Opinion
Civil Action No. SA-06-CA-0135-XR.
May 17, 2006
ORDER
On this date, the Court considered Defendant Harlandale Independent School District's ("HISD") motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, Plaintiff Stella Moreno Jimenez's motion for leave to file first amended complaint, and HISD's unopposed motion for an extension of time to file a scheduling order.
I. Factual and Procedural Background
Plaintiff filed her Original Petition on January 25, 2006 in the 131st Judicial District Court, Bexar County, Texas. Plaintiff's Original Petition asserted causes of action for violations of the Age Discrimination in Employment Act (ADEA), Texas Commission on Human Rights Act (TCHRA), denial of due process, state law fraud, and other unspecified claims. On February 14, 2006, HISD timely removed the state court action to this Court on the basis of federal question and supplemental jurisdiction. See 28 U.S.C. §§ 1331, 1367.
Plaintiff, a fifty-one (51) year old school bus driver, was terminated by HISD on May 10, 2004 for alleged inappropriate conduct, namely unsafe driving. Plaintiff alleges that HISD terminated her, not because of unsafe driving, but rather on account of her age and in retaliation for opposing discriminatory conduct. Plaintiff claims HISD Director of Transportation Henry Galindo "favored and benefitted the younger female bus drivers. He would praise them and give them high performance appraisals that were not based on any objectively reasonably facts." Plaintiff asserts that following her termination, HISD "hired several younger male and female bus drivers who were not even minimally qualified or not as qualified" as Plaintiff.
Plaintiff alleges that she was fifty-two (52) at the time of her termination. However, the difference between Plaintiff's date of birth, November 30, 1953, and date of termination, May 10, 2004, is 51 years.
On August 23, 2004, Plaintiff filed a charge of discrimination against HISD with the Equal Employment Opportunity Commission (EEOC). Although Plaintiffs EEOC charge was addressed to the "Civil Rights Div[ison] Texas Workforce [Commission] and EEOC," she did not request dual-agency filing with the Texas Workforce Commission ("TWFC"). In her EEOC charge, Plaintiff claims she was "discriminated against because of [her] age and retaliated against because [she] complained of discrimination, in violation of the [ADEA]." See EEOC Charge No. 360-2004-10634. Plaintiff's EEOC Charge did not claim HISD's actions violated the TCHRA or any other Texas law. On December 1, 2005, the TWFC issued Plaintiff a "Notice of Right to File a Civil Action" letter. Plaintiff filed the instant action on January 25, 2006.
It is unknown whether the EEOC issued Plaintiff a "Right to Sue" letter.
On February 14, 2006, HISD filed a motion to dismiss Plaintiff's claims for lack of subject matter jurisdiction and failure to state a claim. HISD argues that Plaintiff's ADEA and TCHRA claims must be dismissed because Plaintiff failed to exhaust her administrative remedies prior to filing suit, or alternatively, has failed to state an ADEA or TCHRA claim. HISD also argues that Plaintiff's state law fraud claims are barred by sovereign immunity and her due process allegations fail to state a claim upon which relief can be granted.
II. Motion for Leave to File Amended Complaint.
As part of her response to HISD's motion to dismiss, Plaintiff requests leave of Court to file an amended complaint. Under Local Rule CV-7(d), where a motion is opposed, the opposing party must file a response within eleven (11) days of service. Should no response be filed in this time period, the Court may grant the motion as unopposed. Id. HISD did not file a response opposing Plaintiff's motion and consented to the amendment in its reply brief. Plaintiff's motion for leave to file her first amended complaint is granted (docket no. 10) as unopposed.
Plaintiff's failure to include a Certificate of Conference in her motion for leave violates Local Rule CV-7(h). This is the second time Plaintiff has failed to confer with opposing counsel on a nondispositive motion. See docket no. 12. The Court ORDERS Plaintiff to confer with opposing counsel in connection with all other nondispositive motions she may file in this case. See Local Rule CV-7(h). The failure to do so will result in the offending motion being denied.
Plaintiff's first amended complaint abandons her ADEA and state law fraud claims. As such, Plaintiff's ADEA and state law fraud claims are dismissed without prejudice.
III. Motion to Dismiss.
Although Plaintiff essentially had two opportunities, i.e. first amended complaint and response in opposition, to address HISD's motion to dismiss, she has failed to adequately address the issues raised by HISD. Plaintiff's response lacks any citation to relevant legal authority and merely parrots her amended complaint. Because Plaintiff has failed to provide the Court with sufficient information to resolve HISD's motion to dismiss, further briefing will be required. The Court will attempt to outline Plaintiff's shortcomings to avoid further delay in this case.
