Opinion
Civil Action No. 99-1344, REF: ALL CASES, Section "L"
July 3, 2002
ORDER AND REASONS
Before the Court is the motion of Defendants Jefferson Parish School Board ("School Board"), Melissa Caudle, Sharon Sofford, and Ron Ceruti to dismiss for failure to state a claim and for lack of subject matter jurisdiction (Rec. Doc. 119). For the following reasons, the motion is DENIED IN PART AND GRANTED IN PART.
I. BACKGROUND
Plaintiff, Joyce Harrell was employed at John H. Martyn High School in the 1998-99 school year. She was among 23 individuals who signed a grievance dated October 21, 1998, that alleged, among other things, racial prejudice on the part of school administrators. The grievance was revised and re-signed on October 22, 1998. On December 7, 1998, a group of employees signed a memorandum stating that the complaints in the grievance had been resolved. Joyce Harrell and the other Plaintiffs in this consolidated case did not sign the December 7, 1998, memo. Harrell and the other Plaintiffs have alleged a variety of claims, all stemming from their belief that they were retaliated against and harassed by the Defendants for signing the grievance and for failing to sign the conciliatory memorandum. This Court previously granted Defendants' motion for summary judgment as to all of Harrell's claims, with the exception of her procedural due process claim under 42 U.S.C. § 1983 and her state law claims.
Defendant now moves to dismiss, based on this Court's previous order, granting summary judgment in part but denying summary judgment on Harrell's due process claims. In that ruling, the Court held that "Harrell, as a non-tenured employee, did not have a constitutionally protected property interest in her employment in excess of the protection afforded by the School Board's policies. See Order Reasons, August 20, 2001 (citing Scott v. Quachita Parish Sch. Bd., 768 So.2d 702, 708 (La.Ct.App. 2d Cir. 2000)). According to the Defendant, because the Court found that "Joyce Harrell had no property interest in her continuing employment with the Jefferson Parish School Board at the time of her termination" she "has no procedural due process claim against defendants under § 1983." Defendant concludes by noting that any claims relating to her termination would fall under state law and should be dismissed for lack of jurisdiction.
Plaintiff has responded to this motion in several memoranda. In her original opposition, Plaintiff did not address the merits of her due process claim at all, instead focusing exclusively on the Court's exercise of supplemental jurisdiction, asserting that dismissal of the supplemental state law claims at such a late date, almost three years after filing of this suit, would be unfair and inefficient.
On February 27, 2002, the Court heard oral argument on Defendant's motion to dismiss. Again, the parties' focus was on what state law claims, if any, remained to be tried. Although at that time the scheduled trial was less than one month away, Plaintiff's counsel could not articulate which theory or cause of action Plaintiff was pursuing under state law. The Court reserved ruling to allow further briefing on the issue of what, if any, state law claims were pending and whether this Court should exercise its supplemental jurisdiction over those claims.
In a supplemental opposition to Defendant's motion to dismiss, Plaintiff adopted a new theory, arguing that Plaintiff, as a non-tenured public school employee, did have a protected property interest in, and "constitutional protection" for, her continued employment. Citing Samuel v. Holmes, 183 F.3d 173 (5th Cir. 1998), Plaintiff asserted that "[t]his Circuit has held that a non-tenured employee does have constitutional rights where a handbook provides them pursuant to state law." Supp. Opp. at 1. According to Plaintiff, because the Jefferson Parish School Board adopted its Personnel Policy Manual pursuant to state law, Plaintiff did have a protected property right in continued employment. Plaintiff concluded by noting that the issue of supplemental jurisdiction "does not need to be addressed" and did not clarify what state law claims she was pursuing.
In response, Defendants maintain that the Court's previous conclusion that the Plaintiff does no have a constitutionally-protected property interest in her continued employment was correct and should not be revisited. Defendants assert that this case is analogous to Scott it Quachita Parish Sch. Bd. 768 So.2d 702 (La.Ct.App. 2d Cir. 2000) and is distinguishable from Samuel. Specifically, Defendants point to the fact that in Samuel, the school board policy at issue required a full evidentiary hearing, while the policy in this case, as in Scott, requires "only a conference between the employee, the superintendent or his designee and certain supervisory employees and not a full evidentiary hearing." See Memorandum in Reply to Plaintiff's Supp. Opp; Memorandum, at 4.
