Davis v. Dallas Independent School District

Case: 11-10090 Document: 00511655387 Page: 1 Date Filed: 11/04/2011

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

FILED
November 4, 2011

No. 11-10090 Lyle W. Cayce
Summary Calendar Clerk

DANA L. DAVIS,

Plaintiff – Appellant
v.

DALLAS INDEPENDENT SCHOOL DISTRICT,

Defendant – Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-01475-M

Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Dana Davis brings claims of discrimination, retaliation,
and a violation of due process rights against her former employer, Defendant-
Appellee Dallas Independent School District. She contends that Dallas
Independent School District failed to promote her due to her race and gender,
retaliated against her when she complained of discriminatory practices, and

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10090

deprived her of certain procedural protections. The district court granted Dallas
Independent School District’s summary judgment motion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2005, Plaintiff-Appellant Dana L. Davis (“Davis”), an
African-American female, was hired by Defendant-Appellee Dallas Independent
School District (“DISD”) as an investigator in the Human Resources
Investigation Department (“HR Department”). At the time that she was hired,
Davis was a sworn Texas Law Enforcement Master Certified Peace Officer, and
held the rank of Sergeant.
In 2007, DISD created a new department called the Office of Professional
Responsibilities Investigations Department (the “OPR Department”) to
investigate complex white collar fraud cases. Don Smith (“Smith”) was hired as
the Executive Director of the OPR Department, and was tasked with filling
several new OPR Inspector positions. The OPR Inspector positions required,
inter alia, twenty years of relevant experience in white collar crime
investigations as well as a current or previously held top secret security
clearance. Shortly after its creation, the OPR Department merged with the DISD
HR Department. Davis, as an administrative investigator, met the minimum
qualifications to be considered for a Level V Investigator position in the new
OPR Department.1 Davis accepted this new position. Smith informed Davis and
other HR Department investigators that if they met OPR performance
standards, he would recommend that they be promoted to a Level VI Senior
Investigator position.

1
The Level V Investigator position required only a bachelor’s degree from an accredited
university and three years of experience in criminal justice, investigations, accounting, or
related fields.

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Davis states that, soon after the merger between the two departments, she
sought the highly ranked position of OPR Inspector.2 Davis informed Smith of
her interest in the position, but she claims that Smith discouraged her from
applying. Davis alleges that she was repeatedly passed over for OPR Inspector
positions in favor of white males. She also alleges that Smith lowered the OPR
Inspector requirements on one occasion so that a friend of Smith’s (Norman
Epstein) could be hired.
In early 2008, Peter Nielsen (Davis’s former boss) offered Davis the
position of OPR Child Abuse Coordinator,3 and Davis indicated her willingness
to accept this new position if the pay was commensurate with the
responsibilities. According to Davis, Nielsen requested that she take over the
responsibilities of Child Abuse Coordinator while salary negotiations were
ongoing. On March 31, 2008, newly assigned OPR supervisor George Santowski
(“Santowski”) informed Davis that the promotion would result only in a six or
seven percent pay increase, which was much lower than what Davis believed the
promotion to be worth; she had sought a twenty percent pay increase. Davis
communicated her displeasure to Santowski, but did not make a final
determination at that time.
On April 8, 2008, Davis submitted a letter to Santowski in which she
formally declined the Child Abuse Coordinator position because the salary was
not commensurate with the position’s increased responsibilities. Santowski
forwarded this letter to Smith. The next day, Santowski met with members of
the OPR Department (including Davis) to discuss a significant backlog in child

2
The parties dispute whether Davis actually applied for the OPR Inspector position.
For the reasons discussed infra, we need not address this issue.
3
The parties dispute whether the offered promotion was actually for a “Child Abuse
Coordinator” position, or was instead for a promotion to “Level VI Senior Investigator.” DISD
claims that the “Child Abuse Coordinator” position is “fictitious,” and was created solely by
Davis. We need not address this factual dispute for purposes of this appeal.

