Case: 13-20582 Document: 00512890884 Page: 1 Date Filed: 01/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2015
No. 13-20582
Lyle W. Cayce
Clerk
MABLE CALEB; PATRICK COCKERHAM; DIANN BANKS; HERBERT
LENTON,
Plaintiffs - Appellants
v.
DOCTOR TERRY GRIER; HOUSTON INDEPENDENT SCHOOL
DISTRICT, also known as HISD; ELIZABETH MATA KROGER; DAVID
FRIZELL; ESTEBAN MAJLAT,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
No. 4:12-CV-675
Before KING, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants appeal the district court’s dismissal of their
complaint for failure to state a claim on which relief can be granted. Appellants
sued under 42 U.S.C. § 1983 for violations of their rights to freedom of speech,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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freedom of association, and procedural due process. For the reasons that
follow, we AFFIRM.
I. Factual and Procedural Background 1
This case arises out of the Houston Independent School District’s
(“HISD”) investigation of Appellants’ activities while employed by HISD.
Plaintiff-Appellant Mable Caleb was formerly the principal of Key Middle
School (“Key”) and later of Kashmere High School (“Kashmere”). Key and
Kashmere are both schools within HISD. Plaintiff-Appellant Diann Banks was
a sixth grade math teacher at Key. Plaintiff-Appellant Herbert Lenton was an
“operator” at Key, meaning he was responsible for cleaning and maintenance
duties. Plaintiff-Appellant Patrick Cockerham was a teacher’s assistant at
Key, starting at the beginning of the 2008–2009 school year.
In 1993, Caleb was appointed principal of Key, a school serving an “at
risk” student population. In 2005, Richard Adebayo, Key’s math department
chairman/coordinator, was accused of facilitating student cheating on the
Texas Assessment of Knowledge and Skills (“TAKS”) standardized test. Caleb
alleges that she exercised protected speech when she refused to agree with
purportedly false accusations that Adebayo was involved with TAKS cheating
at Key.
In 2007, students and staff alleged that they were made ill by toxic mold
within Key, though HISD apparently denied that there was a mold problem.
Caleb voiced agreement with the students’ and staff’s concerns to the media.
Subsequently, the Centers for Disease Control and the Environmental
Protection Agency found mold at Key. HISD ordered that Key be reconditioned
1Since we are reviewing the district court’s judgment granting a motion under Federal
Rule of Civil Procedure 12(b)(6), we accept the allegations in the amended complaint as true.
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in order to address the problem. Key was reopened under Caleb’s leadership
for the 2008–2009 school year.
In January 2009, in order to help teachers prepare their students for the
math portion of the 2008–2009 TAKS test, preparation materials were
distributed by Key’s math department. During the preparation period, Banks
was given a handwritten set of math problems and was told that they were
being delivered on behalf of the math department and that she needed to type
the handwritten material. Rather than type the material, Banks re-wrote the
set of math problems in neater handwriting. Later, Soo Jin Lee, another
teacher at Key, typed Banks’s handwritten version, and then distributed them
as a practice set to the rest of Key’s math teachers. Appellants allege that
those math problems were actual TAKS questions, and that Lee and another
teacher had planned to introduce those questions into Key students’
preparation materials in order to artificially inflate the students’ scores, thus
qualifying the teachers for a bonus. Appellants allege that Banks was an
unwilling participant in this scheme.
In April 2009, Caleb was notified that she would be transferred to serve
as principal at Kashmere for the 2009–2010 school year; she was told to accept
the transfer, or she would be forced into early retirement. After accepting,
Caleb served as transitional principal of Key, until a new principal was
appointed. On Caleb’s recommendation, Bernett Harris took over as principal
of Key.
