Opinion
Civil Actopm No. 3: 03-CV-1786-B.
January 20, 2006
MEMORANDUM ORDER
Before the Court is Defendants Greenville Independent School District and William Smith's Motion for Summary Judgment (doc. 61), filed October 27, 2005. After review of the pleadings, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion. The Court DISMISSES certain of Turman's discrimination allegations against GISD and Turman's due process claim against GISD, as well as Turman's claims against William Smith, but leaves the remainder of the allegations for trial.
I. BACKGROUND FACTS
Plaintiff Keith Turman ("Turman"), a Caucasian born in 1945, was hired by Defendant Greenville Independent School District ("GISD") as principal of Houston Elementary School in September 2000. (Pl. App. pp. 1, 4) At that time, Dr. Herman Smith ("Dr. Smith") was the Superintendent of GISD, and Defendant William Smith ("William Smith"), an African-American, was an Assistant Superintendent. ( Id. at p. 3) Turman received a high performance review from Dr. Smith in January 2001 ( Id. at pp. 13, 23-25), and in March 2001, Turman signed a two-year contract with GISD that was to run from July 1, 2001 until June 30, 2003. ( Id. at pp. 21-22)
At some point before the 2001-2002 school year, Dr. Smith left his position as superintendent, and GISD hired William Smith to fill the post. ( Id. at p. 13) Turman asserts that he applied for the position, but his application was not considered. ( Id. at p. 12) Also, during the summer of 2001, Turman gave deposition testimony in a lawsuit brought against GISD and Dr. Smith. ( Id. at p. 2) Turman's testimony was helpful for Dr. Smith, but indicated that William Smith was not following the law. ( Id.) Turman filed a grievance with GISD against William Smith on November 6, 2001, claiming William Smith had, among other things, retaliated against Turman for his testimony. ( Id. at p. 29)
On March 11, 2002, Turman injured his back while unloading supplies from his car at work. ( Id. at p. 16; Defs. App. pp. 27, 93) Turman continued to work for the next several months, but was often in pain. (Pl. App. p. 17) On May 10, 2002, Turman was placed on administrative leave and asked to vacate his office. ( Id. at p. 10) In his affidavit, William Smith states this was due to "allegations of misconduct being made against him." (Defs. App. p. 85)
GISD closed Houston Elementary School at the end of the 2001-2002 school year. ( Id.) William Smith then reassigned Turman to the position of Assistant Principal of Greenville High School. ( Id. at p. 86) According to William Smith, this was a lateral transfer that did not reduce Turman's salary ( id.), and Turman has not produced evidence to the contrary. At some point in June 2002, Turman reported to work at Greenville High School, against his doctor's medical advice. ( Id. at p. 20; Pl. First Am. Compl. ¶ 21) He found working so painful to his back that he never returned after his first day. (Defs. App. p. 21; Pl. First Am. Compl. ¶ 21)
Turman filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 4, 2002. (Pl. App. pp. 110-11) In his EEOC Charge, Turman states that the discrimination complained of took place between September 17, 2001 and November 4, 2002. ( Id. at p. 110) Turman also states that "[o]n February 18, 2002, my contract was not extended, however, all other principals had their contracts extended. . . ." ( Id. at p. 111)
GISD informed Turman on February 19, 2003, three months after he filed his EEOC Charge, that his contract would not be renewed. (Defs. App. p. 96) Turman exercised his right under the Texas Education Code to request a hearing on the nonrenewal decision. ( Id. at pp. 96-97) As will be described in more detail later in this Order, Turman's hearing was repeatedly postponed, primarily due to the request of Turman's counsel. ( Id. at pp. 96-124) The last postponement resulted when Turman's counsel sent a letter to GISD asking that the hearing, which had been set for August 25, 2003, be rescheduled because Turman was to have major surgery that day. ( Id. at p. 123) GISD complied and asked that Turman inform them when he would be medically capable of attending a hearing. ( Id. at p. 124) To date, a hearing has not been held.