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abuse cases. In this meeting, Davis was assigned the task of distributing the
child abuse cases to staff, and training OPR Inspectors on child abuse
investigations. When the meeting concluded, Davis stayed behind and told
Santowski that she objected to her newly assigned tasks because they were the
responsibilities of the Child Abuse Coordinator, a position that she had declined.
The discussion between Santowski and Davis grew heated, as the two disagreed
as to whether the responsibilities that Davis had been assigned were within her
job description. They agreed to address the issue further with Smith. After
meeting with Smith, it was determined that Davis would not have to review and
assign the child abuse cases.
On April 15, 2008, Davis met with Smith, Santowski, and Charlene
Burroughs (“Burroughs”), the Ethics and Integrity Manager for the OPR
Department, to discuss Davis’s refusal to perform assigned tasks at the April 9
meeting. At the meeting, Smith handed Davis a memorandum that documented
Davis’s previous performance issues and her refusal to perform the task of
assigning child abuse cases. This memorandum threatened disciplinary action
or termination if Davis refused to complete assigned tasks, and outlined Davis’s
primary job responsibilities as a Level V OPR Investigator. Davis disputed
several of the listed infractions and disagreed with Smith’s overall performance
assessment. Davis then demanded that she have legal counsel before the
meeting proceeded further, and left the room.
Davis was recalled to Santowski’s office, and Santowski continued the
meeting without Smith’s participation. Upon returning, Davis stated that she
felt ill and could not continue with the meeting. Although Davis asked to use the
restroom several times, Santowski refused, and stated that she would be
considered insubordinate if she left the room. Santowski then kicked a garbage
can towards Davis and told her that she could vomit in it if she felt ill. At this
point, Davis accused Santowski of creating a “hostile work environment.” When

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Santowski continued to deny her requests to leave and seek medical treatment,
Davis said, “Massa may I please leave the room, I am so very sick.” Davis
eventually left the meeting and proceeded to the restroom. Davis called her
sister and requested that she pick her up from work. Although Santowski asked
Davis to return to his office and sign certain papers before she left, Davis refused
to do so. Santowski told Davis to report to Employee Relations on April 16, 2008.
Meanwhile, Santowski informed Smith of Davis’s conduct during the meeting.
Smith recommended that Davis be placed on “emergency removal,” due to
insubordination and unprofessional conduct. He also suggested that DISD
conduct an internal investigation into her conduct during the meeting. After
consultation with the DISD general counsel, Santowski wrote a letter to Shirley
Boss (DISD Director of Employee Relations) dated April 18, 2008, in which he
reported the general counsel’s advice that DISD should issue a letter of non-
renewal for Davis’s probationary contract. Under this proposal, Davis’s contract
would expire on August 31, 2008, and she could simply “ride out” her contract
until then. Consistent with these recommendations, DISD decided that the “best
course of action would be to issue a letter of non-renewal for [Davis’s] contract,”
a few days before her term was set to expire. According to DISD, this decision
was based upon Davis’s unprofessional conduct and insubordination. Meanwhile,
Davis was placed on paid administrative leave. The investigation into her
behavior at the April 2008 meeting continued, and Lieutenant Calvin Howard
ultimately found that Davis violated multiple provisions of the DISD Police and
Security Services General Orders & Code of Conduct.
With the assistance of counsel, Davis filed seven separate grievances with
DISD, the first of which was dated May 15, 2008. Davis complained of racial-
and gender-based discrimination in the first grievance. Davis’s grievances were
considered and ultimately denied by the DISD Board of Trustees. Davis claims
that her performance evaluations, which had previously been at or above