After Terry Grier was hired, in September 2009, as the new
superintendent of HISD, he decided to remove Harris as principal. Members
of the community, including the pastor of New Mt. Calvary Baptist Church,
Willie Jones, were concerned about Grier’s decision, as they believed that
Harris was the right person for the principal’s job at Key. Reverend Jones
asked Grier not to remove Harris until Grier had met with the community’s
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leaders; Grier agreed. However, he allegedly went back on his promise and
replaced Harris before any such meeting was held. On November 12, 2009, a
town hall meeting was held at New Mt. Calvary Baptist Church to discuss
Grier’s decision to remove Harris as principal of Key. At 5:00 p.m., Grier called
Caleb “to ask if she would be present at the meeting and, if so, to apologize for
his absence.” Caleb attended the meeting, apologized for Grier’s absence, and
applauded the audience’s “display of personal responsibility and parental
involvement [by] attending the meeting and showing concern for their
children’s education.” On November 13, 2009, Reverend Jones and Texas State
Representative Harold Dutton picketed the HISD administration building in
support of Harris. On November 14, 2009, Grier attended a second meeting at
the church, where he was questioned and criticized by the audience.
Appellants allege that shortly thereafter Grier resolved to terminate
Caleb. He allegedly decided to lay a basis for Caleb’s termination by
conducting an investigation into an anonymous allegation that Caleb, Lenton,
and others had stolen HISD property from Key when they moved Caleb’s
belongings from Key to Kashmere on October 31, 2009.
After her transfer to Kashmere, Caleb had asked Cockerham and Lenton
to transfer to Kashmere with her. During the summer of 2009, Cockerham
was assigned to organize Kashmere’s book room. After completing that task,
Cockerham was asked to return to Key to document information on computers
in the AV room, including a computer assigned to Caleb. Later, Cockerham’s
involvement with those tasks prompted HISD’s investigators to question him
about whether school equipment, including the computers, was removed from
Key.
On October 31, 2009, Harris and Caleb decided to transfer Caleb’s
collection of personal items from Key, along with “items needed to start up the
new Kashmere administration.” Caleb and Harris also decided to “move and
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relocate any HISD assets which should be at Kashmere from Key, in
accordance with HISD practices.” They allegedly scheduled the move with an
HISD administrator, Tony Shelvin. Later that day, Harris, Caleb, Lenton, and
other Key employees moved Caleb’s personal property and HISD property from
Key to Kashmere.
Appellants allege that Grier used the movement of HISD property from
Key to Kashmere as the basis for hiring Defendant-Appellee Elizabeth Mata
Kroger, a partner of the private law firm Martin, Disiere, Jefferson & Wisdom,
L.L.P. (“MDJW”). Kroger then hired Defendants-Appellees David Frizell and
Esteban Majlat to assist with the investigation. MDJW’s involvement began
with a preliminary inquiry to determine whether a more thorough
investigation was necessary.
On December 4, 2009, Cockerham was instructed by Caleb to help Majlat
and others locate and check the serial numbers of computers. On December 7,
2009, Majlat met with Cockerham for two hours. During the meeting, Majlat
asked whether Cockerham had moved anything for Caleb, or if Caleb had
stolen district property or taken district property home with her. Cockerham
answered that he did not know. According to the complaint, “[t]he meeting
terminated with Cockerham stating that he had never taken any property for
Caleb or witnessed her take any property from the school.” On December 10,
2009, Cockerham received a letter instructing him to meet with Kroger, Frizell
and others. At the meeting, Kroger explained that Cockerham was not the
target of the investigation, but he may have relevant information. Cockerham
left after he stated that he wouldn’t answer any more questions without an
attorney present.
On December 11, 2009, MDJW recommended that HISD hire them to
conduct an investigation of the “purchase, inventory and use of fixed assets,
including technology equipment, intended for Key Middle School, as well as
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the transfer and removal of such assets to Kashmere High School.” The scope
of the investigation expanded to include, in addition to the allegations of
misappropriation of school property: “overtime work and benefits to relatives
of Mabel Caleb . . . [and] possible improprieties concerning TAKS testing at
Key during [the] 2008–2009 academic school year.”
Over the next several months, all of the Appellants were questioned by
Kroger, Frizell, and Majlat as part of the internal investigation. On December
17, 2009, Cockerham met with Kroger, Frizell, Majlat, and others for a second
round of questioning. Allegedly, Kroger and Frizell called Cockerham a liar
and said that they could not understand why he would protect Caleb. On
December 18, 2009, Caleb attended a three hour meeting with Kroger, Frizell
and Majlat.
