Anderson v. Pasadena ISD

• Decision Date: 05 August 1999
• Docket Number: No. 97-20980,98-20384,97-20980
• Parties: (5th Cir. 1999) LEWIS ANDERSON, Plaintiff-Appellant, v. PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN, VICKIE MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK, JR., FRED ROBERTS and FREDRICK SCHNEIDER, Defendants-Appellees. LEWIS ANDERSON, Plaintiff-Appellee, v. PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN, VICKIE MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK, JR., FRED ROBERTS and FREDRICK SCHNEIDER, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 439

184 F.3d 439 (5th Cir. 1999)

LEWIS ANDERSON, Plaintiff-Appellant, v. PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN, VICKIE MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK, JR., FRED ROBERTS and FREDRICK SCHNEIDER, Defendants-Appellees.

LEWIS ANDERSON, Plaintiff-Appellee, v. PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN, VICKIE MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK, JR., FRED ROBERTS and FREDRICK SCHNEIDER, Defendants-Appellants.

No. 97-20980, 98-20384

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 5, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Lewis Anderson ("Anderson"), appeals the dismissal of his federal claims against defendants Pasadena Independent School District ("PISD"), PISD Superintendent Frederick Schneider and PISD School Board members Nelda Sullivan, Vickie Morgan, Ted Sullivan, Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., and Fred Roberts. We affirm in part, reverse in part and remand this case to the district court. In a consolidated appeal, defendants appeal a monetary sanction related to an order for remand to state court. We dismiss the appeal of sanctions for lack of jurisdiction.

I. PROCEEDINGS

On November 6, 1995, Anderson filed suit pursuant to 42 U.S.C. 1983 alleging that the defendants took adverse employment action against him because he opposed a school bond election and an administrative reorganization. He claimed violation of his free speech rights, and asserted state law claims as well.¹

The individual defendants moved to dismiss the suit, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the basis of qualified immunity and requested the district court to prohibit discovery until the qualified immunity claim was resolved. On May 17, 1996, after a hearing, the district court ordered Anderson to replead his claims with particularity in order to overcome defendants' assertions of qualified immunity. Anderson filed his Second Amended Complaint on June 21, 1996, adding claims that defendants violated his rights to freedom of association and due process. The individual defendants again filed for Rule 12(b)(6) dismissal claiming qualified immunity. The magistrate judge entered a memorandum and recommendation, Anderson filed objections, and the magistrate judge issued a clarification. On April 2, 1997, the district court granted the individual defendants' motion to dismiss, adopting the magistrate judge's conclusions that 1) in suits against public officials, the defense of qualified immunity mandates a heightened pleading standard which Anderson's pleadings did not meet, 2) the speech in question did involve a matter of public concern, and 3) Anderson failed to establish that his interest in free speech outweighed the school district's interest in the smooth and efficient operation of the district. The district court based its dismissal on the outcome of the First Amendment balancing test and never directly ruled on the individual defendants' claims of qualified immunity.

PISD subsequently filed a motion to dismiss, which the magistrate judge recommended granting on essentially the same basis as the earlier order of dismissal. The district court adopted that recommendation, dismissed Anderson's federal claims with prejudice and Anderson's pendant state law claims without prejudice.

Anderson refiled his state law claims in Texas state court. Defendants removed the action² and Anderson moved to remand. The district court remanded the case to state court and ordered the defendants to pay $ 2000 in court costs, expenses and attorneys fees for the improper removal of the case, which the district court found was done for the purpose of delay. Defendants filed a motion to reconsider remand. The district court denied the motion to reconsider and ordered defendants to pay $ 2000 "as reasonable attorney's fees and expenses incurred in filing the motion to reconsider motion to remand."

Anderson appeals the dismissal of his federal claims. In a consolidated appeal, defendants appeal the sanctions imposed for improper removal.

II. FACTS

Anderson's Second Amended complaint alleges the following facts.