II. LAW ANALYSIS
A. Dismissal Under Rule 12(b)(6)
The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), a district court should construe the complaint liberally in favor of the plaintiff, assuming all factual allegations to be true. See Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). Rule 12(b)(6) motions are viewed with disfavor and are rarely granted. See id. A complaint may not be dismissed "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." Id. (quoting Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
B. Procedural Due Process
The Fourteenth Amendment does not create a property interest in government employment. Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th Cir. 1997). Property interests stem from independent sources, generally by operation of contract, state law, or policy. See id. It is well-settled that tenured teachers have a constitutionally protected property interest in continued employment. Franceski v. Plaquemines Parish Sch. Bd., 772 F.2d 197, 199 (5th Cir. 1985). The issue in this case, however, is whether non-tenured, non-contractual public school employees in Louisiana also have a protected property interest in continued employment.
Plaintiff does not claim to have a contractual agreement with the School Board, but instead argues that Louisiana law, in particular title 17, section 81.5 of the Louisiana Revised Statutes, gives rise to a property interest for non-tenured public school employees. Section 81.5 provides that "each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing school employees who have not attained tenure. . . ." See La. Rev. Stat. § 17.81.5. According to Plaintiff the Jefferson Parish School Board's Personnel Policy Manual was adopted pursuant to this express legislative directive and creates a protected property interest in continued employment.
In Samuel v. Holmes, 138 F.3d 173 (5th Cir. 1998), the Fifth Circuit held that probationary, non-tenured employee of the Orleans Parish School Board did have a protected property interest in continuing employment. Although, as Defendant points out, the court in Samuel considered the personnel policy of the Orleans Parish School Board, which is more comprehensive than that of Jefferson Parish and includes a "for cause" discharge requirement, three levels of hearings, and a full evidentiary hearing prior to dismissal, the court's reasoning is instructive in this case. See Samuel, 138 F.3d at 176-77. The court, in Samuel, emphasized that the Orleans Parish School Board policy governing dismissals was issued pursuant to section 81.5, and cited with approval Cowart v. Lee, in which the Louisiana Third Circuit Court of Appeal held that "§ 17:81.5, even absent any implementing regulations, created a protected property interest for non-tenured employees." See Samuel, 138 F.3d at 177; see also Cowart v. Lee, 626 So.2d 93, 96 (La.Ct.App. 3d Cir. 1993) ("LSA-R.S. 17:81.5 affords non-tenured employees a protected property interest in their employment which entitles them to procedural due process. . . .").
The Court recognizes that at least one Louisiana appellate court has declined to follow Samuel, and has held that non-tenured employees do not have a protected property interest in continued employment. Scott, 768 So.2d at 708 ("[W]e find that [Plaintiff] as a non-tenured employee, did not have a constitutionally protected property interest in her continued employment and, therefore, was not entitled to due process over and above that provided by the School Board's policy."); see also Harris v. W. Carroll Parishi Sch. Bd., 605 So.2d 610, 616 (La.Ct.App. 2d Cir. 1992) ("As a non-tenured employee, [Plaintiff] had no state or federally protected property interest in continued employment."). But this Court feels bound by Samuel and finds that Plaintiff, although a non-tenured employee, did have a protected property in her continued employment. See, e.g., Washington v Davis, No. 01-1863, 2001 WL 1287125, at *6 (E.D. La. Oct. 23, 2001) (citing Samuel and finding non-tenured public school employee had protected property interest in employment).
While Plaintiff had a protected property interest in continuing employment, "[a]ll that federal due process required . . . was that she 'be given notice and an opportunity to be heard prior to termination.'" See Franceski, 722 F.2d at 199 (quoting Bishop v. Wood, 426 U.S. 41, 345 (1976)). A pretermination hearing "need not be elaborate" and informal meetings may "satisfy constitutional minima." See Brown v. Texas A M Univ., 804 F.2d 327, 335 (5th Cir. 1986). Moreover, the failure to comport with internal policies or regulations does not, by itself, establish a violation of due process. Id. It appears that Plaintiff may have had adequate notice and a sufficient opportunity to be heard prior to dismissal. Although the Court has previously considered Defendants' motion for summary judgment with regard to Harrell's due process claim, in light of the new arguments raised in Plaintiff's opposition to the motion to dismiss, the Court will reconsider a motion for summary judgment as to Harrell's procedural due process claim. Because Plaintiff, in spite of this Court's direct order, has failed to assert any state law claims, Defendants motion to dismiss Plaintiff's state law claims, if any exist, is granted.
III. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss Plaintiff's procedural due process claim is DENIED. Defendants' motion to dismiss Plaintiff's state law claims, if any, is GRANTED.