On January 15, 2010, Cockerham was reassigned to the HISD
Transportation Department. Cockerham alleged that he was transferred
because he refused to corroborate the false accusations against Caleb. HISD
also attempted to terminate Cockerham’s employment. After a hearing, an
Independent Hearing Officer found for Cockerham and refused to terminate
him. Grier allegedly refused to reinstate Cockerham or allow him to be rehired
for the following school year. Consequently, Cockerham was unemployed until
2011, when Grier allowed him to be reemployed by HISD.
On January 20, 2010, Banks was told to appear at HISD’s
Administration Building, where Kroger interviewed her. On February 25,
2010, Banks was told to schedule another meeting with Kroger. At that
meeting, she was questioned regarding the allegations of cheating on the TAKS
exam. It is alleged that Majlat and the others “suggest[ed] that Adebayo had
caused cheating,” and that Majlat and the others “coax[ed] Banks to confirm
[Adebayo’s] participation.” On April 8, 2010, Grier notified HISD’s board that
he recommended Banks be terminated for insubordination, violating district
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policies, falsifying records, and other offenses. On July 22, 2010, a hearing was
conducted by an Independent Hearing Officer regarding Banks’s termination.
At the conclusion of the hearing, the hearing officer completely exonerated
Banks. But because Banks was “deeply disturbed and distrustful of
Defendants herein,” she “believed [that] she was forced to resign from HISD in
order to save her career.”
Lenton was interviewed by Frizell on December 7, 2009. Frizell
explained that the purpose of the interview was to determine what happened
when the property was moved on October 31, 2009. On December 15, 2009,
Lenton met with Frizell, Majlat, and others for a second time. During this
meeting, Lenton was asked by Majlat if Caleb had taken anything from Key.
At this meeting, Majlat and Frizell allegedly called Lenton a liar and accused
him of using drugs and alcohol. Lenton stated that he was not going to lie
about Caleb to save his job. In October 2010, Lenton alleges that he was
terminated, after an independent hearing, for refusing to make false
statements about Caleb’s involvement in the alleged misappropriation of
school district property.
On March 2, 2012, Appellants filed their original complaint. On August
29, 2012, the plaintiffs filed their “Corrected Third Amended Original
Complaint,” the operative complaint for purposes of this appeal, alleging First
Amendment retaliation claims, due process claims, and an equal protection
claim. Appellees filed motions to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).
On October 1, 2013, the district court dismissed all of the claims made
by Banks, Lenton, and Cockerham. 2 Furthermore, the district court dismissed
2 The district court also dismissed all claims made by another plaintiff, Jackie
Anderson; however, her claims are not a part of this appeal.
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all of Caleb’s claims against Kroger, Frizell, and Majlat, and her equal
protection claim against Grier. However, the court did not dismiss all of
Caleb’s claims against HISD and Grier. On September 5, 2013, Appellees filed
a joint motion for certification and entry of final judgment pursuant to Federal
Rule of Civil Procedure Rule 54(b). On October 14, 2013, the district court
granted in part and denied in part the Appellees’ motion. The district court
entered final judgment as to all of the claims made by Banks, Lenton, and
Cockerham. Furthermore, the district court entered final judgment as to all
claims made by Caleb against Kroger, Frizell, and Majlat. However, the
district court did not enter final judgment as to the claims made by Caleb
against HISD and Grier, noting that “Caleb’s remaining claims against Grier
and HISD in this case at least tangentially relate to . . . much of the same set
of facts as the dismissed claims.” Accordingly, Caleb’s claims made against
HISD and Grier are not a part of this appeal. 3
II. Standard of Review
“This court reviews a district court’s dismissal under Rule 12(b)(6) de
novo, accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiffs.” Dorsey v. Portfolio Equities, 540 F.3d
333, 338 (5th Cir. 2008) (internal quotation marks omitted). In order to survive
a motion to dismiss, a complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. Although a complaint “does
3 For this reason, we do not address Caleb’s equal protection cause of action.
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not need detailed factual allegations . . . [the] allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555
(internal citations omitted). Furthermore, “dismissal is proper if the complaint
lacks an allegation regarding a required element necessary to obtain relief.”
Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (internal
quotation marks, citation, and brackets omitted). Finally, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Beavers v. Metro. Life Ins. Co., 566 F.3d
436, 439 (5th Cir. 2009) (internal quotation marks and citation omitted).
III. Freedom of Speech Claims
Appellants have failed to plead sufficient facts to state a First
Amendment free speech retaliation claim. In order to sufficiently plead such
a claim, Appellants must have alleged facts that show: (1) they “suffered an
adverse employment decision; (2) [their] speech involved a matter of public
concern; (3) [their] interest in commenting on matters of public concern . . .
outweigh[s] the [Appellees’] interest in promoting efficiency; and (4) [their]
speech motivated the adverse employment decision.” Beattie v. Madison Cnty.
Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001) (internal citations and quotation
marks omitted). In other words, a plaintiff must plead facts to show that he
“engaged in protected conduct and that it was a motivating factor in [his]
discharge.” Id. Further, a plaintiff who is a public employee must show that
he spoke as a citizen, not as an employee pursuant to his official duties. That
is because while “the First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public
concern,” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006), not all speech by public
employees is protected by the First Amendment. For “when public employees
make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does
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not insulate their communications from employer discipline.” Id. at 421;
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007) (“These
cases, when viewed as a whole, distinguish between speech that is ‘the kind of
activity engaged in by citizens who do not work for the government,’ and
activities undertaken in the course of performing one’s job. Activities
undertaken in the course of performing one’s job are activities pursuant to
official duties.” (internal citation omitted) (quoting Garcetti, 547 U.S. at 423)).
However, “the mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that speech into
employee—rather than citizen—speech.” Lane v. Franks, 573 U.S. ---, 134 S.
Ct. 2369, 2379 (2014). Accordingly, “[t]he critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Id. We first
address Caleb’s First Amendment claims separately from those of Cockerham,
Banks, and Lenton.
Caleb has failed to state a claim under section 1983 for First Amendment
retaliation. We begin by noting that only Caleb’s claims against Kroger,
Frizell, and Majlat are before us as part of this appeal; the district court has
not entered final judgment as to Caleb’s claims against HISD and Grier.
Generally speaking, in order to state a claim under section 1983, the plaintiff
must show that the defendant’s challenged conduct constituted “state action.”
Rundus v. City of Dallas, 634 F.3d 309, 312 (5th Cir. 2011); see Blum v.
Yaretsky, 457 U.S. 991, 1002 (1982). The state action requirement preserves
the “essential dichotomy” set forth in the Fourteenth Amendment between a
deprivation of rights by the state, “subject to scrutiny under its provisions, and
private conduct, ‘however discriminatory or wrongful,’ against which the
Fourteenth Amendment offers no shield.” Jackson v. Metro. Edison Co., 419
U.S. 345, 349 (1974) (quoting Shelley v. Kraemer, 335 U.S. 1, 13 (1948)). While
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the Supreme Court has pronounced several legal tests for determining whether
challenged conduct is state action, the core inquiry asks whether the
deprivation of a federal right is fairly attributable to the State. See Brentwood
Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295–96 (2001).
The Supreme Court has described a two-part approach to resolving that issue:
first, “the deprivation must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the state or a person
for whom the State is responsible;” second, “the party charged with the
deprivation must be a person who may fairly be said to be a state actor.” Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
“In the typical case raising a state-action issue, a private party has taken
the decisive step that caused the harm to the plaintiff, and the question is
whether the State was sufficiently involved to treat that decisive conduct as
state action.” NCAA v. Tarkanian, 488 U.S. 179, 192 (1988). Yet this is not
the typical case. Here, Caleb alleges that Kroger, Frizell, and Majlat violated
her First Amendment rights merely by recommending her termination by
HISD based on protected speech; it was HISD that did the actual firing. We
hold that these allegations are insufficient to hold Kroger, Frizell, and Majlat
liable as state actors.