II. PROCEDURAL HISTORY
Turman filed suit against GISD on August 11, 2003, bringing claims of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. (1998 Supp. 2005), and race and sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. (2003 Supp. 2005). GISD filed a Motion to Dismiss which was granted in part and denied in part by the Court on January 27, 2004. (doc. 10) The Court dismissed Turman's claims for punitive damages, sex discrimination under Title VII, and retaliation under Title VII, to the extent a retaliation claim was brought. Turman filed his First Amended Complaint on March 25, 2004, after obtaining leave of Court. Turman's First Amended Complaint included causes of action for age discrimination under the ADEA, race and sex discrimination under Title VII, retaliation under Title VII, retaliation under the First Amendment, and a due process claim under the Fourteenth Amendment. (doc. 18) Turman also added William Smith as a Defendant, bringing retaliation and race discrimination claims against William Smith pursuant to the First and Fourteenth Amendments.
GISD, but not Smith, then filed its Second Motion to Dismiss. (doc. 14) On March 18, 2005, the Court granted in part and denied in part GISD's Motion. (doc. 42) The remaining claims included certain of Turman's age and race discrimination claims, Turman's due process claim, and all of Turman's claims against Smith. The parties proceeded through discovery, and Defendants have now filed the instant Motion for Summary Judgment. (doc. 61) The parties have briefed the issues, and the Court now turns to the merits of its decision.
During the previous year, Turman declared bankruptcy. The Court stayed the case while the parties sought instructions from the Bankruptcy Trustee on how to proceed. The case was also transferred from the docket of the Honorable Barbara M.G. Lynn to the docket of the Honorable Jane J. Boyle on July 19, 2004, pursuant to Special Order No. 3-240.
III. ANALYSIS
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (per curiam). In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Provident Life Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). To determine whether a genuine issue exists for trial, the Court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. See Chaplin v. NationsCredit Corp., 307 F.3d 368, 371-72 (5th Cir. 2002). The Court will first turn to Turman's claims against GISD.
A. Greenville Independent School District
Turman's allegations against GISD include claims of age discrimination under the ADEA, race discrimination under Title VII, and denial of due process in violation of the Fourteenth Amendment. GISD moves for summary judgment on all of these claims, which were the only claims against GISD that survived GISD's motions to dismiss. The Court will now address Turman's allegations in the context of summary judgment.
1. Discrimination
Turman alleges that he was discriminated against on account of his age and race while at GISD. (Pl. First Am. Compl. ¶ 25) Because both age and race discrimination are governed by the three-part McDonnell Douglas test, the Court will consider them together. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (race); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308-09 (5th Cir. 2004) (age). The first step in the McDonnell Douglas analysis requires Turman to put on evidence of a prima facie case of discrimination. Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003). In the case of age discrimination, this typically requires evidence that (1) Turman was discharged; (2) he was qualified for the position; (3) he was in the protected class (over 40 years old); and (4) he was either (i) replaced by someone outside the class; (ii) replaced by someone younger; or (iii) otherwise discharged because of his age. Rachid, 376 F.3d at 309; Palasota v. Haggar Clothing Co., 342 F.3d 569, 575-76 (5th Cir. 2003). A prima facie case of race discrimination is similar, requiring Turman to produce evidence that (1) he belongs to a protected group; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class. Manning, 332 F.3d at 881.
Once Turman meets his prima facie burden, the burden of production shifts to GISD to articulate a legitimate, non-discriminatory reason for its actions. Id. If GISD meets its burden, the Court moves to the third step, which has been modified by the Fifth Circuit following the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Rachid, 376 F.3d at 312. In order to survive summary judgment under the modified McDonnell Douglas test, Turman must now produce evidence raising a fact question that (1) GISD's reason is not true, but is instead a pretext for discrimination or (2) that GISD's reason, while true, is only one of the reasons for its conduct and that age or race discrimination was a motivating factor. Id.; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
In its March 18, 2005 Memorandum Order, the Court limited Turman's broad allegations of discrimination to a specific list of incidents. GISD now moves for summary judgment regarding those incidents.
(a) Denial of sick leave and workers' compensation benefits
The first allegation that remained after the Court's March 18, 2005 Memorandum Order was Turman's claim that he was denied sick leave and workers' compensation for his March 2002 injury on account of his age or race. (Pl. First Am. Compl. ¶ 18(e)) GISD moves for summary judgment on the ground that it did not make the decision to deny Turman any workers' compensation benefits. (Defs. Summ. J. Br. pp. 12-14) GISD put on evidence that TASB, its insurance company, made the decision to deny Turman workers' compensation. (Defs. App. pp. 23.1, 27.1-27.2) Further evidence from GISD shows that the decision to deny benefits was ultimately upheld by the Texas Workers' Compensation Commission after a full hearing. ( Id. at pp. 90-95) Turman makes no response or argument to this assertion. Therefore, the only evidence on point shows that GISD was not responsible for any loss of workers' compensation benefits by Turman. Therefore, GISD cannot be liable for any alleged discrimination in connection with the decision to deny Turman workers' compensation benefits, as it did not make that decision.
