Gonzalez v. Harlingen Consol. Indep. Sch. Dist.

• Citation: 96 F.Supp.3d 653
• Decision Date: 07 March 2015
• Docket Number: Civil No. 1:14–CV–57.
• Parties: Abel GONZALEZ, Plaintiff, v. HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of Texas

96 F.Supp.3d 653

Abel GONZALEZ, Plaintiff
v.
HARLINGEN CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Defendant.

Civil No. 1:14–CV–57.

United States District Court, S.D. Texas, Brownsville Division.

Signed March 7, 2015.

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Star Jones, Law Office of Star Jones, Frank E. Perez, Frank E. Perez & Associates, P.C., Brownsville, TX, for Plaintiff.

Miguel Alberto Saldana, Walsh Anderson Gallegos Green Trevino PC, Weslaco, TX, Stacy Tuer Castillo, Walsh, Anderson, Gallegos, Green & Trevino, San Antonio, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

HILDA G. TAGLE, Senior District Judge.

In this civil rights action brought under 42 U.S.C. § 1983, Abel Gonzalez (Gonzalez) brings claims against his former employer, the Harlingen Independent School District (“the District”), for violations of his First Amendment free-speech rights and his right to procedural due process guaranteed by the Fourteenth Amendment. He alleges that he followed a link in an e-mail message from the Huffington Post to its Facebook page and posted a comment containing the n-word beneath a picture of President Obama ostensibly as a proposed caption. See 1st Am. Compl. ¶ 6, Dkt. No. 8. The Court has before it the District's Second 12(b)(6) Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted. Dkt. No. 10. That motion does not place at issue Gonzalez's First Amendment claim arising out of his termination. Upon consideration of the parties' arguments, the amended complaint, and the applicable law, the Court grants the motion in part and dismisses all of Gonzalez's claims except the First Amendment claim which the District does not challenge.

I. BACKGROUND

Plaintiff commenced this action by filing his Original Complaint on April 7, 2014. Dkt. No. 1. The District responded with a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on April 29, 2014. Dkt. No. 7. Gonzalez then exercised his right to amend his complaint as a matter of course in the wake of that motion. See Fed.R.Civ.P. 15(a)(1) (permitting amendment of complaint as a matter of course within 21 days after a Rule 12(b) is served); 1st Am. Orig. Compl., May 19, 2014, Dkt. No. 8. Based on the amended complaint, the Court denied the District's motion to dismiss as moot. Dkt. No. 11. The District then filed the Rule 12(b)(6) motion presently before the Court challenging Gonzalez's amended complaint. Dkt. No. 10.

The Court recites the pertinent facts as alleged in Gonzalez's First Amended Original Complaint. Dkt. No. 8. As more fully detailed in Part E, these facts must be accepted as true and viewed in the light most favorable to the plaintiff for purposes of deciding the Rule 12(b)(6) motion now before the Court. See, e.g., Mathews v. City of San Antonio, No. SA:14–cv–566–DAE, 2014 WL 7019984, at *2 (W.D.Tex., Dec. 11, 2014) ; Auriti v. Wells Fargo, N.A., No. 3:12–cv–334, 2013 WL 2417832, at *2 (S.D.Tex., June 3, 2013) (Costa, J.).

a. August 2012

In August of 2012, Gonzalez worked as a secretary at Dr. Hesiquio Rodriguez Elementary School in Harlingen, Texas (“the School”). See Dkt. No. 8 ¶¶ 8, 11, 40. On Saturday, August 25, 2012, Gonzalez, while at home using his personal computer, received an e-mail message from the Huffington Post website inviting him to propose a caption for a picture of President Obama by posting on its Facebook page. Id. ¶ 6. Gonzalez followed the link provided and posted a caption which included a racial slur. See id.

