Filed: Apr. 14, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 14, 2004 For the Fifth Circuit Charles R. Fulbruge III No. 02-50189 Clerk ROGELIO P. PEREZ, Plaintiff - Appellant, VERSUS HOUSING AUTHORITY OF THE CITY OF UVALDE; ENRIQUE L. VASQUEZ, MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE CITY OF UVALDE; SHIRLEY ZAMORA, MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE CITY OF UVALDE; IRMA FUENTES, MEMBER-BOARD OF COMMISSIONERS OF THE HO
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 14, 2004 For the Fifth Circuit Charles R. Fulbruge III No. 02-50189 Clerk ROGELIO P. PEREZ, Plaintiff - Appellant, VERSUS HOUSING AUTHORITY OF THE CITY OF UVALDE; ENRIQUE L. VASQUEZ, MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE CITY OF UVALDE; SHIRLEY ZAMORA, MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE CITY OF UVALDE; IRMA FUENTES, MEMBER-BOARD OF COMMISSIONERS OF THE HOU..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 14, 2004
For the Fifth Circuit
Charles R. Fulbruge III
No. 02-50189 Clerk
ROGELIO P. PEREZ,
Plaintiff - Appellant,
VERSUS
HOUSING AUTHORITY OF THE CITY OF UVALDE; ENRIQUE L. VASQUEZ,
MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE
CITY OF UVALDE; SHIRLEY ZAMORA, MEMBER-BOARD OF COMMISSIONERS OF
THE HOUSING AUTHORITY OF THE CITY OF UVALDE; IRMA FUENTES,
MEMBER-BOARD OF COMMISSIONERS OF THE HOUSING AUTHORITY OF THE
CITY OF UVALDE; CRUZ HERNANDEZ, MEMBER-BOARD OF COMMISSIONERS OF
THE HOUSING AUTHORITY OF THE CITY OF UVALDE; CITY OF UVALDE; GUS
NEUTZE, MAYOR, CITY OF UVALDE.
Defendants - Appellees
Appeal from the United States District Court
For the Western District of Texas, Del Rio Division
(00-CV-14)
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.*
DENNIS, Circuit Judge:
*
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this opinion should not be published and is not precedent except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.
1
Appellant Rogelio P. Perez appeals the district court’s grant
of summary judgment on his due process and First Amendment claims.
For the following reasons, we affirm.
I. Background
Perez was employed as Executive Director for the Housing
Authority of the City of Uvalde (“UHA”) from 1993 until his
termination on February 10, 2000, and was under contract with the
UHA until November 30, 2003. In September 1999, Appellee Enrique
Vasquez was named Chairman of the UHA Board by Appellee Gus Neutze,
the newly-elected Mayor. Perez had actively opposed Neutze’s
election, believing that Neutze was opposed to affordable housing.
After his election, Mayor Neutze appointed new members to the UHA
Board.
On September 20, 1999, the UHA received a letter from the
Department of Housing and Urban Development (“HUD”) expressing
concern about the severe financial condition of the UHA’s Section
8 housing program, a federal program designed to subsidize rents
for low-income residents. The UHA would develop a budget that
anticipated the funds needed to administer the program, and HUD
would then forward funds to the UHA to pay landlords for this
subsidized housing. As the UHA received revenue from tenant
contributions, it would reimburse those funds to HUD.
The HUD letter stated that the UHA had been over-
requisitioning funds from HUD since 1993 and that mismanagement and
2
a lack of proper oversight resulted in the UHA owing HUD $283,515
as of June 30, 1999. In addition, HUD accused the UHA of using
HUD funds to pay for non-HUD projects. HUD required the UHA to
take immediate action to remedy this deficit or face administrative
sanctions, including the possible termination of the UHA’s
management of the Section 8 program. Specifically, it required the
UHA to submit a detailed Improvement Plan to address the
deficiencies and to set forth specific milestones for improvement.
Perez, representing the UHA, submitted a Plan on October 26,
1999, which HUD rejected as unrealistic. HUD ordered the UHA to
submit by November 24, 1999, “a revised, realistic Improvement Plan
which will result in the reduction of the Section 8 Program deficit
and repayment of all funds due to HUD.” Instead of submitting a
revised Improvement Plan, Perez sent a letter to HUD asking what
specific changes HUD would consider acceptable and for any
“realistic” suggestions it may have.