Turman's claim that he was denied sick leave, however, must be treated differently. GISD's only argument for summary judgment is that Turman made statements in his deposition that he believed that he was denied sick leave because of William Smith's animosity towards him and William Smith's insecurity, instability, and tendency to lie. (Defs. Summ. J. Br. p. 13; Defs. App. pp. 25.1-25.2) Because Turman did not say "age" or "race," GISD concludes that there is no evidence of discrimination. (Defs. Summ. J. Br. p. 13) The Court finds this argument unpersuasive for several reasons. First, Turman's statements do not foreclose the possibility of discrimination — William Smith's animosity could have been caused by age or race-based animus. Second, there is no evidence that Turman had personal knowledge of William Smith's motivations, whether discriminatory or otherwise. See FED. R. EVID. 602; see also Garcia v. LumaCorp, Inc., 429 F.3d 549, 555 (5th Cir. 2005) (holding that unsubstantiated assertions are not competent summary judgment evidence). Had Turman clearly stated that he believed William Smith had discriminatory motives, the Court doubts that GISD would be so willing to accept Turman's conclusory testimony as to William Smith's state of mind. See Roberson v. Alltell Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004) (holding that plaintiff's subjective belief that he was discriminated against is not sufficient to create an inference of discrimination). Because Turman's testimony does not eliminate the possibility of discrimination, GISD has failed to meet its summary judgment burden of demonstrating the absence of a genuine issue of material fact with respect to Turman's claim that he was denied sick leave because of his age and race.
Therefore, the Court GRANTS Defendants' Motion for Summary Judgment on Turman's claims of age and race discrimination with respect to the denial of his workers' compensation benefits, but DENIES the Motion with respect to Turman's allegations of age and race discrimination regarding the denial of sick leave.
(b) Failure to hire for other positions
Turman next alleges that he applied for and was denied two principal positions while at GISD. (Pl. First. Am. Compl. ¶ 18(f)) Turman's affidavit identifies these positions as Elementary Principal at Travis Elementary and Early Childhood Center Principal. (Pl. App. p. 12) In addition to the two principal positions, Turman's summary judgment evidence adds another five positions Turman claims he applied for between 2000 and 2002. ( Id.) Three of those positions — Executive Director of Finance, Assistant Superintendent of Administration, and Superintendent — were eliminated as causes of action by the Court's March 18, 2005 Memorandum Order because Turman failed to exhaust his administrative remedies. (doc. 42) Therefore, the Court will not consider Turman's claims with respect to those positions as they have already been dismissed by the Court. The other two "new" positions Turman claims he was denied are Assistant Superintendent of Personnel and Assistant High School Principal. (Pl. App. p. 12) The Court will consider these two positions, as well as the two principal positions identified in Turman's First Amended Complaint.
GISD moves for summary judgment on the ground that all the positions Turman applied for were lateral transfers and, thus, did not constitute an adverse employment action. (Defs. Summ. J. Br. pp. 14-15) The Fifth Circuit and Northern District of Texas are clear that Title VII and the ADEA only address ultimate employment decisions, such as hiring, granting leave, discharging, promoting, and compensating. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); see also Talamantez v. Corr. Corp. of Am., 202 F. Supp. 2d 546, 553 (N.D. Tex. 2002) (applying "ultimate employment decision" standard to ADEA claim). To be an ultimate employment action, the act must affect the employee's job duties, compensation, or benefits. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). Refusing an employee's request for a purely lateral transfer does not constitute an adverse employment action. Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (per curiam). A transfer is lateral when the new position has the same title, benefits, duties, and responsibilities as the old position. Hockman v. Westward Communications, L.L.C., 407 F.3d 317, 331 (5th Cir. 2004).
