UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20980
LEWIS ANDERSON,
Plaintiff-Appellant,
VERSUS
PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
JR., FRED ROBERTS and FREDRICK SCHNEIDER,
Defendants-Appellees.
consolidated with
No. 98-20384
LEWIS ANDERSON,
Plaintiff-Appellee,
VERSUS
PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
JR., FRED ROBERTS and FREDRICK SCHNEIDER,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
August 5, 1999
Before DAVIS, STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Lewis Anderson (“Anderson”), appeals the dismissal of his
federal claims against defendants Pasadena Independent School
1
District (“PISD”), PISD Superintendent Frederick Schneider and PISD
School Board members Nelda Sullivan, Vickie Morgan, Ted Sullivan,
Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., and Fred Roberts.
We affirm in part, reverse in part and remand this case to the
district court. In a consolidated appeal, defendants appeal a
monetary sanction related to an order for remand to state court.
We dismiss the appeal of sanctions for lack of jurisdiction.
I. PROCEEDINGS
On November 6, 1995, Anderson filed suit pursuant to 42 U.S.C.
§ 1983 alleging that the defendants took adverse employment action
against him because he opposed a school bond election and an
administrative reorganization. He claimed violation of his free
speech rights, and asserted state law claims as well.1
The individual defendants moved to dismiss the suit, pursuant
to Federal Rule of Civil Procedure 12(b)(6), on the basis of
qualified immunity and requested the district court to prohibit
discovery until the qualified immunity claim was resolved. On May
17, 1996, after a hearing, the district court ordered Anderson to
replead his claims with particularity in order to overcome
defendants’ assertions of qualified immunity. Anderson filed his
Second Amended Complaint on June 21, 1996, adding claims that
defendants violated his rights to freedom of association and due
process. The individual defendants again filed for Rule 12(b)(6)
dismissal claiming qualified immunity. The magistrate judge
1
The procedural history of Anderson’s claims related to age
discrimination are not detailed here because those claims are not
the subject of this appeal.
2
entered a memorandum and recommendation, Anderson filed objections,
and the magistrate judge issued a clarification. On April 2, 1997,
the district court granted the individual defendants’ motion to
dismiss, adopting the magistrate judge’s conclusions that 1) in
suits against public officials, the defense of qualified immunity
mandates a heightened pleading standard which Anderson’s pleadings
did not meet, 2) the speech in question did involve a matter of
public concern, and 3) Anderson failed to establish that his
interest in free speech outweighed the school district’s interest
in the smooth and efficient operation of the district. The
district court based its dismissal on the outcome of the First
Amendment balancing test and never directly ruled on the individual
defendants’ claims of qualified immunity.
PISD subsequently filed a motion to dismiss, which the
magistrate judge recommended granting on essentially the same basis
as the earlier order of dismissal. The district court adopted that
recommendation, dismissed Anderson’s federal claims with prejudice
and Anderson’s pendant state law claims without prejudice.
Anderson refiled his state law claims in Texas state court.
Defendants removed the action2 and Anderson moved to remand. The
district court remanded the case to state court and ordered the
defendants to pay $2000 in court costs, expenses and attorneys fees
for the improper removal of the case, which the district court
2
The original 1995 case was assigned to the Honorable Sim
Lake. Upon removal in 1998, the case was assigned to the Honorable
Kenneth Hoyt. We refer in this opinion to actions taken by the
“district court” without attempting to designate which judge signed
any particular order.
3
found was done for the purpose of delay. Defendants filed a motion
to reconsider remand. The district court denied the motion to
reconsider and ordered defendants to pay $2000 “as reasonable
attorney’s fees and expenses incurred in filing the motion to
reconsider motion to remand.”
Anderson appeals the dismissal of his federal claims. In a
consolidated appeal, defendants appeal the sanctions imposed for
improper removal.
II. FACTS
Anderson’s Second Amended complaint alleges the following
facts.
Anderson was first hired by PISD in 1962 as a teacher. He
received promotions through the years, holding various
administrative positions in PISD’s special education program. In
1990, Anderson was promoted to Area Superintendent. During the
first 33 years of employment with PISD, Anderson never received a
negative evaluation.
