Thomas v. Norris et al

Filing 66

MEMORANDUM OPINION re Motion to dismiss. Signed by Magistrate Judge Earl S. Hines on 11/16/09. (bjc, ) **REPLACES DOC# 63.***

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

N o . 1:07-CV-573

E V E N THOMAS P lain tiff v. O D I S C. NORRIS, ET AL. D efen d an ts

M e m o r a n d u m Opinion Re Motion to Dismiss

T h is opinion addresses defendants' motion to dismiss, and, alternatively, m o t io n for summary judgment. I. Parties; Nature of Suit P la in t iff, Even Thomas ("Thomas"), proceeds pro se, and is a resident of B e a u m o n t , Jefferson County, Texas. He asserts causes of action arising out of h is employment by Beaumont Independent School District ("BISD") as an a s s is ta n t principal and teacher. Defendants are Odis C. Norris, Principal of South Park Middle School; B e t h Fischenich, Former Assistant Superintendent of BISD; Carrol A. Thomas, S u p e r in te n d e n t of BISD; Woodrow Reece, Vice President of the School Board; a n d six other members of BISD's Board of Trustees: Martha Hicks, Terry D. W illia m s , Janice Brassard, William Nantz, Ollis E. Whitaker and Howard J. T r a h a n .. BISD also is a defendant. All defendants are citizens of Texas.

I I . Proceedings T h o m a s filed an original complaint on August 17, 2007. Because of

T h o m a s 's lay status and also because his factual allegations were unclear, the c o u r t convened an evidentiary hearing, which Thomas attended in person, on M a rc h 10, 2008. Thomas responded under oath to screening questions

p r o p o u n d e d by the court, and amplified his written allegations through sworn, o r a l testimony.1 Subsequently, Thomas filed an amended complaint on

N o v e m b e r 11, 2008. Thomas's complaint and motion papers, considered collectively, allege c o n s t it u t io n a l and statutory causes of action. Statutory causes of action are b r o u g h t under the Whistleblower Protection Act of 1989 ("WPA" )2 and Title VII o f the Civil Rights Act of 1964 ("Title VII").3 Constitutional claims are asserted u n d e r the First Amendment 4 and the Due Process Clause of the Fourteenth A m e n d m e n t .5 In addition, the court ­ consistent with its duty to construe pro s e claims liberally 6 ­ elects to consider whether Thomas's factual allegations m ig h t give rise to a third statutory cause of action under Title I of the Americans w it h Disabilities Act ("ADA").

1 The evidentiary hearing was of the type approved for screening pro s e complaints in Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985). 2

5 U.S.C. §§ 1201-1222. 4 2 U.S.C. §§ 2000e to 2000e-17. U . S . CONST. amend. I U . S . CONST. amend. XIV

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6 A l l e g a t i o n s of pro se litigants must be construed liberally, Haines v . Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), meaning that lay p l a i n t i f f s need not necessarily neatly place their factual allegations within a c o r r e c t legal framework. See e.g., Randall v. Reeves, 189 F.3d 466 (5th Cir. 1 9 9 9 ) (unpublished table decision) (construing a complaint that improperly pled T e x a s Tort Claims Act violations as alleging state common law claims in the c o n t e x t of the alleged facts).

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I I I . Factual Background F a c t s recited here are derived from Thomas's pro se complaints, briefs and o t h e r papers submitted by him, testimony given by Thomas at the evidentiary h e a r in g described above, and facts advocated by the defendants to which Thomas h a s interposed no objection. A precise chronology of relevant events is muddled s o m e w h a t , but few particulars of that chronology matter to the decision at issue.

Thomas is an African American who was employed by BISD as an A s s is t a n t Principal at South Park Middle School in Beaumont. He held a

t e m p o r a r y certification from the Texas Education Agency to serve as an a s s is ta n t principal for grades K - 12 . On September 13, 2005, a bi-polar student's parent complained that her c h ild was not receiving appropriate educational services. Thomas accompanied t h e parent and student to Principal Norris's office. Thomas requested that N o r r is meet with the parent to resolve the complaint. Norris declined to meet w ith the parent, and then summoned Thomas into his office. Once there, Norris ­ who also is African American ­ physically threatened Thomas while using a b u s iv e language. Thomas promptly complained of the incident to Superintendent Thomas. M e a n w h ile , Norris complained of Thomas's behavior to Assistant Superintend e n t, Beth Fischenich. Fischenich sent a letter to Thomas stating that if he c o n tin u e d to fail to abide by Norris's decisions, he (Thomas) could face being t r a n s fe r r e d to a classroom as there were no other administrative openings. F is c h e n ic h also referenced Thomas's inability to follow directives of three prior p r in c ip a ls , thereby creating disharmony within the administration. See Pl.'s C o m p l., Ex. 4, Attach. B, August 17, 2007.

