APPENDIX
FILED IN
1st COURT OF APPEALS
A. Caleb v. Grier, No. H-12-0675 (S.D. Tex. June 13, HOUSTON, TEXAS
2015), Memorandum and
Order Granting Motion to Dismiss 12/21/2015 3:10:49 PM
CHRISTOPHER A. PRINE
Clerk
B. Caleb v Grier, 598 F.App'x. 227 (5th Cir. 2015)
C. Caleb v. Grier, No. H-12-0675 (S.D. Tex. Apr. 29, 2015) (Memorandum and
Order Granting Motion for Summary Judgment)
Tab A
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MABLE CALEB, JACKIE ANDERSON, §
DIANN BANKS, HERBERT LENTON, §
and PATRICK COCKERHAM, §
§
Plaintiffs, §
§
v. § CIVIL ACTION NO. H-12-0675
§
DR. TERRY GRIER, ELIZABETH MATA §
KROGER, DAVID FRIZELL, ESTEBAN §
MAJLAT, and HOUSTON INDEPENDENT §
SCHOOL DISTRICT, §
§
Defendants. §
MEMORANDUM AND ORDER
Pending are Defendants David Frizell and Esteban Majlat’s
Second Motion to Dismiss Pursuant to Rule 12(b)(6) (Document No.
59), Defendant Elizabeth Mata Kroger’s Third Motion to Dismiss
Pursuant to Rule 12(b)(6) (Document No. 60), and Defendants Houston
Independent School District and Terry Grier’s Second Motion to
Dismiss Pursuant to Rule 12(b)(6) (Document No. 64).1 After having
1
Plaintiffs’ Motion for Extension of Time to File Response to
Defendants’ Motion to Dismiss (Document No. 75) is denied as moot,
inasmuch as Plaintiffs have since filed further responses, which
have all been considered. Plaintiffs recently filed an Opposed
Motion for Leave to File Supplement to Their Third Amended
Complaint (Document No. 92). In light of Plaintiffs’ prior filings
of complaints--the Third Amended Complaint is now under review--and
with no consequential transactions, occurrences, or events having
occurred after Plaintiffs filed their current pleading of more than
100 pages in length, the Motion to File Supplement (Document
No. 92) is DENIED. See FED . R. CIV . P. 15(d).
Plaintiffs’ Motion for Leave to File Designation of Expert
Witness (Document No. 83), which is opposed by Defendants HISD,
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carefully considered the motions, responses, replies, sur-reply,
and applicable law, the Court concludes as follows.
I. Background
Plaintiff Mable Caleb (“Caleb”) was formerly the principal of
Key Middle School (“Key”), and Plaintiffs Jackie Anderson
(“Anderson”), Diann Banks (“Banks”), Herbert Lenton (“Lenton”), and
Patrick Cockerham (“Cockerham”) had all worked at Key in various
capacities.2 Plaintiffs’ prolix Third Amended Original Complaint--
111 pages in length--describes in minute detail all sorts of events
and interactions that Plaintiffs allege give rise to this action.
In essence, Plaintiffs allege that the Superintendent of the
Houston Independent School District (“HISD”), Defendant Terry Grier
(“Grier”), targeted Caleb for dismissal because of things she said
and people with whom she associated, and that he instituted a
harassing investigation into her activities at Key and her
transition when she was appointed principal at Kashmere High School
(“Kashmere”). Plaintiffs Anderson, Banks, and Cockerham, who did
not lose their jobs, and Lenton, who did, allegedly were targeted
because they worked closely with Caleb. The complaint alleges that
Grier retained Defendant Elizabeth Mata Kroger (“Kroger”) and her
Grier, and Kroger, is DENIED as having not been timely filed before
the deadline for identifying expert witnesses expired.
2
Document No. 48-1 at 4 (3d Am. Cmplt.).
2
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law firm to conduct an investigation regarding the improper
transfer of HISD property from Key to Kashmere, cheating on
standardized tests, and other alleged improprieties at Key.
Kroger, in turn, hired David Frizell (“Frizell”) and Esteban Majlat
(“Majlat”) to assist in the investigation.3 During their investi-
gation Kroger, Frizell, and Majlat interviewed Anderson, Banks,
Lenton, and Cockerham on more than one occasion, and allegedly
treated them rudely, made accusations that they were lying, were
protecting Caleb, and were otherwise guilty of being involved in
the alleged improprieties.
Plaintiffs allege that their First Amendment rights to free
speech and free association were violated, and Plaintiff Caleb
alleges a deprivation of her constitutionally-protected liberty
interests in the form of a procedural due process name-clearing
hearing. Finally, Caleb accuses Defendant Grier of denying her
equal protection under the law. All Defendants have moved to
dismiss the claims under 12(b)(6).
II. Legal Standard
A. Rule 12(b)(6) Standard
Rule 12(b)(6) provides for dismissal of an action for “failure
to state a claim upon which relief can be granted.” FED . R. CIV .
3
Id. at 5-6.
3
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P. 12(b)(6). When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one. See Scheuer v.
Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982). The issue is not
whether the plaintiff ultimately will prevail, but whether the
plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint. See Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997). To survive dismissal, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1974 (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, 129 S. Ct. 1937, 1949
(2009). While a complaint “does not need detailed factual
allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 127 S. Ct. at 1964-65 (citations and internal
footnote omitted).
4
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B. 42 U.S.C. § 1983
Plaintiffs seek compensatory and punitive damages for alleged
violations of their constitutional rights. Although their
complaint does not cite 42 U.S.C. § 1983, Section 1983 is the
statute that provides a private cause of action for redressing a
violation of federal law or “vindicating federal rights elsewhere
conferred.” Albright v. Oliver, 114 S. Ct. 807, 811 (1994)
(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694 n. 3 (1979)). To
state a viable claim under § 1983, “a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.” Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). A
§ 1983 plaintiff must support his claims with specific facts
demonstrating a constitutional deprivation and may not simply rely
on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433
(5th Cir. 1995).
III. HISD’s and Terry Grier’s Motion to Dismiss
A. First Amendment Free Speech Claims
To recover on a First Amendment retaliation claim, a plaintiff
must show that: (1) she suffered an adverse employment action;
(2) her speech involved a matter of public concern; (3) her
5
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interest in commenting on matters of public concern outweighs the
public employer’s interest in efficiency; and (4) the speech
motivated the adverse employment action. DePree v. Saunders, 588
F.3d 282, 286-87 (5th Cir. 2009), cert. dismissed, 130 S. Ct. 3450
(2010). In other words, “[t]o prevail, [plaintiff] must show that
she engaged in protected conduct and that it was a motivating
factor in her discharge.” Beattie v. Madison Cty. Sch. Dist., 254
F.3d 595, 601 (5th Cir. 2001).
“[B]efore asking whether the subject-matter of particular
speech is a topic of public concern, the court must decide whether
the plaintiff was speaking ‘as a citizen’ or as part of her public
job.” Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008)
(quoting Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.
2006)); see also Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006)
(“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.”). The focus of
this inquiry is not on the content of the speech, but on “the role
the speaker occupied when [she] said it.” Davis, 518 F.3d at 312
(quoting Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692
(5th Cir. 2007)). The distinction is 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
6
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performing one’s job.” Williams, 480 F.3d at 693 (quoting
Garcetti, 126 S. Ct. at 1962). “Even if the speech is of great
social importance, it is not protected by the First Amendment so
long as it was made pursuant to the worker’s official duties.” Id.
at 692 (citing Garcetti, 126 S. Ct. at 1960). Moreover, even if
speech is “not necessarily required” by an employee’s job duties,
it is not protected if it is sufficiently related to them. Charles
v. Grief, 522 F.3d 508, 513 (5th Cir. 2008) (discussing Williams,
480 F.3d at 693). A number of factors guide a court in determining
whether an employee is speaking pursuant to her official duties:
the relationship between the topic of the speech and the employee’s
job; whether the employee spoke internally up the chain of command
at her workplace; and whether the speech resulted from special
knowledge gained as an employee. See Davis, 518 F.3d at 312-14;
see also Gentilello v. Rege, No. 3:07-CV-1564-L, 2008 WL 2627685,
at *3 (N.D. Tex. June 30, 2008). Whether an employee is speaking
as a citizen or pursuant to her employment is a question of law for
the Court to resolve, even though it “involves the consideration of
factual circumstances surrounding the speech at issue.” Charles,
522 F.3d at 513 n.17.
1. Caleb
Caleb alleges that her First Amendment rights were violated
because she made protected speech and suffered an adverse
7
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employment action because of that speech.4 Caleb asserts that she
made the following protected speech:
! In 2005, Caleb’s speech refusing to agree with
accusations made against Key Math Department Chairman,
Richard Adebayo, regarding cheating on standardized
testing.5
! In 2007, Caleb’s speech when she agreed with students’
and staff’s claims that there was toxic mold at Key when
questioned by the media;6 and again, when she spoke to
federal agencies dealing with public health at Key.7
! On November 12, 2009, Caleb’s speech at a town hall
meeting at New Mt. Calvary Baptist Church that was held
to discuss the appointment of a new principal to replace
Caleb at Key Middle School when she moved to Kashmere
High School.8
! On November 13, 2009, Caleb’s speech in a non-public
meeting between her and Grier, when she admonished Grier
4
Document No. 48-1 at 92, 99.
5
Id. at 92-93.
6
Id. at 8-9, 92-93.
7
Id. at 92.
8
Id. at 92-93.
8
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for making a remark to her during their conversation that
she believed was “racially dismissive.”9
! On or about March 22, 2010, Caleb’s speech to The Houston
Chronicle about her intention to retire from HISD effec-
tive August 2010, and denying “Grier’s and Mata Kroger’s
substantially false accusations against her.”
Caleb alleges no facts to show that her 2005 speech--five
years before her separation from HISD--was protected speech. From
what she does plead, the plain inference is that her speech
addressed an issue on which she was speaking as the principal of
Key, regarding an issue on which she had special knowledge based on
her position at Key, and on which there was a direct relationship
between the topic of speech and the performance of her job.
Moreover, the gap of time between this 2005 speech and the alleged
retaliation in 2010--a period within which Caleb was promoted from
middle school principal to being a high school principal--makes
wholly implausible any inference of free speech retaliation. Caleb
has pled no facts regarding this alleged speech to state a claim
for relief above a speculative level.
Almost as remote in time from when she separated from HISD was
Caleb’s speech on toxic mold, in which she alleges that she
answered questions from the media and spoke to federal agencies
about this condition at Key. The alleged speech was not made
9
Id. at 95.
9
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internally within HISD, which is an important factor to consider in
determining whether Caleb was speaking as part of her public job.
It was also speech regarding a matter of public concern, namely,
toxic mold at a public school. But this speech was also made years
before the alleged retaliation in 2010, and Plaintiffs allege no
direct evidence or any “plausible chronology” that permits a
reasonable inference of free speech retaliation. Compare Brady v.
Houston Indep. Sch. Dist., 113 F.3d 1419 (5th Cir. 1997). Other
facts pled by Plaintiffs lead to the inevitable inference that
Caleb’s 2007 speech was not a cause of her 2010 separation.
Plaintiffs’ complaint alleges that Caleb was correct in her
assessment of the presence of toxic mold, that HISD thereafter
ordered the reconditioning of Key, and that HISD then reopened Key
“under Caleb’s leadership” in the 2008-09 school year. Caleb’s
2007 speech was made long before Grier became HISD Superintendent,
Caleb was vindicated in what she said, and--according to
Plaintiffs’ pleading--she was rewarded with Key being reopened
“under Caleb’s leadership.” To allege that Grier and HISD
retaliated against Caleb in April 2010 for this remote speech given
in 2007 is entirely conclusory and insufficient to state a claim
upon which relief can be granted.
On November 12, 2009, when Caleb at the invitation of a state
representative attended a town hall meeting that was convened to
discuss with HISD Superintendent Grier whether he would appoint
10
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Bernett Harris to succeed Caleb as principal at Key, the complaint
alleges that Superintendent Grier called Caleb about 5 p.m. to ask
if she would be present at the meeting and, if so, to apologize for
Superintendent Grier’s absence. The complaint alleges that Caleb
did relay the Superintendent’s message and applauded the audience
for attending the meeting and showing parental support for their
children’s education. No allegation is made of Caleb making any
controversial statement or any statement with which Grier
disagreed, the plain inference being that Caleb’s speech at the
meeting was made in her role as an HISD principal, and at the
instance of the Superintendent. Caleb has alleged no facts to
support her claim that she was speaking as a citizen and not as
part of her public employment.
