Opinion
Civil Action No. 3:00-CV-2476-N.
July 9, 2003
ORDER
Before the Court is Defendants' Motion for Summary Judgment. For the reasons stated below, that motion is GRANTED.
I. FACTUAL BACKGROUND
Plaintiff, Versie K. Murchison, served as a guidance counselor for Dallas Independent School District ("DISD") for several years until she was terminated in 1999. In 1997, Murchison signed a three year employment contract that permitted the DISD Board of Trustees to terminate her only for "good cause as determined by the Board in a policy or for a financial exigency that requires a reduction in personnel." See Plaintiff's App. Exh. 2. On April 27, 1999, Murchison, acting as test administrator, reported TAAS testing irregularities to her principal, Hakemack, and her assistant principal, Skinner, as well as two DISD testing supervisors. In addition, Murchison sent a written report regarding the testing irregularities to DISD's system-wide Testing Department. On May 10, 1999, Murchison served as test administrator on another exam, the RPTE. In an event similar to the April TAAS exam, Murchison noted test irregularities. As before, Murchison notified DISD's system-wide Testing Department of the irregularity. She prepared a report and was about to fax it to the Testing Department when Hakemack stopped her and told her she would fax the report.
Murchison argues that Hakemack and Skinner retaliated against her in several ways in response to her decision to make DISD aware of the testing irregularities. First, Murchison says that Hakemack and Skinner verbally abused her in front of students and parents. In addition, Murchison says that they docked her pay unfairly and gave her two undeserved low performance evaluations. Also, Hakemack told Murchison she was required work two days during the summer. Although Murchison asked Hakemack to credit her those days from her unused sick days, Hakemack decided to dock Murchison's pay by two days instead.
Murchison's problems with DISD culminated in the summer of 1999. On July 15, 1999, Murchison received a letter written by Hakemack and James Hughey, a DISD Trustee, recommending her termination. The letter placed her on administrative leave. On July 20, 1999, Murchison sent DISD a letter denying accusations included in the July 15 letter. Finally, Murchison received a letter dated August 9, 1999, that referred to a resignation letter she allegedly wrote to DISD on August 1st. The August 9 letter informed Murchison that DISD released her from the terms of her employment contract. Murchison argues that she never wrote DISD a letter dated August 1, 1999, and that she never intended to resign her position. She urges that the allegations in the July 15 letter defamed her and that DISD breached its contract with her by terminating her without cause. Upon this factual predicate, Murchison filed the instant case against DISD, Dallas Public Schools, the Board of Trustees for the DISD, Lucy Hakemack, James Hughey, and Willie Crowder asserting claims for retaliation and due process violations under 42 U.S.C. § 1983 (hereinafter "Section 1983") as well as state law claims for breach of contract and libel.
II. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law." A "genuine" dispute about a material fact exists if the evidence is such that a reasonable jury could find for the nonmoving party. Alton v. Texas AM Univ., 168 F.3d 196 (5th Cir. 1999). The Court will consider the evidence in the light most favorable to the non-movant, but the non-movant cannot rely on mere allegations in the pleadings. Mississippi River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir. 2000). The non-movant must respond to the motion for summary judgment by setting forth specific facts indicating that there is a genuine issue for trial. Id. After the non-movant has had the chance to raise a genuine fact issue, "if no reasonable juror could find for the non-movant, summary judgment will be granted." Id.
III. SECTION 1983 CLAIMS A. First Amendment Retaliation Claim
Murchison argues that DISD and Hakemack violated Section 1983 by retaliating against her because she exercised her right to free speech under the First Amendment by reporting the TAAS and RPTE testing irregularities to the DISD system-wide Testing Department. In Section 1983 cases, the Court must first identify "the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 840 n. 5 (1998). In this case, Murchison argues that her First and Fourteenth Amendment rights were violated by the Defendants. To prevail on her First Amendment retaliation claim, Murchison must demonstrate that: 1) she spoke on a matter of public concern; 2) she suffered an adverse employment action; 3) her speech motivated DISD's employment action against her; and 4) her interest in speaking on a matter of public concern outweighed DISD's interest in promoting efficiency. Gerhart v. Hayes, 201 F.3d 646, 650 (5th Cir. 2000).Murchison is unable to raise a genuine issue of fact on her First Amendment retaliation claim because her speech did not involve a matter of public concern. Speech by an employee involves a matter of public concern "if a person speaks primarily as a citizen rather than an employee." Dorsett v. Bd. of Trs. for State Colleges and Univs., 940 F.2d 121, 124 (5th Cir. 1991). Moreover, speech made by an employee while acting in the scope of her employment is of public concern only if it involves the report of wrongdoing or corruption to higher authorities. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996). In this case, Murchison's potentially protected speech, her report of testing irregularities to DISD officials, occurred in the scope of her employment as test administrator. The testing irregularities Murchison reported did not amount to a report of wrongdoing or corruption. She did not identify a particular individual in her reports who behaved inappropriately, rather she briefly described how some tests were misplaced and eventually located. DISD requires test administrators to report such incidents. Because Murchison's speech occurred in the scope of her employment and, therefore, her reports did not involve a matter of public concern, her First Amendment claim fails.