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I n early October ­ two or three weeks after the incident with Norris ­ T h o m a s was ordered by his personal physician to go on leave due to postt r a u m a t ic stress disorder. Thomas applied for and was granted temporary d is a b ilit y leave. Thomas believes that this disability leave began on October 7, 2 0 0 5 , and continued until late April or early May, 2006. I n the meantime, Thomas retained an attorney. With counsel's assistance, T h o m a s filed internal grievances concerning three separate incidents, only two o f which are relevant to this suit: (1) the confrontation with Norris, and (2) the r e p r im a n d by Fischenich.7 BISD's grievance procedure involved four levels, and a ll grievances were denied at all levels. Grievance proceedings commenced on O c to b e r 11, 2005, and continued through at least June 19, 2006, when denials o f Thomas's Level III appeals were affirmed, following a hearing, by the full b o a r d of school trustees. W h ile grievance proceedings were underway, and while Thomas was still

on temporary disability leave, Mae E. Jones-Clark, Chief of Staff and Academic Affairs (also African-American, but not a defendant), mailed to Thomas a directive to appear in her office on January 13, 2006 to discuss Thomas's placement for the remainder of the year. Thomas claims he did not receive the letter until January 17, 2006, and it is unclear whether the meeting ever took place. In any event, Thomas's official duty station was transferred to Lucas Elementary School as Vice Principal on January 25, 2006. Superintendent Thomas ­ who also is African American ­ stated in his decision denying the Level III grievances that the reason for this change of Thomas's official duty

7 The third incident involved a counselor and a reprimand given by the p r i n c i p a l on or about March 4, 2005.

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station was "numerous incidents of conflicts with staff and campus administratio n ." See Pl.'s Compl., Ex. 9, ¶ 5, August 17, 2007. On March 30, 2006, Sybil L. Comeaux, BISD's Executive Director of P e r s o n n e l (also African-American, but not a defendant), informed Thomas by c e r tifie d letter that the maximum number of days available under the school d is tr i c t 's temporary disability leave policy is 180 days, and that Thomas had e x ce e d e d that amount of leave because he had been absent for more than 180 d a y s as of February 18, 2006. Ms. Comeaux informed Thomas that his position w o u ld be filled by another person until he was released by his treating physician t o return to full-time duty. Further, Ms. Comeaux stated that upon presentation o f a written physician's release, Thomas would have an opportunity to be placed in the first available job for which he was qualified. T h o m a s then obtained a physician's release and did return to work in late A p r i l or early May, 2006. He worked as Vice Principal at Lucas Elementary s c h o o l for a fairly short period of time until July, 2006, when he again went on d is a b ilit y leave. In August, 2006, and while on such leave, his official duty s ta t io n was transferred again to Smith Middle School. His classification as Vice P r in c ip a l and his rate of pay remained unchanged. I n late December, 2006, or early January, 2007, Thomas filed an ethics c o m p la in t against Norris with the Texas Education Agency.8 During this

g e n e r a l time frame, he also filed a complaint against BISD's attorney, Melody C h a p p e l , Esq.9 Lastly, Thomas contacted the Equal Employment Opportunity C o m m i s s io n ("EEOC"). When he met with an EEOC representative at the

Thomas charged that Norris lied when he denied that he attacked T h o m a s , and also that Norris made false accusations at a Texas Worker's C o m p e n s a t i o n Board hearing. The Texas Education Agency denied the code of ethics c o m p l a i n t on October 9, 2008. The State Bar of Texas denied the complaint against Ms. Chappell on M a r c h 8, 2007.
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H o u s to n office, he was told that he did not have a claim, and that EEOC was not g o in g to pursue it. Thomas never filed a formal charge with EEOC; there was n e v e r an official EEOC determination, and EEOC never issued a right-to-sue le tt e r . On January 25, 2007, Thomas was transferred again, this time to Vincent M id d le School. He also was demoted in rank and pay from an assistant or vice p r in c ip a l to teacher. Thomas believes that this transfer and demotion were due t o retaliation and reprisal for his grievances and disclosures of illegal conduct b y Norris, rejecting BISD's explanation that demotion to the rank of teacher o c c u r r e d because Thomas's temporary certification to serve as an assistant p r in c ip a l had expired on that day. In August, 2007, Thomas returned to work as a teacher. At the time of the e v id e n t ia r y hearing before the court on March 10, 2008, Thomas remained e m p lo y e d by BISD as a classroom teacher. At that time, however, he was a s s ig n e d to yet another campus, Dunbar Elementary School. T h o m a s alleges that Norris's actions constituted harassment and created a hostile work environment. Thomas contends that the reprimands he received a n d his ultimate transfer and demotion amount to retaliation for his having c o m p l a in e d and filed a grievance. Thomas also believes that he is a victim of r e p r is a l for having disclosed illegal conduct on the part of Principal Norris and t h a t his First Amendment right to free speech was violated on the same grounds. F in a lly , Thomas contends that his Due Process rights were violated because B I S D failed to provide him with a meaningful opportunity to be heard regarding t h e confrontation with Norris as well as his subsequent transfer to different s c h o o ls and demotion in rank and pay.