Turman identifies no facts in response that any of the positions he applied for would have resulted in a raise or increase in benefits. Indeed, the Assistant High School Principal position has the same job title as the position to which he was ultimately transferred. Therefore, Turman has failed to create a genuine issue of material fact as to whether he suffered an adverse employment action, and the Court GRANTS Defendants' Motion for Summary Judgment on Turman's race and age discrimination claims regarding the failure to hire him for different positions within GISD.
(c) Decision not to extend Turman's contract in February 2002
Turman claims in his lawsuit and in his EEOC Charge that his contract was not extended in February 2002 while the contracts of other principals were extended. (Pl. First Am. Compl. ¶ 18(g); Pl. App. pp. 110-11) It is unclear on what grounds Defendants move for summary judgment, as the only evidence cited by GISD is in regard to the February 2003 nonrenewal of Turman's contract, as opposed to the February 2002 non-extension. (Defs. Summ. J. Br. pp. 15-16; Defs. App. pp. 59-80) Turman filed his EEOC Charge in November 2002, so it could not have included the February 2003 nonrenewal. Therefore, GISD has not identified any grounds for summary judgment with this evidence.
GISD's only other argument is that Turman did not have a property right in an extension of his contract. (Defs. Summ. J. Br. pp. 15-16) Property rights are not elements of age or race discrimination claims. See 29 U.S.C. § 623; 42 U.S.C. § 2000e-2. Therefore, GISD has not met its summary judgment burden of demonstrating the absence of a genuine issue of material fact with respect to Turman's claim regarding the February 2002 failure to extend his contract. Therefore, the Court DENIES Defendants' Motion for Summary Judgment with respect to that allegation.
(d) Being Placed on Administrative Leave in May 2002
Turman's next allegation is that he was placed on administrative leave in May 2002 and evicted from his office. (Pl. First Am. Compl. ¶ 19) GISD moves for summary judgment on the ground that this act was not an adverse employment action and, thus, cannot support an age or race discrimination claim. (Defs. Summ. J. Br. pp. 19-20)
As noted above, the Fifth Circuit and Northern District have held that Title VII and the ADEA only prohibit discrimination with respect to ultimate employment actions. Mattern, 104 F.3d at 707; Talamantez, 202 F. Supp. 2d at 553. Being placed on leave with pay is not an adverse employment action. Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005); see also Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (holding that paid leave is not an adverse employment action in retaliation suit under the First Amendment). Thus, the only question in this case is whether Turman's leave was paid or unpaid.
GISD asserts that Turman was placed on paid administrative leave and included payroll records to show that Turman was paid through June 2002 (up to the point that Turman was made Assistant Principal). (Defs. App. pp. 125-46) Turman's First Amended Complaint is in agreement, stating that his administrative leave in May 2002 was paid. (Pl. First Am. Compl. ¶ 19) In his deposition, Turman initially stated that his May 2002 leave was paid, but then claimed that he was only partially paid. (Defs. App. p. 30) Finally, Turman's affidavit claims he was put on unpaid leave in May 2002 (Pl. App. p. 10), but also states his unpaid leave did not start until June 2002. (Pl. App. p. 15)
Parties are typically bound by statements made in their pleadings. Martinez v. Bally's La., Inc., 244 F.3d 474, 476 (5th Cir. 2001). Further, a party is not allowed to impeach, without explanation, sworn deposition testimony with an affidavit in order to defeat summary judgment. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). While Turman's deposition testimony is not entirely clear, his First Amended Complaint unequivocally states his leave was with pay. Therefore, Turman has failed to raise a genuine issue of material fact regarding whether he was paid for his leave in May 2002. Because being placed on paid leave is not an adverse employment action, Turman cannot sustain a discrimination claim on this count, and the Court GRANTS Defendants' Motion for Summary Judgment on Turman's claim that he was discriminated against when GISD placed him on leave in May 2002.
(e) Being forced to return to work despite being physically unable to do so in June 2002
Turman next alleges that GISD forced him to return to work, despite knowing that Turman was physically unable to do so. (Pl. First Am. Compl. ¶ 20) GISD's motion on this point makes no legal argument, relying solely on persuasive arguments to show that Turman claimed he could not work because he did not like his job — not because of any injury. (Defs. Summ. J. Br. pp. 20-21) As the party seeking summary judgment, GISD had the burden to inform the Court of the basis of its Motion and identify pleadings and evidence that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court cannot discern from GISD's briefing what genuine issue of material fact is missing in the context of the McDonnell Douglas analysis. Therefore, the Court DENIES Defendants' Motion for Summary Judgment on Turman's claim that he was forced to work despite his physical inability to do so.