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average, were changed to below average after she complained of racial and
gender discrimination, and that she did not receive previously awarded pay
increases after her grievances were filed. DISD sent Davis a non-renewal letter
on August 29, which Davis claims to have received on September 2, 2008.
After Davis exhausted her administrative remedies, she then filed suit in
the district court. Davis alleges (1) racial and gender discrimination under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and under 42 U.S.C.
§ 1983, (2) retaliation, (3) deprivation of liberty and property interests without
due process, and (4) false imprisonment. DISD moved for summary judgment on
all claims, and the district court granted summary judgment after a hearing.
Davis timely appealed the district court’s rulings with respect to her claims of
(1) discrimination, (2) retaliation, and (3) deprivation of property without due
process. We affirm.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo and
apply the same standard as the district court. First Am. Bank v. First Am.
Transp. Title Ins. Co., 585 F.3d 833, 836-37 (5th Cir. 2009). Summary judgment
is proper “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.” FED.
R. CIV. P. 56(a). We review the evidence in the light most favorable to the non-
moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). “A genuine issue of material fact exists if a reasonable jury could
enter a verdict for the non-moving party.” Castellanos-Contreras v. Decatur
Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010).
III. DISCUSSION
A. Discrimination Claim
Davis contends that DISD discriminated against her on the basis of her
race and gender when it failed to promote her to an OPR Inspector position on

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several different occasions. Title VII provides that, “[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . [or] sex . . . .” 42 U.S.C.
§ 2000e-2(a)(1). When there is no direct evidence of unlawful discrimination, we
analyze a plaintiff’s Title VII claims using the framework set out by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined in subsequent cases.
Under McDonnell Douglas, the plaintiff must carry the initial burden of
establishing a prima facie case of racial or gender discrimination. Id. at 802.
When a plaintiff raises a failure to promote claim, the prima facie case requires
four elements: “(1) that the employee is a member of the protected class; (2) that
he sought and was qualified for the position; (3) that he was rejected for the
position; and (4) that the employer continued to seek or promoted applicants
with the plaintiff’s qualifications.” Davis v. Dallas Area Rapid Transit, 383 F.3d
309, 317 (5th Cir. 2004). If a plaintiff establishes her prima facie case, the
burden shifts to the defendant “to articulate some legitimate, nondiscriminatory
reason” for the action. See McDonnell Douglas, 411 U.S. at 802. If the defendant
carries this burden, “the plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). “Although
intermediate evidentiary burdens shift back and forth under th[e McDonnell
Douglas] framework, ‘[t]he ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000) (quoting Burdine, 450 U.S. at 253).

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A plaintiff may also assert claims of racial discrimination and retaliation
against a government entity under 42 U.S.C. § 1981 and § 1983.4 This court has
explained, “Section 1983 and [T]itle VII are parallel causes of action.
Accordingly, the inquiry into intentional discrimination is essentially the same
for individual actions brought under sections 1981 and 1983, and Title VII.”
Lauderdale v. Tex. Dep’t of Crim. Justice, Institutional Div., 512 F.3d 157, 166
(5th Cir. 2007) (citations and internal quotation marks omitted); see also Nilsen
v. City of Moss Point, Miss., 701 F.2d 556, 559 n.3 (5th Cir. 1983). Suit must be
brought under Section 1983, however, as Section 1981 does not itself provide for
an independent cause of action. Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458,
463 (5th Cir. 2001) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731
(1989)). Because a claim of racial discrimination under Section 1983 is
“essentially the same” as such a claim brought under Title VII, our analysis with
respect to Davis’s discrimination and retaliation claims applies with equal force
to both causes of action. Lauderdale, 512 F.3d at 166.
Davis argues that although she was not promoted to an OPR Inspector
position, she was required to train incoming OPR Inspectors, who were mostly
white males. As noted above, the OPR Inspector position required, inter alia,
twenty years of law enforcement experience and a current or former top secret
security clearance. At the summary judgment hearing, counsel for Davis
conceded that Davis lacked the required security clearance. With this concession,
the district court found that Davis was not qualified for the OPR Inspector
position, and thus could not make out the prima facie case of race or sex
discrimination.