On November 15, 1999, the UHA Board held a meeting for Perez
to report to the Board on a number of topics. These topics
included: (1) the financial operating condition of the UHA since
1993; (2) the conversion of the Uvalde Housing Development
Corporation (“UHDC”) from an instrumentality of the UHA to a
private non-profit corporation; (3) personal services and
compensation received by Perez from the UHDC; (4) the expenditure
of HUD funds for non-HUD purchases, including the purchase of the
3
Granada Apartments, now owned by the UHDC; and (5) the procurement
of water stabilizers from Emissions Panther, Inc., including
compensation received by Perez’s son for the transaction. During
the meeting, the Board engaged in an extensive discussion with
Perez concerning the above issues. The agenda also included
“[c]onsideration and possible action regarding the employment
agreement with Mr. Rojelio [sic] P. Perez as Secretary and
Executive Director of the Housing Authority, including evaluation,
discipline or termination,” although no employment action was taken
at that time.
On January 18, 2000, another Board meeting was held. The
agenda included plans to “deliberate the employment, evaluation,
reassignment of duties, discipline, or dismissal of the Executive
Director [Perez].” This discussion, however, was postponed because
Perez did not have his lawyer present. Thus, discussion of Perez’s
job status was postponed until January 26, 2000.
The agenda for the Board’s January 26, 2000 meeting included
the “[c]onsideration and possible action regarding the employment
agreement with Mr. Rogelio P. Perez as Secretary and Executive
Director of the Housing Authority, including evaluation,
discipline, or termination.” The Board, with Perez present,
extensively discussed Perez’s job performance, including the
deficits owed to HUD due to his over-requisitioning of Section 8
funds and the use of these funds for non-Section 8 purposes in
4
violation of the UHA’s contract with HUD. The Board also discussed
his purchase of water stabilizers in 1994 without following proper
bidding and disclosure regulations from Emissions Panther, Inc.,
where his son was employed.
Perez responded to these allegations, contending that his
predecessor was responsible for the UHA’s current dispute with HUD
and that the previous Board had ratified his other activities.
After this discussion, the Board did not take any further action.
But on February 10, 2000, the Board held another meeting. The
meeting’s agenda again included a discussion of Perez’s possible
termination. At this meeting, without further discussion, the
Board unanimously voted to terminate Perez’s employment
immediately.
After his termination, Perez filed suit in the Western
District of Texas against the UHA, Mayor Neutze, and the individual
Board members alleging constitutional violations involving due
process and First Amendment retaliation. Perez also brought state
law claims alleging breach of contract and violation of the Texas
Open Meetings Act. The defendants filed for summary judgment,
seeking dismissal on all claims. On June 1, 2001, the district
court adopted the magistrate’s recommendations and dismissed all
claims with prejudice except for the breach of contract claim,
which was dismissed without prejudice to be considered in state
5
court.1 Perez timely appealed.
II. Analysis
Perez contends that the UHA violated both his property and
liberty interests protected by the due process clause of the
Fourteenth Amendment because it failed to provide him notice of the
reasons for termination and a reasonable opportunity to respond to
the Board’s contentions. Perez also maintains that he was
terminated for political reasons, not for job performance in
violation of his First Amendment rights. Because these claims were
dismissed on summary judgment, we will review the decision de novo.
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.
1996).
A. Property Interest
Perez first argues that his termination resulted in a
deprivation of his property interest in employment without
procedural due process. Specifically, he contends that he was not
afforded sufficient notice and, thus, a meaningful opportunity to
be heard prior to termination.
The Constitution guarantees that life, liberty, or property
will not be taken by the government without due process of law.
U.S. CONST. amend. XIV, § 1. “Procedural due process considers not
1
In addition, the district court held that the defendants
waived any right to qualified immunity by failing to invoke
immunity timely. The defendants do not contest this finding on
appeal.
6
the justice of a deprivation, but only the means by which the
deprivation was effected.” Caine v. Hardy, 943 F.2d 1406, 1411
(5th Cir. 1991). “Procedural due process is a flexible concept
whose contours are shaped by the nature of the individual’s and the
state’s interests in a particular deprivation.”
Id. at 1411-12.