In NCAA v. Tarkanian, the Supreme Court confronted a similar
situation. The NCAA, a private association, investigated the recruiting
practices of Tarkanian, the basketball coach at the University of Nevada Las
Vegas (“UNLV”), a public university. Tarkanian, 488 U.S. at 185–86. Based
on the NCAA’s recommendation that Tarkanian be disciplined for violations of
the NCAA’s recruiting rules, UNLV suspended Tarkanian, in part to avoid
further sanctions threatened by the NCAA if UNLV did not adopt its
recommendation. Id. at 186–87. Tarkanian sued the NCAA under section
1983. Id. at 187–88. The Supreme Court noted that the case presented a
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unique question, given that the private entity, the NCAA, did not “take[] the
decisive step that caused the harm to the plaintiff.” Id. at 192. Therefore, the
question was not “whether UNLV participated to a critical extent in the
NCAA’s activities, but whether UNLV’s actions in compliance with the NCAA
rules and recommendations turned the NCAA’s conduct into state action.” Id.
at 193. The Court held that they did not. Id. at 199. The Court relied on the
fact that the NCAA could not “directly discipline Tarkanian or any other state
university employee;” rather, the decision to adopt the recommendation of the
NCAA was the university’s. Id. at 197. The same distinction applies here.
Kroger, Frizell, and Majlat are not alleged to have had any power to discipline
HISD employees. Rather, the conduct of which Caleb complains is a mere
recommendation to HISD that she be disciplined—a recommendation that
HISD was free to accept or reject. As such, the Supreme Court’s reasoning in
Tarkanian leads to the conclusion that Kroger, Frizell, and Majlat were not
state actors, at least as far as Caleb’s claims are concerned.
To be sure, there are facts in Tarkanian that are distinguishable from
this case. In Tarkanian, the Court noted that, in the posture of the NCAA
investigation, the NCAA and UNLV were antagonists, comparing the situation
to that of public defenders, held not to be liable as state actors in Polk County
v. Dodson, 454 U.S. 312 (1981). Id. at 196 (“[T]he NCAA is properly viewed as
a private actor at odds with the State when it represents the interests of its
entire membership in an investigation of one public university.”). In contrast,
here HISD commissioned the internal investigation itself. Further, unlike in
Tarkanian, HISD used its governmental powers to facilitate the investigation
by having administrators summon Appellants to meetings with Kroger,
Frizell, and Majlat. See id. at 197 (“[The NCAA] had no power to subpoena
witnesses, to impose contempt sanctions, or to assert sovereign authority over
any individual.”). Yet other distinctions are countervailing. In Tarkanian, the
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NCAA was able to coerce the university, through sanctions and possible
expulsion from the association, to adopt its recommendation. Id. at 198. Here,
Kroger, Frizell, and Majlat had no authority over HISD, much less the ability
to impose sanctions. On balance, we are not persuaded that these distinctions
affect the fundamental consideration in Tarkanian, which was that the
NCAA’s recommendation was not the decisive step that caused the harm to the
plaintiff—rather, UNLV retained decision-making authority to discipline its
employee. See id. at 197–98.
We also note that, even where the private party’s act did not itself
deprive the plaintiff of his constitutional rights, a showing of “joint action”
would likely be sufficient to find state action. See id. at 197 n.17. The joint
action test provides that a private person can be held liable as a state actor
where “he is a willful participant in joint activity with the State or its agents.”
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). This test generally
requires a showing of a conspiracy between the private party and the state
official. See id.; Dennis v. Sparks, 449 U.S. 24, 28–29 (1980). Yet Appellants
expressly waived any argument for state action based on a conspiracy between
Kroger and HISD in their response to Kroger’s Third Rule 12(b)(6) Motion to
Dismiss before the district court when they conceded that their conspiracy
argument “has been abandoned explicitly.” An appellant who abandons an
argument before the district court may not resurrect it on appeal. MacArthur
v. Univ. of Tex. Health Ctr. at Tyler, 45 F.3d 890, 896 (5th Cir. 1995) (“[W]e
must dismiss this appeal . . . on the basis that the one claim that [the plaintiff]
raises—Title VII retaliation—was abandoned at the district court, thus is not
embodied in the district court judgment, and consequently is not before this
court on appeal.”).
