Ella Higginbotham v. Clear Creek Indep. Sch. Dist., et al

Filing

UNPUBLISHED OPINION FILED. [10-40638 Reversed and Rendered ] Judge: EHJ , Judge: FPB , Judge: SA Mandate pull date is 04/25/2011 [10-40638]

Case: 10-40638 Document: 00511434001 Page: 1 Date Filed: 04/04/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
April 4, 2011
No. 10-40638

Lyle W. Cayce
Clerk

ELLA WEES HIGGENBOTHAM
Plaintiff - Appellee
v.
SANDRA CONNATSER, Director of Galveston
Brazoria Cooperative for the Hearing Impaired (GBCHI);
CASSANDRA SUTTON, Director of Human ResourcesSupport Services; DR. DAVE O’NEILL, Assistant
Superintendent of Human Resources
Defendants - Appellants

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:09-CV-310

Before JONES, Chief Judge, and BENAVIDES, Circuit Judge, and AYCOCK,
District Judge.*
PER CURIAM:**
This case arises from an alleged deprivation of due process in connection
with the termination of a public employee.

*

**

Because Appellee’s complaint

District Judge of the Northern District of Mississippi, sitting by designation.

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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No. 10-40638
contains no allegations that the named defendants committed constitutional
violations against her, we REVERSE the district court’s denial of the motion to
dismiss.
Appellee Higgenbotham worked as a sign language interpreter with the
Clear Creek Independent School District (“CCISD”) and the Galveston Brazoria
Cooperative for the Hearing Impaired (“the Coop”). Her employment ended
following an incident on March 11, 2009, in which she allegedly pulled on a
student’s blouse, exposing part of the student’s breast. On that afternoon,
Appellant Sandra Connatser, the Director of the Coop, asked Higgenbotham to
explain the earlier events. Higgenbotham obliged, telling Connatser and the
Coop’s assistant principal about her contact with the student.

Following

Higgenbotham’s verbal explanation, Connatser asked her to write down her
version of the events.

Later that day, a person from the CCISD human

resources department instructed Higgenbotham that she would be suspended
pending an investigation of the allegations against her. Connatser then invited
Higgenbotham to amend her written statement, an opportunity Higgenbotham
accepted. CCISD’s investigation concluded with Higgenbotham’s termination
several weeks later.
In her complaint, Higgenbotham states that “it is believed that the alleged
event has been reported to the offender database and Plaintiff has been unable
to locate and/or secure employment in her chosen profession as an interpreter
in public schools.” The complaint does not identify “the database” in question or
name the person responsible for disclosing the allegations against her.
Following an internal review process within the CCISD, Higgenbotham
brought suit in federal court alleging that the Defendants-Appellants deprived
her of due process by refusing to conduct a hearing at which she could clear her
name. Appellants moved to dismiss her amended complaint, asserting that it
failed to state a constitutional claim, which in turn entitled them to qualified
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No. 10-40638
immunity.

See Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (denying

qualified immunity when the plaintiff alleges violation of a constitutional right
and such violation was objectively unreasonable under clearly established law
at the time). The district court denied their motion.
Although the denial of a Fed. R. Civ. Proc. 12(b)(6) motion to dismiss is not
normally an appealable decision, the Supreme Court has held “that a district
court’s order rejecting qualified immunity at the motion-to-dismiss stage of a
proceeding is a ‘final decision’ within the meaning of [28 U.S.C.] § 1291.”
Ashcroft v. Iqbal 129 S. Ct. 1937, 1946 (2009) (internal quotation omitted). This
court therefore has appellate jurisdiction in the present case.
“We review de novo motions to dismiss and motions for judgment on the
pleadings.” Jebaco, Inc. v. Harrah’s Operating Co., Inc., 587 F.3d 314, 318 (5th
Cir. 2009). In considering a motion to dismiss under Rule 12(b)(6), courts may
consider “the contents of the pleadings, including attachments thereto.” Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). A federal
court must grant the motion to dismiss if, viewing the alleged facts in the light
most favorable to the non-moving party, the complaint fails “to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 555 U.S. 544, 570,
127 S. Ct. 1955 (2007). To be sufficient, a complaint must include “factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). A “formulaic recitation of the elements of a cause of action”
or “facts [that] do not permit the court to infer more than the mere possibility of
misconduct” fail to satisfy the pleading requirements of Rule 8(a) of the Federal
Rules of Civil Procedure. Id. at 1949, 1950.
When it denied Appellants’ motion to dismiss for failure to state a claim,
the court concluded that Higgenbotham pled sufficient facts to justify discovery

