106
mandates dismissal of the state law claims because the rule requires a plaintiff
to make an irrevocable election to sue either the governmental unit or its
employees. Pursuing both classes of defendants bars claims against both. Field
v. Dallas Cty. Schools, 2007 WL 836863 *3-4 (N.D. Tex. 2007).
The district court also dismissed Umoren’s claims of racial discrimination
under Title VII. Umoren’s Amended Complaint includes allegations of racial
discrimination. However, as noted by the district court, Umoren did not include
allegations necessary to establish a prima facie case of discrimination. In
particular, he did not allege that he was replaced by a person who was not
African-American. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The final class of claims dismissed via the Motion to Dismiss were
Umoren’s claims that he was terminated because he spoke out against the school
district’s policies and that this action violated his rights under the First
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Amendment. The district court correctly concluded that this claim fails because
the speech in question did not involve a matter of public concern. James v. Texas
Collin County, 535 F.3d 365, 375-76 (5th Cir. 2008).

An employee’s

communications that relate to his own job function up the chain of command, at
least within his own department or division, fall within the official duties and
are not entitled to first amendment protection. Davis v. McKinney, 518 F.3d
304, 313 n.3 (5th Cir. 2008). Accordingly Umoren’s complaints within the school
district are not protected speech. Umoren’s complaints outside his workplace to
the EEOC, Texas Workforce Commission and Texas Attorney General’s Office
also fail. The magistrate correctly noted that Umoren has not alleged any facts
that would show his complaints were made by him as a private citizen, because
all the comments related to his job duties and dissatisfaction with the school
district’s policies for substitute teachers. Accordingly his speech did not involve
a matter of public concern. Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir.
1993); Terrell v. University of Texas Sys. Police, 792 F.2d 1360, 1363 (5th Cir.
1986).
We decline to consider Umoren’s contentions that the district court should
have stricken the defendants’ motion to dismiss as untimely, that the defendants
should have filed a motion for more definite statement and that the district
court’s improper findings and conclusions impaired his case for failure to brief
those positions. Yohey, 985 F.2d at 224-225.
Motion to Compel
Umoren challenges the district court’s denial of his request for production
and motion to compel from the defendants and nonparties. Again Umoren refers
to arguments made in documents filed in the district court and fails to cite any
authority for anything other than the standard of review on this issue. We
decline to consider these arguments.

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Order Striking portions of Umoren’s Second Amended Complaint
Umoren challenges the district court’s sua sponte order striking his Second
Amended Complaint.

The district court entered the order because “[t]he

amended complaint continues to assert claims dismissed by the Court in recent
orders.” Any complaint about this action is moot because Umoren was allowed
to file a Third Amended Complaint.
Allowing PISD to file Answer to Third Amended Complaint Late
Umoren appeals the district court’s decision denying his objections to PISD
filing its Answer to Umoren’s Third Amended Complaint three days late. The
district court did not abuse its discretion in considering the untimely filed
answer since Umoren has not made any showing of prejudice as a result of the
minor delay. Mason & Hanger - Silas Mason Co. v. Metal Trades Council, 726
F.2d 166, 1678 (5th Cir. 1984).
Cross Motions for Summary Judgment and Dismissal of Umoren’s Title
VII Claim
On cross- motions for summary judgment, the district court granted the
defendant’s motion and denied the plaintiff’s. Specifically, the district court
found that Umoren had exhausted his retaliation claims only for the period
between March 1, 2008 and May 10, 2008, failed to demonstrate that he
participated in an activity protected under Title VII except as to one letter
vaguely alleging discrimination, and failed to create an issue of fact as to
whether there was a causal link between his protected activity and the adverse
employment action. We agree with the district court’s analysis of Umoren’s
failure to establish a prima facie case. In addition, the district court found that
even assuming Umoren had established a prima facie case, the PISD offered
sufficient non-pretextual and non-retaliatory reasons for his dismissal. The
PISD offered numerous evaluation forms and affidavits from various teachers
over a long period indicating Umoren’s poor job performance. In addition, the
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affidavits from those teachers state that the teachers were not aware of any
discrimination or retaliation claims made by Umoren at the times when they
completed their negative evaluations of his performance. Umoren offered no
evidence to indicate that he was removed from his position for any reason other
than poor performance reviews. Wallace v. Methodist Hosp. Sys., 271 F.3d 212,
220 (5th Cir. 2001). His evidence of purported disparate treatment fails because
he is not similarly situated to the substitute teachers to whom he compares
himself. Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
Finally, the district court did not abuse its discretion in denying Umoren’s
objections to PISD’s motion as untimely. The judge has broad discretion to
control his own docket and extend filing deadlines.

Accordingly, the district

court did not err by granting summary judgment in favor of the PISD on this
issue.
Failure to Recuse
Finally, Umoren appeals the district court judge’s failure to recuse himself
or the magistrate judge under 28 U.S.C. § 455(a). Umoren’s brief fails to identify
any conduct of these judges that indicates bias or partiality and instead refers
to documents filed in the district court. We decline to consider this inadequately
briefed issue.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.

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