In 1994 and 1995, Anderson voiced criticism of an upcoming
bond election which the School Board and the Superintendent
favored. Anderson also supported a candidate who was running
against an incumbent board member who was up for re-election.
Thereafter, defendants began efforts to oust Anderson from his
position.
In April 1995, Superintendent Schneider advised Anderson that
his assistant Michael Fowler was being demoted and that a new
Deputy Superintendent position was being created. Anderson would
4
report to the new Deputy instead of directly to Superintendent
Schneider, as he had in the past. Anderson was not eligible to
apply for the newly created position because it required prior
experience as a school principal, which Anderson did not have. The
new position was filled without adhering to the PISD policy of
advertising job openings.
During the summer of 1995, the board hired a private detective
who conducted surveillance of Anderson, a non-incumbent school
board candidate who Anderson supported and some of Anderson’s other
associates. In August of 1995, Schneider called Anderson to his
office and proposed that Anderson agree to resign (relinquishing
his contract right to two additional years of employment at more
that $70,000 per year) and to “publicly and privately support the
proposed election to issue bonds” in exchange for $30,000.
Anderson was told that if he did not agree, he would be reassigned
to transportation, food services or maintenance -- all low-level,
dead end jobs. Anderson refused to sign the agreement, stating
that he felt that it was illegal.
A few days after his refusal, Anderson was reassigned to the
newly created position of Associate Superintendent for Project
Management and given responsibilities which had previously been
handled, for the most part, by a secretary. Again, the position
was not advertised in accordance with PISD policy. Anderson’s pay
was not changed.
On October 30, 1995, Anderson received his first negative
evaluation in thirty-three years with PISD, in which Superintendent
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Schneider directly reprimanded Anderson for speaking out on the
bond election and PISD’s reorganization. Schneider made it clear
that Anderson was free to speak out on these issues “outside of
work” but that “such comments at work are inappropriate, disruptive
and will not be tolerated.” During the same time period, the
administration spoke out in support of the bond election during
mandatory faculty meetings and other district functions, making
PISD work-time a public forum for considering the bond election
issues.
Anderson contends that the allegedly unconstitutional actions
were taken by the defendants, individually and acting as a body,
but that he cannot know, prior to discovery, precisely who
instigated or authorized the actions because the actions originated
in closed board meetings.
III. RULE 12(b)(6) ORDERS OF DISMISSAL
A. Standard of review
A Rule 12(b)(6) order of dismissal for failure to state a
claim on which relief can be granted is reviewed de novo, and “will
not be affirmed unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Blackburn v. City of Marshall, 42 F.3d
925, 931 (5th Cir. 1995).
In reviewing defendants’ claim of qualified immunity, we must
first ascertain whether Anderson has sufficiently asserted the
violation of a constitutional right. See Rankin v. Klevenhagen, 5
F.3d 103, 105 (5th Cir. 1993). Second, we must determine whether
6
defendants’ conduct was objectively reasonable in light of law
clearly established at the time of the incident. See Salas v.
Carpenter, 980 F.2d 299, 310 (5th Cir. 1992).
B. Heightened Pleading Requirement – Individual Board Members
The magistrate judge’s Memorandum and Recommendation, adopted
by the district court, states that “Anderson has not satisfied the
heightened pleading standard in order to overcome the defense of
qualified immunity. Accordingly, it is RECOMMENDED that Anderson’s
claims against the individual board members be DISMISSED.” The
magistrate judge then goes on to recommend dismissal of these
defendants based on an independent, alternative ground. On appeal,
Anderson challenges the district court’s ruling regarding the
“heightened pleading standard,” contending that his Second Amended
Complaint was sufficient to state a cause of action and to overcome
the defendants’ claims of qualified immunity.
The Supreme Court abrogated the Fifth Circuit heightened
pleading requirement for actions against municipalities, but did
not consider whether qualified immunity jurisprudence would require
heightened pleading in cases against individual government
officials. See Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 166-67 (1993). This court
thereafter declined to abandon the requirement, articulated in
Elliott v. Perez 751 F.2d 1472 (5th Cir. 1985), that plaintiffs
suing governmental officials in their individual capacities must
allege specific conduct giving rise to a constitutional violation.