Even assuming that Murchison's speech involved a matter of public concern, her First Amendment claim also fails because she cannot raise a genuine issue of fact regarding whether her speech motivated DISD to fire her. Gerhart, 201 F.3d at 650. To prevail on her Section 1983 retaliation claim, Murchison must prove that her speech was a substantial or motivating factor in her termination. Bd. of County Comm'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675 (1996). If she meets this burden, then DISD can escape liability by showing that it would have terminated her even if she had not reported the testing irregularities. Id. The evidence before the Court does not indicate that her reporting of testing irregularities was a substantial or motivating factor in DISD's decision to terminate Murchison. The only evidence Murchison presented indicating that she was terminated because she reported the testing irregularities is the timing of her termination, which occurred not long after her speech. Timing of termination, alone, is insufficient to raise a fact issue regarding retaliation. Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993). Therefore, Murchison is unable to raise a fact issue regarding whether her termination was motivated by her speech.
Even if Murchison was able to meet her burden, the evidence in the case also establishes a legitimate, non-retaliatory reason for DISD to terminate Murchison, her poor job performance. Murchison's performance at both Reagan Elementary and George Washington Carver, her previous school, was unpredictable. She was frequently late and absent from school. Also, Hakemack received reports that Murchison left children unattended and had communication problems with faculty and parents. DISD had documented problems with Murchison unrelated to her reporting the testing irregularities. Accordingly, Murchison is unable to raise a fact issue regarding whether DISD fired her because she reported testing irregularities. Therefore, her First Amendment retaliation claim fails, and the Defendants are entitled to judgment as a matter of law on this claim.
B. Due Process Claim
Murchison also alleges that the Defendants violated her Fourteenth Amendment due process rights when they fired her. Her complaint is unclear regarding whether she alleges the Defendants violated her substantive or procedural due process rights, so this order will address both. First, Murchison fails to raise a fact issue regarding whether the Defendants violated her substantive due process rights. To prevail on a substantive due process claim under Section 1983, Murchison must show that the Defendants' decision to terminate her was "arbitrary" or "conscious shocking." Collins v. Harker Heights, 503 U.S. 115, 128 (1992). In this case, Murchison is unable to meet this burden. Her absences and tardiness coupled with complaints from various staff members prevent her termination from being arbitrary or conscious shocking. Therefore, to the extent that Murchison is asserting a substantive due process claim under Section 1983, that claim fails as a matter of law because she is unable to raise a fact issue to support her claim.
Similarly, to the extent that Murchison is asserting a procedural due process claim under Section 1983, that claim fails as well. To prevail on a procedural due process claim under Section 1983, Murchison must allege an improper deprivation of a liberty or property interest. Hill v. Silsbee Indep. Sch. Dist, 933 F. Supp. 616, 624 (E.D. Tex. 1996). Murchison does not specifically address a liberty or property interest of which she has been deprived, but the Court will assume she believes she was deprived of a property interest in her employment. In the July 15 letter recommending Murchison's termination, Murchison was instructed on how and when to request an appeal on DISD's decision to terminate her. Murchison failed to follow the letter's instructions and timely appeal her termination. She did, eventually, file an appeal with the Texas Education Agency ("TEA") who decided to consider her appeal despite the fact it was late. The fact that the Defendants notified Murchison of the procedures necessary to appeal her termination, and she delayed in appealing, conflicts with her claim that the Defendants denied her procedural due process. She chose to wait to appeal her termination, and her late appeal was considered by the TEA. Therefore, to the extent Murchison asserts a procedural due process claim, it fails as a matter of law because she failed to raise a genuine issue of fact. Defendants are entitled to judgment as a matter of law on Murchison's Section 1983 due process claims.
IV. STATE LAW CLAIMS
28 U.S.C. § 1367 permits federal courts to exercise supplemental jurisdiction over pendent state claims. Whether to exercise such jurisdiction after dismissing the underlying federal claims is a matter left to the sound discretion of the court. McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998). This Court declines to exercise jurisdiction over the Plaintiff's remaining state law claims. Plaintiff's remaining state law claims therefore are dismissed without prejudice.
V. CONCLUSION
Because Murchison fails to raise a genuine issue of fact in support of her Section 1983 First and Fourteenth Amendment claims, the Defendants' Motion for Summary Judgment is GRANTED. Defendants are entitled to judgment as a matter of law on those claims. In addition, because all federal claims in this case are dismissed, this Court declines to exercise jurisdiction over Murchison's remaining state law claims. Murchison's state law claims are DISMISSED WITHOUT PREJUDICE.