(f) Being suspended without pay in July 2002
Turman's next claim is that he was accused of job abandonment when his injury prevented him from working, and as a result, he was "suspended without pay" in July 2002. (Pl. First Am. Compl. ¶ 21) GISD asserts that Turman was never suspended without pay, and refers to its evidence that it paid Turman through June 2002. (Defs. Summ. J. Br. p. 21) There is no evidence, however, that Turman was paid after July 2002. As such, a genuine issue of material fact remains as to whether the failure to pay Turman was the result of age or race discrimination, and the Court DENIES Defendants' Motion for Summary Judgment on Turman's claim that he was suspended without pay in July 2002.
It appears that Turman was not paid after July 2002 because he did not work after July 2002; however, GISD did not move for summary judgment on those grounds.
(g) Being terminated by GISD's Board of Trustees
Finally, Turman alleges GISD's decision in February 2003 not to renew his contract was discriminatory. (Pl. App. p. 15) GISD moves for summary judgment on the ground that Turman did not exhaust his administrative remedies with respect to this allegation. (Defs. Summ. J. Br. pp. 16-17) The Court agrees. Before filing an action for discrimination, a plaintiff must exhaust his administrative remedies by filing an administrative complaint. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). While the resulting suit is not limited to the specific complaints contained in an EEOC Charge, the suit is limited by the scope of the EEOC investigation that could reasonably be expected to grow out of the EEOC Charge. Id.; Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993).
Here, Turman filed his charge of discrimination on November 4, 2002. (Pl. App. pp. 110-11) His contract was not renewed in February 2003. (Defs. App. p. 96) Therefore, the 2003 nonrenewal was not part of Turman's charge of discrimination. As such, Turman has not exhausted his administrative remedies with respect to that claim, and the Court GRANTS Defendants' Motion for Summary Judgment on Turman's age and race discrimination claim regarding the nonrenewal of his contract in February 2003. 2. Retaliation
Turman's briefing indicates he is still seeking to bring a retaliation claim under both Title VII and the First Amendment against GISD. (Pl. Resp. Br. pp. 8-10) In its March 18, 2005 Memorandum Order on GISD's Second Motion to Dismiss, the Court dismissed Turman's Title VII and First Amendment retaliation claims against GISD. (doc. 42) Therefore, to the extent Turman still seeks to bring a retaliation claim against GISD, the Court GRANTS GISD's Motion for Summary Judgment on the grounds that the Court has previously dismissed all of Turman's retaliation claims against GISD.
3. Due Process Violation
Turman's final claim against GISD is for a due process violation that occurred when GISD allegedly denied him a hearing regarding the February 2003 nonrenewal of his contract. (Pl. First Am. Compl. ¶ 33-35) Pursuant to Texas Education Code § 21.201(a):
If the teacher desires a hearing after receiving notice of the proposed nonrenewal, the teacher shall notify the board of trustees in writing not later than the 15th day after the date the teacher receives the notice of the proposed action. The board shall provide for a hearing to be held not later than the 15th day after the date the board receives the request for a hearing unless the parties agree in writing to a different date.
Turman contends he was not given this hearing in violation of his due process rights under the Fourteenth Amendment. The Court will first review the relevant facts in detail.
