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dismissing contract claim for failure to exhaust administrative remedies
Summary of this case from Verrett v. Dallas Independent School DistrictOpinion
Civil Action No. 3:03-CV-0130-D
August 25, 2003
MEMORANDUM OPINION AND ORDER
Defendants Kaufman Independent School District ("KISD"), KISD Superintendent Bruce Wood ("Wood"), KISD Assistant Superintendent Harold Johnson ("Johnson"), KISD Chief of Police Debi Nixon ("Nixon"), and members of the KISD Board of Trustees Betty Hendrickson, John Zaby, Robert Kinnan, Chip Langston, Byron Gregg, and Bettye Mayfield (collectively, the "Trustees") move to dismiss plaintiff John A. Hoskins' ("Hoskins'") first amended complaint ("amended complaint"). For the reasons that follow, the court grants the motion in part and denies it in part. It dismisses without prejudice Hoskins' breach of contract claim for failure to exhaust administrative remedies and holds that all individual defendants except Johnson are entitled to qualified immunity concerning his First Amendment claim under 42 U.S.C. § 1983.
I
The relevant background facts are set out in the court's June 30, 2003 memorandum opinion and order and need not be repeated at length. See Hoskins v. Kaufman Indep. Sch. Dist., 2003 WL 21517830, at *1-*3 (ND. Tex. June 30, 2003) (Fitzwater, J.). In Hoskins the court granted defendants' motion to dismiss various claims in Hoskins' original complaint ("complaint"), granted Hoskins leave to replead, and required him to file a Fed.R.Civ.P. 7(a) reply. Hoskins has filed a first amended complaint ("amended complaint") and Rule 7(a) reply, and defendants move anew to dismiss.
II
KISD moves on the basis of the Eleventh Amendment to dismiss Hoskins' claim against it under the Texas Whistleblower Act ("Whistleblower Act"), Tex. Gov't Code Ann. §§ 554.001-.010 (Vernon 1994 Supp. 2003). KISD cites Martinez v. Texas Department of Criminal Justice, 300 F.3d 567 (5th Cir. 2002), for the proposition that the State of Texas has waived sovereign immunity under the Whistleblower Act only for claims brought in state, not federal, court. KISD's reliance on Martinez is misplaced, and its position is incorrect as a matter of law.
The individual defendants also move to dismiss Hoskins' Whistleblower Act claim based on the court's holding in Hoskins that they cannot be held liable under the Act. See Ds. Br. at 7. Hoskins makes clear in his response brief that he does not intend to include the individual defendants in his Whistleblower Act cause of action. See P. Br. at 3. Accordingly, the court need not address this contention.
Martinez involved a lawsuit against, inter alia, the Texas Department of Criminal Justice, a state agency. See id. at 570. The Fifth Circuit therefore addressed in Martinez the Eleventh Amendment immunity of a state agency from suit in federal court under the Whistleblower Act. See id. at 573. The panel held that the claim could only be brought in state court because the State of Texas had not waived its Eleventh Amendment immunity from suit in federal court. Id. at 575-76. An independent school district such as KISD is not, however, a state agency or an arm of the State of Texas and is not entitled to Eleventh Amendment immunity from suit in federal court. See San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 284 (Tex. 1996) ("We hold that an independent school district is more like a city or county than it is like an arm of the State of Texas and is amenable to suit in federal court under the Eleventh Amendment to the United States Constitution."). KISD's motion to dismiss on this ground is therefore denied.
Hoskins does not point out this obvious defect in KISD's reliance on Martinez. Instead, he maintains that KISD waived its Eleventh Amendment immunity by failing to raise it in the first motion to dismiss, or that KISD is equitably estopped from raising this defense. The court need not address these arguments, and its discussion of Eleventh Amendment immunity is not intended to address any other available immunity.