4
A sex discrimination claim, however, is not cognizable under Section 1981. Such a
claim must instead be brought under Title VII. See Bobo v. ITT, Cont’l Baking Co., 662 F.2d
340, 344-45 (5th Cir. 1981) (“[S]ex discrimination is not cognizable under § 1981.”); see also
Daigle v. Gulf State Utils. Co., Local Union No. 2286, 794 F.2d 974, 980 (5th Cir. 1986) (citing
Bobo, 662 F.2d at 344-45).

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On appeal, Davis contends that the twenty year experience and the
security clearance requirements were “stipulation[s]” used to exclude her from
promotional opportunities, and that the requirements were waived or reduced
when white males were hired for OPR Inspector positions. Davis also objects to
the fact that she was required to train incoming OPR Inspectors, but was not
considered for a promotion herself. Finally, she argues that her responsibilities
as a Level V Investigator were essentially the same as those of an OPR
Inspector, but the OPR Inspectors made approximately $20,000 more annually.
Davis’s arguments are unpersuasive. As the district court correctly
recognized, a plaintiff must demonstrate that she is qualified for the position at
issue to make out a prima facie failure to promote claim. Davis, 383 F.3d at 317.
It is undisputed that Davis did not possess the required security clearance for
the OPR Inspector position. As such, she cannot make out a prima facie failure
to promote claim, and summary judgment on Davis’s racial and gender
discrimination claims was proper. See, e.g., Mason v. United Air Lines, Inc., 274
F.3d 314, 316 (5th Cir. 2001) (“[S]ummary judgment is appropriate if the
nonmovant fails to establish facts supporting an essential element of his prima
facie claim.”).
As DISD recognizes, it is possible to read Davis’s allegations as asserting
a claim of “disparate impact” rather than a “disparate treatment” discrimination,
particularly with respect to her claim that the job requirements were artificially
lowered for the benefit of white male applicants, such as Norman Epstein.5 Even
if we were to read Davis’s complaint in this manner, her claim would still not
succeed. Disparate impact claims involve “facially neutral employment policies
that create such statistical disparities disadvantaging members of a protected
group that they are ‘functionally equivalent to intentional discrimination.’”

5
DISD maintains that Epstein had over forty years of relevant experience as well as
the required security clearance, and that the job requirements were not altered for his benefit.

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Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000) (quoting Watson v. Fort Worth
Bank and Trust, 487 U.S. 977, 987 (1988)). To establish a prima facie case of
discrimination under a disparate impact theory, a plaintiff must show: “(1) an
identifiable, facially neutral personnel policy or practice; (2) a disparate effect
on members of a protected class; and (3) a causal connection between the two.”
McClain v. Lufkin Indus., Inc., 519 F.3d 264, 275-76 (5th Cir. 2008). The
Supreme Court has explained that “a prima facie case of disparate-impact
liability [is] essentially, a threshold showing of a significant statistical disparity,
and nothing more.” Ricci v. DeStefano, __ U.S. __, 129 S.Ct. 2658, 2678 (2009)
(citation omitted).
“Claims of disparate impact under Title VII must, of necessity, rely heavily
on statistical proof.” Munoz, 200 F.3d at 300 (citing Watson, 487 U.S. at 987); see
also Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002)
(“Ordinarily, a prima facie disparate impact case requires a showing of a
substantial statistical disparity between protected and non-protected workers
in regards to employment or promotion.”) (internal quotation marks omitted).
Generally, a plaintiff must produce “statistical evidence comparing the effects
of a challenged policy on protected and unprotected groups of employees.” Stout,
282 F.3d at 861. Davis has not done so here. She has not provided any evidence
of racial- or gender-based statistical disparities in hiring for OPR Inspector
positions, or anything more than unsupported anecdotal allegations that job
requirements were altered to accommodate white male applicants. Davis has not
established a prima facie disparate impact claim.
Davis has failed to state a prima facie case of racial or gender
discrimination, and the district court did not err in dismissing these claims.
B. Retaliation
In her retaliation claim, Davis argues that DISD failed to renew her
contract after she rejected the Child Abuse Coordinator position, and after she