According to a March 5, 2003 letter from Turman to GISD, he received notification of his nonrenewal on February 19, 2003. (Defs. App. p. 96) Turman requested a hearing between the dates of April 19 and May 3 to accommodate his attorneys' schedules. ( Id. at p. 97) After an exchange of letters between counsel for GISD and Turman, the hearing was set for April 29, 2003. ( Id. at p. 103) On April 21, 2003, Turman's counsel requested a postponement of the hearing, due to conflicts in their schedules. ( Id. at pp. 104-05) GISD obliged and reset the hearing for May 12, 2003. ( Id. at 106) On May 7, 2003, Turman's counsel again requested a postponement of the hearing due to unforeseen medical issues. ( Id. at 107-08) On May 12, 2003, Turman's attorneys informed GISD that they were no longer representing Turman. ( Id. at p. 111) Turman followed up with a letter on May 13, 2003 stating that his attorneys had postponed his hearing without his consent and requested a hearing in June. ( Id. at pp. 112-13) GISD then set the hearing for June 5, 2003. ( Id. at 114)
At this point, there is a gap in GISD's briefing and evidence. The next letter before the Court is a July 7, 2003 letter from Turman's new attorney that asks for information and indicates Turman's new attorney would not be available for a hearing the week of July 14, 2003. ( Id. at pp. 116-18) GISD responded on July 8, 2003 and set the hearing for August 25, 2003. ( Id. at pp. 119-20) On July 25, 2003, Turman's attorney sent a letter to GISD stating that Turman was scheduled for major surgery on August 25, 2003. ( Id. at p. 123) The final letter is from GISD on July 29, 2003 and states "[p]lease advise the District when [Turman] will be medically available to participate in a hearing, and the District will then reschedule." ( Id. at p. 124) Turman filed suit less than two weeks later. It is undisputed no hearing has ever been held. Further, with the exception of letters from Turman himself, all the letters were sent by counsel for GISD and counsel for Turman.
GISD moves for summary judgment on two grounds — first, that there was no policy or custom of denying due process rights, and second, that it was Turman who caused the delay. (Defs. Summ. J. Br. pp. 22-25) Because it is dispositve, the Court will only address the first argument.
Turman brings his due process claim pursuant to 42 U.S.C. § 1983, which, in short, permits recovery for persons deprived of constitutional rights under color of law. Governmental liability under § 1983 must be premised on a government policy or custom that causes the alleged constitutional deprivation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000) (per curiam). For purposes of § 1983 liability, a policy may be a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the government's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (per curiam). A custom is shown by evidence of a persistent, widespread practice of government officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents government policy. Burge, 336 F.3d at 369; Bennett, 735 F.2d at 862.
A governmental entity can also be subjected to liability by the actions of its policymaker. See City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988) (plurality opinion). Whether an official is a policymaker is a question of state law. Id. at 124. The Fifth Circuit has held that the policymaker for school districts in Texas is the Board of Trustees. Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993).
GISD moves for summary judgment on the ground that Turman has no evidence that a GISD policy, custom, or policymaker caused his alleged due process deprivation. (Defs. Summ. J. Br. p. 22) In response, Turman provides no evidence that the Board of Trustees for GISD was responsible for denying him a hearing. There is no evidence the Board of Trustees ever made a decision regarding a hearing for Turman, as all the evidence indicates the timing of the hearing was negotiated by counsel for each party. (Defs. App. pp. 96-124) Without evidence of a policy, custom, or action of the policymaker, Turman cannot establish GISD's liability under § 1983. Because Turman failed to raise a genuine issue of material fact as to GISD's liability under § 1983, the Court GRANTS Defendants' Motion for Summary Judgment on Turman's due process claims against GISD.
B. William Smith
Turman's claims against William Smith are brought under the First and Fourteenth Amendments to the United States Constitution. (Pl. First Am. Compl. ¶¶ 29-32) Turman brings his claims pursuant to 42 U.S.C. §§ 1983 and 1985, and asserts that William Smith conspired with GISD to not renew Turman's contract because of retaliation for his speech in violation of the First Amendment and race discrimination in violation of the Fourteenth Amendment. ( Id. at ¶ 31) William Smith did not move to dismiss any of Turman's claims earlier in the case, but now moves for summary judgment on the ground of qualified immunity. (Defs. Summ. J. Br. pp. 25-27)
Qualified immunity is a defense that shields government officials acting within their discretionary authority from liability when their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005); see also Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir. 2005) (stating that qualified immunity protects all but the plainly incompetent and those who knowingly violate the law).
The qualified immunity analysis is a two-step inquiry. Michalik v. Hermann, 422 F.3d 252, 257 (5th Cir. 2005). First, the Court must decide whether Turman has alleged a violation of a clearly established constitutional right. Id.; see also Siegert v. Gilley, 500 U.S. 226, 231 (1991). A right is clearly established when its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (internal citations omitted). If there is no constitutional violation, the inquiry ends. Saucier v. Katz, 533 U.S. 194, 201 (2001). If, however, Turman has alleged a violation of a clearly established right, the Court must then determine whether William Smith's conduct was objectively reasonable under the law at the time of the incident. Michalik, 422 F.3d at 258.