A. Failure to Exhaust TCHRA Administrative Remedies.
"[A] person claiming a [T]CHRA violation must first exhaust administrative remedies prior to bringing a civil action for such violation." Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see also Jones v. Grinnell Corp., 235 F.3d 972, 974 (5th Cir. 2001). To satisfy the TCHRA's administrative exhaustion requirement, an aggrieved employee must: (1) file a written complaint with the TWFC within 180 days of the alleged discriminatory act; (2) allow the TWFC 180 days to dismiss or resolve the complaint before filing suit; and (3) file suit in district court no later than two years after the complaint was filed. See TEX. LAB. CODE §§ 21.201, 21.202, 21.208, 21.256; City of Houston v. Fletcher, 63 S.W.3d 920, 922 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
The issue before the Court is whether Plaintiff timely filed her complaint with the TWFC within the 180-day limitations period. Plaintiff claims that the mere filing of her August 23, 2004 EEOC charge, which was also addressed to the TWFC, was sufficient to satisfy the TCHRA's filing requirements. HISD, relying on Jones v. Grinnell Corp., 235 F.3d 972 (5th Cir. 2001), argues that Plaintiff's EEOC charge was not simultaneously filed with the TWFC because she neither requested dual-agency filing nor alleged a violation of state law. Although HISD's reliance on Jones is misplaced, Plaintiff's simultaneous filing argument is equally deficient under the facts of this case. See Balli v. El Paso Ind. Sch. Dist., ___ S.W.3d ___, No. 08-04-00034-CV, 2006 WL 565827, at *8 (Tex.App.-El Paso March 9, 2006, no pet. h.); Smith v. Univ. of Tex. Sw. Med. Ctr., 101 S.W.3d 185, 188 (Tex.App.-Dallas 2003, no pet.) ("Even if this notion of automatic dual reporting were supported by the facts and the law — and we seriously question whether it is — merely reporting a claim to the EEOC is not equivalent to exhausting administrative remedies with the [TWFC]."); see also Burgmann Seals Am., Inc. v. Cadenhead, 135 S.W.3d 854, 857 (Tex.App.-Houston [1st Dist.] 2004) ("We hold that providing the name of the TCHR and checking the box for simultaneous filing is the equivalent of filing with the TCHR." (emphasis added)). Neither the Fifth Circuit nor Texas Supreme Court has directly addressed this issue. See Jones, 235 F.3d at 974 n. 2 ("There is no clear precedent regarding whether the [TCHRA] requires the actual transmittal of the EEOC charge. We need not decide this issue today. . . ."). The Court, however, is not without guidance.
The issue before the Fifth Circuit in Jones was "whether an EEOC right to sue letter [was] interchangeable with a TCHR right to sue letter for purposes of filing a civil action." 235 F.3d at 974. The court held that an EEOC right to sue letter could not be substituted for a TCHR right to sue letter. Id. at 975. Because Plaintiff failed to produce an EEOC right to sue letter, Jones would have barred her ADEA claims for failure to exhaust administrative remedies. See id. Plaintiff's decision to abandon her ADEA claims renders the issue moot.
The Texas Human Rights Commission and the EEOC have entered into a Worksharing Agreement designed "to minimize unnecessary duplication of effort and make the operations of the two agencies more efficient." Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000). The Fifth Circuit has continually held that the Worksharing Agreement, which is to be amended annually, designates the TWFC and the EEOC as each other's agent for "purpose of receiving and drafting charges, including those that are not jurisdictional with the agency that initially receives the charges." Id. (quoting the 1998 Worksharing Agreement). Because of this Worksharing Agreement, the failure to request dual-agency filing does not prevent the charge from being forwarded to the state antidiscrimination agency. Jones, 235 F.3d at 974 n. 2 (citing Nash v. D.S. Nash Constr. Co., 70 F.Supp. 2d 639 (W.D. Va. 1999)). Importantly, though, "the federal-state cooperation does not extend to the exhaustion of administrative remedies." Id. at 975.
The Texas Human Rights Commission was the predecessor to the TWFC. In 2003, the Texas Legislature replaced the Texas Human Rights Commission with the TWFC. See Tex. Lab. Code § 21.015; Acts of 2003, 78th Leg., R.S., ch. 302, § 5, 2003 Tex. Gen. Laws 1279, 1281. The enactment became effective on March 19, 2004. See 19 Tex. Reg. 2977 (Mar. 19, 2004).