Caleb’s speech the next day, on November 13, was in a
non-public internal meeting between her and her supervisor,
Superintendent Grier. Her comments were not made public. Grier
was relating his views on the appointment of a new principal for
Key, told Caleb that he had promised to attend a community meeting
the next day at a church, and “abruptly asked Caleb, who had spoken
for him the previous night, ‘How do you speak to those people?’”
Caleb thought the question carried an overtone of racial bigotry,
and admonished him. Caleb’s comments to Grier, made in this
private meeting between the HISD superintendent and an HISD
principal concerning school administration issues and community
11
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communications, does not constitute protected speech under the
First Amendment.
Lastly, Caleb’s speech to The Houston Chronicle in March, 2010
rebutting misconduct allegations made against her does not plainly
constitute speech in her role as an HISD administrator. Because
Caleb has stated facts regarding an adverse employment action
she suffered within temporal proximity the following month,10 and
because she has alleged some facts in support of her claim that the
protected speech motivated the adverse employment action,11 Caleb
has stated a claim for violation of her First Amendment right to
free speech based on this incident.
2. Anderson, Banks, Lenton, and Cockerham
Anderson, Banks, Lenton, and Cockerham also allege that their
First Amendment rights to free speech were violated because they
remained silent and/or refused to be dishonest when questioned
about Caleb.12 The complaint contains detailed descriptions of the
10
The nature of Caleb’s departure from HISD is not completely
clear, but the pleading alleges that Grier recommended to the Board
of Trustees that she should be terminated without cause, and
informed Caleb that her last day at HISD would be April 28, 2010.
Document No. 48-1 at 31.
11
Caleb also alleges that when Grier learned of Caleb’s speech
to The Houston Chronicle denying the allegations of impropriety, he
made a comment regarding whether he would let her resign or fire
her sooner. Id. at 25.
12
Id. at 99.
12
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experiences of Anderson, Banks, Lenton, and Cockerham in answering
questions from Defendants Kroger, Frizell, Majlat,13 and others
regarding their knowledge of and/or involvement in various alleged
improprieties at Key that were under investigation. The complaint
alleges that the investigators engaged in rude and abrasive
treatment of Plaintiffs when asking their questions, expressed
disbelief at the answers, and ridiculed Plaintiffs’ answers. The
complaint does not allege, however, that Anderson, Banks, Lenton,
and Cockerham made any protected speech or that they were deprived
of a constitutionally protected right to refrain from speaking. In
all of the interviews, Anderson, Banks, Lenton, and Cockerham were
allegedly speaking, and at times making denials of accusations,
about their own job performances and their knowledge of Caleb’s
activities at Key Middle School. They were speaking as HISD
employees to HISD retained investigators in connection with an
official HISD investigation. All of their speech was therefore
made pursuant to their official duties. There are no facts alleged
to support a claim that they were speaking as private citizens in
any of these meetings.14 Anderson’s, Banks’s, Lenton’s, and
13
Whether Kroger, Frizell, and Majlat should be regarded as
state actors--at this pleading stage--is considered below at pages
21 through 24.
14
Plaintiffs rely on the Second Circuit’s holding in Jackler
v. Byrne, 658 F.3d 225 (2d Cir. 2011), in support of their free
speech claim. Document No. 72 at 4. Soon after the Jackler
decision, the District of Columbia Circuit--in denying rehearing in
Bowie v. Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011), cert. denied,
13
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Cockerham’s claims that their First Amendment rights to free speech
were violated are therefore dismissed.
B. First Amendment Free Association Claims
Caleb claims that her First Amendment free association rights
were also violated when she engaged in protected association by
accepting State Representative Harold Dutton’s invitation to attend
the town hall meeting at New Mt. Calvary Baptist Church on November
12, 2009, and then spoke with Dutton after the meeting.15 Caleb
also asserts that she exercised protected association in her
political support of Dutton and HISD Board member Carol Mims
Galloway, an alleged opponent of Grier,16 but pleads no facts beyond
her conclusory allegations that her political support of Dutton and
Galloway resulted in any adverse action against her by HISD. In
support of her claim that Defendants violated her right to free
association, Caleb asserts that Defendants had views that Caleb had
“friends in high places,” that she knew everything that went on at
132 S. Ct. 1636 (2012)--persuasively rejected the rationale of
Jackler pointing out that under Garcetti v. Ceballos, 126 S. Ct.
1951 (2006), it is “only when public employees ‘make public
statements outside the course of performing their official duties’
do they ‘retain some possibility of First Amendment protection.’”
Id. at 47 (quoting Garcetti, 126 S. Ct. at 1961). The D.C. Circuit
summarized, “The Second Circuit gets Garcetti backwards.” Id. at
48. The Fifth Circuit appears not to have written on this point
but this Court believes it would follow Garcetti and Bowie.
15
Document No. 48-1 at 93.
16
Id.
14
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HISD, and that she had a “clique” at Key Middle School.17
Plaintiffs Anderson, Lenton, and Cockerham, who were requested by
Caleb to move with her from Key to Kashmere, also claim that they
“exercised protected association with Caleb, in that they
constituted members of what Majlat characterized to Anderson as
Caleb’s ‘clique’.”18
To establish a violation of one’s First Amendment right to
freedom of association, a plaintiff must show that (1) she suffered
an adverse employment action, (2) her interest in “associating”
outweighed the public employer’s interest in efficiency, and
(3) her 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 Constitution does not include a
‘generalized right of ‘social association.’” Wallace v. Tex. Tech.
Univ., 80 F.3d 1042, 1051 (5th Cir. 1996) (quoting City of Dallas
v. Stanglin, 109 S. Ct. 1591, 1595 (1989)). The United States
Supreme Court has determined that the First Amendment encompasses
two categories of association: (1) the choice to enter into and
maintain certain intimate human relationships, and (2) the right to
associate for the purpose of engaging in expressive activities
protected by the First Amendment–-namely, speech, assembly,
17
Id. at 94.
18
Id. at 99. Plaintiff Banks alleges no violation of
protected association.
15
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petition for the redress of grievances, and the exercise of
religion. See id.; see also Ibarra v. Houston Indep. Sch. Dist.,
84 F. Supp. 2d 825, 837 (S.D. Tex. 1999) (same). Intimate
relationships include marriage, the bearing of children, child
rearing and education, and cohabitation with familial relatives.
Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 107 S. Ct.
1940, 1945-46 (1987). “Relationships 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)).
None of Plaintiffs has alleged any facts to support a claim
that any intimate personal relationship caused their adverse
employment actions. The complaint alleges only professional
relationships between Caleb, Anderson, Banks, Lenton, and
Cockerham, and the same is true as regards Caleb’s relationships
with State Representatives Dutton and HISD Trustee Galloway. None
of Plaintiffs has stated a claim for a violation of the
constitutional right to free association under the first category.
Furthermore, none of Plaintiff Caleb’s alleged associations
was for the purpose of carrying on a protected activity.19
Representative Dutton invited Caleb, the outgoing principal at Key,
19
None of the other Plaintiffs makes any allegations regarding
the second category.
16
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to attend a community/town hall meeting called to discuss the
appointment of Caleb’s successor at Key. At the request of
Superintendent Grier himself, Caleb spoke--as an HISD principal and
Grier’s spokesperson, to apologize for Grier’s absence and went on
to laud the attending citizens for their involvement in educational
issues affecting the community’s children. Caleb’s participation
in the meeting, therefore, was not for the purpose of her engaging
in constitutionally protected activity. She was invited as a
school principal and educational leader in the community and, when
she attended, she delivered a message in behalf of and at the
request of the Superintendent himself and added her own praise
for the citizens’ participation, as school superintendents and
principals regularly do. Plaintiff Caleb’s pleading of these facts
alone belies any conclusory claim that she was targeted for an
adverse employment action because of her attendance at the
community/town hall meeting or for visiting with one of its
sponsors, Representative Dutton. Caleb, Anderson, Banks, Lenton,
and Cockerham have failed to allege facts sufficient to state a
claim for a Constitutional violation of their rights to free
association.
C. Liberty-Interest Due Process Claims
Plaintiff Caleb asserts a deprivation of her liberty
interests, a type of procedural due process claim under the
17
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Fourteenth Amendment. “[D]ischarge 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).20 See also Hughes v. City of Garland, 204 F.3d 223, 225
(5th Cir. 2000). The Fifth Circuit has stated:
[P]ublic officials do not act improperly in publicly
disclosing charges against discharged employees, but they
must thereafter afford procedural due process to the
person charged. Moreover, the 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.
Rosenstein, 876 F.2d at 395. To prevail on a claim that a
plaintiff’s liberty interests were violated, the plaintiff must
show: (1) that she was discharged; (2) that stigmatizing charges
were made against her in connection with the discharge; (3) that
the charges were false; (4) that she was not provided notice or an
opportunity to be heard prior to her discharge; (5) that the
charges were made public; (6) that she requested a hearing to clear
20
A rehearing was granted by 884 F.2d 174 (5th Cir. 1989), and
the panel opinion was reinstated in part by 901 F.2d 61 (5th Cir.
1990). Certiorari was denied by 111 S. Ct. 153 (1990).
18
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her name; and (7) that the employer refused her request for a
hearing. Hughes, 204 F.3d at 226.21
The complaint is not a model of clarity as to whether
Plaintiff Caleb requested and was denied a name-clearing hearing
such as to support a liberty interest claim. It is alleged that
Caleb was told, “the effective date of your separation from HISD
will [sic] April 28, 2010.” Caleb alleges she was not afforded due
process before her demotion or discharge, and was “denied without
due process of law . . . the opportunity to confront the charges
and have a meaningful hearing to clear her name . . . .” Given
that the allegations are construed favorably to Plaintiff on a Rule
12(b)(6) motion, and because a fact intensive issue such as this is
better determined with an evidentiary record, the motion to dismiss
this claim as to Caleb will be denied.
21
The complaint alleges that “[W]hile Anderson, Cockerham, and
Banks each had a due process hearing and were not terminated with
the Texas Education Agency Independent Hearing Examiner’s finding
in each case the charges were unfounded by preponderance of the
evidence, all (except Lenton) were vindicated . . . .” The three
vindicated Plaintiffs allege no violation of their procedural due
process rights. The plain implication of the allegation that “all
(except Lenton) were vindicated,” is that Lenton also had a due
process, name-clearing hearing. Indeed, Lenton separately alleges
no liberty-interest due process claim.
19
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D. Equal Protection Claim
Caleb alleges that Defendant Grier denied her equal protection
of the law.22 “To state a claim under the Equal Protection Clause,
a § 1983 plaintiff must allege that a state actor intentionally
discriminated against the plaintiff because of membership in a
protected class.” Williams v. Bramer, 180 F.3d 699, 705 (5th Cir.
1999).23 Caleb, a black woman, alleges that “Grier has denied her
equal protection of the law in that he has treated her adversely
while not treating adversely white Principals in whose schools
occurred TAKS irregularities or cheating, and/or student record
alterations, and/or permitting faculty to cause minors to serve
alcoholic beverages for student credit, and/or alteration of
student dropout documents, and/or other violations of law and
policies.”24 Later in the complaint Caleb claims that she was
denied the same protections afforded to “white Principals or
Associate Principals Crum, Mosteit, Wichmann, and Dambrino.”25
Apart from stating their race, Caleb alleges no facts regarding any
of these individuals, their conduct as principals or associate
22
Id. at 98-99.
23
The class-of-one theory of equal protection does not apply
in the public employment context. Engquist v. Ore. Dep’t of Agr.,
128 S. Ct. 2146, 2155-57 (2008).
24
Document No. 48-1 at 98.
25
Id. at 111.
20
15-20297.1982
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 21 of 26
principals, how they were similarly situated to her, or how any of
the comparators was treated, or any other facts that would
plausibly state a claim for a violation of her equal protection
rights. Allegations must “raise a right to relief above the
speculative level.” Twombly, 127 S. Ct. at 1965. This claim is
likewise dismissed.26
IV. Kroger’s, Frizell’s, and Majlat’s Motions to Dismiss
Plaintiffs assert First Amendment retaliation claims and a
Fourteenth Amendment due process claim against Defendants Kroger,
Frizell, and Majlat. Kroger, Frizell, and Majlat move to dismiss
the claims against them because they are not state actors and
Plaintiffs have not alleged facts to support a conspiracy that
might render them liable despite not being state actors. They
further move for dismissal on the grounds that, even if they were
state actors, Plaintiffs have not stated a claim against them for
violations of Plaintiffs’ constitutional rights.
To state a viable claim under § 1983, “a plaintiff must
(1) allege a violation of rights secured by the Constitution or
laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state
26
Caleb is the only Plaintiff who asserts an equal protection
claim. Although the claim is only made against Defendant Grier, to
the extent that it may be construed to be alleged also against
HISD, it is also dismissed.