III
KISD moves to dismiss Hoskins' breach of contract claim for failure to plead that he exhausted his administrative remedies. Hoskins avers that KISD breached his employment contract by reducing his compensation and terminating his employment, in violation of the Whistleblower Act. KISD contends that Hoskins has not properly pleaded that he followed the grievance procedure prescribed by the Texas Education Code, which required that he grieve his claim to the Commissioner of Education ("Commissioner"). It also maintains that, once he meets the pleading requirement, he must seek judicial relief only by suing the Commissioner in state court in Travis County.Hoskins argues that he exhausted his remedies as required under the Whistleblower Act by seeking review by Superintendent Wood and then by the KISD Board of Trustees, and that he was not obligated to exhaust separately his remedies under the Texas Education Code because the appeal provided under the Code is permissive rather than mandatory. He also relies on the venue provision of the Whistleblower Act.
Hoskins' reliance on Whistleblower Act jurisprudence is misplaced. Despite the fact that he contends that KISD breached his employment contract by discharging him in violation of the Act, his breach of contract claim is distinct from his Whistleblower Act cause of action. It is therefore immaterial that he may have satisfied the requirements of that Act.
The Texas Education Code provides in § 7.057(a)(1) that "[e]xcept as provided by Subsection (e), a person may appeal in writing to the commissioner if the person is aggrieved by . . . the school laws of this state[.]" Tex. Educ. Code Ann. § 7.057(a)(1) (Vernon Supp. 2003). Hoskins' contention that the administrative procedures of the Texas Education Code are permissive rests solely on the use of the term "may" in § 7.057(a). He cites no authorities to support this argument, and the cases the court has located undermine his reasoning.
"Subject to certain exceptions, Texas law requires a party whose claim concerns the administration of school laws and involves disputed fact issues to exhaust the statutorily provided administrative remedies with the Commissioner of Education before turning to the courts for relief." Godley Ind. Sch. Dist. v. Woods, 21 S.W.3d 656, 659 (Tex.App. 2000, pet. denied) (emphasis added) (citing Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist, 830 S.W.2d 88, 90 (Tex. 1992), and other cases). A teacher contract with a school district is regulated by the terms of the Education Code and thus concerns the administration of school laws. See id. at 659-660. So, too, is the employment relationship between a school district peace officer and the district that hired him. See Tex. Educ. Code Ann. § 37.081(a), (d), (e), and (f) (Vernon 1996). Section 7.057(f)(2) defines "School laws of this state" as Titles 1 and 2 of the Education Code and rules adopted under these titles. Tex. Educ. Code Ann. § 7.057(f)(2) (Vernon 2003). Section 37.081(a) is found in Title 2 of the Education Code.
Hoskins does not contend that an exception to the general rule applies in this case, and the court has located no such exception on its own.
Accordingly, the court dismisses without prejudice Hoskins' breach of contract claim.
In Hoskins the court held, inter alia, that "KISD has not established that, as a police officer rather than as a teacher, Hoskins was required to exhaust administrative remedies under the procedures — if different — of the Texas Education Code" rather than under the Texas Government Code, as Hoskins had alleged in his complaint. See Hoskins, 2003 WL 21517830, at *5. KISD has met this burden in its motion to dismiss Hoskins' amended complaint.