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accused Santowski of creating a “hostile work environment.” A plaintiff may
establish a prima facie case of retaliation by demonstrating that: “(1) she
participated in a Title VII protected activity, (2) she suffered an adverse
employment action by her employer, and (3) there is a causal connection between
the protected activity and the adverse action.” Stewart v. Miss. Transp. Comm’n,
586 F.3d 321, 331 (5th Cir. 2009). “Summary judgment is appropriate if the
plaintiff cannot support all three elements.” Id. If, however, a “plaintiff makes
a prima facie showing, the burden then shifts to the employer to articulate a
legitimate . . . non-retaliatory reason for its employment action. If the employer
meets this burden of production, the plaintiff then bears the burden of proving
that the employer’s reason is a pretext for the actual retaliatory reason.” Aryain
v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008) (internal
quotation marks and citations omitted). “An employee has engaged in activity
protected by Title VII if she has either (1) ‘opposed any practice made an
unlawful employment practice’ by Title VII or (2) ‘made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing’ under Title VII.” Dixon v. Moore Wallace, Inc., 236 F. App’x 936, 937
(5th Cir. 2007); see 42 U.S.C. § 2000e-3(a).
On summary judgment, the district court held that Davis did not engage
in “protected activity” until May 15, 2008, when she filed a grievance stating
that she was “a victim of unlawful race discrimination, gender discrimination,
and retaliation.” The court concluded that Davis could not establish causation
because the decision not to renew her contract was made on April 18, 2008, well
before Davis filed the May 15 grievance. The district court concluded that
Davis’s April 8 letter in which she rejected the Level VI Investigator (or Child
Abuse Coordinator) position due to an insufficient pay increase and her “hostile
work environment” complaint during the April 15 meeting with Santowski did
not constitute protected activity for purposes of retaliation. On appeal, Davis

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argues that the district court erred in concluding that she did not engage in
protected activity when she asserted that she was in a “hostile work
environment” on April 15. Davis further argues that the district court erred in
granting summary judgment because adverse employment actions continued
after May 15, 2008, as DISD did not conduct a formal investigation and
ultimately terminated her on August 31, 2008.
We agree with the district court. Davis’s statement during the April 15
meeting that Santowski created a “hostile work environment” does not itself
constitute “protected activity” within the meaning of Title VII, as this complaint
lacked a racial or gender basis. 42 U.S.C. § 2000e-3(a). We have consistently held
that a vague complaint, without any reference to an unlawful employment
practice under Title VII, does not constitute protected activity. See, e.g., Tratree
v. BP N. Am. Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008) (“Complaining
about unfair treatment without specifying why the treatment is unfair . . . is not
protected activity.”); Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x
913, 916 (5th Cir. 2006) (affirming summary judgment on retaliation claim
where plaintiff never “specifically complained of racial or sexual harassment,
only harassment”); Moore v. United Parcel Serv., Inc., 150 F. App’x 315, 319 (5th
Cir. 2005) (“Moore . . . was not engaged in a protected activity, as his grievance
did not oppose or protest racial discrimination or any other unlawful
employment practice under Title VII.”); see also Evans v. Tex. Dep’t of Transp.,
547 F. Supp. 2d 626, 654 (E.D. Tex. 2007) (“Plaintiff has not shown that she
engaged in a statutorily protected activity. Specifically, although Evans
complained of a purportedly hostile work environment, at no time did she
suggest that [the conduct at issue] was related to Evan’s race, sex, . . . or other
characteristic protected by Title VII.”). The only racial component of the entire
April 15 interaction was interjected by Davis herself, when she referred to
Santowski as “Massa.” Davis cannot rely upon her own use of a racially sensitive