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I V . Defendants' Motion to Dismiss and for Summary Judgment D e f e n d a n t s move for dismissal, or, alternatively, for summary judgment. S p e c ific a lly , defendants argue that the court lacks subject-matter jurisdiction o v e r Thomas's proposed WPA and Title VII causes of action, and, alternatively t h a t Thomas has failed to allege facts that would entitle him to recover in any e v e n t . Defendants argue that Thomas has no evidence supporting his proposed con stitu tio n a l claims. Finally, defendants contend that Thomas's claims against d e fe n d a n t s are barred by the doctrines of qualified and professional immunity, a n d that punitive damages are not recoverable in this action.10 T h o m a s opposes defendants' motion to dismiss in its entirety, and r e s p o n d s specifically with regard to his Title VII claim and Due Process claim t o various arguments advanced by defendants. V . Legal Standards Procedural standards that govern litigants and courts in civil cases are e n a c te d by Congress and are codified as "Federal Rules of Civil Procedure." T h e s e rules include mechanisms for weeding out at an early stage cases over w h ic h federal courts lack jurisdiction and cases so lacking in merit that plenary t r ia ls are not needed for just disposition. Rule 12(b) lists several defenses which m a y be asserted by an early motion to dismiss.1 1 Rule 56 permits any party to

Defendants do not address ADA or Substantive Due Process claims which t h e court considers sua sponte under its duty to construe pro se complaints liberally. [A] party may assert the following defenses by motion: (1) l a c k of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) i m p r o p e r venue; (4) i n s u f f i c i e n t process; (5) i n s u f f i c i e n t service of process; (6) f a i l u r e to state a claim upon which relief can be granted; and (7) f a i l u r e to join a party under Rule 19. Fed. R. Civ. P. 12(b).
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s e e k summary judgment on the ground that there is no genuine issue as to a m a t e r ia l fact and the moving party is entitled to judgment as a matter of law. G e n e r a lly , Rule 12 motions to dismiss focus only on factual averments in a plaintiff's complaint. Such motions assert that the complaint fails to allege fa c t s that ­ even if proved ­ would entitle the plaintiff to recover. Rule 56 m o tio n s for summary judgment focus on the entire record before the court, i.e., t h e pleadings, discovery, disclosure materials and affidavits submitted, and u s u a lly assert that a party with the burden of proof has no evidence with which to establish one or more elements of a cause of action. Here, defendants invoke both Rule 12 and Rule 56 as bases for dismissal o f plaintiff's claims. Accordingly, brief descriptions of the analytical framework fo r deciding each type of motion is appropriate. A. R u le 12(b) Motions to Dismiss A Rule 12(b)(1) motion to dismiss for lack of jurisdiction argues that a co m p la in t fails to aver facts sufficient to invoke the limited jurisdiction of a fe d e r a l court. A Rule 12(b)(6) motion to dismiss argues that ­ irrespective of ju r is d ic tio n ­ the complaint fails to aver facts that give rise to legal liability of t h e defendant. A motion to dismiss under Federal Rule of Civil Procedure 1 2 (b )(1 ) is analyzed under the same standard as a motion to dismiss under Rule 1 2 (b )(6 ). Johnson v. Housing Authority of Jefferson Parish, 442 F.3d 356, 359 (5 th Cir. 2006); Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). When addressing a Rule 12(b)(6) motion, the court must decide whether t h e facts alleged, if true, will entitle plaintiff to some legal remedy. See Conley v . Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal is Page 8 of 34