The Fifth Circuit has utilized the "agency" principles of the Worksharing Agreement to determine when a complainant "nominally filed" a discrimination charge with the TWFC for purposes of invoking 42 U.S.C. § 2000e-5(e)(1)'s extension of the limitations period for filing an EEOC charge. Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994); Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir. 1988). In Griffin, the Fifth Circuit held a complaint instituted proceedings with the TWFC when the EEOC accepted a charge that requested dual-agency filing and was addressed to both the EEOC and the TWFC. Id. at 612-13 ("[U]pon the EEOC's receipt of the complaint, the TCHR, for all legal and practical purposes, received the complaint."); but see Urrutia, 841 F.2d at 125 ("[A]ll that was required to institute state proceedings was a nominal filing with the TCHR, which was accomplished when the EEOC transmitted appellant's discrimination charge. . . ."). "To require more would merely impose a meaningless bureaucratic ritual on these agencies." Urrutia, 841 S.W.2d at 125.
Although Griffin relies on Urrutia for its holding, the Fifth Circuit's language is contradictory. In Griffin, the EEOC's mere acceptance of the charge institutes state proceedings, whereas Urrutia requires the EEOC to forward the charge to the TWFC. 26 F.3d at 612; 841 F.2d at 125. The shift in language appears to be caused by the post- Urrutia, August 1989 amendments to the Worksharing Agreement. See Griffin, 26 F.3d at 612 ("In August 1989, the TCHR and EEOC entered into a Worksharing Agreement which was designed 'to minimize duplication of effort in the processing of charges and to achieve maximum consistency of purpose and results."). The Fifth Circuit bases its holding in Griffin on the August 1989 Worksharing Agreement's provision authorizing the EEOC to act as the TWFC's agent for receiving charges. 26 F.3d at 612.
One Texas court of appeals has addressed the dual-filing issue before the Court and held that aggrieved employees "nominally filed their complaints with the [TWFC] when the EEOC, the [TWFC']s designated agent for receiving such complaints, forwarded the [employees'] complaints to the [TWFC]." Balli v. El Paso Ind. Sch. Dist., ___ S.W.3d ___, No. 08-04-00034-CV, 2006 WL 565827, at *8 (Tex.App.-El Paso March 9, 2006, no pet. h.). In Balli, several employees sued the school district for sex discrimination and retaliation in violation of the TCHRA. Id. at *1. The school district moved to have the case dismissed on the grounds that the employees failed to exhaust their administrative remedies by not filing a charge of discrimination with the TWFC. Id. The school district's argument was based on the employees' failure to request dual-agency filing or claim a violation of state law. Id. The district court agreed and dismissed for lack of subject matter jurisdiction. Id. at 2. In reversing the district court's decision, the court disagreed that the Worksharing Agreement supported the employees' claim that "the mere filing of a complaint with the EEOC [was] automatically the equivalent of filing a direct complaint with the [TWFC]." Id. at *6. "Notably, unlike for federal claims, there is nothing in the [Worksharing] Agreement that suggests that the EEOC's receipt of charges on the [TWFC's] behalf will automatically initiate state proceedings for purposes of state law." Id. The court nevertheless found the employees' complaints were timely filed based on evidence demonstrating that the EEOC ignored the dual-agency filing box, transmitted all charges to the TWFC, and forwarded the complaints in question to the TWFC within the 180-day limitations period. Id. at *6, 7. The court held that "the state administrative process was initiated by the EEOC's transmittal of the [employees'] complaints to the [TWFC]." Id.
The Griffin and Balli opinions addressed legally distinct issues. Griffin addressed the EEOC's role in receiving charges for purposes of extending a limitations period under federal law, whereas Balli focused on the EEOC's receipt of charges for purposes of initiating state law proceedings. This distinction is significant because the Worksharing Agreement does not modify the exhaustion of administrative remedies requirement. Jones, 235 F.3d at 975. The Balli court, recognizing the Fifth Circuit's holding in Griffin and Urrutia, discussed this divergent focus:
The question here, however, requires that we consider the entities' relationship under an EEOC/Commission Worksharing Agreement from a slightly different angle. In this case, we must consider how the relationship between the EEOC and the [TWFC], as defined by their Agreement along with the other jurisdictional evidence presented, affects the Appellants' compliance with the 180-day filing period limitation, and consequently the exhaustion of their administrative remedies for state law purposes, based on the Appellants' decision to file their complaints with the EEOC, rather than directly with the [TWFC].Balli, 2006 WL 565827, at *4. Similar to Balli, the Court believes Griffin's simultaneous filing rule should be restricted to its factual context, i.e. extending the limitations period for pursuing a federal cause of action, and not applied to determine when a complaint is filed with the TWFC for purposes of exhausting state law administrative remedies. Id. at *6 ("[W]e decline to take the holdings of Urrutia and Griffin outside their proper context."). The Court finds Balli to be reflective of how the Texas Supreme Court would address the dual-filing issue for purposes of evaluating whether Plaintiff exhausted her TCHRA administrative remedies.