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word to demonstrate that her accusation had racial overtones. The district court
properly concluded that Davis’s complaint of a “hostile work environment” did
not constitute protected activity.6
Based upon the determination that Davis’s May 15, 2008 grievance was
the first “protected activity” for Title VII purposes, the district court correctly
held that Davis could not demonstrate causation between her “protected
activity” and the “adverse employment action.” As the district court recognized,
the initial decision not to renew Davis’s contract was made on April 18, 2008,
before she filed the May 15 grievance. The mere fact that this decision was made
prior to the conclusion of any formal investigation, or that it was finalized in the
period after she filed her grievance, or that Davis was not notified of the decision
until the end of her contract term, does not change the outcome. Davis relies
upon Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999),
in support of her argument that temporal proximity between protected activity
and an adverse employment action may be sufficient to overcome summary
judgment. In Shackelford, however, the plaintiff was terminated shortly after
her protected activity. 190 F.3d at 408-09. Here, in contrast, the initial
termination decision occurred before her protected activity. Shackelford is
therefore inapposite. Because the protected activity occurred after the adverse
employment action at issue, Davis cannot demonstrate causation.
Davis briefly contends that both her failure in June 2008 to receive a
previously awarded raise and DISD’s downgrade of her performance evaluations
also constitute retaliation. Actions such as these may constitute “adverse

6
Davis’s April 8, 2008 decision to decline the Child Abuse Coordinator position due to
insufficient pay also does not constitute “protected activity,” as there is no racial- or gender-
based component to her refusal. Rather, Davis explained, “[a]fter examining the job
responsibilities of the OPR Child Abuse Coordinator against the responsibilities of my
investigator V responsibilities, the increase in responsibility does not equate to the increase
in salary.”

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employment actions,” if they “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. and Sante Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). We
recently questioned whether similar conduct might constitute “adverse
employment actions” after Burlington, but did not decide the issue. Murray v.
La.-Div. of Admin. Office of Planning and Budget, No. 11-30267, 2011 WL
3794759, at *1 n.2 (5th Cir. Aug. 26, 2011) (“Although it is clearly established
that the denial of a promotion is an actionable adverse employment action, it is
less clear whether a negative evaluation . . . or the denial of a bonus constitute
actionable adverse employment actions [after Burlington].”) (citation omitted).
Davis has not briefed these issues, and these claims are therefore waived. See,
e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.2 (5th Cir. 2008)
(“Arguments inadequately briefed on appeal are waived.”). Even if we were to
address the merits, and assume that Davis suffered “adverse employment
actions,” we would still find summary judgment proper, as Davis has presented
no evidence of causation. Rather, she has simply relied on her own subjective
beliefs that these actions were retaliatory. These allegations are not sufficient
to overcome summary judgment.
The district court did not err in dismissing Davis’s retaliation claim.
C. Due Process
In her complaint, Davis claims that she had “a property interest in
continuous employment with DISD,” due to the “time period when [she] was
notified of the non-renewal.” She further claims that she did not receive notice
of DISD’s intent to terminate her, nor any “meaningful description of the
evidence against her.” She thus claims that her due process rights were violated.
It is well established that “[t]he threshold requirement of any due process
claim is the government’s deprivation of a plaintiff’s liberty or property interest.
Without such an interest, no right to due process accrues.” DePree v. Saunders,

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588 F.3d 282, 289 (5th Cir. 2009) (citations and internal quotation marks
omitted). “The Constitution does not create property interests . . . and [a plaintiff
must] therefore look to [state] law for the creation of a property interest that will
support [her] claim to due process rights.” Garcia v. Reeves Cnty., Tex., 32 F.3d
200, 203 (5th Cir. 1994) (citation omitted); see Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972) (“Property interests . . . are not created by the
Constitution. Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as
state law rules . . . .”).
On summary judgment, Davis clarified before the district court that she
claimed a property interest in her job only until August 31, 2008. The district
court first determined that Davis had no property interest either in continued
employment after August 31 or in her police credentials. The court further
determined that Davis was not in fact deprived of any property interest in her
job that she possessed prior to August 31, 2008, because she was placed on paid
administrative leave rather than terminated. On appeal, Davis now claims that
she “never argued that she had . . . a property interest in continued employment”
with DISD, and instead refers vaguely to a property interest in an
“investigation,” in her “police credentials,” or in “extra job duties” that she could
perform with her credentials. We find no merit in these arguments.
Like the district court, we conclude that Davis had no property interest in
her contract after its August 31, 2008 expiration. See Govant v. Houston Comm.
Coll. Sys., 72 S.W.3d 69, 76 (Tex. App.–Houston [1st Dist.], 2002). Further, even
if we assume that Davis had a property interest in her employment prior to the
end of her contractual term, she was not deprived of that interest because she
was placed on paid administrative leave after the April 15 incident, and was not
terminated. Placement on paid administrative leave does not constitute
deprivation of a property interest. See Richards v. City of Weatherford, 145 F.