21
15-20297.1983
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 22 of 26
law.” Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th
Cir. 1994). “[T]he party charged with the deprivation [of a
federal right] must be a person who may fairly be said to be a
state actor. This may be because he is a state official, because
he has acted together with or has obtained significant aid from
state officials, or because his conduct is otherwise chargeable to
the State.” Lugar v. Edmondson Oil Co., Inc., 102 S. Ct. 2744,
2754 (1982). Determining whether a party’s conduct constitutes
state action is a “necessarily fact-bound inquiry.” Id. at 2755;
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 121 S. Ct.
924, 932 (2001). The fact that an individual is not a full-time
public employee with the state entity does not preclude that person
from being considered to be acting under color of law. See West v.
Atkins, 108 S. Ct. 2250, 2259 (1988) (“The fact that the State
employed respondent pursuant to a contractual arrangement that did
not generate the same benefits or obligations applicable to other
‘state employees’ does not alter the analysis. It is the
physician’s function within the state system, not the precise terms
of his employment, that determines whether his actions can fairly
be attributed to the State.”).
The complaint alleges that Kroger, Frizell, and Majlat were
working for HISD to conduct an investigation into the alleged
improprieties at Key. The complaint alleges that investigations
were generally conducted by HISD’s Department of Professional
22
15-20297.1984
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 23 of 26
Standards,27 implying that Kroger, Frizell, and Majlat were
performing duties normally carried out by HISD staff. Plaintiffs’
claims all arise out of Kroger’s, Frizell’s, and Majlat’s conduct
in performing the investigation, and in Kroger’s role in allegedly
leaking the report for publication. At the pleading stage,
therefore, Plaintiffs have stated sufficient facts to support the
assertion that Kroger, Frizell, and Majlat were acting under color
of law during the course of their investigation.
Defendants Kroger, Frizell, and Majlat also move for dismissal
on the basis that Plaintiffs fail to allege facts to support a
claim that these Defendants violated Plaintiffs’ Constitutional
rights. “Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 129 S. Ct. at 1948.
For the reasons explained at length above as to why
Plaintiffs’ claims against HISD and Grier are deficient, those same
claims are likewise insufficient to state a plausible right to
relief against Kroger, Frizell, and Majlat. Moreover, as to all
claims alleged against Kroger, Frizell, and Majlat, Plaintiffs fail
to allege that these Defendants had any authority to make decisions
regarding any of Plaintiffs’ employments and allege nothing but
conclusory allegations that Kroger, Frizell, and Majlat had any
27
Document No. 48-1 at 6.
23
15-20297.1985
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 24 of 26
role in making those decisions. The complaint alleges that Kroger,
Frizell, and Majlat conducted their investigations in a manner that
was abrasive, insulting, and demeaning to Plaintiffs. The
complaint further alleges that Kroger was involved in leaking the
investigation report to the press. These do not state
constitutional violations of Plaintiffs’ rights even if the outside
lawyers were regarded as state actors. The complaint charges Grier
with initiating termination proceedings against each of Plaintiffs
and complains of some review procedures conducted by HISD as part
of HISD’s process. Plaintiffs fail to allege any facts to support
an assertion that Kroger, Frizell, or Majlat had any role in
deciding whether Plaintiffs should be terminated, or that they were
the decision makers in any other adverse employment action against
any Plaintiff. Plaintiffs do not allege that Kroger, Frizell, and
Majlat owed Plaintiffs any process, or that they had any control
over deciding whether to give Plaintiffs a name-clearing hearing.
Plaintiffs allege no facts that would raise their right to relief
against any of these individuals above the speculative level.
Accordingly, Plaintiffs’ claims against Defendants Kroger, Frizell,
and Majlat are dismissed.
24
15-20297.1986
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 25 of 26
V. Order
For the foregoing reasons, it is
ORDERED that Defendants David Frizell and Esteban Majlat’s
Second Motion to Dismiss Pursuant to Rule 12(b)(6) (Document
No. 59) and Defendant Elizabeth Mata Kroger’s Third Motion to
Dismiss Pursuant to Rule 12(b)(6) (Document No. 60) are both
GRANTED, and all claims made by Plaintiffs Mable Caleb, Jackie
Anderson, Diann Banks, Herbert Lenton, and Patrick Cockerham
against Defendants Frizell, Majlat, and Kroger are DISMISSED WITH
PREJUDICE. It is further
ORDERED that Defendants Houston Independent School District’s
and Terry Grier’s Second Motion to Dismiss Pursuant to Rule
12(b)(6) (Document No. 64) is GRANTED in its entirety as to the
claims of Plaintiffs Anderson, Banks, Lenton, and Cockerham, and
all claims made by Plaintiffs Anderson, Banks, Lenton, and
Cockerham against these Defendants are DISMISSED WITH PREJUDICE;
and Defendants HISD’s and Terry Grier’s Second Motion to Dismiss is
GRANTED in part as to Plaintiff Caleb, and otherwise DENIED, and
all claims by Plaintiff Caleb against Defendants Houston
Independent School District and Terry Grier are DISMISSED WITH
PREJUDICE, except only for Plaintiff Caleb’s claims that Defendants
HISD and Terry Grier retaliated against her for making protected
speech to The Houston Chronicle in response to the report published
regarding her alleged misconduct, and Plaintiff Caleb’s claim that
25
15-20297.1987
Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 26 of 26
Defendants HISD and Grier deprived her of her liberty interest by
denying her a procedural due process hearing to clear her name.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 13th day of June, 2013.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
26
15-20297.1988
Tab B
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
[6] lawyer and private investigators did not violate procedural
due process rights of principal.
598 Fed.Appx. 227
United States Court of Appeals,
Fifth Circuit. Affirmed.
Mable CALEB; Patrick Cockerham; Diann
Banks; Herbert Lenton, Plaintiffs–Appellants Attorneys and Law Firms
v.
Doctor Terry GRIER; Houston Independent *228 Laurence Wade Watts, Watts & Associates, Missouri
School District, also known as HISD; City, TX, for Plaintiffs–Appellants.
Elizabeth Mata Kroger; David Frizell; Arturo Garcia Michel, John M. Hopkins, Esq., Kevin Frank
Esteban Majlat, Defendants–Appellees. Risley, Thompson & Horton, L.L.P., Houston, TX, Richard
Alan Morris, Adam David Courtin, Rogers, Morris & Grover,
No. 13–20582. | Jan. 6, 2015.
L.L.P., Houston, TX, for Defendants–Appellees.
Synopsis
Appeal from the United States District Court for the Southern
Background: Employees commenced action against
District of Texas. No. 4:12–CV–675.
school district, superintendent, lawyer hired for internal
investigation, and private investigators, alleging freedom of Before KING, DENNIS, and CLEMENT, Circuit Judges.
speech, retaliation, freedom of association, and procedural
due process claims. The United States District Court for Opinion
the Southern District of Texas, Ewing Werlein, Jr., J., 2013
WL 2902785, dismissed the claims against the lawyer and PER CURIAM: *
investigators, and granted motion in part for certification
* Pursuant to 5TH CIR. R. 47.5, the court has determined
and entry of final judgment, 2013 WL 5614310. Employees
appealed. 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.
Plaintiffs–Appellants appeal the district court's dismissal of
Holdings: The Court of Appeals held that:
their complaint for failure *229 to state a claim on which
relief can be granted. Appellants sued under 42 U.S.C. § 1983
[1] lawyer and investigators were not state actors;
for violations of their rights to freedom of speech, freedom of
association, and procedural due process. For the reasons that
[2] speech by teacher's assistant, teacher, and school
follow, we AFFIRM.
custodian was outside ambit of First Amendment protection
on retaliation claim;
[3] teacher's assistant, teacher, and school custodian did not I. Factual and Procedural Background 1
suggest intimate relationship protected by First Amendment;
1 Since we are reviewing the district court's judgment
[4] mere reference by lawyer that public school principal granting a motion under Federal Rule of Civil Procedure
whose employment was terminated had relationships with 12(b)(6), we accept the allegations in the amended
state representative and school board member did not complaint as true.
plausibly suggest that lawyer, or investigators, took any This case arises out of the Houston Independent School
action against principal based on that association; District's (“HISD”) investigation of Appellants' activities
while employed by HISD. Plaintiff–Appellant Mable Caleb
[5] teacher's assistant, teacher, and school custodian did not was formerly the principal of Key Middle School (“Key”)
state that they had been denied procedural due process; and and later of Kashmere High School (“Kashmere”). Key
and Kashmere are both schools within HISD. Plaintiff–
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
Appellant Diann Banks was a sixth grade math teacher at Key. was appointed. On Caleb's recommendation, *230 Bernett
Plaintiff–Appellant Herbert Lenton was an “operator” at Key, Harris took over as principal of Key.
meaning he was responsible for cleaning and maintenance
duties. Plaintiff–Appellant Patrick Cockerham was a teacher's After Terry Grier was hired, in September 2009, as the
assistant at Key, starting at the beginning of the 2008–2009 new superintendent of HISD, he decided to remove Harris
school year. as principal. Members of the community, including the
pastor of New Mt. Calvary Baptist Church, Willie Jones,
In 1993, Caleb was appointed principal of Key, a school were concerned about Grier's decision, as they believed
serving an “at risk” student population. In 2005, Richard that Harris was the right person for the principal's job at
Adebayo, Key's math department chairman/coordinator, Key. Reverend Jones asked Grier not to remove Harris until
was accused of facilitating student cheating on the Texas Grier had met with the community's leaders; Grier agreed.
Assessment of Knowledge and Skills (“TAKS”) standardized However, he allegedly went back on his promise and replaced
test. Caleb alleges that she exercised protected speech when Harris before any such meeting was held. On November 12,
she refused to agree with purportedly false accusations that 2009, a town hall meeting was held at New Mt. Calvary
Adebayo was involved with TAKS cheating at Key. Baptist Church to discuss Grier's decision to remove Harris
as principal of Key. At 5:00 p.m., Grier called Caleb “to
In 2007, students and staff alleged that they were made ill by ask if she would be present at the meeting and, if so, to
toxic mold within Key, though HISD apparently denied that apologize for his absence.” Caleb attended the meeting,
there was a mold problem. Caleb voiced agreement with the apologized for Grier's absence, and applauded the audience's
students' and staff's concerns to the media. Subsequently, the “display of personal responsibility and parental involvement
Centers for Disease Control and the Environmental Protection [by] attending the meeting and showing concern for their
Agency found mold at Key. HISD ordered that Key be children's education.” On November 13, 2009, Reverend
reconditioned in order to address the problem. Key was Jones and Texas State Representative Harold Dutton picketed
reopened under Caleb's leadership for the 2008–2009 school the HISD administration building in support of Harris. On
year. November 14, 2009, Grier attended a second meeting at
the church, where he was questioned and criticized by the
In January 2009, in order to help teachers prepare their audience.
students for the math portion of the 2008–2009 TAKS
test, preparation materials were distributed by Key's math Appellants allege that shortly thereafter Grier resolved to
department. During the preparation period, Banks was given a terminate Caleb. He allegedly decided to lay a basis for
handwritten set of math problems and was told that they were Caleb's termination by conducting an investigation into an
being delivered on behalf of the math department and that she anonymous allegation that Caleb, Lenton, and others had
needed to type the handwritten material. Rather than type the stolen HISD property from Key when they moved Caleb's
material, Banks re-wrote the set of math problems in neater belongings from Key to Kashmere on October 31, 2009.
handwriting. Later, Soo Jin Lee, another teacher at Key, typed
Banks's handwritten version, and then distributed them as a After her transfer to Kashmere, Caleb had asked Cockerham
practice set to the rest of Key's math teachers. Appellants and Lenton to transfer to Kashmere with her. During the
allege that those math problems were actual TAKS questions, summer of 2009, Cockerham was assigned to organize
and that Lee and another teacher had planned to introduce Kashmere's book room. After completing that task,
those questions into Key students' preparation materials in Cockerham was asked to return to Key to document
order to artificially inflate the students' scores, thus qualifying information on computers in the AV room, including a
the teachers for a bonus. Appellants allege that Banks was an computer assigned to Caleb. Later, Cockerham's involvement
unwilling participant in this scheme. with those tasks prompted HISD's investigators to question
him about whether school equipment, including the
In April 2009, Caleb was notified that she would be computers, was removed from Key.
transferred to serve as principal at Kashmere for the 2009–
2010 school year; she was told to accept the transfer, or she On October 31, 2009, Harris and Caleb decided to transfer
would be forced into early retirement. After accepting, Caleb Caleb's collection of personal items from Key, along with
served as transitional principal of Key, until a new principal “items needed to start up the new Kashmere administration.”