We also respectfully reject the district court’s reasoning in finding state
action—that Kroger, Frizell, and Majlat were “performing duties normally
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carried out by HISD staff.” The Supreme Court’s “holdings have made clear
that the relevant question is not simply whether a private group is serving a
‘public function.’” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). Rather,
“the question is whether the function performed has been ‘traditionally the
exclusive prerogative of the state.’” Id. (quoting Jackson, 419 U.S. at 353).
Appellants cite no authority for the proposition that internal investigations of
employee misconduct are traditionally the exclusive prerogative of the state.
Rather, they merely allege that, in practice, internal investigations are
generally conducted by HISD itself. But the fact that a state elects to perform
a public service itself does not make such a service “traditionally the exclusive
prerogative of the state.” See Rendell-Baker, 457 U.S. at 842 (emphasis
omitted). As such, we hold that Appellants have failed to plead sufficient facts
to show that Kroger, Frizell, and Majlat were state actors because they were
performing functions traditionally exclusively reserved to the state. 4
Given the foregoing, we conclude that the recommendation by Kroger,
Frizell, and Majlat as to Caleb was not state action. As such, Caleb has failed
to state a section 1983 claim against Kroger, Frizell, and Majlat.
Cockerham, Banks, and Lenton have also failed to state a claim for First
Amendment retaliation, because their speech was made pursuant to their
official duties. In their complaint, Cockerham, Banks, and Lenton alleged that
they exercised free speech when they refused to agree with purportedly false
accusations made against Caleb in their interviews by Appellees. 5 But they
4 Tangentially related is Texas Education Code Section 44.031(f), which allows school
districts to hire outside attorneys without going through the normal bidding process for
awarding contracts.
5 That Appellants have alleged retaliation based on their refusal to speak does not
affect the analysis. See Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 796–97 (1988)
(“There is certainly some difference between compelled speech and compelled silence, but in
the context of protected speech, the difference is without constitutional significance, for the
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also allege that they were ordered by HISD officials to take part in those
interviews. Furthermore, the plaintiffs have pled facts that show that these
meetings were directly related to their employment. The interviews concerned
allegations of cheating on state standardized tests and misappropriation of
school property. Accordingly, it is undisputed that the speech at issue here
was made within the chain of command and that it was related to the
employees’ jobs, which are both factors that this court has previously
considered in determining that speech was made as an employee and not as a
citizen. See, e.g., Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (“Cases
from other circuits are consistent in holding that when a public employee raises
complaints or concerns up the chain of command at his workplace about his job
duties, that speech is undertaken in the course of performing his job.”).
Further, it seems obvious to state that assisting in an employer’s investigation
into workplace theft is ordinarily within the scope of an employee’s job duties,
equally so to state that it is ordinarily within the scope of a teacher’s duties to
ensure compliance with standardized testing procedures. That Cockerham,
Banks, and Lenton were required to speak in the course of their assistance in
the investigation did not “mean [their] supervisors were prohibited from
evaluating [their] performance.” Garcetti, 547 U.S. at 422; see also id. at 424
(“[T]he First Amendment does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsibilities.”). As such,
the speech that Cockerham, Banks, and Lenton have alleged as the basis for
their employer’s retaliation was made pursuant to their official duties. It is
therefore outside the ambit of First Amendment protection, and they have
failed to state a claim on which relief may be granted.
First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision
of both what to say and what not to say.”).
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IV. Free Association Claims
In order to state a claim for retaliation based on the First Amendment
right to freedom of association, a plaintiff must show: “(1) he suffered an
adverse employment action, (2) his interest in ‘associating’ outweighed the
[employer’s] interest in efficiency, and (3) his protected activity was a
substantial or motivating factor in the adverse employment action.” Hitt v.