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Supp. 2d 786, 790-91 (N.D. Tex. 2001) (“[A] property interest does not arise from
a public employee’s suspension, reassignment, placement on leave, or the mere
duties or responsibilities of a position of employment.”); see also Brokaw v.
Dallas Indep. Sch. Dist., No. 3:07-CV-0015-O, 2008 WL 4191512, at *8 (N.D. Tex.
Sept. 11, 2008) (“[A] person’s placement on administrative leave does not amount
to a deprivation of a protected property interest.”).
We are also not persuaded by Davis’s claimed property interest in an
“investigation,” in her police credentials, or in “extra job duties.” First, we reject
Davis’s contention that she had a property interest in any particular type of
“investigation.” Davis cites no authority (and we are aware of none) to support
the position that she has a property interest in a certain “investigation” or
investigative procedure under Texas law. In fact, Texas courts have consistently
concluded that procedural regulations (or an agency’s failure to follow those
procedures) do not themselves give rise to a property right. As one court has
explained:
A state agency’s failure to follow its own procedural rules governing
employment will not create a property interest which otherwise does
not exist. An individual does not have a property interest in the
rules themselves or in his or her state employer’s observance of the
rules. Rather, a property interest protected by procedural due
process arises where an individual has a legitimate claim of
entitlement that is created, supported, or secured by rules or
mutually explicit understandings.

Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex. App.–Dallas, 1987) (citations
omitted); see Cogdill v. Comal Indep. Sch. Dist., 630 F. Supp. 47, 49 (W.D. Tex.
1985) (“While the failure to comply with the state procedures may be the basis
for a state law claim, it cannot suffice to create a property interest.”); see also
Broughton v. Livingston Indep. Sch. Dist., No. 9:08-CV-175, 2010 WL 4453763,
at *10 (E.D. Tex. Nov. 3, 2010) (holding that plaintiff “cannot establish a
property interest in the [statutory procedures] of § 21.006 of the Texas Education

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No. 11-10090

Code”) (citing Cogdill, 630 F. Supp. at 49). An investigation is not a property
interest itself, but more appropriately constitutes the “due process” that would
be required before deprivation of an actual property interest.
We likewise reject Davis’s claims of a property interest in police
credentials or in “extra job duties.” Neither allegation is properly pled in the
complaint. Davis has also failed to adequately brief either claim on appeal, and
we consider these arguments waived. See, e.g., Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994) (“A party who inadequately briefs an issue is considered to
have abandoned the claim.”). Even if we were to consider the merits, these
arguments would fail. Davis’s reference to “extra job duties” is far too vague for
a proper due process analysis, and she has provided no authority to support the
contention that an individual may have a property interest in police credentials
under Texas law. In fact, the only authority of which we are aware supports the
opposite conclusion. See Robertson v. Neal, No. 7:01-CV-017-R, 2001 WL
1516741, at *4 (N.D. Tex. Nov. 27, 2001) (“I find that in Texas a police officer
does not have a cognizable ‘property right’ with respect to a police officer’s
license as to which the due process clauses of the Fifth and Fourteenth
Amendments apply.”).
As Davis was not deprived of any protectable property interest, the district
court properly granted summary judgment on Davis’s due process claim.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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