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
Caleb and Harris also decided to “move and 4 relocate any met with Kroger, Frizell, Majlat, and others for a second
HISD assets which should be at Kashmere from Key, in round of questioning. Allegedly, Kroger and Frizell called
accordance with HISD practices.” They allegedly scheduled Cockerham a liar and said that they could not understand
the move with an HISD administrator, Tony Shelvin. Later why he would protect Caleb. On December 18, 2009, Caleb
that day, Harris, Caleb, Lenton, and other Key employees attended a three hour meeting with Kroger, Frizell and Majlat.
moved Caleb's personal property and HISD property from
Key to Kashmere. On January 15, 2010, Cockerham was reassigned to the
HISD Transportation Department. Cockerham alleged that
Appellants allege that Grier used the movement of HISD he was transferred because he refused to corroborate the
property from Key to Kashmere as the basis for hiring false accusations against Caleb. HISD also attempted to
Defendant–Appellee Elizabeth Mata Kroger, a partner of the terminate Cockerham's employment. After a hearing, an
private law firm Martin, Disiere, Jefferson & Wisdom, L.L.P. Independent Hearing Officer found for Cockerham and
(“MDJW”). Kroger then hired Defendants–Appellees David refused to terminate him. Grier allegedly refused to reinstate
Frizell and Esteban Majlat to assist with the investigation. Cockerham or allow him to be rehired for the following
MDJW's involvement began with a preliminary inquiry school year. Consequently, Cockerham was unemployed until
to determine whether a more thorough investigation was 2011, when Grier allowed him to be reemployed by HISD.
necessary.
On January 20, 2010, Banks was told to appear at HISD's
On December 4, 2009, Cockerham was instructed by Caleb Administration Building, where Kroger interviewed her. On
to help Majlat and others locate and check the serial numbers February 25, 2010, Banks was told to schedule another
of computers. On December 7, 2009, Majlat met with meeting with Kroger. At that meeting, she was questioned
Cockerham for two hours. During the meeting, Majlat asked regarding the allegations of cheating on the TAKS exam.
whether *231 Cockerham had moved anything for Caleb, or It is alleged that Majlat and the others “suggest[ed] that
if Caleb had stolen district property or taken district property Adebayo had caused cheating,” and that Majlat and the others
home with her. Cockerham answered that he did not know. “coax[ed] Banks to confirm [Adebayo's] participation.”
According to the complaint, “[t]he meeting terminated with On April 8, 2010, Grier notified HISD's board that he
Cockerham stating that he had never taken any property for recommended Banks be terminated for insubordination,
Caleb or witnessed her take any property from the school.” On violating district policies, falsifying records, and other
December 10, 2009, Cockerham received a letter instructing offenses. On July 22, 2010, a hearing was conducted by an
him to meet with Kroger, Frizell and others. At the meeting, Independent Hearing Officer regarding Banks's termination.
Kroger explained that Cockerham was not the target of At the conclusion of the hearing, the hearing officer
the investigation, but he may have relevant information. completely exonerated Banks. But because Banks was
Cockerham left after he stated that he wouldn't answer any “deeply disturbed and distrustful of Defendants herein,” she
more questions without an attorney present. “believed [that] she was forced to resign from HISD in order
to save her career.”
On December 11, 2009, MDJW recommended that HISD hire
them to conduct an investigation of the “purchase, inventory Lenton was interviewed by Frizell on December 7, 2009.
and use of fixed assets, including technology equipment, Frizell explained that the purpose of the interview was to
intended for Key Middle School, as well as 5 the transfer determine what happened when the property was moved on
and removal of such assets to Kashmere High School.” The October 31, 2009. On December 15, 2009, Lenton met with
scope of the investigation expanded to include, in addition Frizell, Majlat, and others for a second time. During this
to the allegations of misappropriation of school property: meeting, Lenton was asked by *232 Majlat if Caleb had
“overtime work and benefits to relatives of Mabel Caleb ... taken anything from Key. At this meeting, Majlat and Frizell
[and] possible improprieties concerning TAKS testing at Key allegedly called Lenton a liar and accused him of using drugs
during [the] 2008–2009 academic school year.” and alcohol. Lenton stated that he was not going to lie about
Caleb to save his job. In October 2010, Lenton alleges that
Over the next several months, all of the Appellants were he was terminated, after an independent hearing, for refusing
questioned by Kroger, Frizell, and Majlat as part of the to make false statements about Caleb's involvement in the
internal investigation. On December 17, 2009, Cockerham alleged misappropriation of school district property.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
that allows the court to draw the reasonable inference that
On March 2, 2012, Appellants filed their original complaint. the defendant is liable for the misconduct alleged.” Ashcroft
On August 29, 2012, the plaintiffs filed their “Corrected Third v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
Amended Original Complaint,” the operative complaint for 868 (2009). “Threadbare recitals of the elements of a cause
purposes of this appeal, alleging First Amendment retaliation of action, supported by mere conclusory statements, do not
claims, due process claims, and an equal protection claim. suffice.” Id. Although a complaint “does not need detailed
Appellees filed motions to dismiss for failure to state a claim factual allegations ... [the] allegations must be enough to
under Federal Rule of Civil Procedure 12(b)(6). raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted).
On October 1, 2013, the district court dismissed all of Furthermore, “dismissal is proper if the complaint lacks an
the claims made by Banks, Lenton, and Cockerham. 2 allegation regarding a required element necessary to obtain
Furthermore, the district court dismissed all of Caleb's claims relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931
against Kroger, Frizell, and Majlat, and her equal protection (5th Cir.1995) (internal quotation *233 marks, citation, and
claim against Grier. However, the court did not dismiss all brackets omitted). Finally, “conclusory allegations or legal
of Caleb's claims against HISD and Grier. On September conclusions masquerading as factual conclusions will not
5, 2013, Appellees filed a joint motion for certification and suffice to prevent a motion to dismiss.” Beavers v. Metro. Life
entry of final judgment pursuant to Federal Rule of Civil Ins. Co., 566 F.3d 436, 439 (5th Cir.2009) (internal quotation
Procedure Rule 54(b). On October 14, 2013, the district court marks and citation omitted).
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 III. Freedom of Speech Claims
district court entered final judgment as to all claims made
by Caleb against Kroger, Frizell, and Majlat. However, the Appellants have failed to plead sufficient facts to state a
district court did not enter final judgment as to the claims First Amendment free speech retaliation claim. In order to
made by Caleb against HISD and Grier, noting that “Caleb's sufficiently plead such a claim, Appellants must have alleged
remaining claims against Grier and HISD in this case at least facts that show: (1) they “suffered an adverse employment
tangentially relate to ... much of the same set of facts as the decision; (2) [their] speech involved a matter of public
dismissed claims.” Accordingly, Caleb's claims made against concern; (3) [their] interest in commenting on matters of
HISD and Grier are not a part of this appeal. 3 public concern ... outweigh[s] the [Appellees'] interest in
promoting efficiency; and (4) [their] speech motivated the
2 adverse employment decision.” Beattie v. Madison Cnty. Sch.
The district court also dismissed all claims made by
Dist., 254 F.3d 595, 601 (5th Cir.2001) (internal citations and
another plaintiff, Jackie Anderson; however, her claims
quotation marks omitted). In other words, a plaintiff must
are not a part of this appeal.
plead facts to show that he “engaged in protected conduct and
3 For this reason, we do not address Caleb's equal that it was a motivating factor in [his] discharge.” Id. Further,
protection cause of action. 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
II. Standard of Review a public employee's right, in certain circumstances, to speak
as a citizen addressing matters of public concern,” Garcetti
“This court reviews a district court's dismissal under Rule
v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d
12(b)(6) de novo, accepting all well-pleaded facts as true
689 (2006), not all speech by public employees is protected
and viewing those facts in the light most favorable to the
by the First Amendment. For “when public employees make
plaintiffs.” Dorsey v. Portfolio Equities, 540 F.3d 333, 338
statements pursuant to their official duties, the employees are
(5th Cir.2008) (internal quotation marks omitted). In order
not speaking as citizens for First Amendment purposes, and
to survive a motion to dismiss, a complaint must plead
the Constitution does not insulate their communications from
“enough facts to state a claim to relief that is plausible on
employer discipline.” Id. at 421, 126 S.Ct. 1951; Williams v.
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007)
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has
( “These cases, when viewed as a whole, distinguish between
facial plausibility when the plaintiff pleads factual content
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
speech that is ‘the kind of activity engaged in by citizens who “In the typical case raising a state-action issue, a private
do not work for the government,’ and activities undertaken in party has taken the decisive step that caused the harm to the
the course of performing one's job. Activities undertaken in plaintiff, and the question is whether the State was sufficiently
the course of performing one's job are activities pursuant to involved to treat that decisive conduct as state action.” NCAA
official duties.” (internal citation omitted) (quoting Garcetti, v. Tarkanian, 488 U.S. 179, 192, 109 S.Ct. 454, 102 L.Ed.2d
547 U.S. at 423, 126 S.Ct. 1951)). However, “the mere fact 469 (1988). Yet this is not the typical case. Here, Caleb
that a citizen's speech concerns information acquired by virtue alleges that Kroger, Frizell, and Majlat violated her First
of his public employment does not transform that speech into Amendment rights merely by recommending her termination
employee—rather than citizen—speech.” Lane v. Franks, by HISD based on protected speech; it was HISD that did the
573 U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 actual firing. We hold that these allegations are insufficient to
(2014). Accordingly, “[t]he critical question under Garcetti is hold Kroger, Frizell, and Majlat liable as state actors.
whether the speech at issue is itself ordinarily within the scope
of an employee's duties, not whether it merely concerns those In NCAA v. Tarkanian, the Supreme Court confronted
duties.” Id. We first address Caleb's First Amendment claims a similar situation. The NCAA, a private association,
separately from those of Cockerham, Banks, and Lenton. investigated the recruiting practices of Tarkanian, the
basketball coach at the University of Nevada Las Vegas
[1] Caleb has failed to state a claim under section 1983 for (“UNLV”), a public university. Tarkanian, 488 U.S. at 185–
First Amendment retaliation. We begin by noting that only 86, 109 S.Ct. 454. Based on the NCAA's recommendation
Caleb's claims against Kroger, Frizell, and Majlat are before that Tarkanian be disciplined for violations of the NCAA's
us as part of this appeal; the district court has not entered recruiting rules, UNLV suspended Tarkanian, in part to avoid
final judgment as to Caleb's claims against HISD and Grier. further sanctions threatened by the NCAA if UNLV did not
Generally speaking, in order to state a claim under section adopt its recommendation. Id. at 186–87, 109 S.Ct. 454.
1983, the plaintiff must show that the defendant's challenged Tarkanian sued the NCAA under section 1983. Id. at 187–
conduct constituted “state action.” Rundus v. City of Dallas, 88, 109 S.Ct. 454. The Supreme Court noted that the case
634 F.3d 309, 312 (5th Cir.2011); see Blum v. Yaretsky, 457 presented a unique question, given that the private entity, the
U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). The NCAA, did not “take[ ] the decisive step that caused the harm
state action requirement preserves the “essential dichotomy” to the plaintiff.” Id. at 192, 109 S.Ct. 454. Therefore, the
set forth in the Fourteenth Amendment between a deprivation question was not “whether UNLV participated to a critical
of rights by the state, “subject to scrutiny under its provisions, extent in the NCAA's activities, but whether UNLV's actions
and private conduct, ‘however discriminatory or wrongful,’ in compliance with the NCAA rules and recommendations
*234 against which the Fourteenth Amendment offers no turned the NCAA's conduct into state action.” Id. at 193, 109
shield.” Jackson v. Metro. Edison Co., 419 U.S. 345, 349, S.Ct. 454. The Court held that they did not. Id. at 199, 109
95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (quoting Shelley v. S.Ct. 454. The Court relied on the fact that the NCAA could
Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)). not “directly discipline Tarkanian or any other state university
While the Supreme Court has pronounced several legal tests employee;” rather, the decision to adopt the recommendation
for determining whether challenged conduct is state action, of the NCAA was the university's. Id. at 197, 109 S.Ct. 454.
the core inquiry asks whether the deprivation of a federal right The same distinction applies here. Kroger, Frizell, and Majlat
is fairly attributable to the State. See Brentwood Academy are not alleged to have had any power to discipline HISD
v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295– employees. Rather, the conduct of which Caleb complains is
96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The Supreme a mere recommendation to HISD that she be disciplined—a
Court has described a two-part approach to resolving that recommendation that HISD was free to accept or reject. As
issue: first, “the deprivation must be caused by the exercise such, the Supreme Court's reasoning in Tarkanian leads to
of some right or privilege created by the State or by a rule of the conclusion that Kroger, Frizell, and Majlat were not state
conduct imposed by the state or a person for whom the State is actors, at least as far as Caleb's claims are concerned.
responsible;” second, “the party charged with the deprivation
must be a person who may fairly be said to be a state actor.” *235 To be sure, there are facts in Tarkanian that are
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. distinguishable from this case. In Tarkanian, the Court noted
2744, 73 L.Ed.2d 482 (1982). that, in the posture of the NCAA investigation, the NCAA
and UNLV were antagonists, comparing the situation to that
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
of public defenders, held not to be liable as state actors
in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, We also respectfully reject the district court's reasoning in
70 L.Ed.2d 509 (1981). Id. at 196, 109 S.Ct. 454 (“[T]he finding state action—that Kroger, Frizell, and Majlat were
NCAA is properly viewed as a private actor at odds with the “performing duties normally 13 carried out by HISD staff.”