“Ordinarily, a governmental entity may effect a deprivation
only after it has provided due process.” Id. at 1412. However,
the necessary amount and kind of pre-deprivation process depends
upon the balance of three factors: (1) the private interest that
will be effected by the official action; (2) the risk of an
erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and (3) the government’s interest, including
the function involved and the fiscal and administrative burdens
that additional or substitute procedural requirements would entail.
Id. at 1412; Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
Under this balancing test, the Supreme Court has concluded
that a governmental entity must accord a public employee effective
notice and an informal hearing permitting the employee to give his
version of events prior to termination. See Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 546 (1985). The Court held that a
public employee “is entitled to oral or written notice of the
charges against him, an explanation of the employer’s evidence, and
an opportunity to present his side of the story.”
Id.
7
We conclude that the UHA provided Perez due process prior to
his termination.2 First, prior to Perez’s termination on February
10, 2000, the Board had put Perez on notice that he was subject to
possible termination. The Board agendas, which were drafted by
Perez, for its November 15, 1999, January 18, 2000, January 26,
2000, and February 10, 2000 meetings all listed as an item for
discussion the possible termination of Perez’s employment. Perez
was clearly aware that his employment was at issue because not only
did he draft the agendas for the UHA meetings, he also had his
attorney present at every meeting except that of January 18. Thus,
Perez was put on notice prior to February 10, 2000, that he was
subject to termination.
Further, Perez was aware of the charges against him as well as
the UHA’s evidence on which it planned to base his termination. At
the November 18, 1999 UHA Board meeting Perez discussed with the
Board his over-requisitioning of Section 8 funds, his use of
Section 8 funds for non-section 8 purposes, and his purchase of
water stabilizers when he had a conflict of interest. These were
the exact allegations the Board discussed with Perez on January 26.
Therefore, Perez was made aware of the Board’s charges and evidence
against him more than two months before his January 26 meeting with
the Board.
2
The parties do not dispute that Perez’s employment contract
with the UHA provided him with a valid property interest.
8
Finally, Perez had an opportunity to tell his side of the
story prior to termination. At the January 26, 2000 meeting,
Perez, with his attorney present, was able to respond to all of the
UHA’s accusations that he had not properly performed as Executive
Director of the UHA. He was able to argue that the financial
situation of the UHA was not his fault, but that of his
predecessor, and he was able to contend that he acted properly with
regard to his other activities.
Perez maintains that he did not receive formal, written
reasons of the charges against him prior to termination, and thus
he was not accorded constitutionally sufficient notice of the
reasons for termination. This argument is without merit. A
governmental entity is not required to provide formal, written
reasons for termination in order to provide procedural due process.
See Loudermill, 470 U.S. at 546. Instead, the governmental entity
needs to provide notice “reasonably calculated to apprise the
accused of the pending action and to afford himself an opportunity
to defend himself.” See Everhart v. Jefferson Parish Hospital
District,
757 F.2d 1567, 1570 (5th Cir. 1985)(quoting Knight v. La.
State Board of Medical Examiners,
211 So. 2d 433, 438 (La. Ct. App.
1968)). For the reasons given above, we conclude that UHA Board
provided such notice. Accordingly, we find the district court
properly granted summary judgment on this claim.
B. Liberty Interest
9
Perez next maintains that the district court improperly
granted summary judgment on his liberty interest claim. “A
constitutionally protected liberty interest is implicated only if
an employee is discharged in a manner that created a false and
defamatory impression about him and thus stigmatizes him and
forecloses him from other employment opportunities.” White v.
Thomas, 660 F.2d 680, 684 (5th Cir. 1981); Hughes v. City of
Garland,
204 F.3d 223, 226 (5th Cir. 2000).
This court has enunciated a test to be used when examining a
liberty interest claim related to public employment. In order to
prevail, the plaintiff must prove: (1) he was discharged; (2)
stigmatizing charges were made against him in connection to the
discharge; (3) such charges were false; (4) he was not given notice
or an opportunity to be heard prior to the discharge; (5) the
charges were made public; (6) he requested a hearing to clear his
name; and (7) the employer refused the request for a hearing.