p r o p e r only if there is either: (1) "the lack of a cognizable legal theory" or (2) "the a b s e n ce of sufficient facts alleged under a cognizable legal theory." Balistreri v. P a c ific a Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). "Normally, in deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry t o facts stated in the complaint and the documents either attached to or in c o r p o r a te d in the complaint." Lovelace v. Software Spectrum, Inc., 78 F.3d 1 0 1 5 , 1017 (5th Cir. 1996). The court also may "consider matters of which [it] m a y take judicial notice." Id. at 1017-18; see Fed. R. Evid. 201(f). Matters of p u b lic record, items appearing in the record of the case, and exhibits attached t o the complaint also may be considered. See 5B CHARLES ALAN WRIGHT ET AL., F EDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2004). T h e court must accept as true all material allegations in the complaint as w e ll as any reasonable inferences to be drawn from them. See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1 9 8 2 ) . All well-pleaded facts must be reviewed in the light most favorable to p la in tiff . See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995). Courts generally view motions to dismiss for failure to state a claim with d is fa v or, and, therefore, such motions are granted rarely. Kaiser Aluminum, 677 F .2 d at 1050. The Supreme Court instructs that "a complaint should not be d is m is s e d for failure to state a claim unless it appears beyond doubt that the p la in tiff can prove no set of facts in support of his claim which would entitle him t o relief." Conley, 355 U.S. at 45-46. Nonetheless, "[d]ismissal is proper if the c o m p la in t lacks an allegation regarding a required element necessary to obtain re lie f." Rios v. City of Del Rio, 444 F.3d 417, 421 (5th Cir. 2006). A lt h o u g h there previously was ambiguity as to minimum requirements of fed e ra l notice pleading, it is now clear that to state a cognizable claim, a plaintiff Page 9 of 34

m u s t plead sufficient factual matter which, if accepted as true, states a claim to r e lie f that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct.1937, 1949, 173 L . Ed.2d 868 (2009). The tenet that a court must accept a complaint's allegat io n s as true is inapplicable to threadbare or formulaic recitals of a cause of a c t io n s 's elements, supported by mere conclusory statements. Bell Atlantic, C o r p . v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2 0 0 7 ) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. E d .2 d . 209 (1986)); see also Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th C ir . 1992) (holding that conclusory allegations and unwarranted deductions of fa ct are not admitted as true). Therefore, to satisfy Rule 12(b)(6)'s requirement fo r stating a claim upon which relief can be granted, the pleaded factual content m u s t be sufficient to allow the court to draw a reasonable inference that the d e fe n d a n t is liable for the misconduct alleged. Ashcroft, 129 S. Ct. at 1949. B. R u le 56 Motions for Summary Judgment S t a n d a r d s for determining pretrial motions for summary judgment are w e ll-s e tt le d . Summary judgment is appropriate when, viewing the evidence in t h e light most favorable to the non-moving party, there is no genuine issue of m a t e r ia l fact and the moving party is entitled to judgment as a matter of law. C e lo te x Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1 9 8 6 ) ; see also Fed. R. Civ. P. 56(c). An issue is genuine if the evidence is s u ffi c i e n t for a reasonable jury to return a verdict for the non-moving party. A n d e r s o n v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L .E d .2 d 202 (1986). A fact is material when it is relevant or necessary to the u lt im a te conclusion of the case. Anderson, 477 U.S. at 248. S u m m a r y judgment is proper after adequate time for discovery and upon m o t io n , against a party who fails to make a showing sufficient to establish the Page 10 of 34

e x is t e n c e of an element essential to that party's case, and on which that party w ill bear the burden of proof at trial. Celotex, 477 U.S. at 322. The admissibility o f evidence is subject to the same standards and rules that govern the admissib ilit y of evidence at trial. Donaghey v. Ocean Drilling & Exploration Co., 974 F .2 d 646, 650 n.3 (5th Cir. 1992). In evaluating parties' evidence, the nonmoving p a r ty 's evidence "is to be believed, and all justifiable inferences are to be drawn in [that party's] favor." Anderson, 477 U.S. at 255. W e ig h in g parties' conflicting evidence is not appropriate at the summary ju d g m e n t stage: "[c]redibility determinations, the weighing of the evidence, and t h e drawing of legitimate inferences from the facts are jury functions." Id. (e m p h a s is added). At the summary judgment stage, courts must not weigh the e v id e n c e and determine which party has the strongest argument; instead, courts m u s t simply determine whether there is a genuine issue for trial. Anderson, 477 U .S . at 249; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L .E d .2 d 142 (1970); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 2 8 8 -8 9 , 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). A party who moves for summary judgment bears an initial burden of d e m o n s tr a t in g an absence of evidence supporting the non-movant's case. C e lo t e x , 477 U.S. at 325. The moving party accomplishes this by offering

e v id e n c e which undermines one or more of the essential elements of the nonm o v in g party's case, or the moving party may simply demonstrate that the e v id e n c e in the record falls short of establishing an essential element of the nonm o v in g party's case. Id. at 323. A fte r a movant meets its burden, the non-movant must designate specific fa c ts showing there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v . Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Page 11 of 34