Anderson was first hired by PISD in 1962 as a teacher. He received promotions through the years, holding various administrative positions in PISD's special education program. In 1990, Anderson was promoted to Area Superintendent. During the first 33 years of employment with PISD, Anderson never received a negative evaluation.

In 1994 and 1995, Anderson voiced criticism of an upcoming bond election which the School Board and the Superintendent favored. Anderson also supported a candidate who was running against an incumbent board member who was up for re-election. Thereafter, defendants began efforts to oust Anderson from his position.

In April 1995, Superintendent Schneider advised Anderson that his assistant Michael Fowler was being demoted and that a new Deputy Superintendent position was being created. Anderson would report to the new Deputy instead of directly to Superintendent Schneider, as he had in the past. Anderson was not eligible to apply for the newly created position because it required prior experience as a school principal, which Anderson did not have. The new position was filled without adhering to the PISD policy of advertising job openings.

During the summer of 1995, the board hired a private detective who conducted surveillance of Anderson, a non-incumbent school board candidate who Anderson supported and some of Anderson's other associates. In August of 1995, Schneider called Anderson to his office and proposed that Anderson agree to resign (relinquishing his contract right to two additional years of employment at more that $ 70,000 per year) and to "publicly and privately support the proposed election to issue bonds" in exchange for $ 30,000. Anderson was told that if he did not agree, he would be reassigned to transportation, food services or maintenance -- all low-level, dead end jobs. Anderson refused to sign the agreement, stating that he felt that it was illegal.

A few days after his refusal, Anderson was reassigned to the newly created position of Associate Superintendent for Project Management and given responsibilities which had previously been handled, for the most part, by a secretary. Again, the position was not advertised in accordance with PISD policy. Anderson's pay was not changed.

On October 30, 1995, Anderson received his first negative evaluation in thirty-three years with PISD, in which Superintendent Schneider directly reprimanded Anderson for speaking out on the bond election and PISD's reorganization. Schneider made it clear that Anderson was free to speak out on these issues "outside of work" but that "such comments at work are inappropriate, disruptive and will not be tolerated." During the same time period, the administration spoke out in support of the bond election during mandatory faculty meetings and other district functions, making PISD work-time a public forum for considering the bond election issues.

Anderson contends that the allegedly unconstitutional actions were taken by the defendants, individually and acting as a body, but that he cannot know, prior to discovery, precisely who instigated or authorized the actions because the actions originated in closed board meetings.

III. RULE 12(b)(6) ORDERS OF DISMISSAL

A. Standard of review

A Rule 12(b)(6) order of dismissal for failure to state a claim on which relief can be granted is reviewed de novo, and "will not be affirmed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).

In reviewing defendants' claim of qualified immunity, we must first ascertain whether Anderson has sufficiently asserted the violation of a constitutional right. See Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir. 1993). Second, we must determine whether defendants' conduct was objectively reasonable in light of law clearly established at the time of the incident. See Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992).

B. Heightened Pleading Requirement - Individual Board Members

The magistrate judge's Memorandum and Recommendation, adopted by the district court, states that "Anderson has not satisfied the heightened pleading standard in order to overcome the defense of qualified immunity. Accordingly, it is RECOMMENDED that Anderson's claims against the individual board members be DISMISSED." The magistrate judge then goes on to recommend dismissal of these defendants based on an independent, alternative ground. On appeal, Anderson challenges the district court's ruling regarding the "heightened pleading standard," contending that his Second Amended Complaint was sufficient to state a cause of action and to overcome the defendants' claims of qualified immunity.

The Supreme Court abrogated the Fifth Circuit heightened pleading requirement for actions against municipalities, but did not consider whether qualified immunity jurisprudence would require heightened pleading in cases against individual government officials. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166-67, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). This court thereafter declined to abandon the requirement, articulated in Elliott v. Perez 751 F.2d 1472 (5th Cir. 1985), that plaintiffs suing governmental officials in their individual capacities must allege specific conduct giving rise to a constitutional violation. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). However, no heightened pleading is required in actions against individual defendants in their official capacities,...