Connell, 301 F.3d 240, 246 (5th Cir. 2002). The First Amendment protects two
broad categories of association. Roberts v. United States Jaycees, 468 U.S. 609,
617 (1984). The first protects “choices to enter into and maintain certain
intimate human relationships.” Id. Those intimate human relationships
include marriage, the begetting and bearing of children, child rearing and
education, and cohabitation with relatives. See Bd. of Dirs. of Rotary Int’l v.
Rotary Club of Durate, 481 U.S. 537, 545 (1987). The second category is
association for the purposes of engaging in other activities protected by the
First Amendment, such as speech or the free exercise of religion. United States
Jaycees, 468 U.S. at 618.
If Cockerham’s, Banks’s, and Lenton’s claimed association is to be
protected under the First Amendment, it must fall under the first category.
The types of association properly characterized as “intimate human
relationships” are limited to “relationships that presuppose deep attachments
and commitments to the necessarily few other individuals with whom one
shares not only a special community of thoughts, experiences, and beliefs but
also distinctively personal aspects of one’s life.” Wallace v. Tex. Tech Univ., 80
F.3d 1042, 1051–52 (5th Cir. 1996) (internal quotation marks omitted). These
relationships “are distinguished by such attributes as relative smallness, a
high degree of selectivity in decisions to begin and maintain the affiliation, and
seclusion from others in critical aspects of the relationship.” United States
Jaycees, 468 U.S. at 620. The First Amendment “does not include a generalized
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right of social association.” Wallace, 80 F.3d at 1051 (internal quotation marks
omitted). For example, we have previously held that association in certain
private clubs was protected under the freedom of association, but that a college
basketball coach’s relationship with his players was not. See id. at 1052. It
therefore follows that “[r]elationships with colleagues ordinarily are not
afforded protection as intimate associations.” Hernandez v. Duncanville Sch.
Dist., No. 3:04 CV 2028 BH(B), 2005 WL 3293995, at *10 (N.D. Tex. Dec. 5,
2005) (citing Swanson v. City of Bruce, Miss., 105 F. App’x 540, 542 (5th Cir.
2004) (unpublished)); see also Martsolf v. Christie, 552 F. App’x 149, 152 (3d
Cir. 2013) (unpublished); Colbert v. City of McKinney, No. 4:12cv612, 2013 WL
3368237, at *7 (E.D. Tex. July 3, 2013).
Here, Cockerham, Banks, and Lenton have not alleged sufficient facts to
state a freedom of association claim. They have alleged that they “exercised
protected association with Caleb, in that they constituted members of what
Majlat [had] characterized . . . as Caleb’s ‘clique.’” However, without more, this
“association” appears to be nothing more than a group of close work colleagues.
While the complaint does allege that “Cockerham and Lenton were members
of a small group of individuals chosen by Caleb to . . . move with her [to
Kashmere]” and that Caleb was “highly selective of those with whom she chose
to . . . go with her to Kashmere,” such selectivity is no different from any
manager’s prudent hiring decisions. These allegations are consistent with a
relationship amongst colleagues and fail to suggest an intimate relationship
protected by the First Amendment.
Caleb’s claims against Kroger, Majlat, and Frizell also fail. Caleb’s
freedom of association claim derives from the second category of protected
association—association for political purposes. She alleges that her right to
political association was violated as the Appellees retaliated against her for
associating with a state representative, Representative Dutton, at the town
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hall meeting on November 12, 2009 and with HISD Board Member Carol Mims
Galloway. Aside from conclusory allegations, the only facts asserted in the
complaint that could plausibly be understood to relate to Caleb’s relationships
with these individuals are that Majlat stated that Caleb had “friends in high
places” and that, if anyone reported her to the HISD board, Caleb would find
out about it immediately. Yet even assuming those statements referred to
Dutton and Galloway, merely noting that Caleb had those relationships does
not plausibly suggest that Majlat, much less Frizell and Kroger, took any
action against Caleb based on that association. As such, Caleb has failed to
state a claim against Kroger, Frizell, and Majlat based on her First
Amendment rights to freedom of association.