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No. 10-40638
concerning her allegation that Appellants deprived her of a liberty interest
without due process of law.1 We disagree.
The Constitution’s due process clause affords a right to notice and a
hearing following the termination of government employment. Bd. of Regents
v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972). According to the Supreme Court,
“where a person’s good name, reputation, honor, or integrity is at stake because
of what the government is doing to him, notice and an opportunity to be heard
are essential.” Id. at 573. The sole fact that the employee was fired, however,
will not suffice to implicate a liberty interest. The employee’s reputation must
have been unfairly impugned as well. A constitutional violation exists only
where a plaintiff can show:
(1) that she was discharged; (2) that stigmatizing charges were
made against her in connection with the discharge; (3) that the
charges were false; (4) that she was not provided notice or an
opportunity to be heard prior to her discharge; (5) that the charges
were made public; (6) that she requested a hearing to clear her
name; and (7) that the employer refused her request for a hearing.
Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000). A plaintiff must
allege facts to support each of these elements in order to state a claim.
Higgenbotham’s complaint fails to assert facts that would support several
elements listed in Hughes.

First, the only direct statement regarding

publication in Higgenbotham’s complaint is devoid of facts: “Since Plaintiff’s
discharge it is believed that the alleged event has been reported to the offender
database and Plaintiff has been unable to locate and/or secure employment in
her chosen profession as an interpreter in public schools.” This assertion fails
to specify who reported the incident and which “offender database” now contains
1

Additionally, Appellants Connatser, O’Neill and Sutton sought to dismiss the
complaint on qualified immunity grounds. Our conclusion that the complaint failed to state
a claim under Rule 12(b)(6) resolves the question of qualified immunity as well: “If the plaintiff
fails to state a constitutional claim . . ., then the government official is entitled to qualified
immunity.” Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).

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No. 10-40638
a record of it. In particular, the complaint does not allege that any of the
individual Defendants-Appellants had any connection with the alleged
publication.
Furthermore, Appellee cannot rest on the assumption that CCISD
reported her conduct to a publicly available database on the theory that Texas
law requires the disclosure of incidents involving sexual misconduct toward a
minor.2 CCISD never indicated that it terminated Higgenbotham for sexual
impropriety. The letter informing Higgenbotham of her termination stated only
that “your conduct was inappropriate toward a student . . . .” This statement
does not raise a presumption that any of the Appellants reported the details of
Higgenbotham’s termination in a publicly available database.

Thus, the

complaint has no factual assertions to convince a court that Higgenbotham’s
claim might succeed.
In addition to the complaint’s inadequate treatment of publication, other
elements of the claim are unsupported by facts. In particular, concerning the
linked requirements that a plaintiff request an opportunity to clear her name
and that her employer deny such a request, Higgenbotham’s complaint asserts
only that “her respective employers have refused her request for a meaningful
hearing to clear her name.” Higgenbotham fails to assert a connection between
the denial of a name-clearing hearing and the particular defendants in this case.
Moreover, she does not identify the request for a hearing or its denial. The
allegations in the complaint point toward the opposite conclusion—that
Higgenbotham was able to present her side of the story both verbally before the
assistant principal and in writing. These facts cast doubt on the fourth element

2

The complaint refers to “requirements for disclosure to various state agencies.”
Argument before this court clarified that Higgenbotham was referring to mandatory reporting
for acts of sexual misconduct. The letter announcing CCISD’s decision to terminate
Higgenbotham’s employment made no reference to criminal violations. The letter was among
the documents submitted in support of the complaint.

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No. 10-40638
listed in Hughes.

Additional facts would be necessary to establish that

Higgenbotham did not have an opportunity to be heard and that Appellants
refused such a hearing when requested. On several elements, therefore, the
complaint resembles a “formulaic recitation” of elements rather than the factbased pleading envisioned in Twombly and Iqbal.
Finding that Appellee failed to plead the factual assertions necessary to
“allow[] the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged,” Ashcroft, 129 S. Ct. at 1949, we must REVERSE
and RENDER the district court’s denial of Appellants’ motion to dismiss.
REVERSED AND RENDERED.

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