IV
KISD moves to dismiss Hoskins' First Amendment claim brought under § 1983, contending that his amended complaint still fails to plead any facts that support a policy or custom. In Hoskins the court analyzed ¶¶ 54-58 of his complaint (which incorporated prior paragraphs) and held that "[t]aking the allegations of Hoskins' complaint as true, he has failed to allege that his First Amendment free speech rights were violated by a KISD policy or custom." Hoskins, 2003 WL 21517830, at *7. It concluded that "[t]he allegations of his § 1983 claim say nothing about this requirement for district liability." Id.In his amended complaint, Hoskins has satisfactorily addressed this pleading defect. Specifically, he avers in ¶ 27 that KISD had a persistent and widespread custom and practice of failing or refusing to make reports required by law in connection with child abuse in KISD, covering up such allegations, and retaliating against employees for speaking out against KISD's failure to exercise appropriate disciplinary action when sexual abuse was alleged. See Am. Compl. ¶ 27. He alleges that these practices and customs were known throughout KISD. Additionally, the fact that the KISD Board of Trustees upheld Hoskins' termination supports a finding of official policy with respect to the adverse actions taken against him. See Harris v. Victoria Indep. Sch. Dist, 168 F.3d 216, 225 (5th Cir. 1999). Without suggesting that Hoskins can or cannot survive a summary judgment motion, these allegations are sufficient when viewed with appropriate deference to overcome a Rule 12(b)(6) motion to dismiss for failure to state a claim. The court therefore denies KISD's motion in this respect.
V
The individual defendants move to dismiss Hoskins' § 1983 action based on qualified immunity. The court assesses this aspect of the motion to dismiss under the more exacting jurisprudence of Rule 7(a).A
When defendants raise the defense of qualified immunity, the case against the officials should not be allowed to proceed unless the plaintiff can bring specific facts that, if true, would overcome the qualified immunity defense. Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc). "Schultea says that a plaintiff must first 'support his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts.'" Baker v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996) (quoting Schultea, 47 F.3d at 1434).
Although Hoskins asserts in a conclusory fashion that "[e]ach of the defendants named in the complaint acted in deprivation of Hoskins' freedom of speech, without immunity for their actions[,]" P. Br. at 7, he arguably opposes (and then, inferentially) only the assertion that Johnson and Nixon are qualifiedly immune, see id. at 6-7. The court therefore holds that the remaining individual defendants — Wood and the Trustees — are entitled to qualified immunity, and that Hoskins' § 1983 claim against them in their individual capacities must be dismissed.
Hoskins does contend that Johnson terminated him with the authority of Wood and the Trustees and that, when presented with the opportunity to redress the wrong done to him, Wood and the Trustees did not do so. See P. Br. at 7 (citing Am. Compl. ¶¶ 41-45). The paragraphs of his amended complaint that he cites — ¶¶ 41-45 — pertain to what allegedly transpired during the KISD two-step grievance process and are insufficient to overcome qualified immunity.
B
In his amended complaint and Rule 7(a) reply, Hoskins asserts on the following grounds that Johnson and Nixon are not entitled to qualified immunity. First, he contends that Johnson attempted to reassign him, reduced his salary, eliminated his overtime pay, and terminated his employment when he failed to stop speaking out against KISD's illegal acts. P. Br. at 6-7 (citing Am. Compl. ¶¶ 27, 29). Second, he posits that Nixon attempted to silence him by telling him to back off and discontinue his investigation, that he was creating problems for himself, and that he was now under her and Johnson's microscope. Id. at 7 (citing Am. Compl. ¶¶ 31-32, 35).1
The court will first address Hoskins' action against Nixon. To decide whether Nixon is entitled to qualified immunity, the court must determine as a threshold matter whether, taken in the light most favorable to Hoskins as the party asserting the injury, the facts he has alleged show that Nixon's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991))). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id If a violation could be made out on a favorable view of the parties' submissions, "the next, sequential step is to ask whether the right was clearly established." Id.
To recover on his First Amendment claim, Hoskins must establish, inter alia, that he suffered an adverse employment decision. Harris, 168 F.3d at 220. The Fifth Circuit has held that "[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands." Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998) (citing cases). In his brief, Hoskins' sole basis for contending that Nixon retaliated against him is set forth in the following argument:
Nixon then attempted to silence Hoskins when she told him to "back off' his investigation, that his work was "creating problems" for him and that he was now "under her and Asst. Superintendent Johnson's microscope[."] Later Nixon again tells Hoskins to "back off" and to discontinue "pursuing the cases any further[,]" further attempting to silence Hoskins.