A lt h o u g h the court considers the evidence and all reasonable inferences to be d r a w n therefrom in the light most favorable to the non-movant, the non-movant m a y not rest on the mere allegations or denials of its pleadings, but must r e s p o n d by setting forth specific facts indicating a genuine issue for trial. Webb v . Cardiothoracic Surgery Assocs. of North Texas, P.A., 139 F.3d 532, 536 (5th C ir . 1998). However, "[a]ny reservations the court has concerning the evidence w ill preclude summary judgment." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1 2 5 7 , 1264 (5th Cir. 1991). L o c a l court rules also govern consideration of motions for summary ju d g m e n t . Local Rule CV-56(b) states: A n y party opposing the motion should serve and file a r e s p o n s e that includes in the text of the response or as a n appendix thereto, a "Statement of Genuine Issues." T h e response should be supported by appropriate c it a t io n s to proper summary judgment evidence as to w h ic h it is contended that a genuine issue of material fa c t exists. Proper summary judgment evidence should b e attached to the response in accordance with the p r o c e d u r e contained in section (d) of this rule. V I . Whistleblower Protection Act of 1989 T h o m a s contends that Norris's conduct toward him was illegal; that he d i s c lo s e d same through BISD's grievance procedures; and that he was then r e p r im a n d e d by Assistant Superintendent Fischenich and ultimately transfe r r e d and demoted in rank and pay as a reprisal for engaging in whistleblowing a c tiv ity . A. Statutory Scheme W P A was enacted to protect "against agency reprisals for whistleblowing a ct iv it y , such as disclosing illegal conduct, gross mismanagement, gross wasting o f funds or actions presenting substantial dangers to health and safety." Charles Page 12 of 34

R . Richey, 1 Manual on Employment Discrimination § 10:4 (2008) (citing Stella v . Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002)) (emphasis added); see 5 U.S.C. § 2 3 0 2 (b )(8 ). WPA prohibits adverse employment actions against a federal

e m p l o y e e who "discloses information that [he] reasonably believes evidences a v i o l a t io n of any law or actions that pose a substantial and specific danger to p u b lic health or safety." Jackson v. Signh, No. H-06-2920, 2007 WL 2818322, at * 1 2 (S.D. Tex. Sept. 25, 2007) (citing Grisham v. United States, 103 F.3d 24, 26 (5 th Cir. 1997)); 5 U.S.C. § 2302(b)(8). Under the statutory scheme set forth in Title 5 of the U.S. Code, an e m p lo y e e who believes he is the victim of an unlawful reprisal must first bring h is claim to the federal Office of Special Counsel (OSC), which investigates the c o m p l a in t . 5 U.S.C. § 1214; Weber v. United States, 209 F.3d 756, 758 (D.C.Cir. 2 0 0 0 ) (describing whistleblower protection procedures under Title 5). If the OSC fin d s that there was a prohibited personnel action as defined by § 2302, it r e p o r t s its findings to the Merit Systems Protection Board (MSPB), and it can p e t it io n the MSPB on the employee's behalf. Weber, 209 F.3d at 758. If OSC fin d s no agency wrongdoing, then the employee may bring an action before the M S P B . 5 U.S.C. §§ 1221; 1214(a)(3); Weber, 209 F.3d at 758. If dissatisfied with O S C 's and MSPB's handling of the matter, employees may seek judicial review o f adverse MSPB rulings in the Court of Appeals for the Federal Circuit or, in a "mixed case," in a federal district court. 5 U.S.C. §§ 1214(c), 7703(b)-(c); see B a r n e s v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988). Under no circumstances, however, does WPA grant the federal district c o u r ts jurisdiction to entertain a whistleblower cause of action brought directly b e f o r e it in the first instance. Stella, 284 F.3d at 142. Consequently, exhaustion o f these administrative remedies is a jurisdictional prerequisite to obtaining Page 13 of 34