On August 31, 2012, C. Orlando Pettiford (“Pettiford”) posted at least five times on the School's Facebook page. See id. ¶¶ 8, 12, 14, 17–18. He also called the School at least once. See id. ¶ 16. Pettiford

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reposted Gonzalez's proposed caption and the Huffington Post's photo accompanied by the following comment: “Click on the above Picture ... then read the COMMENT made by one of your directors! ! ! ABEL GONZALEZ! ! ! Is that what you are teaching your students? Is this the RACISM that you want AMERICANS to have! ! ! I think he should be FIRED!!!” Id. ¶ 9 (alteration in original). One of Pettiford's posts time stamped 8:24 a.m. states in part “I hope that this matter is being taken seriously ... because I think that the TV stations might find this newsworthy! ! !” Id. ¶ 14; see also id. ¶ 17. After viewing this posting and Gonzalez's comment proposing a caption, see id. ¶ 9, Tracy Gonzalez (“T. Gonzalez”), the School's principal, called Gonzalez into her office and told him to delete his comment from the Huffington Post's Facebook page and change the privacy settings of his Facebook account “so that nobody can access it in the future.” Id. ¶ 15. She then told Gonzalez not to discuss the incident with anyone, to “conduct [him]self in an ethical manner,” and “that if he did everything she requested, there wouldn't be any issues in the future. Id. Gonzalez complied by the end of the day. See id. ¶¶ 15, 23.

Before 10:00 a.m. that same day, Beulah Rangel (“Rangel”), the School's assistant principal, received a telephone call from B. Todd Hollis (“Hollis”). Id. ¶ 21. Hollis identified himself as an attorney and asked what the school intended to do about Gonzalez's comment on the Huffington Post's Facebook page. See id. Rangel told Hollis the District “would follow District policy to address his concerns.” Id.

b. Investigation, Termination, and Grievance Process

Pettiford called the School and used Facebook to contact the School on its public page and via private message on September 6 and 7, 2012, asking what had been done about his complaints and exerting administration to take action.See id. After Gonzalez answered the last of these calls at approximately 3:30 p.m. on September 7, 2012, he received notice that Steve Flores (“Flores”), the District's superintendent, had placed him on administrative leave with pay. See id. ¶ 31. The District began an investigation on September 10, 2012. Id. ¶ 32. After collecting answers to written questions from several witnesses including Gonzalez, see id. ¶ ¶ 34–36, T. Gonzalez issued a memorandum to Flores on September 21, 2012, in which she recommended firing Gonzalez. Id. ¶ 37. Flores verbally terminated Gonzalez that same day and memorialized his decision “in [a] September 25, 2012, letter.” Id. ¶ 39.

Gonzalez filed a grievance “in an attempt to clear his name and get his job back as secretary.” Id. ¶ 40. Four separate hearings were held, one at each level of the grievance process. See id. ¶¶ 44, 46, 48, 49 (hearings held Nov. 27, 2012; Jan. 15, 2013; Mar. 4, 2013; and June 11, 2013). An attorney apparently represented Gonzalez at least at the Level II and Level IV hearings. See id. ¶¶ 46, 49 (stating Gonzalez and his attorney were kept waiting at Level II hearing and attorney made certain requests at Level IV hearing).

The Level I hearing officer offered “to reinstate [Gonzalez] to a different position at a different location.” See id. ¶ 45. He declined. Id. Gonzales alleges that the District “thereafter took the position that no ‘offer’ had been made to Plaintiff; that Defendant was ‘reinstating’ Plaintiff and that Plaintiff was directed to appear for work or face (additional) ‘disciplinary action’ for ‘insubordination.’ ” Id. Over Gonzalez's objection, Flores presided at the Level III hearing. Id. ¶ 48. The District's Board heard Gonzalez's Level IV

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grievance on June 11, 2013. Id. ¶ 49. This lawsuit followed.

c. Plaintiffs Claims

Gonzalez pleads three causes of action in his First Amended Complaint. See id. ¶¶ 56–71. First, he alleges that the District violated his First Amendment rights when: (1) T. Gonzalez asked him to remove the post from Facebook; (2) Flores placed him on administrative leave; and (3) Flores terminated him. See id. ¶¶ 58–61, 67–70. Second, Gonzalez asserts that Pettiford and Hollis conspired with the District to have him fired. See id. ¶¶ 62–66. Third, Gonzalez claims that his Due Process rights under the Fifth and Fourteenth Amendments were violated because he “did not receive a meaningful hearing to clear his name.” Id. ¶ 71.

II. RULE 12(b)(6) STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also, e.g., United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 257 (5th Cir.2014) (“Rule 12(b)(6) does not require the [plaintiff] to present its best case or even a particularly good case, only to state a plausible case.”); In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir.2010). “A claim is plausible if ‘the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Bollinger Shipyards, 775 F.3d at 260. The requirement that the claim be plausible on its face “is not akin to a ‘probability requirement,’ but it asks for more than a...