State when it represents the interests of its entire membership The Supreme Court's “holdings have made clear that the
in an investigation of one public university.”). In contrast, relevant question is not simply whether a private group is
here HISD commissioned the internal investigation itself. serving a ‘public function.’ ” Rendell–Baker v. Kohn, 457
Further, unlike in Tarkanian, HISD used its governmental U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).
powers to facilitate the investigation by having administrators Rather, “the question is whether the function performed has
summon Appellants to meetings with Kroger, Frizell, and been ‘traditionally the exclusive prerogative of the state.’
Majlat. See id. at 197, 109 S.Ct. 454 (“[The NCAA] had no ” Id. (quoting Jackson, 419 U.S. at 353, 95 S.Ct. 449).
power to subpoena witnesses, to impose contempt sanctions, Appellants cite no authority for the proposition that internal
or to assert sovereign authority over any individual.”). investigations of employee misconduct are traditionally the
Yet other distinctions are countervailing. In Tarkanian, the exclusive *236 prerogative of the state. Rather, they merely
NCAA was able to coerce the university, through sanctions allege that, in practice, internal investigations are generally
and possible expulsion from the association, to adopt its conducted by HISD itself. But the fact that a state elects to
recommendation. Id. at 198, 109 S.Ct. 454. Here, Kroger, perform a public service itself does not make such a service
Frizell, and Majlat had no authority over HISD, much less the “traditionally the exclusive prerogative of the state.” See
ability to impose sanctions. On balance, we are not persuaded Rendell–Baker, 457 U.S. at 842, 102 S.Ct. 2764 (emphasis
that these distinctions affect the fundamental consideration omitted). As such, we hold that Appellants have failed to
in Tarkanian, which was that the NCAA's recommendation plead sufficient facts to show that Kroger, Frizell, and Majlat
was not the decisive step that caused the harm to the were state actors because they were performing functions
plaintiff—rather, UNLV retained decision-making authority traditionally exclusively reserved to the state. 4
to discipline its employee. See id. at 197–98, 109 S.Ct. 454.
4 Tangentially related is Texas Education Code Section
We also note that, even where the private party's act did
44.031(f), which allows school districts to hire outside
not itself deprive the plaintiff of his constitutional rights, a
attorneys without going through the normal bidding
showing of “joint action” would likely be sufficient to find process for awarding contracts.
state action. See id. at 197 n. 17, 109 S.Ct. 454. The joint
Given the foregoing, we conclude that the recommendation
action test provides that a private person can be held liable
by Kroger, Frizell, and Majlat as to Caleb was not state action.
as a state actor where “he is a willful participant in joint
As such, Caleb has failed to state a section 1983 claim against
activity with the State or its agents.” Adickes v. S.H. Kress
Kroger, Frizell, and Majlat.
& Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970). This test generally requires a showing of a conspiracy
[2] Cockerham, Banks, and Lenton have also failed to
between the private party and the state official. See id.; Dennis
state a claim for First Amendment retaliation, because their
v. Sparks, 449 U.S. 24, 28–29, 101 S.Ct. 183, 66 L.Ed.2d 185
speech was made pursuant to their official duties. In their
(1980). Yet Appellants expressly waived any argument for
complaint, Cockerham, Banks, and Lenton alleged that they
state action based on a conspiracy between Kroger and HISD
exercised free speech when they refused to agree with
in their response to Kroger's Third Rule 12(b)(6) Motion to
purportedly false accusations made against Caleb in their
Dismiss before the district court when they conceded that
their conspiracy argument “has been abandoned explicitly.” interviews by Appellees. 5 But they also allege that they were
An appellant who abandons an argument before the district ordered by HISD officials to take part in those interviews.
court may not resurrect it on appeal. MacArthur v. Univ. of Furthermore, the plaintiffs have pled facts that show that
Tex. Health Ctr. at Tyler, 45 F.3d 890, 896 (5th Cir.1995) these meetings were directly related to their employment.
(“[W]e must dismiss this appeal ... on the basis that the one The interviews concerned allegations of cheating on state
claim that [the plaintiff] raises—Title VII retaliation—was standardized tests and misappropriation of school property.
abandoned at the district court, thus is not embodied in the Accordingly, it is undisputed that the speech at issue here
district court judgment, and consequently is not before this was made within the chain of command and that it was
court on appeal.”). related to the employees' jobs, which are both factors that this
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
court has previously considered in determining that speech Id. Those intimate human relationships include marriage, the
was made as an employee and not as a citizen. See, e.g., begetting and bearing of children, child rearing and education,
Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008) (“Cases and cohabitation with relatives. See Bd. of Dirs. of Rotary Int'l
from other circuits are consistent in holding that when a v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940,
public employee raises complaints or concerns up the chain 95 L.Ed.2d 474 (1987). The second category is association
of command at his workplace about his job duties, that speech for the purposes of engaging in other activities protected by
is undertaken in the course of performing his job.”). Further, the First Amendment, such as speech or the free exercise of
it seems obvious to state that assisting in an employer's religion. United States Jaycees, 468 U.S. at 618, 104 S.Ct.
investigation into workplace theft is ordinarily within the 3244.
scope of an employee's job duties, equally so to state that
it is ordinarily within the scope of a teacher's duties to If Cockerham's, Banks's, and Lenton's claimed association
ensure compliance with standardized testing procedures. That is to be protected under the First Amendment, it must
Cockerham, Banks, and Lenton were required to speak in the fall under the first category. The types of association
course of their assistance in the investigation did not “mean properly characterized as “intimate human relationships” are
[their] supervisors were prohibited from evaluating [their] limited to “relationships that presuppose deep attachments
performance.” Garcetti, 547 U.S. at 422, 126 S.Ct. 1951; see and commitments to the necessarily few other individuals
also id. at 424, 126 S.Ct. 1951 (“[T]he First Amendment does with whom one shares not only a special community of
not prohibit managerial discipline based on an employee's thoughts, experiences, and beliefs but also distinctively
expressions made pursuant to official responsibilities.”). As personal aspects of one's life.” Wallace v. Tex. Tech Univ., 80
such, the speech that Cockerham, Banks, and Lenton have F.3d 1042, 1051–52 (5th Cir.1996) (internal quotation marks
alleged as the basis for their employer's retaliation was made omitted). These relationships “are distinguished by such
pursuant to their official duties. It is therefore outside the attributes as relative smallness, a high degree of selectivity
*237 ambit of First Amendment protection, and they have in decisions to begin and maintain the affiliation, and
failed to state a claim on which relief may be granted. seclusion from others in critical aspects of the relationship.”
United States Jaycees, 468 U.S. at 620, 104 S.Ct. 3244.
5 That Appellants have alleged retaliation based on their The First Amendment “does not include a generalized
refusal to speak does not affect the analysis. See Riley right of social association.” Wallace, 80 F.3d at 1051
v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 796– (internal quotation marks omitted). For example, we have
97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (“There is previously held that association in certain private clubs was
certainly some difference between compelled speech and protected under the freedom of association, but that a college
compelled silence, but in the context of protected speech, basketball coach's relationship with his players was not. See
the difference is without constitutional significance, for id. at 1052. It therefore follows that “[r]elationships with
the First Amendment guarantees ‘freedom of speech,’ a colleagues ordinarily are not afforded protection as intimate
term necessarily comprising the decision of both what to associations.” Hernandez v. Duncanville Sch. Dist., No. 3:04
say and what not to say.”).
CV 2028 BH(B), 2005 WL 3293995, at *10 (N.D.Tex.
Dec. 5, 2005) (citing Swanson v. City of Bruce, Miss., 105
Fed.Appx. 540, 542 (5th Cir.2004) (unpublished)); see also
IV. Free Association Claims
Martsolf v. Christie, 552 Fed.Appx. 149, 152 (3d Cir.2013)
[3] In order to state a claim for retaliation based on the First (unpublished); Colbert v. City of McKinney, No. 4:12cv612,
Amendment right to freedom of association, a plaintiff must 2013 WL 3368237, at *7 (E.D.Tex. July 3, 2013).
show: “(1) he suffered an adverse employment action, (2) his
interest in ‘associating’ outweighed the [employer's] interest Here, Cockerham, Banks, and Lenton have not alleged
in efficiency, and (3) his protected activity was a substantial sufficient facts to state a freedom of association claim. They
or motivating factor in the adverse employment action.” Hitt have alleged that they “exercised protected association with
v. Connell, 301 F.3d 240, 246 (5th Cir.2002). The First Caleb, in that they constituted members of what Majlat [had]
Amendment protects two broad categories of association. characterized ... as Caleb's ‘clique.’ ” However, without more,
Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S.Ct. this “association” appears to be nothing more than a group
3244, 82 L.Ed.2d 462 (1984). The first protects “choices to of close work colleagues. While the complaint does allege
enter into and maintain certain intimate human relationships.” that “Cockerham and Lenton were members of a small group
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
of individuals chosen by Caleb to ... move with her [to employee is ‘discharged in a manner that creates a false and
Kashmere]” and that Caleb was “highly selective of those defamatory impression about him and thus stigmatizes him
with whom she chose to ... go with her to Kashmere,” and forecloses him from other employment opportunities.’ ”
such selectivity is no different from any manager's *238 Bledsoe v. City of Lake Horn, Miss., 449 F.3d 650, 653 (5th
prudent hiring decisions. These allegations are consistent Cir.2006) (quoting White v. Thomas, 660 F.2d 680, 684 (5th
with a relationship amongst colleagues and fail to suggest an Cir.1981)). “ ‘[T]he process due such an individual is merely
intimate relationship protected by the First Amendment. a hearing providing a public forum or opportunity to clear
one's name, not actual review of the decision to discharge the
[4] Caleb's claims against Kroger, Majlat, and Frizell also employee.’ ” Hughes v. City of Garland, 204 F.3d 223, 226
fail. Caleb's freedom of association claim derives from the (5th Cir.2000) (quoting Rosenstein, 876 F.2d at 395).
second category of protected association—association for
political purposes. She alleges that her right to political In order to state a claim that their liberty interest to a name
association was violated as the Appellees retaliated against clearing hearing was infringed, Appellants must have alleged:
her for associating with a state representative, Representative
Dutton, at the town hall meeting on November 12, 2009 (1) that [they were] discharged; (2)
and with HISD Board Member Carol Mims Galloway. Aside that stigmatizing charges were made
from conclusory allegations, the only facts asserted in the against [them] in connection with the
complaint that could plausibly be understood to relate to discharge; (3) that the charges were
Caleb's relationships with these individuals are that Majlat false; (4) that [they were] not provided
stated that Caleb had “friends in high places” and that, if notice or an opportunity to be heard
anyone reported her to the HISD board, Caleb would find prior to [their] discharge; (5) that
out about it immediately. Yet even assuming those statements the charges were made public; (6)
referred to Dutton and Galloway, merely noting that Caleb that [they] requested a hearing to
had those relationships does not plausibly suggest that Majlat, clear [their] name[s]; and (7) that the
much less Frizell and Kroger, took any action against Caleb employer refused [their] request for a
based on that association. As such, Caleb has failed to state hearing.
a claim against Kroger, Frizell, and Majlat based on her First
Id. The district court did not err in dismissing the complaint
Amendment rights to freedom of association.
for failure to state a *239 procedural due process claim,
because the allegations in the complaint itself establish that
Banks, Cockerham, and Lenton cannot meet the elements of
V. Procedural Due Process Claims the claim. To the contrary, Banks, Cockerham, and Lenton
have alleged facts that show that they were given a hearing to
[5] Appellants have also failed to state a claim for violations address the charges associated with the investigation.
of their procedural due process rights. We first note that,
assuming the allegations in the complaint are true, Appellants Cockerham has alleged that he was afforded an independent
were entitled to procedural due process protections. “It is now hearing and that the independent hearing officer refused
beyond any doubt that discharge from public employment to terminate him. Banks has pleaded that she received a
under circumstances that put the employee's reputation, honor two-day independent hearing where she had the opportunity
or integrity at stake gives rise to a liberty interest under the to “proclaim[ ] the falsity of the charges against her.”
