Jackie Anderson, Patrick Cockerham, Diann Banks, Herbert Lenton, and Mable Caleb v. Terry Grier, Superintendent of the Houston Independent School District

Opinion

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.).

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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.

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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).

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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

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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

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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

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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.

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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.

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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

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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

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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.

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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,

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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.

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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.

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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.

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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

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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).

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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.

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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.

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.

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

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.

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.

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.”

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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.

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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

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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

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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. §

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.

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.

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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.

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).

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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.

15-20297.5611 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.

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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

15-20297.5613 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

15-20297.5615 Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 10 of 26

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)).

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.”).

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Cir. 2006) (“Bledsoe’s undisputed failure to request a hearing

defeats his liberty interest claim.”).53

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.”).

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