Resolving this legal issue, however, does not aid the Court's determination of whether Plaintiff exhausted her administrative remedies. First, Plaintiff has failed to produce the relevant 2004 Worksharing Agreement. Without the agreement, the Court is unable to determine if the agreement has been amended to reflect that the "EEOC's receipt of charges on the [TWFC's] behalf will automatically initiate state proceedings for purposes of the state law." See id. If no such amendment has been made, Plaintiff's EEOC charge will be considered filed with the TWFC on the date the EEOC forwarded the charge to the TWFC. See id. at *7; Smith v. Univ. of Tex. Sw. Med. Ctr., 101 S.W.3d 185, 188 (Tex.App.-Dallas 2003, no pet.).
Second, the evidence Plaintiff has offered, i.e. the August 23, 2004 EEOC charge and the TWFC's December 1, 2005 right to sue letter, is insufficient to demonstrate that Plaintiff timely filed a charge with the TWFC within 180 days of HISD's allegedly discriminatory conduct. See Balli, 2006 WL 565827, at *6; Manuel v. Sanderson Farms, Inc., 90 Fed. Appx. 714, 717 (5th Cir. 2004). Despite TCHRA section 21.202's requirement for mandatory dismissal of untimely charges, the mere issuance of a right to sue letter does not create a presumption of timeliness. Manuel, 90 Fed. Appx. at 717; Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 553 (Tex.App.-San Antonio 2004, pet. denied); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 664 (Tex.App.-Corpus Christi 1997, no pet.) (the issuance of a right to sue letter may create an inference of timeliness in the absence of any evidence to the contrary).
Section 21.202 provides that "[a] complaint . . . must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred" and "[t]he commission shall dismiss an untimely complaint." TEX. LAB. CODE § 21.202(a), (b).
Based on the evidence presented, the Court is unable to determine whether Plaintiff has exhausted her administrative remedies. The Court orders Plaintiff to file additional briefing (with citation to relevant legal authority) and evidence, including, but not limited to, the 2004 EEOC-TWFC Worksharing Agreement and documents demonstrating when the EEOC forwarded Plaintiff's charge to the TWFC.
B. Motion to Dismiss for Failure to State a Claim.
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint, including any attachments, as true and view them in the light most favorable to the plaintiff. Lovelace v. Spectrum Software, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the face of the pleadings. Id.; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247.
1. TCHRA Claims.
Plaintiff's failure to demonstrate that the Court has subject matter jurisdiction over her TCHRA claims precludes the Court from resolving HISD's motion as to those claims. The Court, however, will offer Plaintiff some guidance to avoid further delay, if and when Plaintiff demonstrates that she exhausted her administrative remedies. As noted earlier, neither Plaintiff's first amended complaint nor her response to HISD's motion provide significant insight to her TCHRA age discrimination and retaliation claims. While Plaintiff's lack of specificity makes it difficult to evaluate her claims, it is not necessarily a fatal flaw requiring dismissal.
HISD argues Plaintiff failed to plead certain factual allegations necessary to support an age discrimination claim. Specifically, HISD claims "Plaintiff failed to plead this basic fact necessary to her claim — that she was replaced by a person that was outside her protected age group. Perhaps she cannot do so. Nonetheless, her failure makes her claim fatally defective." Mot., at 7. Plaintiff's state court petition (which HISD filed with the Court to effectuate removal) includes an attachment that identifies Beatrice Castro as the individual who replaced Plaintiff following her termination. See Lovelace, 78 F.3d at 1017-18. Castro was allegedly forty-one (41) years old at the time she was hired, or ten (10) years younger than Plaintiff. As such, it appears that Plaintiff has made the necessary allegation. See Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) ("For the fourth element in an age discrimination case, the plaintiff must show that '[s]he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of [her] age." (citations omitted)).