Fourteenth Amendment to a procedural opportunity to clear Furthermore, Lenton has alleged that he requested and
one's name.” Rosenstein v. City of Dallas, Tex., 876 F.2d 392, received a due-process hearing before an independent hearing
395 (5th Cir.1989), reh'g granted, 884 F.2d 174, reinstated officer. Cockerham's, Banks's, and Lenton's failure to allege
901 F.2d 61 (5th Cir.1990) (en banc). Government officials that they asked for and were refused a hearing is dispositive.
do not violate the Fourteenth Amendment by “publicly See Bledsoe, 449 F.3d at 653 (plaintiffs must plead that they
disclosing charges against discharged employees,” provided requested and were denied a name-clearing hearing). It is
that they afford procedural due process protections that immaterial whether the Plaintiffs were given an opportunity
allow the implicated employees to clear their names. Id. to clear their names before the Kroger report was released.
“[A] liberty interest is infringed, and the right to notice and See Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir.1984)
an opportunity to clear one's name arises, only when the (“It is not necessary that the hearing occur prior to publication
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060
of the stigmatizing charges.” (quoting Wells v. Hico Indep.
[6] As to Caleb's claims, she has alleged no facts indicating
Sch. Dist., 736 F.2d 243, 256–57 (5th Cir.1984))). As to
that Kroger, Frizell, and Majlat had any ability, authority, or
Lenton's claim relating to the incident with White at his due
even influence to deny her access to a name-clearing hearing,
process hearing, we do not address the issue as it was not
much less that they did so. As such, she has failed to state
adequately briefed. See United States v. Scroggins, 599 F.3d
a claim for violation of her procedural due process rights by
433, 446 (5th Cir.2010) ( “A party that asserts an argument
Kroger, Frizell, and Majlat.
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, VI. Conclusion
as such, it is waived. See Fed. R.App. P. 28(a)(8)(A) (stating
that the argument must contain “appellant's contentions and For the foregoing reasons, the judgment of the district court
the reasons for them, with citations to the authorities and is AFFIRMED.
parts of the record on which the appellant relies” (emphasis
added)); Scroggins, 599 F.3d at 447 (“In addition, among
All Citations
other requirements to properly raise an argument, a party
must ordinarily identify the relevant legal standards and 598 Fed.Appx. 227, 316 Ed. Law Rep. 29, 2015 IER Cases
any relevant Fifth Circuit cases.” (internal quotation marks 174,060
omitted)).
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9
Tab C
Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MABLE CALEB, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. H-12-675
§
DR. TERRY GRIER and HOUSTON §
INDEPENDENT SCHOOL DISTRICT, §
§
Defendants. §
MEMORANDUM AND ORDER
Pending are Defendants Houston Independent School District and
Terry Grier’s Motion for Summary Judgment and Entry of Final
Judgment on All Claims (Document No. 136), Plaintiff’s Motion for
Leave to Amend Complaint to Reassert Dismissed Claims (Document No.
162), and Defendants Houston Independent School District and Terry
Grier’s Objections to Plaintiff’s Summary Judgment Evidence
(Document No. 165). After carefully considering the motions,
responses, reply, sur-reply, and applicable law, the Court
concludes as follows.
I. Background
Plaintiff Mable Caleb (“Plaintiff”) was formerly employed by
Defendant Houston Independent School District (“HISD”) as the
principal of Key Middle School (“Key”) and later, of Kashmere High
School (“Kashmere”). Plaintiff’s Corrected Third Amended Original
15-20297.5607
Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 2 of 26
Complaint--111 pages in length--alleges, in essence, that HISD’s
Superintendent, Defendant Dr. Terry Grier (“Grier,” and together
with HISD, “Defendants”) targeted Plaintiff for dismissal because
of things she said and people with whom she associated, and that he
instituted a harassing investigation into her activities at Key and
her transition when she was appointed principal at Kashmere.1 HISD
retained outside counsel, Elizabeth Mata Kroger (“Kroger”) and her
law firm, to conduct the investigation, which culminated in an
extensive March 5, 2010 Investigation Report finding that Plaintiff
and other HISD employees had engaged in improprieties including
(1) removal of equipment from Key, (2) solicitation of
contributions from teachers who wished to teach summer school
classes, (3) unauthorized student-targeted fundraising activities,
(4) nepotism and payroll discrepancies, and (5) testing impro-
prieties relating to the 2009 administration of the Texas
Assessment of Knowledge and Skills (“TAKS”) test.2
Grier testifies in his Declaration that based on the findings
of the Investigation Report, he decided to terminate Caleb.3 On or
about March 9, 2010, a Houston Chronicle reporter made a request
under the Texas Public Information Act for the Investigation
1
Document No. 48-1 (Pls.’ Corrected 3d Am. Orig. Compl.).
2
Document No. 136, ex. C-4.
3
Id., ex. A ¶ 11.
2
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Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 3 of 26
Report, pursuant to which Grier released the Report.4 On March 22,
2010, Caleb made a written 10-page response to HISD to rebut the
findings of the Investigation Report and delivered to HISD a
separate letter, also dated March 22, 2010, notifying Defendants of
her intent to retire effective August 31, 2010 “due to personal and
family medical issues.”5 Plaintiff released her 10-page response
to The Houston Chronicle (the “Chronicle”) as an “open letter,” and
the Chronicle on March 22, 2010 published an article that quoted
extensively from the written response denying the allegations of
wrongdoing and stated that Plaintiff had given notice to retire.6
On April 8, Grier recommended to HISD’s Board (the “Board”) that it
terminate or non-renew the contracts of Caleb and several other Key
employees based on the Investigative Report’s findings, and the
Board terminated Caleb.7
In cooperation with Defendants and Kroger, the Texas Education
Agency launched a separate investigation into the TAKS testing
improprieties, and ultimately sought to revoke Caleb’s teaching
certificate.8 After a hearing, the State Office of Administrative
Hearings concluded that “a severe breach of testing security and
4
Id., ex. A ¶ 12.
5
Document No. 160, ex. 20 at 3 of 5; id., ex. 35.
6
Id., ex. 10.
7
Document No. 136, ex. A ¶ 14; id., ex. A-5.
8
Document No. 160, ex. 33 at 5 of 63.
3
15-20297.5609
Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 4 of 26
confidentiality” had occurred, but that Plaintiff “did not commit
any act or fail to take any action as principal of [Key] that
resulted in a breach of test security.”9
Plaintiff, together with four other HISD employees who had
been subjects of HISD’s investigation, filed this suit against
Defendants, Kroger, and two of Kroger’s investigators.10 After
several rounds of amendments and motions to dismiss, the Court on
June 13, 2013 dismissed all claims “except only for Plaintiff
Caleb’s claims that Defendants HISD and Terry Grier retaliated
against her for making protected speech to The Houston Chronicle in
response to the report published regarding her alleged misconduct,
and Plaintiff Caleb’s claim that Defendants HISD and Grier deprived
her of her liberty interest by denying her a procedural due process
hearing to clear her name.”11 The Court then entered a Final
Judgment dismissing all claims of the plaintiffs other than
Plaintiff Caleb, and dismissing all of Plaintiff Caleb’s claims
against all defendants other than Grier and HISD.12 The Fifth
Circuit affirmed the decision on appeal.13
9
Id., ex. 33 at 5 of 63, 59 of 63.
10
Document No. 1 (Orig. Compl.).
11
Document No. 98 at 25.
12
Document No. 114.
13
Caleb v. Grier, No. 13-20582, 2015 WL 66478 (5th Cir.
Jan. 6, 2015) (found at Document No. 145).
4
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Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 5 of 26
Defendants now move for summary judgment on Plaintiff’s two
remaining claims, arguing that (1) Plaintiff’s First Amendment
retaliation claim fails because her speech to the Chronicle was not
a substantial or motivating factor in her termination,
(2) Plaintiff’s due process claim fails because she did not request
a name-clearing hearing, (3) there is no evidence of an HISD Board
of Trustees’ unconstitutional policy or practice that could subject
HISD to liability under § 1983, and (4) Grier is protected by
qualified immunity.14 Plaintiff responds to Defendants’ motion and
also moves for leave to amend her complaint and reassert her
dismissed claims against Defendants.15
II. Plaintiff’s Motion for Leave to Amend
Plaintiff seeks leave to amend her complaint to reassert the
following claims which were dismissed in June 2013: (1) Plain-
tiff’s First Amendment retaliation claim based on her November 12,
2009 speech at a town hall meeting, (2) Plaintiff’s First Amendment
retaliation claim based on her November 13, 2009 speech in a
private meeting with Grier, (3) Plaintiff’s First Amendment freedom
of association claim based on her political associations, and
(4) Plaintiff’s Equal Protection claim.16 Defendants oppose the
14
Document No. 136.
15
Document Nos. 158, 162.
16
Document No. 162.
5
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Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 6 of 26
motion, arguing that (1) Plaintiff has previously had multiple
opportunities to cure pleading deficiencies and failed to do so,
(2) Plaintiff unnecessarily delayed seeking leave to amend,
(3) amendment would be futile, and (4) Defendants would be severely
prejudiced if amendment is allowed.17
Plaintiff’s motion is largely a second motion for
reconsideration of the Court’s Order of June 13, 2013.18
Plaintiff’s previous motion for reconsideration, entitled “Motion
for New Trial,”19 was denied by Order dated September 3, 2013.20 In
the previous motion, as here, Plaintiff complains about dismissal
of her November 12, 2009 and November 13, 2009 public speech
claims, and of her freedom of association claim. Serial motions
for reconsideration are not favored, and here there is only a
rehash of what previously was considered. See LeClerc v. Webb, 419
F.3d 405, 412 n.13 (5th Cir. 2005) (“A motion for reconsideration
may not be used to rehash rejected arguments or introduce new
arguments.”).
Plaintiff already has been allowed multiple amendments, and
failed to correct the deficiencies despite two earlier rounds of
17
Document No. 166.
18
Document No. 98.
19
Document No. 101.
20
Document No. 108.
6
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Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 7 of 26
motions to dismiss.21 See, e.g., Herrmann Holdings Ltd. v. Lucent
Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002) (affirming denial of
leave to replead where plaintiff already had twice been given leave
to amend). For all of these reasons, as well as the inexplicable
filing of the motion more than 20 months after the claims were
dismissed and the unfair prejudice that Defendants would suffer if
long-since dismissed claims were now resurrected, Plaintiff’s
Motion for Leave to Amend is denied.
III. Defendants’ Evidentiary Objections
Defendants object to several exhibits attached by Plaintiff to
her Response to Defendants’ Motion for Summary Judgment.22
Defendants’ objection to the “Rhetorical Analysis” of
Dr. Kevin Cummings (Plaintiff’s Exhibit 12) is SUSTAINED because
Dr. Cummings was not timely disclosed as an expert; moreover, the
Court previously denied as untimely Plaintiff’s attempt to name
Dr. Cummings as an expert witness.23 See FED. R. CIV. P. 37(c)(1)
21
See Document No. 98 at 1 n.1 (June 13, 2013 Memorandum and
Order dismissing most of Plaintiff’s claims) (“In light of
Plaintiffs’ prior filings of complaints--the Third Amended
Complaint is now under review--and with no consequential
transactions, occurrences, or events having occurred after
Plaintiffs filed their current pleading of more than 100 pages in
length, the Motion to file Supplement (Document No. 92) is
DENIED.”) (emphasis in original).
22
Document No. 165.
23
Document No. 98 at 1-2 n.1 (“Plaintiffs’ Motion for Leave
to File Designation of Expert Witness (Document No. 83), which is
7
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Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 8 of 26
(“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.”).
Defendants’ hearsay objection to newspaper articles that are
Plaintiff’s Exhibits 11, 22, 29, 30, and 31 is SUSTAINED, and the
articles are excluded as evidence of the truth of the matters
asserted therein; but the objection is OVERRULED as to Plaintiff’s
limited offers for the purposes of showing newspaper coverage of
HISD events and exhibiting articles about which Grier was
questioned in his deposition.
Defendants’ relevance objection to the affidavit of Carol Mims
Galloway (Plaintiff’s Exhibit 15), which Plaintiff admits “does not
relate to facts of this case,”24 is SUSTAINED.