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). However,
7
no heightened pleading is required in actions against individual
defendants in their official capacities, because “official-capacity
lawsuits are typically an alternative means of pleading an action
against the governmental entity involved[.]” Baker v. Putnal, 75
F.3d 190, 195 (5th Cir. 1996). Anderson sued the board members and
the superintendent in their individual capacities only. In order
to survive, those actions “must be pleaded with ‘factual detail and
particularity,’ not mere conclusionary allegations.” Jackson v.
Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996)(quoting Schultea, 47
F.3d at 1430).
In order to state a cause of action under § 1983, Anderson
must identify defendants who were either personally involved in the
constitutional violation or whose acts are causally connected to
the constitutional violation alleged. See Woods v. Edwards, 51
F.3d 577, 583 (5th Cir. 1995). It is not enough to allege that
government officials with no direct contact with a plaintiff are
responsible for acts of their subordinates. See id. Anderson’s
Second Amended complaint alleges that the board members and the
superintendent made specifically enumerated decisions that
adversely impacted his employment in violation of his
constitutional rights. Anderson candidly admits that the
defendants made decisions in closed meetings that precluded
Anderson from knowing, prior to discovery, whether each defendant
voted for or dissented from those decisions. However, Anderson
makes no attempt to hold the individual defendants liable for
actions or decision of their subordinates with which they had no
8
involvement, but rather seeks to establish each defendant’s
responsibility for his or her own actions. We find that Anderson
pleaded with sufficient particularity facts establishing a causal
connection between defendants’ actions and decisions and the
alleged constitutional violations. We therefore hold that the
district court’s conclusion that Anderson’s complaint lacked the
factual specificity required to overcome the defense of qualified
immunity was error.
C. First Amendment Claims
It is well established that a state may not discharge,
discipline, or otherwise retaliate against a public employee for
exercising his First Amendment right to free speech. See Rankin v.
McPherson, 483 U.S. 378, 383 (1987). However, a public employee’s
right to free speech is limited when it conflicts with his role as
a public employee. See Kinsey v. Salado Indep. School Dist., 950
F.2d 988, 992 (5th Cir. 1992). In order for speech to be entitled
to protection, the plaintiff must establish that his speech
addressed a matter of public concern. See Click v. Copeland, 970
F.2d 106, 111 (1992)(citing Connick v. Myers, 461 U.S. 138, 146-47
(1983)). If the plaintiff’s speech does not relate to a matter of
public concern, the court’s inquiry ends. See id. If, however,
the court concludes that the speech at issue meets the threshold
inquiry, then the court must balance “the interests of the
[employee], as a citizen, in commenting upon matters of public
concern [against] the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
9
its employees.’” Id. (quoting Pickering v. Board of Educ. Of Tp.
High School Dist., 391 U.S. 563, 568 (1968).
When a plaintiff’s claims arise under both freedom of speech
and freedom of association, as in the case at bar, the freedom of
association claims are analyzed under the same Pickering balancing
test used to determine the success of the freedom of speech claims.
See O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712
(1996). We therefore balance Anderson’s First Amendment rights
of free speech and free association against the defendants’
interests in efficiently providing public education to the students
of PISD.
We begin by noting that whether Anderson’s speech addressed a
matter of public concern is a question of law. See Tompkins v.
Vickers, 26 F.3d 603, 606 (5th Cir. 1994). The district court
concluded, and the parties do not dispute on appeal, that
Anderson’s speech regarding the district bond election and the job
performance of the individual defendants involved matters of public
concern. We agree.
We move then to the focus of this appeal, the Pickering
balance struck by the district court, remaining mindful that we
must “‘tailor the analysis to the particular facts of each
case[.]’” Nieto v. San Perlita Indep. School Dist., 894 F.2d 174,
180 (5th Cir. 1990)(quoting Matherne v. Wilson, 851 F.2d 752, 760
n.48 (5th Cir. 1988)).
Central to the district court’s decision is its reliance on
Kinsey v. Salado Indep. School Dist., 950 F.2d 988 (5th Cir. 1992),
10
which it found factually analogous to the case at bar. In Kinsey,
a suspended public school superintendent brought a § 1983 action
against the school board alleging violation of his First and
Fourteenth Amendment rights to speak out concerning the performance
of elected school board members. See id. at 991. The district
court granted summary judgment for defendants on Kinsey’s
Fourteenth Amendment claims and, after trial, granted a judgment
notwithstanding the verdict on his First Amendment claims. See id.
at 991-92. The Fifth Circuit en banc court affirmed. See id. at
997.