Hughes, 204 F.3d at 226. Perez’s liberty interest claim fails
because, as stated above, he was given notice and an opportunity to
be heard prior to discharge. In addition, there is no evidence
that he ever requested a name-clearing hearing, let alone proof
that this request was refused.3 Therefore, this argument is
3
Although he contends that he had no opportunity to
request a name-clearing hearing, there is no requirement that the
name-clearing hearing occur before termination. Rosenstein v. City
of Dallas, 876 F.2d 392, 396 n.8 (5th Cir. 1989) (holding that “the
State is not required to tender [a name-clearing hearing] prior to
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without merit.
C. First Amendment Retaliation
Finally, Perez argues that the district court improperly
granted summary judgment on his First Amendment retaliation claim.
To prevail on a First Amendment retaliation claim, the plaintiff
must prove: (1) he suffered an adverse employment decision, (2) his
speech involved a matter of public concern, (3) his interest in
commenting on matters of public concern outweighed the defendant’s
interest in promoting efficiency, and (4) the speech motivated the
defendant’s actions. Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 366 (5th Cir. 2000).
Here, the parties concede that Perez suffered an adverse
employment decision and that his speech involved a matter of public
concern. Therefore, we need only consider the remaining two
elements. Because the district court based its decision to grant
summary judgment on whether Perez’s speech motivated his
termination, we will consider that issue first.
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(e). A dispute
disclosing the charges or discharging the employee.”). Therefore,
Perez had ample opportunity to request a name-clearing hearing
after termination.
11
about a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The movant
must initially demonstrate the absence of a material fact issue.
Id. “If it satisfies that burden, the non-movant must identify
specific evidence in the summary judgment record demonstrating that
there is a material fact issue concerning the essential elements of
its case for which it will bear the burden of proof at trial.”
Id.
Mere conclusory allegations are not competent summary judgment
evidence and are insufficient to overcome a summary judgment
motion. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1984); Eason
v. Thaler,
73 F.3d 1322, 1325 (5th Cir. 1996).
Here, the defendants maintain that Perez was fired for his
management of the UHA and argue that summary judgment was proper
because Perez can not prove that his termination was based on his
political activities. To avoid summary judgment, Perez must
provide specific evidence that his termination was politically
motivated. To prove he was terminated for political reasons, Perez
provided a number of affidavits and depositions, as well as his own
deposition testimony. The district court concluded that his
deposition testimony was conclusory and held that he had not
demonstrated that he was terminated as retaliation for his
political activities.
On appeal, Perez does not contend that the district court’s
12
characterization of his deposition testimony as conclusory was
erroneous. Instead, he argues that the district court failed to
consider the other affidavits and deposition testimony he submitted
and that this evidence was sufficient to allow a reasonable jury to
conclude that he was terminated due to his political activities.
Although Perez is correct that the district court did not
expressly consider this additional evidence, we disagree that this
evidence is sufficient to allow his First Amendment claim to
survive summary judgment. Most of the depositions and affidavits
submitted by Perez only contain either conclusory statements that
the termination was political “pay-back” without any substantive
proof or discussion of statements by non-defendants who wished to
see Perez fired. Of this evidence submitted by Perez, the
testimony of only three individuals provides specific evidence that
a member of the UHA Board planned to terminate Perez prior to his
actual termination.
Two affidavits and a deposition show that Enrique Vasquez, the
UHA Board Chairman who voted to fire Perez, stated before Perez’s
termination that he wanted Perez fired. Even assuming that this
testimony would be admissible at trial, these statements fail to
provide any evidence that Vasquez or any other member of the UHA
Board wanted Perez terminated because of his political activities.
In fact, the statements provide evidence to the contrary. Amaro
Cardona’s affidavit provides that Vasquez “stated that Rogelio
13
Perez should be fired for stealing from the Uvalde Housing
Authority.” Antonio Ruiz’s affidavit states that he was going to
fire Perez because he was “wrong.” And in his deposition, Josue
Garza testified that Vasquez told him that he wanted Perez fired
because he had lied on his initial application by not documenting
all of his previous employers. Thus, the only specific evidence
Perez presented shows that Vasquez had non-political reasons for
wanting to terminate Perez’s employment.
Because the affidavits and deposition testimony submitted by
Perez do not provide evidence that he was terminated for political
reasons, he has not shown that a reasonable jury could return a
verdict in his favor on this claim. Therefore, we conclude that
the district court properly granted summary judgment in favor of
the defendants.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment on Perez’s due process and First
Amendment retaliation claims.
14