Defendants’ relevance and foundation objections are SUSTAINED
as to Plaintiff’s Exhibit 23, which includes an affidavit of Glen
White and part of an affidavit of Tony Shelvin, both unrelated to
Plaintiff, and unauthenticated documents relating principally to
the investigation of Herbert Lenton.
opposed by Defendants HISD, Grier, and Kroger, is DENIED as having
not been timely filed before the deadline for identifying expert
witnesses expired.”).
24
Document No. 171 at 2.
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Defendants’ relevance objection to the affidavit of Sabrina
Norman and news article at Plaintiff’s Exhibit 25 is OVERRULED.
Defendants’ hearsay objection to the news article is SUSTAINED.
Defendants’ relevance and foundation objections to the
declaration of Rep. Harold Dutton (Plaintiff’s Exhibit 2) are
OVERRULED.
Those portions of the evidence to which objections are
sustained are STRICKEN, and all remaining objections are OVERRULED.
IV. Motion for Summary Judgment
A. Legal Standard
Rule 56(a) provides that “[t]he court shall grant summary
judgment 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). Once the movant carries
this burden, the burden shifts to the nonmovant to show that
summary judgment should not be granted. Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing
a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading, and unsubstantiated
assertions that a fact issue exists will not suffice. Id. “[T]he
nonmoving party must set forth specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its
case.” Id. “A party asserting that a fact cannot be or is
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genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . . or (B) showing
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1).
“The court need consider only the cited materials, but it may
consider other materials in the record.” Id. 56(c)(3).
In considering a motion for summary judgment, the district
court must view the evidence “through the prism of the substantive
evidentiary burden.” Anderson v. Liberty Lobby, Inc., 106 S. Ct.
2505, 2513 (1986). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986). “If the record, viewed in
this light, could not lead a rational trier of fact to find” for
the nonmovant, then summary judgment is proper. Kelley v. Price-
Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other
hand, if “the factfinder could reasonably find in [the nonmovant’s]
favor, then summary judgment is improper.” Id. Even if the
standards of Rule 56 are met, a court has discretion to deny a
motion for summary judgment if it believes that “the better course
would be to proceed to a full trial.” Anderson, 106 S. Ct. at
2513.
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B. Analysis
1. First Amendment Retaliation
Plaintiff’s First Amendment retaliation claim is that
“Defendants HISD and Terry Grier retaliated against her for making
protected speech [through her ‘open letter’] to The Houston
Chronicle in response to the report published regarding her alleged
misconduct.”25 This claim relates to a March 22, 2010 article
written by Ericka Mellon in the Chronicle, reporting Plaintiff’s
announcement on that same date that she intended to retire.26 The
article reported:
HISD Superintendent Terry Grier said he had not seen
Caleb’s letter giving notice. But he said he would
discuss with the school district’s attorneys whether to
accept her retirement or to fire her sooner. The school
board would have to approve the termination, and it could
end up in an expensive legal battle.27
After summarizing portions of Plaintiff’s written response to the
investigation, in which she maintained her innocence of any
wrongdoing and characterized the investigation as a “personal
attack” by Grier, the article concluded by quoting Grier: “‘It’s
sad that she wants to blame me for this type of conduct at Key and
25
Document No. 98 at 25.
26
Document No. 159, ex. 10.
27
Id., ex. 10 at 1.
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at Kashmere,’ Grier said. ‘Nothing could be further from the
truth.’”28
To establish a § 1983 claim for retaliation against protected
speech, Plaintiff must show: (1) she suffered an adverse employment
action; (2) she spoke as a citizen on a matter of public concern;
(3) Plaintiff’s interest in the speech outweighs the public
employer’s interest in efficiency; and (4) the speech precipitated
the adverse employment action.29 Nixon v. City of Houston, 511 F.3d
494, 497 (5th Cir. 2007). Once a plaintiff has shown that his
protected speech “was a substantial or motivating factor in the
defendant’s adverse employment decision, a defendant may still
avoid liability by showing, by a preponderance of the evidence,
that it would have taken the same adverse employment action even in
the absence of the protected speech.” Haverda v. Hays Cnty., 723
F.3d 586, 591-92 (5th Cir. 2013) (citing Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 97 S. Ct. 568, 576 (1977)). “An
employee can, however, refute that showing by presenting evidence
that ‘his employer’s ostensible explanation for the discharge is
28
Id., ex. 10 at 3.
29
As noted in Court’s June 13, 2013 Memorandum and Order,
“[a]lthough [Plaintiff’s] complaint does not cite 42 U.S.C. § 1983,
Section 1983 is the statute that provides a private cause of action
for redressing a violation of federal law or ‘vindicating federal
rights elsewhere conferred.’” Document No. 98 at 5 (citing
Albright v. Oliver, 114 S. Ct. 807, 811 (1994)).
12
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merely pretextual.’” Id. at 592 (citing Coughlin v. Lee, 946 F.2d
1152, 1157 (5th Cir. 1991)).
Defendants do not dispute that Plaintiff suffered an adverse
employment action when she was terminated by HISD on April 8, 2010,
and the Court assumes--as Plaintiff insists--that Plaintiff spoke
as a citizen on a matter of public concern, and that her interest
in the speech outweighs HISD’s interest in efficiency.30 Defendants
argue, however, that there is no evidence that Plaintiff’s speech
to the Chronicle was a motivating factor in Grier’s decision to
recommend her termination; to the contrary, Grier wanted Plaintiff
fired because he believed that her discharge was warranted by the
findings of the Investigation Report.31 Plaintiff responds that the
30
Defendants also “assum[e] arguendo” that Plaintiff’s speech
to the Chronicle was protected, but reurge in a footnote their
argument--which the Court rejected when ruling on their motion to
dismiss--that Caleb’s speech is not protected because it concerned
her individual employment and answered claims about her misconduct.
Document No. 136 at 13, n.6. Although “[s]peech that is primarily
motivated by, or primarily addresses, the employee’s own employment
status rather than a matter of public concern does not give rise to
a cause of action under § 1983,” Foley v. Univ. of Houston Sys.,
355 F.3d 333, 341 (5th Cir. 2003) (emphasis added), Plaintiff’s
employment and the allegations against her had received extensive
media coverage in this case after Defendants released video footage
and the Investigation Report to the press. Thus, viewing the
evidence on summary judgment in the light most favorable to the
non-movant, Plaintiff’s evident release to the Chronicle of her
written response to HISD may therefore arguably be characterized as
addressing a matter of public concern. See Connick v. Myers, 103
S. Ct. 1684, 1690 (1983) (“Whether an employee’s speech addresses
a matter of public concern must be determined by the content, form,
and context of a given statement, as revealed by the whole
record.”).
31
Document No. 136 at 14-21.
13
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close timing between her speech to the Chronicle and her
termination is sufficient to make out a prima facie case of
retaliation, and that Grier’s purported reliance on the
Investigation Report is pretextual because the report “found the
opposite of what Grier says he believed and for which he decided to
terminate Caleb.”32
Defendants first argue that “there is nothing in the record or
Plaintiff’s petition to indicate that Grier had seen the article at
the time he decided to terminate Caleb, or before the Board vote on
her termination.”33 Grier testified in his deposition that he did
not recall, but did not deny, his reported conversation with Mellon
that resulted in her use of quotes attributed to him in the
Chronicle article.34 However, Grier’s quotes themselves raise an
inference that he was aware--if only because of his conversation
with Mellon--of at least some of Plaintiff’s speech to the
Chronicle; namely, that Plaintiff had submitted a notice of her
intent to retire and that she “want[ed] to blame [Grier] for this
type of conduct at Key and Kashmere.”35 This evidence when
construed in the light most favorable to Plaintiff is sufficient to
32
Document No. 158 at 28.
33
Document No. 136 at 15.
34
Document No. 159, ex. 3 at Vol. 2, 78:1-79:7.
35
Id., ex. 10 at 3 of 6.
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raise at least a fact issue that Grier had notice of Plaintiff’s
speech to the Chronicle before he recommended her termination.
Plaintiff produces no direct evidence that Defendants
terminated her because of her speech to the Chronicle, and relies
only on the close timing between her speech and termination. In
evaluating a First Amendment retaliation claim, “[c]lose timing
between an employee’s protected activity and an adverse employment
action can be a sufficient basis for a court to find a causal
connection required to make out a prima facie case of retaliation.”
Mooney v. Lafayette Cnty. Sch. Dist., 538 F. App’x 447, 454 (5th
Cir. 2013) (citing Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001) (reversing summary judgment dismissal of Title VII
retaliation claim)). “[T]emporal proximity between protected
activity and an adverse employment action should be viewed in the
context of other evidence. The causal connection prong, for
example, may also be satisfied when the plaintiff relies upon a
chronology of events from which retaliation may plausibly be
inferred.” Id. (citing Brady v. Houston Indep. Sch. Dist., 113
F.3d 1419, 1424 (5th Cir. 1997)) (footnote omitted).
The relevant chronology of events, according to Plaintiff,
began in mid-November 2009, when “Grier, the relatively new
Superintendent of HISD, was publically [sic] embarrassed by the
community church rally where he was labeled a ‘liar,’ picketed, and
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chided by Caleb.”36 Plaintiff argues that shortly thereafter, Grier
retained investigators “for the specific purpose of investigating
of Caleb and Key Middle School,” and that “Grier targeted Mable
Caleb” in that investigation.37 The uncontroverted summary judgment
evidence is that the HISD investigation began after HISD received
an anonymous complaint in November, 2009, concerning “funny
business” at Key, stating that “many things are missing from the
school,” and encouraging examination of surveillance tapes on
October 31, 2009, a Saturday. When the tapes were examined persons
were seen carrying various boxes and materials out of the audio
visual rooms at Key, and Plaintiff is seen observing some of the
activity.38 Two men--the plant operator at Kashmere and the
Kashmere custodian--were seen exiting with various boxes and
equipment that were placed in a truck driven away from Key. Items
removed included a desk, a leather chair, computer equipment in
original boxes, metal cabinets in their original boxes, and also
some personal items belonging to Plaintiff.
The Investigation Report was issued on March 5, 2010, the
Chronicle article was published on March 22, 2010, and Plaintiff
36
Document No. 158 at 25-26. As noted above, Plaintiff
attempts to reurge her dismissed retaliation claims based on these
earlier events.
37
Id. at 26.
38
Document No. 136, ex. C-2.
16
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was terminated at the April 8, 2010 Board meeting.39 Although
Plaintiff was terminated fewer than three weeks after what
Plaintiff refers to as her “open letter” to the Chronicle,
Plaintiff’s allegations and testimony--like her argument in
opposition to summary judgment--have consistently claimed that
Grier targeted Plaintiff for investigation and termination when
Plaintiff and Grier had confrontations in the Fall of 2009, months
before Plaintiff’s letter to the Chronicle.40 Indeed, Plaintiff
alleges that “Grier’s personal hostility towards Caleb peaked on or
about November 12-13, 2009,” five months before she was
discharged.41 Plaintiff’s chronological narrative is thus at odds
39
See id. ex. A-4 (notice of termination).
40
See Document No. 159, ex. 1 at 70:24-71:24 (“Q. I’m really
just trying to establish, do you have a belief as to why they
started that investigation? A. [Plaintiff Ms. Caleb] Yes. Q. And
what was that? What is your belief? Why did HISD begin that
investigation? A. The--I know that the investigation started, it
was because I got Dr. Grier really upset after those community
meetings and after the meeting with him and with him being so rude
and unprofessional and making his statements, and I decided to
stand up and speak up for myself. And I believe that Dr. Grier,
with the shouting and all he was doing in his office, never thought
that I would just take a stand. So I took a stand, told him how I
felt. And when he asked me about didn’t I know that they were
going to picket me, and I had an obligation to tell him, just one
thing led to another and remarks that he made to me and with my
response to him--or responses to him during that con--during that
Friday evening meeting. So I felt that it was retaliation or I did
not bow down to his intimidation. Q. And do you believe that the
termination of your employment was for the same reasons? A. Yes,
I believe it was for the same reason.”).
41
See Document No. 48-1 at 13.
17
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with her retaliation theory, namely, that it was Plaintiff’s speech
to the Chronicle that caused Grier to seek her termination.