In the context of summary judgment, a government official need only plead qualified immunity, which shifts the burden to the plaintiff. Id. at 262. The plaintiff must then rebut the defense by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct. Id. (citing Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)). Because William Smith has pleaded his entitlement to qualified immunity, Turman now bears the burden of proving that William Smith is not entitled to that defense. Id. at 258.
William Smith's motion focuses on the first prong of the qualified immunity analysis, that is, whether Turman has alleged the violation of a clearly established right. (Defs. Summ. J. Br. pp. 25-27) William Smith's argument is that because of Turman's inability or refusal to articulate a clear constitutional right at his deposition, that Turman has not alleged the violation of a clearly established right. ( Id.) The Court disagrees.
The portions of Turman's deposition cited by Defendants indicate that Turman believed he was subjected to "[b]latant retaliation for [] testifying in the deposition" and "discrimination as a result of race. . . ." (Defs. App. pp. 24, 49) Thus, although not stated in precise legal terminology, Turman was able to articulate the basis for his constitutional claims. Further, Turman's First Amended Complaint identifies the constitutional rights he believes William Smith violated by including allegations of retaliation under the First Amendment and race discrimination under the Fourteenth Amendment. (Pl. First Am. Compl. ¶ 31) William Smith provides no authority for the proposition that a legally untrained plaintiff must be able to state the basis of his claim with particularity or have his suit dismissed. Presumably, that is why Turman hired legal counsel in this case.
Turning to Turman's allegations, having an employee terminated because of retaliation for his speech or because of his race is a clearly established constitutional violation. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 574-75 (1968) ( First Amendment retaliation); Knowles v. Board of Pub. Instruction, 405 F.2d 1206, 1207 (5th Cir. 1969) (per curiam) (race discrimination under the Fourteenth Amendment). Turman has, thus, satisfied the first prong of the qualified immunity analysis.
However, because William Smith has asserted the defense of qualified immunity, Fifth Circuit precedent requires Turman, not only to allege the violation of a clearly established right, but to show that genuine issues of material fact exist regarding the reasonableness of the official's conduct. Michalik, 422 F.3d at 258; see also Estate of Davis, 406 F.3d at 380 (stating "[w]e do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon the plaintiff[]."). Thus, because William Smith has claimed the qualified immunity defense, Turman also bears the burden of showing a reasonable official would have known William Smith's conduct was in violation of Turman's constitutional rights. The Court will first consider Turman's claims under the First Amendment.
1. Retaliation under the First Amendment
To establish a claim of retaliation under the First Amendment, a plaintiff must show (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in speaking outweighs the employer's interest in efficiency; and (4) the speech must have precipitated the adverse employment action. Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000). Focusing on the second factor, Turman appears to claim that his speech in a deposition in summer 2001 and the grievance he filed with the GISD's Board of Trustees in November 2001 caused William Smith to retaliate against him. (Pl. App. pp. 2, 29) Whether this speech was a matter of public concern is a legal question, which the Court must now address. Kennedy, 224 F.3d at 366.
The Fifth Circuit uses two tests to determine whether speech relates to a matter of public concern, both originating in the language of the Supreme Court's decision in Connick v. Myers, 461 U.S. 138 (1983). The first requires the Court to look at the content, form, and context of a given statement as revealed by the whole record. Id. at 147-48. The second asks whether the employee spoke as a citizen on a matter of public concern or as an employee on a matter only of personal interest. Id. at 147.
When an employee speaks with mixed motives, the Fifth Circuit has identified several factors the Court must consider. Kennedy, 224 F.3d at 372. First, the speech may relate to a public concern if it does not involve solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the individual's status as an arm of the government. Id. Second, although the speech need not be made public, it may relate to public concern if made against the backdrop of public debate. Id. And third, the speech cannot be made in furtherance of a personal employer-employee dispute if it is to relate to the public concern. Id.
When applied to Turman's speech, accepting his rendition of facts as true, these factors show that Turman was not speaking as a citizen on a matter of public concern, but rather as an employee on a matter of personal interest. Turman's deposition testimony in 2001 is interesting to the public only because it concerned a school official; there is no evidence that it was made against the backdrop of public debate. Further, Turman's November 2001 grievance appears to be nothing more than an employer-employee dispute over how William Smith was treating Turman.