V. Procedural Due Process Claims
Appellants have also failed to state a claim for violations of their
procedural due process rights. We first note that, assuming the allegations in
the complaint are true, Appellants were entitled to procedural due process
protections. “It is now beyond any doubt that discharge from public
employment under circumstances that put the employee’s reputation, honor or
integrity at stake gives rise to a liberty interest under the Fourteenth
Amendment to a procedural opportunity to clear one’s name.” Rosenstein v.
City of Dallas, Tex., 876 F.2d 392, 395 (5th Cir. 1989), reh’g granted, 884 F.2d
174, reinstated 901 F.2d 61 (5th Cir. 1990) (en banc). Government officials do
not violate the Fourteenth Amendment by “publicly disclosing charges against
discharged employees,” provided that they afford procedural due process
protections that allow the implicated employees to clear their names. Id. “[A]
liberty interest is infringed, and the right to notice and an opportunity to clear
one’s name arises, only when the employee is ‘discharged in a manner that
creates a false and defamatory impression about him and thus stigmatizes him
and forecloses him from other employment opportunities.’” Bledsoe v. City of
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Lake Horn, Miss., 449 F.3d 650, 653 (5th Cir. 2006) (quoting White v. Thomas,
660 F.2d 680, 684 (5th Cir.1981)). “‘[T]he process due such an individual is
merely a hearing providing a public forum or opportunity to clear one’s name,
not actual review of the decision to discharge the employee.’” Hughes v. City
of Garland, 204 F.3d 223, 226 (5th Cir. 2000) (quoting Rosenstein, 876 F.2d at
395).
In order to state a claim that their liberty interest to a name clearing
hearing was infringed, Appellants must have alleged:
(1) that [they were] discharged; (2) that stigmatizing charges were
made against [them] in connection with the discharge; (3) that the
charges were false; (4) that [they were] not provided notice or an
opportunity to be heard prior to [their] discharge; (5) that the
charges were made public; (6) that [they] requested a hearing to
clear [their] name[s]; and (7) that the employer refused [their]
request for a hearing.
Id. The district court did not err in dismissing the complaint for failure to state
a procedural due process claim, because the allegations in the complaint itself
establish that Banks, Cockerham, and Lenton cannot meet the elements of the
claim. To the contrary, Banks, Cockerham, and Lenton have alleged facts that
show that they were given a hearing to address the charges associated with
the investigation.
Cockerham has alleged that he was afforded an independent hearing and
that the independent hearing officer refused to terminate him. Banks has
pleaded that she received a two-day independent hearing where she had the
opportunity to “proclaim[] the falsity of the charges against her.” Furthermore,
Lenton has alleged that he requested and received a due-process hearing
before an independent hearing officer. Cockerham’s, Banks’s, and Lenton’s
failure to allege that they asked for and were refused a hearing is dispositive.
See Bledsoe, 449 F.3d at 653 (plaintiffs must plead that they requested and
were denied a name-clearing hearing). It is immaterial whether the Plaintiffs
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were given an opportunity to clear their names before the Kroger report was
released. See Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir. 1984) (“It is not
necessary that the hearing occur prior to publication of the stigmatizing
charges.” (quoting Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256–57 (5th
Cir. 1984))). As to Lenton’s claim relating to the incident with White at his
due process hearing, we do not address the issue as it was not adequately
briefed. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A
party that asserts an argument on appeal, but fails to adequately brief it, is
deemed to have waived it.” (internal quotation marks omitted)). Lenton cites
no legal authority for his argument that not allowing White to be called at his
hearing violated his due process rights, and, as such, it is waived. See Fed. R.
App. P. 28(a)(8)(A) (stating that the argument must contain “appellant’s
contentions and the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies” (emphasis added)); Scroggins, 599
F.3d at 447 (“In addition, among other requirements to properly raise an
argument, a party must ordinarily identify the relevant legal standards and
any relevant Fifth Circuit cases.” (internal quotation marks omitted)).
As to Caleb’s claims, she has alleged no facts indicating that Kroger,
Frizell, and Majlat had any ability, authority, or even influence to deny her
access to a name-clearing hearing, much less that they did so. As such, she
has failed to state a claim for violation of her procedural due process rights by
Kroger, Frizell, and Majlat.
VI. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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