ju d i c ia l review in any federal court. See Stella, 284 F.3d at 142-44 (district court p r o p e r ly dismissed plaintiff's WPA claim on jurisdictional grounds when she fa ile d to exhaust her administrative remedies); see also Richards v. Kiernan, 461 F .3 d 880, 885-86 (7th Cir. 2006) (stating that exclusive remedy for claims b r o u g h t under the WPA is the Civil Service Reform Act, which requires c o m p la in ts to be brought to the MSPB, then the Federal Circuit); Hendrix v. S n o w , 170 F. App'x 68, 78-79 (11th Cir. 2006); Harris v. Evans, 66 F. App'x 465, 4 6 6 -6 7 (4th Cir. 2003); Grisham v. United States, 103 F.3d 24, 26 (5th Cir. 1997) (sta tin g that a plaintiff's WPA remedies are exclusively those provided under the C ivil Service Reform Act). B . Application T h o m a s 's purported WPA claim fails for two reasons. First, Thomas did n o t file a complaint with OSC or obtain a ruling from MSRB before bringing this s u it. Consequently, the court lacks subject-matter jurisdiction, and this claim m u s t be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). See Limardo v. Barreto, N o . 04-1343, 2006 WL 2795554, at *4 (D. Puerto Rico Sept. 26, 2006) (dismissing W P A claim under 12(b)(1) for failing to exhaust administrative remedies); S p r ig g s v. Brownlee, No. 5:04-CV-00968, 2006 WL 1304861, at *6 (N.D.N.Y. May 9 , 2006) (same). Second, Thomas was not a federal employee when the alleged w h is t le b lo w in g actions and reprisals occurred. Consequently, he lacks standing t o sue under this act, and fails to state a claim upon which relief can be g ra n te d .12

Thomas's response to defendants' motion for summary judgment states t h a t he has "sued defendants for alleged violations of federal law" which " i n c l u d e s [violations of] the Whistleblower Protection Act of 2001 and his `civil rights.'" See Pl.'s Resp. to Defs. Mot. for Summ. J., ¶ 2, May 14, 2009 ( e m p h a s i s added). The court recognizes that Texas has a similar whistleblower s t a t u t e codified in TEX. GOV'T CODE § 554.001, et. seq., and if any of Thomas's o t h e r causes of action survive defendants' motion to dismiss, the court, in light o f its duty to consider pro se pleadings liberally, might be obligated to d e t e r m i n e whether to entertain a state-law-based whistleblower claim under its s u p p l e m e n t a l jurisdiction.

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V I I . Title VII Thomas alleges that he is a victim of discrimination rendered unlawful by T it le VII in that he was subjected to a hostile work environment and then r e p r im a n d e d , transferred and demoted in rank and pay for engaging in a p r o t e c t e d activity of reporting and complaining of such discrimination. A . Statutory Scheme T it le VII prohibits discrimination in the workplace on the basis of "race, c o l o r , religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2. To enhance c o m p l ia n c e with federal policy for equal employment opportunities for these p r o t e c t e d classes of employees, Title VII authorizes persons who believe t h e m s e lv e s to be victims of unlawful discrimination to bring private enforcement c a u s e s of action after exhausting administrative remedies. 42 U.S.C. §

2 0 0 0 e - 5 ( f)(1 ) . Title VII, however, is not a panacea for all workplace injustices, n o r does it prescribe a "general civility code for the American workplace . . . ." O n c a le v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L .E d .2 d 201 (1998). Rather, Title VII addresses only a limited and discrete set o f practices that Congress prohibits. It simply is not enough to show unfair or a r b it r a r y treatment or retaliation unrelated to these categories. Title VII does n o t protect workers from personal animosity and obnoxious behavior in the a b s t r a c t . See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2 2 7 5 , 141 L.Ed.2d 662 (1998). A precondition of filing a Title VII suit in federal district court is e x h a u s tio n of administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 3 7 6 , 378-79 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 7 8 8 -8 9 (5th Cir. 1996)). Before instituting suit, aggrieved employees must first m ak e a timely charge of discrimination with the Equal Employment Opportunity C o m m is s io n ("EEOC"), and secure from the EEOC a "right-to-sue" letter. Page 15 of 34

