Caleb v. Grier

• Decision Date: 13 June 2013
• Docket Number: CIVIL ACTION NO. H-12-0675
• Parties: MABLE CALEB, JACKIE ANDERSON, DIANN BANKS, HERBERT LENTON, and PATRICK COCKERHAM, Plaintiffs, v. DR. TERRY GRIER, ELIZABETH MATA KROGER, DAVID FRIZELL, ESTEBAN MAJLAT, and HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendants.
• Court: U.S. District Court — Southern District of Texas

MABLE CALEB, JACKIE ANDERSON, DIANN BANKS, HERBERT LENTON, and PATRICK COCKERHAM, Plaintiffs, v. DR. TERRY GRIER, ELIZABETH MATA

KROGER, DAVID FRIZELL, ESTEBAN MAJLAT,

and HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendants.

CIVIL ACTION NO. H-12-0675

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

SIGNED: June 13, 2013

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 havingcarefully 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 herlaw 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 investigation 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.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).

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) herinterest 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 ofperforming 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 adverseemployment 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 Grierfor 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 effective August 2010, and denying "Grier's and Mata Kroger's substantially false accusations against her."

Caleb alleges no facts to show that her 2005...