Interestingly, HISD did not argue that Plaintiff failed to state a claim for retaliation under TCHRA section 21.055. Plaintiff alleges that she observed "the Director of Transportation favor and benefit the younger female bus drivers. He would praise them and give them high performance appraisals that were not based on any objectively reasonable facts." Pl.'s Complaint, at ¶ 8. Plaintiff fails to plead with any specificity that this alleged favoritism was the discriminatory act she opposed, when such opposition occurred, how she voiced her opposition, and to whom such opposition was communicated. Plaintiff merely pleads that she was the subject of retaliation: "[Plaintiff] was discriminated against by the defendant's agents and employees and subsequently retaliated against for engaging in a protected activity. . . ." Pl.'s Complaint, at ¶ 9. Plaintiff's conclusory allegations are insufficient to support a retaliation cause of action.
TCHRA section 21.055 states:
An employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates against a person who, under this chapter:
(1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation, proceeding or hearing.
TEX.LAB. CODE § 21.055.
Plaintiff is ordered to amend her complaint and provide greater factual specificity to support her TCHRA age discrimination and retaliation causes of action.
2. Due Process Claims.
An individual is entitled to substantive and procedural due process only when she has been deprived of a liberty or property interest that is protected by the Fourteenth Amendment. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Plaintiff's first amended complaint alleges that "Plaintiff appealed her termination through the Defendant District's grievance system. She was, however, afforded no relief in spite of the fact that the basis for the termination was factual[ly] inaccurate to such a degree as to constitute a falsehood. Nonetheless, the grievance was upheld at every level including at the level of Superintendent Guillermo Zavala and then Harlandale Independent School District's Board of Trustees." Plaintiff further alleges that she "sues for the stigmatization that she suffered as a result of her termination under a cloud of suspicion. Moreover, she sues for not being afforded a name clearing hearing to which she was justly entitled." The relevant inquiry is whether Plaintiff has alleged a sufficient liberty interest to warrant constitutional protection under the due process clause, and, if so, whether she was afforded adequate procedural due process.
The Court does not read Plaintiff's first amended complaint to assert a substantive due process property right in her employment with HISD. To prevail on a substantive due process claim in the public employment context, a plaintiff must show (1) that she had a property/right in her employment, and (2) that the public employer's termination of that interest was arbitrary and capricious. Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). HISD argues that a school district employee has a property interest in her employment only when a legitimate right to continued employment exists, and because Plaintiff was an at-will employee, she had no protected property interest in her employment with HISD. The Court agrees. See Schultea v. Wood, 27 F.3d 1112, 1116 (5th Cir. 1994). Accordingly, to the extent Plaintiff's first amended complaint alleged a substantive due process claim, such claim is dismissed.
It has long been "beyond any doubt that discharge from public employment under circumstances that put the employee's reputation, honor or integrity at stake gives rise to a liberty interest under the Fourteenth Amendment to a procedural opportunity to clear one's name." Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir. 1989) (as modified by 901 F.2d 61) (citing Bishop v. Wood, 426 U.S. 341, 348 (1976); Paul v. Davis, 424 U.S. 693, 710 (1976); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Wieman v. Updegraff, 344 U.S. 183, 191 (1952)). In Rosenstein, the Fifth Circuit recognized that public officials do not act improperly in publicly disclosing charges against discharged employees, but they must thereafter afford procedural due process to the person charged. The process due such an individual is merely a hearing providing a public forum or opportunity to clear one's name, not actual review of the decision to discharge the employee. Rosenstein, 873 F.2d at 395 (citing Roth, 408 U.S. at 573 n. 12).
Although Plaintiff fails to specifically plead a § 1983 cause of action, the Court construes her due process claim seeking monetary damages for alleged "termination under a cloud of suspicion" and "not being afforded a name clearing hearing" as a § 1983 claim. If a government employer discharges an individual under circumstances that will do special harm to the individual's reputation and fails to give that individual an opportunity to clear her name, the individual may recover monetary damages under § 1983 for the deprivation of her liberty under the Fourteenth Amendment. Rosenstein, 873 F.2d at 395 (citing Owen v. City of Independence, 445 U.S. 622, 633 n. 13 (1980)). To succeed on this § 1983 claim, the employee must prove the following: (1) that she was discharged, (2) that defamatory charges were made against her in connection with the discharge, (3) that the charges were false, (4) that no meaningful public hearing was conducted pre-discharge, (5) that the charges were made public, (6) that she requested a hearing in which to clear her name, (7) and that the request was denied. Rosenstein, 873 F.2d at 395-96; see also Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000). To sufficiently state a liberty interest, the published charges must be connected with the discharge but need not actually cause the discharge. Rosenstein, 873 F.2d at 396 n. 3. In addition, the charges must be more than merely adverse; the charges must be the type that might seriously damage the employee's standing and associations in the community, that blacken her good name or impair her employment opportunities. Id.