T a y lo r , 296 F.3d at 378-79; see also McDonnell Douglas Corp. v. Green, 411 U.S. 7 9 2 , 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). U p o n successfully instituting suit, plaintiffs may prove Title VII claims e i th e r by direct or circumstantial evidence. See McCoy v. City of Shreveport, 4 9 2 F.3d 551, 556 (5th Cir. 2007). When, as here, a plaintiff relies on circums ta n t ia l evidence, courts use a modified "McDonnell Douglas test" that involves s h i ft in g burdens of production to determine whether the action warrants a p l e n a r y trial. McDonnell Douglas Corp., 411 U.S. at 802-804; Keelan v. Majesco S o ft w a r e , Inc., 407 F.3d 332, 341 (5th Cir. 2005) (describing the Fifth Circuit's m o d i fie d McDonnell Douglas approach to employment discrimination cases w h e r e mixed-motive analysis might apply). Under this test, a plaintiff must first e s t a b l i s h a prima facie case of his Title VII cause of action. The burden then s h i ft s to the employer/defendant to provide a legitimate, non-discriminatory or n o n -r e ta lia t o r y reason for its actions. McDonnell Douglas Corp., 411 U.S. at 8 0 2 -0 4 ; McCoy, 492 F.3d at 557 (applying McDonnell Douglas test to retaliation c a s e ); Hayatdavoudi v. Univ. of La. Sys. Bd. of Trustees, No. 00-30389, 2000 WL 1 8 3 5 1 4 3 , *3 (5th Cir. 2000) (applying McDonnell Douglas test to hostile work e n v ir o n m e n t case). When the defendant employer rebuts the prima facie case, t h e burden then shifts back to the plaintiff to show that either: (1) the reason p r o v id e d is not true and is actually a pretext for the prohibited discrimination o r retaliation (the "pretext alternative"), or (2) the reason provided is true, but is only one of the reasons for the conduct, and another reason is the employee's p r o t e c t e d characteristic (the "mixed-motive alternative"). McDonnell Douglas C o r p ., 411 U.S. at 802-04; Keelan, 407 F.3d at 341; see also McCoy, 492 F.3d at 557. Title VII jurisprudence recognizes causes of action for hostile work e n v ir o n m e n t s and for retaliations against workers who engage in activities

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p r o t e c t e d by Title VII, such as filing administrative charges with the EEOC. T h e elements of such causes of action are separate and distinct. 1. H o s t ile Work Environment Claims

A prima facie case of hostile work environment is established by evidence t h a t : (1) the employee is a member of a protected class; (2) he was subject to u n w e l c o m e harassment based on race, gender, religion, or national origin; (3) the h a r a s s m e n t affected a term or condition of his employment; and (4) the employer k n e w or should have known about the harassment and failed to take prompt r e m e d ia l action. See Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 3 4 7 (5th Cir. 2007); see 42 U.S.C. § 2000e-2(a)(1). Title VII is violated only " [w ]h e n the workplace is permeated with `discriminatory intimidation, ridicule, a n d insult' that is `sufficiently severe or pervasive to alter the conditions of the v ictim 's employment and create an abusive working environment . . . .'" Harris v . Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (q u o tin g Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 9 1 L.Ed.2d 49 (1986)) (emphasis added and internal citations omitted). The c o n d u ct must be severe enough to create an objectively hostile environment b a s e d on the victim's race, gender, religion, or national origin, and the victim m u s t himself subjectively perceive it to be hostile. Id. at 21-22 (stating that u n l e s s the victim actually perceives the conduct to be hostile it could not have a lter e d the conditions of employment). C o u r t s employ a "totality-of-the-circumstances" test to determine when a h o s tile work environment existed. Turner, 476 F.3d at 347. Thus, courts

e x a m in e "the frequency of the discriminatory conduct; its severity; whether it is p h y s ic a lly threatening or humiliating, or a mere offensive utterance; and

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w h e th e r it unreasonably interferes with an employee's work performance." H a r r is , 510 U.S. at 23. 2. R e ta lia tio n and Reprisal

A prima facie case of retaliation is actionable under Title VII when e s t a b lis h e d by evidence that: (1) an employee engaged in protected activity; (2) a n adverse employment action occurred; and (3) a causal link exists between the p r o t e c t e d activity and the adverse employment action. Turner, 476 F.3d at 348; s e e 42 U.S.C. § 2000e-3(a) (primary source of protection against retaliation for t h o s e opposing discrimination or participating in the Title VII process). These t h r e e elements use terms of art that are not self explanatory. Thus, they require fu r t h e r elaboration: a. P ro t ec t ed Activity