P. Br. at 7 (citations to amended complaint omitted). Hoskins has not met the threshold requirement of asserting that he suffered an adverse employment action at Nixon's hands. Accordingly, his § 1983 claim against her must be dismissed.
Although Hoskins does not cite this part of his amended complaint in his brief, the court notes that he alleges in ¶ 32 that Nixon "berated him for his work." Am. Compl. ¶ 32. Assuming he has not waived this basis for avoiding qualified immunity by failing to cite it in his brief, he has failed to plead that this conduct amounted to more than mere criticism and, in turn, that it qualified as a formal reprimand. Cf. Benningfield, 157 F.3d at 377 (noting that reprimand, if proved to be more than mere criticism, is adverse employment action).
2
The court now turns to his § 1983 claim against defendant Johnson. Johnson appears to argue that he is entitled to qualified immunity because Hoskins was not engaged in protected speech and his complaint does not contain facts to support a claim that Johnson was trying to coverup wrongdoing. See Ds. Br. at 14. He maintains that Hoskins was merely doing his job and that he and Nixon disagreed with how Hoskins was performing it. Johnson also contends that Texas Child Protective Services ("TCPS") told Hoskins that there was nothing the agency could do, and that it was reasonable for Johnson to conclude that KISD had complied with the law. Id. Johnson argues that Hoskins continued investigating something after being told not to do so and that he had no First Amendment right to defy these directives. Id. at 15. He contends he acted in an objectively reasonable manner in telling Hoskins to stop his investigation after TCPS confirmed that the information at issue did not need to be reported. Id. Johnson also argues that Hoskins was required to grieve his complaint that his pay was reduced. Id.
The court holds that Johnson is not entitled to qualified immunity at this stage of the case. In his amended complaint, Hoskins paints a different picture of what occurred than does Johnson in the motion to dismiss. Hoskins alleges that he "spoke out against and reported the illegal activity of KISD in failing to report the criminal offense of indecency with a child by sexual contact, as well as other criminal matters, that had occurred at KISD." Am. Compl. ¶ 57. He maintains that Johnson retaliated against him by attempting to reassign him and terminating his employment when he failed to stop speaking out against KISD's illegal acts. Id. at ¶¶ 29, 38. A state actor is liable for violating a public employee's free speech right if (1) the employee's speech involved a matter of public concern, (2) the employee suffered an adverse employment action for exercising his First Amendment rights, and (3) the employee's exercise of free speech was a motivating factor in the adverse employment action. See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). An Assistant Superintendent of Schools would have known in October 2002 that he could not retaliate against a district employee for exercising his First Amendment right to speak on matters of public concern.
Accordingly, without suggesting that Johnson would not be entitled to qualified immunity at the summary judgment stage of this case, the court holds that he is not entitled to such immunity based on the amended complaint and Rule 7(a) reply alone.
Hoskins' Rule 7(a) reply essentially incorporates his amended complaint.
C
Because Hoskins' Whistleblower Act claim is only against KISD, see Hoskins, 2003 WL 21517830, at *4, he brings his breach of contract claim only against KISD, see id. at *3, his official capacity § 1983 action against the individual defendants has been dismissed, see id. at *5 n. 8, and Wood, Nixon, and the Trustees are entitled to qualified immunity, Hoskins' suit against them is dismissed with prejudice by Rule 54(b) judgment filed today.* * *
The court grants in part and denies in part defendants' August 4, 2003 motion to dismiss plaintiff s amended complaint. The court dismisses Hoskins' action against defendants Wood, Nixon, and the Trustees by Rule 54(b) judgment filed today. SO ORDERED.
The parties submitted on August 20, 2002 an agreed order abating discovery and other deadlines during the pendency of defendants' motion to dismiss. Because the court is deciding the motion today, it declines to enter the agreed order. After the parties review today's decision, they may resubmit a proposed agreed order for the court's consideration, if their grounds for doing so have not been entirely mooted.