Case: 14-20169 Document: 00513169670 Page: 1 Date Filed: 08/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20169 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
August 26, 2015
THEAOLA ROBINSON, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
RICK SCHNEIDER; RON ROWELL; KAY CARR; JAMES HOLMAN;
EARNESTINE PATTERSON; ROBERT SCOTT,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-2732
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Theaola Robinson appeals the summary judgment in
favor of Defendants-Appellees Rick Schneider, Ron Rowell, Kay Carr, James
Holman, Earnestine Patterson, and Robert Scott. We AFFIRM.
I.
Robinson is the founder of Benji’s Special Education Academy, Inc.
(“Benji’s Academy”). In 1998, Benji’s Academy received a Texas Education
Agency (“TEA”) charter to operate as an “open enrollment” charter school.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-20169
Some time later, the TEA determined that Benji’s Academy was not meeting
certain obligations. The TEA did not renew the school’s charter in 2003 but
allowed the school to continue operating pending approval of its renewal
application. Over the next few years, the TEA asked Benji’s Academy to
address several issues. After learning about certain violations in the summer
of 2010, the TEA appointed an interim Board of Managers to operate the
school. The new Board of Managers discovered that the school was in urgent
financial condition and voted to declare financial exigency and suspend all
school programs after September 14, 2010. However, Robinson and others at
Benji’s Academy continued to operate the school after the suspension. As a
result, TEA Commissioner Robert Scott suspended the school’s authority to
operate as a charter school on September 16, 2010, and issued a notice of intent
to revoke its charter on September 24. An administrative hearing was held in
August 2011, and a final order revoked the school’s charter in January 2012,
permanently closing the school.
A number of teachers and parents filed lawsuits in federal court. In the
first lawsuit, two teachers claimed that the closure of Benji’s Academy
deprived them of their property rights in continued employment at the school
without due process. See Comb v. Rowell, 538 F. App’x 371, 372 (5th Cir.)
(unpublished), cert. denied 134 S. Ct. 684 (2013). 1 The district court granted
summary judgment in favor of the defendants after concluding that the
teachers had no property interest in continued employment because they were
at-will employees of the school. See Comb v. Benji’s Special Educ. Acad.,
No. 10-CV-3498, 2012 WL 1067395, at *6 (S.D. Tex. Mar. 28, 2012). We
affirmed. Rowell, 538 F. App’x at 372.
In this lawsuit, Robinson and other employees of Benji’s Academy sued
1 A number of parents were also part of the first lawsuit.
2
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Defendants under 42 U.S.C. § 1983, again arguing that Defendants violated
their constitutional rights to due process by depriving them of their property
rights in continued employment. Defendants moved for summary judgment,
and the district court granted the motion after determining that the plaintiffs
were at-will employees with no expectation of continued employment.
Robinson appealed.
II.
We review a grant of summary judgment de novo. Mesa v. Prejean, 543
F.3d 264, 269 (5th Cir. 2008). Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). We may affirm the district
court’s grant of summary judgment on any ground supported by the record and
presented to the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th
Cir. 2008).
On appeal, Robinson raises a number of claims and arguments that were
not before the district court. 2 The only cause of action properly asserted before
the district court is Robinson’s claim that the closure of Benji’s Academy
deprived her of due process related to the loss of her job. Thus, Robinson has
waived the other claims and arguments by failing to raise them in the district
court proceeding. See New Orleans Depot Servs., Inc. v. Dir. Office of Worker’s
Comp. Programs, 718 F.3d 384, 387 (5th Cir. 2013) (en banc) (“Generally, we
do not consider issues on appeal that were not presented and argued before the
lower court.”); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
general rule, of course, that a federal appellate court does not consider an issue
not passed upon below.”).
Robinson also initially sought to appeal on behalf of Benji’s Academy. However, the
2
Academy’s appeal was dismissed for want of prosecution pursuant to Fifth Circuit Rule 42.3.
3
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Turning to Robinson’s due process argument, Robinson must raise a
genuine dispute of fact as to whether she has a property interest in continued
employment to survive summary judgment. See DePree v. Saunders, 588 F.3d
282, 289 (5th Cir. 2009) (“The threshold requirement of any due process claim
is the government’s deprivation of a plaintiff’s . . . property interest.”). “In
Texas, there exists a presumption that employment is at-will unless that
relationship has been expressly altered . . . .” Muncy v. City of Dallas, 335 F.3d
394, 398 (5th Cir. 2003). An at-will employee does not have a protected
property interest because employment may be terminated at any time. Conner
v. Lavaca Hosp. Dist., 267 F.3d 426, 439 (5th Cir. 2001).
Robinson did not contest the district court’s determination that she was
an at-will employee in her opening brief on appeal, but she argues in her reply
brief that she had a five-year contract with Benji’s Academy and thus had an
expectation of continued employment. We generally do not consider matters
raised for the first time in a reply brief. See, e.g., United States v. Elashyi, 554
F.3d 480, 494 n.6 (5th Cir. 2008) (“An appellant that fails to adequately brief
an issue in his opening brief waives that issue.”). In any event, Robinson
previously admitted in response to Defendants’ Requests for Admissions that
her employment with Benji’s Academy was at will. 3 “A matter admitted under
this rule is conclusively established unless the court, on motion, permits the
admission to be withdrawn or amended.” FED. R. CIV. P. 36(b); In re Carney,
258 F.3d 415, 420 (5th Cir. 2001); cf. Armour v. Knowles, 512 F.3d 147, 154
n.14 (5th Cir. 2007) (“[The] affidavit contrary to the binding admissions may
not be permitted to rebut the admissions at trial.”). As Robinson cannot
3 Robinson’s response to Defendants’ Request for Admissions stated:
1. Please admit or deny that your employment with Benji’s was at will.
Admit.
4
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No. 14-20169
succeed on her due process claim if she is an at-will employee, we AFFIRM the
district court’s judgment.
5