Regardless, assuming the temporal proximity between
Plaintiff’s speech to the Chronicle and her termination were
sufficient to make out a prima facie case of retaliation, Plaintiff
has presented no evidence to show that Defendants’ proffered
legitimate reason for her termination was pretextual. See Haverda,
723 F.3d at 591-92. Plaintiff was terminated after Defendants
received an extensive investigation report which concluded that
Plaintiff had engaged in numerous instances of misconduct including
mismanagement of fixed assets resulting in tens of thousands of
dollars in missing computer equipment, inappropriate student-
targeted fundraising activities, misuse of Title I funds, misuse of
HISD’s resources and personnel, nepotism, and poor oversight of
TAKS testing which resulted in cheating.42 Grier’s uncontroverted
declaration testimony is that
I considered the report’s findings of financial
mismanagement and misconduct to be very serious. Taken
as a whole, the findings indicated to me that Ms. Caleb
was not following district policies, was not properly
managing the District’s assets, and was not properly
supervising campus staff. Therefore, based on these
findings, I made the determination that the District
should initiate termination or nonrenewal proceedings
against Ms. Caleb and several other Key staff.
* * *
42
See Document No. 136, ex. C-4.
18
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After making the determination to terminate or non-renew
Ms. Caleb and other employees, I became aware that Ms.
Caleb submitted a request to retire at the end of her
contract. I chose to instead move forward with her
termination because I believed at the time, and still do
believe, that these findings evidence gross mismanagement
and misconduct by Ms. Caleb. I would do the same with
any employee who I believed engaged in such serious
misconduct. In fact, I did do the same with Ms. Delores
Westmoreland, who was the Dean of Instruction at Key
Middle School during the time period at issue in the
report.43
HISD’s General Counsel Elneita Hutchins-Taylor testifies in her
Declaration, “I was present when Ms. Mata-Kroger met with Dr. Grier
and went over the findings of the investigation. He expressed to
me his belief that the report demonstrated that Ms. Caleb, among
others, needed to be terminated.”44
The further uncontroverted evidence is that Grier followed the
same practice for each investigated employee implicated in gross
mismanagement and/or misconduct and whom Grier recommended be
terminated. For example, the summary judgment evidence is that Ms.
Westmoreland, Dean of Instruction at Key, was also implicated by
the Investigation Report and, like Plaintiff, filed with HISD a
response denying the findings and notifying HISD of her intent to
43
Id., ex. A ¶¶ 11, 13. See also Document No. 159, ex. 3 at
Vol. 2, 64:12-20 (“Q. Now, do you recall what prompted you to make
that--to make the decision to terminate her on April the 14th,
2010? A. Basically, the result of the investigation that had been
conducted. Q. The report? A. Uh-huh. Q. The Mata Kroger report?
A. Yes.”).
44
Document No. 136, ex. C ¶ 7.
19
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retire. Unlike Plaintiff, however, Ms. Westmoreland did not speak
to or release her response to the Chronicle. Nonetheless, Grier
recommended that she be terminated based on the Investigative
Report’s findings of misconduct, just as he recommended for
Plaintiff. On this summary judgment record, Defendants have met
their burden to produce uncontroverted evidence that HISD had a
legitimate reason for terminating Plaintiff and would have done so
in the absence of her speech to the Chronicle.
Plaintiff responds that Grier’s purported reliance on the
Investigation Report is pretextual because “[i]f Grier believed the
findings of the Report, however, he would have to believe that all
the alleged assets, property, and computers, were accounted for--
that is what the Report found.”45 Plaintiff’s characterization of
the Report is a demonstrable misstatement. The paragraph of the
Report cited by Plaintiff, read in context of the Report, states
that after an unannounced physical inventory had been conducted at
Key in December 2009, in which there were found missing 21 of
55 CPUs acquired by Key in June, 2009 under P.O. No. 4501361495, a
subsequent physical inventory was taken on January 13, 2010, in
which “all twenty-one (21) previously unaccounted for CPUs were
located at Key.”46 This finding cited by Plaintiff for her argument
that “all the alleged assets . . . were accounted for” is a
45
Document No. 158 at 28 (emphasis in original).
46
Document No. 136, ex. C-4 at 15.
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reference to equipment acquired by only one of eight recent
purchase orders that were listed in the Report. The Investigation
Report’s “Summary of Missing Fixed Assets”--ignored by Plaintiff--
reports the findings of HISD’s Property Management Department after
it was asked to locate at Key fixed assets on eight purchase
orders, which assets were received during the final seven months
that Plaintiff was principal at Key, from December 2008 through
June 2009. (Ms. Caleb was appointed principal of Kashmere on June
29, 2009.) After identifying the eight purchase orders by number
(only one of which was P.O. 4501361495, the one referred to in
Plaintiff’s argument), the Report summarizes:
The physical inventory related to these eight (8) PO’s
revealed missing equipment with a total original cost of
$36,645.00.47
Plaintiff’s argument that the Report found that “all of the alleged
[missing] assets, property, and computers, were accounted for” has
no factual basis in the summary judgment record.48
47
Id., ex. C-4 at 20.
48
The details of the missing and later-found CPUs on this one
Key purchase order referred to by Plaintiff are perplexing, to say
the least. An unannounced physical inventory was conducted at
Kashmere on December 4, 2009, which turned up some but not all of
the missing items on this Key purchase order. After that
December 4 physical inventory at Kashmere, the missing Key Item
No. 5 (a CPU)) “was later found in its original box in Ms. Caleb’s
office at Kashmere,” and missing Key Item Nos. 8 and 9 (HP
monitors) “were later found the following week on December 10,
2009, in their original boxes in Ms. Caleb’s office at Kashmere.”
All of the 21 “previously unaccounted for CPUs [found] located at
21
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It is uncontroverted that the Investigative Report presented
to Superintendent Grier, consisting of approximately 87 pages, was
the product of a three months’ investigation by outside counsel,
who interviewed more than 50 witnesses and other individuals during
the course of the investigation. It was this report that Grier
states he relied upon when he determined that Caleb should be
fired. Excerpts from the Executive Summary, at pages 2-4 of the
Investigative Report, evidence the kinds of findings made with
respect to Plaintiff and those whom she was charged to manage:
Mable Caleb, Key’s former principal, and others at Key
often stated during their interviews that their first
priority was “the children” of Key and their protection
and education. Unfortunately, the acts and omissions of
several at Key belie these stated sentiments. Key
students were seemingly not the priority when fixed
assets and other resources purchased for their education
were not properly safeguarded or managed. Thousands of
dollars of Key equipment is either missing or unaccounted
for and was never reported missing, lost or stolen. The
inventory signed and submitted by Ms. Caleb in March 2009
denotes over $200,000 of equipment as “Lost During Move,”
referring to Key’s move during the mold remediation at
the school in the 2007-2008 school year. The move,
however, had occurred 12 months prior to Key’s submission
of the inventory to the District and missing equipment
was denoted as “Lost During Move” even though [the
equipment] was received after the move. In addition,
tens of thousands of dollars of recently purchased
equipment for Key students is also missing; this amount
does not include the value of the fixed assets
purportedly borrowed for use at Kashmere.
* * *
Key” on January 13, 2010 were items acquired on this one purchase
order in June 2009.
22
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District policies were regularly ignored at Key and
there were seemingly no effective checks and balances so
that violations of policy could be promptly detected,
reported and addressed: a grossly inadequate inventory
of Key’s fixed assets was not detected when it was
submitted, and thousands of dollars of District funds and
grant money were used to purchase banned food items which
were not only available to students in violation of State
and District guidelines but actually sold to these
students for profit. How much money was raised from
student-targeted fundraising at Key and what happened to
it remains a mystery.
Other forms of mismanagement and misconduct were
also found. Nepotism resulted in Ms. Caleb’s niece,
Elgie Wade, earning an additional 75% of her base pay, in
the 2008-2009 school year, through overtime, extended pay
and summer school work. No one else in the school
received such favorable treatment. Moreover, the
evidence reflects that at Ms. Caleb’s direction, overtime
was paid to Ms. Wade regardless of hours reflected on the
District’s sign-in sheets. In addition, Ms. Caleb’s son
was allowed to work in a federally-funded summer school
program and during summer school at Key while Ms. Caleb
was still the principal, in violation of the District’s
rules prohibiting nepotism.
* * *
The evidence reflects that there was a pattern and
practice of gross mismanagement and abuse of authority by
Key administration including Mable Caleb, Bernett Harris,
and Peggy Collins. Other Key employees participated by
distributing live TAKS tests and misrepresenting their
credentials during this investigation (Richard Adebayo),
attempting to obstruct the investigation (Herbert
Lenton), participating in a fraud on the school district
by accepting compensation for hours not documented as
worked and misuse of the PROCARD (Elgie Wade), failing to
oversee the proper administration of the TAKS testing as
well as misuse of the PROCARD (Dolores Westmoreland), and
failing to properly oversee special education services at
Key (Jackie Anderson).
There was no credible evidence found that the
unauthorized activities and policy violations taking
place at Key were done with students’ interests in mind
(as suggested by some witnesses). Rather, the evidence
23
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suggests that the students and the many hard working
teachers who labor on their behalf were not the priority
for Key’s administration.49
Plaintiff has failed to present any evidence sufficient to raise a
fact issue that Superintendent Grier’s declared reliance upon this
Investigative Report for concluding that Caleb should be discharged
was pretextual and that the real reason was because Caleb had in
her “open letter” to the Houston Chronicle stated that the
allegations were false, that she was wrongfully targeted, and that
she was announcing her intention to retire.50 Because there is no
fact issue on pretext, and because Defendants have met their burden
to establish a legitimate reason for terminating Plaintiff and that
they would have done so in the absence of her speech to The Houston
49
Document No. 136, ex. C-4 at 2-4.
50
Plaintiff relies on Guerra v. Roma Indep. Sch. Dist., 444
F. Supp. 812 (S.D. Tex. 1977), in which the court found after a
bench trial that the school district’s proffered explanation for
termination and demotion was pretextual where “the only credible
explanation for the nonrenewal and/or demotion of these four
teachers was their relationship with Arnulfo Guerra, a political
opponent of three recently elected board members and of their Old
Party leader.” Id. at 819. However, in Guerra, “[a]ll four
teachers in question were praised by their supervisors; both their
principal and their superintendent recommended that their
three-year contracts be renewed,” and “[n]o dissent from these
evaluations or recommendations came in evidence. Yet without any
contrary recommendation, without any discussion or any vote, those
recommendations were not followed.” Id. at 820. Here, in
contrast, the Investigation Report provides a compelling basis for
Plaintiff’s termination, and the uncontroverted evidence is that
Defendants terminated her because of the report’s findings.
24
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Chronicle, Defendants are entitled to summary judgment on
Plaintiff’s First Amendment retaliation claim.
2. Liberty Interest Due Process Violation
Plaintiff’s remaining claim is that Defendants deprived her of
her liberty interest by denying her a procedural due process
hearing to clear her name.51 To prevail on such a claim, Plaintiff
must show: (1) that she was discharged; (2) that stigmatizing
charges were made against her in connection with the discharge;
(3) that the charges were false; (4) that she was not provided
notice or an opportunity to be heard prior to her discharge;
(5) that the charges were made public; (6) that she requested a
hearing to clear her name; and (7) that the employer refused her
request for a hearing. Hughes v. City of Garland, 204 F.3d 223,
226 (5th Cir. 2000). Plaintiff admits that she never requested a
name-clearing hearing.52 Accordingly, Defendants are entitled to
summary judgment on Plaintiff’s liberty interest due process claim.
See Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th
51
Document No. 98 at 25-26.
52
Document No. 159, ex. 1 at Vol. 102:13-17 (“Q. Let me ask
it again because I’m not sure. Did you make a request for a name-
clearing hearing to HISD? [Objection.] A. No.”). See also
Document No. 136, ex. C ¶ 12 (“At no time did Ms. Caleb request a
name clearing hearing to defend the conclusions contained in
Ms. Kroger’s report.”).
25
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Cir. 2006) (“Bledsoe’s undisputed failure to request a hearing
defeats his liberty interest claim.”).53
V. Order
For the foregoing reasons, it is
ORDERED that Defendants Houston Independent School District
and Terry Grier’s Motion for Summary Judgment and Entry of Final
Judgment on All Claims (Document No. 136) is GRANTED, and Plaintiff
Mable Caleb’s claims are DISMISSED with prejudice. It is further
ORDERED that Plaintiff’s Motion for Leave to Amend Complaint
to Reassert Dismissed Claims (Document No. 162) is DENIED.
The Clerk shall notify all parties and provide them with a
true copy of this Order.
SIGNED at Houston, Texas, on this 29th day of April, 2015.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
53
See also Caleb v. Grier, 2015 WL 66478, at *10 (Fifth
Circuit’s opinion affirming dismissal of co-plaintiffs’ claims in
this case) (“Cockerham’s, Banks’s, and Lenton’s failure to allege
that they asked for and were refused a hearing is dispositive.”).
26
15-20297.5632
Jackie Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, and Mable Caleb v. Terry Grier, Superintendent of the Houston Independent School District
Combined Opinion