Like the district court, we conclude that Kinsey provides
guidance by setting out the legal framework for analyzing
Anderson’s First Amendment claims. However, we find it impossible
to dispose of Anderson’s claims at this stage of the proceedings on
the basis of a Kinsey analysis because we do not have the benefit
of facts sufficient to flesh out the framework.
Kinsey instructs us to consider whether a close working
relationship between Anderson and the individual defendants is
essential. See id. at 995. Because Texas law provides for a
school board and a superintendent for each public school district,
we examined the applicable statutory language to discern the
parameters of the relationship between Kinsey and the board member
defendants. See id. There is no provision in Texas law setting out
the duties and responsibilities of “Area Superintendent” or
“Associate Superintendent for Project Management” to give us
guidance in this case. Further, the trial record in Kinsey
11
established that “[o]ne of Kinsey’s primary duties was to advise
the Board,” and to attend executive board sessions and offer
opinions and recommendations to guide its decisions. See id.
Kinsey also handled the School District finances and made
recommendations on hiring teachers and principals. See id. at 996.
Kinsey was custodian of the School District’s confidential records
including personnel files, sealed bids, working papers on proposed
rules and policies, and student records, and was called on to
advise the Board concerning these and other confidential matters.
See id. Relying on the well developed, fact intensive trial
record, we concluded that it was essential for Kinsey to have a
close working relationship with the defendant board members and
that their relationship had been disrupted to the point of
precluding effective performance by Kinsey. See id.
In contrast, the district court in the case at bar considered
Anderson’s statement in his Second Amended Complaint that he
“supervised half of the district campuses,” Anderson’s
characterization of his position as “high profile” and “second-in-
command,” and his participation in the superintendent’s “informal
cabinet” to conclude that Anderson would not be able to effectively
carry out his duties while opposing the bond election and
supporting a non-incumbent candidate for the board. As illustrated
by the analysis in Kinsey, Anderson’s ability to effectively carry
out his duties is a fact-intensive inquiry that requires, at a
minimum, evidence or stipulations concerning what those duties
were. Without benefit of summary judgment evidence, trial, or even
12
rudimentary discovery, the record in this case is not sufficient to
perform a Pickering balancing test. In addition, Anderson’s
complaint can be read to allege that he previously supported some
of the present board members when they were “non-incumbent” and
continued to successfully fulfill his responsibilities to the
school district. We must therefore reverse the trial court’s
dismissal of Anderson’s First Amendment claims.
D. Due Process Claims
Anderson alleges that his rights to due process were abridged
when he was demoted from Area Superintendent, which required a
certification, to Associate Superintendent, which did not, because
positions lacking a certification requirement do not carry the
benefits of a written employment contract which he enjoyed as Area
Superintendent. The district court rejected this argument holding
that Anderson did not plead a constitutionally protected property
interest in any non-economic benefit and that, because his salary
was not reduced when he was reassigned, he had alleged no due
process violation.
On appeal, Anderson makes a conclusory statement that he has
pleaded a due process right associated with school employment
contracts, citing to a page in Kinsey that does not exist, and to
the “fact,” which does not appear in the record before us, that he
has subsequently been forced into early retirement. In Kinsey, we
rejected a due process property interest claim to the non-economic
benefit of duties and responsibilities of the position of
superintendent. See Kinsey, 950 F.2d at 996-97. There is no
13
mention in Kinsey of Anderson’s theory of due process rights
growing out of school employment contracts. We see no basis in
Anderson’s Second Amended Complaint, in the briefs or in pertinent
authority for reversing the district court’s Rule 12(b)(6)
dismissal of Anderson’s due process claims.
IV. SANCTIONS
After the district court dismissed Anderson’s state claims
without prejudice, he refiled those claims in Texas court and the
defendants removed them to federal court. The defendants appeal
the sanctions imposed by the district court in its order remanding
that action to state court. Anderson urges us to dismiss
defendants’ appeal of the orders for sanctions for lack of
jurisdiction. Finding merit in that argument, we dismiss the
appeal in case number 98–20384.