Therefore, because Turman's speech was not clearly on a matter of public concern, Turman cannot meet his burden of raising a genuine issue of material fact regarding whether an objectively reasonable official would have known William Smith's actions were illegal (assuming, for purposes of summary judgment that William Smith did recommend Turman for nonrenewal because of his speech). See Michalik, 422 F.3d at 258 (discussing plaintiff's burden in qualified immunity cases). As such, William Smith is entitled to qualified immunity for his actions, and the Court GRANTS Defendants' Motion for Summary Judgment on Turman's claims against William Smith for retaliation under the First Amendment
2. Discrimination under the Fourteenth Amendment
Turman's other claim against William Smith is for race discrimination in violation of the equal protection clause of the Fourteenth Amendment with respect to the decision not to renew Turman's contract in February 2003. The Court must determine if the facts, as alleged by Turman, would support a finding that on objectively reasonable official would have known that William Smith's actions violated Turman's rights. Michalik, 422 F.3d at 258.
To the extent Turman claims the refusal to transfer him to other positions with GISD was discriminatory, his claims fail for the reasons given in Section III.A.1.b of this Order.
Discrimination claims under the Fourteenth Amendment are subject to the McDonnell Douglas analysis described earlier in this Order. Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996). Thus, assuming for purposes of summary judgment that Turman has satisfied his prima facie case, the Court turns to William Smith's evidence that he had a legitimate, non-discriminatory reason for his actions. See Manning, 332 F.3d at 881. William Smith's affidavit does provide a legitimate, non-discriminatory reason for Turman's nonrenewal. Specifically, William Smith states that Turman's contract was not renewed for multiple reasons, including directing students not to take the TAAS test, not following state rules regarding the TAAS test, failing to follow orders by ability-grouping students, refusing to attend administrative meetings, and refusing to follow directives. (Defs. App. p. 88)
Because William Smith has produced evidence of a legitimate, non-discriminatory reason for his actions, the burden shifts back to Turman to show either (1) William Smith's reason is not true, but is instead a pretext for discrimination or (2) that William Smith's reason, while true, is only one of the reasons for its conduct and that race discrimination was a motivating factor. Rachid, 376 F.3d at 312. Turman attempts to demonstrate pretext through his affidavit by stating that only three students were suspended before the TAAS test and that there were legitimate reasons for their suspensions. (Pl. App. p. 9) This, however, is insufficient to demonstrate pretext. When an employer has multiple reasons for an adverse employment decision, a plaintiff must raise a fact issue as to each of the employer's stated reasons in order to demonstrate pretext. Machinchick v. PB Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005). If a plaintiff fails to rebut each reason given by his employer, he cannot create a fact issue as to pretext. Id. Here, while Turman argues that one of William Smith's reasons for the nonrenewal of Turman's contract was false, he raises no fact issues as to the remaining reasons given by William Smith. Turman has, thus, failed to create a genuine issue of material fact regarding pretext. Further, because there is no evidence that race was a motivating factor in William Smith's decision, Turman has not met the second prong of the Rachid test either.
Therefore, considering the evidence in the light most favorable to Turman, Turman has failed to create a fact issue regarding whether William Smith, or an objectively reasonable official, would have known he was violating Turman's rights under the Fourteenth Amendment. As such, William Smith is entitled to qualified immunity with respect to Turman's Fourteenth Amendment claim, and the Court GRANTS Defendants' Motion for Summary Judgment on Turman's claim against William Smith for race discrimination under the Fourteenth Amendment.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment. The Court DISMISSES the following claims brought against GISD:
• age and race discrimination with respect to workers' compensation benefits;
• failure to hire for other positions within GISD;
• being placed on administrative leave in May 2002;
• being terminated by GISD in February 2003;
• any retaliation claims under Title VII or the First Amendment; and
• due process claims under the Fourteenth Amendment.
The Court also DISMISSES Turman's claims against William Smith.
The following claims against GISD remain in the case for trial:
• age and race discrimination regarding denial of sick leave;
• age and race discrimination regarding the non-extension of Turman's contract in February 2002;
• age and race discrimination regarding being forced to return to work in June 2002; and
• age and race discrimination regarding being suspended without pay in July 2002.
SO ORDERED.