Plaintiff alleges: (1) she was discharged; (2) the reasons for her discharge were factually inaccurate; (3) that prior to her termination, her work performance was good; and (4) although she appealed her termination through HISD's grievance system, her termination was upheld at every level. Plaintiff neither alleges that she requested a name-clearing hearing and the request was denied nor that HISD published the charges against her.
In Rosenstein, the Fifth Circuit (over a vigorous dissent on en banc rehearing) held that a terminated employee's "request to participate in established grievance, appeals, or other review procedures to contest defamatory charges was sufficient to state a request for a name-clearing hearing" because "[a] discharged employee need not use the term 'name-clearing hearing.'" Rosenstein, 876 F.2d at 396. Further, "[t]he governmental employer need not grant the discharged employee access to its established appeals procedures, but may provide an alternative procedure, or even an ad hoc hearing, solely for the purpose of allowing the employee to clear his name. An employer electing to implement a special procedure, however, must notify the discharged employee that it will give him access to the special name-clearing procedure if he chooses to take advantage of it; the state must 'make known to the stigmatized employee that he may have an opportunity to clear his name upon request.'" Id.
Unlike the governmental employer in Rosenstein, which denied the discharged employee any appeal or name-clearing hearing, HISD permitted Plaintiff to utilize its grievance system. There is no indication from the pleadings that Plaintiff was entitled to a pre-deprivation hearing or appeal, given that she has not asserted any property interest in her employment. Thus, based on Rosenstein and Plaintiff's first amended complaint, it appears that the grievance system may have served as Plaintiff's name-clearing hearing. However, because it is unclear whether HISD's grievance system provided Plaintiff a public opportunity to clear her name, the Court will require further information to assess Plaintiff's claims.
If the grievance system was intended to serve as Plaintiff's name-clearing proceeding, Plaintiff must establish that the hearings were so deficient as to amount to a deprivation of due process. In Rosenstein, the Fifth Circuit stated that "[t]he process due . . . is merely a hearing providing a public forum or opportunity to clear one's name, not actual review of the decision to discharge the employee." Rosenstein, 876 F.3d at 395 (citing Roth, 408 U.S. at 573 n. 12). Because the name-clearing hearing is not intended to be a review of the decision to discharge the employee, the Court must disagree with Plaintiff's implicit assertion that HISD's upholding of her termination at "every level" is somehow relevant to the due process inquiry.
In sum, Plaintiff's response to HISD's motion to dismiss with regard to her due process claim contains no citation to relevant legal authority and requires further factual specificity. The Court therefore orders Plaintiff to submit further briefing establishing the precise manner in which she contends HISD deprived her of due process, with citation to supporting legal authority as indicated, including (1) when and how HISD published the allegedly false charges; (2) what rights were afforded Plaintiff in HISD's grievance system (including information regarding the traditional procedures utilized in the grievance system, whether these procedures are set forth in a policy, and who has authority to determine what procedures to follow); (3) whether Plaintiff requested a name-clearing hearing and who denied the request; (4) whether any other name-clearing proceeding was available to Plaintiff; and (5) what specific conduct by Transportation Director Galindo, Superintendent Zavala, and/or a member of the HISD Board of Trustees allegedly deprived Plaintiff of due process.
IV. HISD's Unopposed Motion for Extension of Time to File a Scheduling Order.
HISD requests the Court extend the deadline for filing a proposed scheduling order from April 14, 2006 until its motion to dismiss is resolved. Plaintiff does not oppose the extension. The Court grants the motion (docket no. 14). Upon resolution of HISD's motion to dismiss, the Court will enter a new deadline for the parties' filing of a proposed scheduling order.
Conclusion
The Court defers determination of HISD's motion to dismiss until Plaintiff has further briefed and produced evidence supporting the issues discussed herein. Plaintiff is ORDERED to file her additional briefing and evidence by no later than May 31, 2006. HISD's response brief will be due no later than June 14, 2006. No further briefing will be accepted.
For the reasons stated herein, the Court GRANTS Plaintiff's motion for leave to file first amended complaint (docket no. 10) and ORDERS the Clerk of Court to file Plaintiff's first amended complaint as of the date of this Order.
The Court GRANTS HISD's unopposed motion for an extension of time to file a proposed scheduling order (docket no. 14).