The district court entered two orders regarding sanctions.
The first, entered on February 20, 1998, ordered “that the
defendants shall pay a reasonable and necessary fee of $2000.00 in
court costs, expenses and attorney fees for the improper removal of
this case[.]” Defendants filed a motion for reconsideration of
that order on March 2, 1998. The district court denied the motion
on April 17, 1998, ordering “that defendants shall pay the counsel
for plaintiff . . . the sum of $2000.00 as reasonable attorney’s
fees and expenses incurred in filing the motion to reconsider
motion to remand.” Defendants filed their notice of appeal on
April 27, 1998, appealing
from the Order entered in this action on April 17, 1998,
denying reconsideration of the Court’s award of
14
“$2,000.00 in court costs, expenses and attorney’s fees
for . . . improper removal, which the Court [found] was
done for purposes of delay,” as set forth in its Order
for Remand of February 20, 1998, from which appeal is
also taken to that extent.
Federal Rule of Appellate Procedure 4(a)(1)(A) provides that,
in a civil case, the notice of appeal must be filed with the
district clerk within thirty days after entry of the judgment or
order appealed from. The Notice of Appeal was filed 66 days after
the February 20, 1998 Order of Remand, but within the thirty day
appeal window after the April 17, 1998 order.
Defendants contend that their Motion for Reconsideration
extended the time within which they could appeal the April 17, 1998
Order of Remand. Under Federal Rule of Appellate Procedure
4(a)(4), the timely filing of certain post-decision motions defers
the start of the appeal period until disposition of the motion.
The motions that will extend or toll the thirty-day time limit
under Rule 4 include: 1) a motion under Civil Rule
50(b)(insufficient evidence for judgment); 2) a motion under Civil
Rule 52(b)(to amend judgment or make additional findings of fact);
3) a motion under Civil Rule 60 (for relief from a judgment); 4) a
motion for attorney’s fees by the prevailing party under Civil Rule
54; 5) a motion for new trial under Civil Rule 59(a); and 6) a
motion to amend or alter judgment under Civil Rule 59. Defendants
argue that we should treat their motion for reconsideration as a
Rule 59(e) motion to alter or amend judgment. We cannot.
Defendants’ motion for reconsideration sought only to have the
monetary sanctions vacated and “such other and further relief to
15
which Defendant may show themselves justly entitled.” Because the
question of sanctions raised in defendants’ motion for
reconsideration is collateral to the determination of the merits of
the motion to remand, it does not amount to a Rule 59(e) motion
triggering Rule 4(a)(4). See Campbell v. Bowlin, 724 F.2d 484, 488
(5th Cir. 1984)(overruled on other grounds by United States v.
Clark, 51 F.3d 42 (5th Cir. 1995)). Therefore, the notice of
appeal filed 66 days later did not vest this court with
jurisdiction to review the sanction order imposed by the February
20, 1998 order of remand. Further, the notice of appeal is limited
by its terms to the $2000.00 sanction order contained in the
February 20, 1998 order, and so is not effective in appealing the
$2000.00 sanction imposed by the April 17, 1998 order.3 We
conclude that we have no jurisdiction to review the propriety of
either sanction order and consequently must dismiss the appeal.
V. CONCLUSION
The judgment appealed in case number 97-20980 is AFFIRMED in
part, REVERSED in part and REMANDED to the district court for
3
Approximately six weeks after filing their notice of appeal,
defendants filed a motion for leave to file Amended Notice of
Appeal. While maintaining that the second sanction order
reaffirmed the first $2000 sanction, rather than imposing an
additional $2000 sanction, the defendants sought, “in an abundance
of caution” to “also appeal any additional sanction that may have
been assessed by the Court in its April 17, 1998 Order.” On
September 23, 1998, the district court denied the motion stating
that an amended notice of appeal was unnecessary because only one
sanction was assessed. However, we are constrained by the plain
language of the two sanction orders and cannot base our
jurisdiction on language by the district court interpreting those
orders five months after the notice of appeal was filed and after
the district court lost jurisdiction to clarify or modify the
sanctions.
16
further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part and REMANDED.
The appeal in case number 98-20384 is DISMISSED.
DISMISSED.
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