T h is term encompasses opposition to any practice rendered unlawful by T it le VII (the "opposition clause"), and participation in Title VII processes (in c lu d in g making a charge, testifying, assisting, or participating in any in v e stig a t io n , proceeding, or hearing under Title VII) (the "participation clause"). 4 2 U.S.C. 2000e-3(a). When proceeding under the opposition clause, plaintiffs n e e d not prove that the discriminatory practices alleged were unlawful in fact; b u t rather that they had a reasonable belief that such conduct constituted u n l a w fu l employment practices protected by Title VII. Turner, 476 F.3d at 348; D e Anda v. St. Joseph Hosp., 671 F.2d 850, 853 n.2 (5th Cir. 1982). When p r o c e e d in g under the participation clause, there is no "reasonable belief" r e q u ir e m e n t; however, the plaintiff may be required to show that he made his c la im alleging discrimination in good faith. See Pettway v. American Cast Iron P i p e Co., 411 F.2d 998, 1007 (5th Cir. 1969) (holding that letter to EEOC was

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p ro te cte d activity even though it contained false, but not malicious, accusations); M a tt s o n v. Caterpillar, Inc., 359 F.3d 885, 891-92 (7th Cir. 2004) (holding that a good faith, reasonable requirement applies to retaliation claims based on the p a rticip a t io n clause). b. A d v e r s e Employment Action

This term encompasses any act that a reasonable employee would find to b e materially adverse; that is, the act is such that it might well "dissuade[ ] a r e a s o n a b le worker from making or supporting a charge of discrimination." B u r lin g t o n Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2 4 0 5 , 2415, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1 2 1 9 (D.C. Cir. 2006); see also McCoy, 492 F.3d at 559. c. C a u s a l Link

To satisfy this element, the complaining employee must show that "the e m p l o y e r 's [adverse] decision . . . was based in part on knowledge of the e m p lo y e e 's protected activity." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1 1 2 2 (5th Cir. 1998). Therefore, the causal link required to satisfy this element is less stringent than the "but for" standard used in the ultimate determination; p l a in t iff "need not prove that [his] protected activity was the sole factor m o tiv a tin g the employer's challenged decision in order to establish the `causal lin k ' element of a prima facie case." Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5 th Cir. 1996) (citing De Anda, 671 F.2d at 857 n.12). B . Application T h o m a s contacted the EEOC about his perceived discriminatory t r e a tm e n t, but he did not pursue his accusations by filing a formal administrat iv e charge. Consequently, EEOC never issued a determination, nor did it issue Page 19 of 34

t o Thomas a "right-to-sue" letter which is a precondition to a private cause of a c t io n . Accordingly, defendants are entitled to dismissal under Rule 12(b)(6) or t o summary judgment under Rule 56 on both of Thomas's Title VII claims due t o his failure to comply with a precondition for instituting a private, Title VII c a u s e of action, viz., exhausting all available administrative remedies.13 T h e exhaustion deficiency aside, Thomas fails in any event to allege a c o g n iz a b le hostile work environment claim. He does not allege ­ and at the e v id e n t ia r y hearing affirmatively disavowed ­ any suggestion that any of d e f e n d a n t s ' alleged wrongful actions were taken on account of Thomas's race, c o lo r , sex, religion, or national origin. Moreover, while Norris's alleged conduct

Dismissals of Title VII claims for failing to exhaust administrative r e m e d i e s are not based on lack of subject-matter jurisdiction. See Zipes v. T r a n s World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 ( 1 9 8 2 ) ("filing a timely charge of discrimination with the EEOC is not a j u r i s d i c t i o n a l prerequisite to suit in federal court, but a requirement that, l i k e a statute of limitations, is subject to waiver, estoppel, and equitable t o l l i n g . " ) ; see also Womble v. Bhangu, 864 F.2d 1212, (5th Cir. 1989)(dismissing f o r lack of subject-matter jurisdiction because plaintiff did not file Title VII c l a i m with EEOC was error). D e s p i t e clarification from Zipes, the proper procedural mechanism for d i s m i s s i n g a Title VII claim for failure to exhaust administrative remedies r e m a i n s nebulous. In Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 8 6 3 - 6 4 (5th Cir. 1983), the court granted a Rule 56 summary judgment based on the p l a i n t i f f ' s failure to exhaust administrative remedies first. But, in Martin K. E b y Const. Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 n. 4 (5th C i r . 2004), the court stated that Rule 12(b)(6) forms a proper basis for a f a i l u r e - t o - e x h a u s t dismissal. O t h e r circuits' jurisprudence mirror the same ambiguity. In Robinson v . Dalton, 107 F.3d 1018, 1022 (3rd Cir. 1997), the Third Circuit stated that " t i m e l i n e s s of exhaustion requirements are be resolved under Rule 12(b)(6) c o v e r i n g motion to dismiss for failure to state claim." Robinson, 107 F.3d at 1 0 2 2 . But in a later case citing Robinson, the same court stated "failure to e x h a u s t administrative remedies is an affirmative defense . . . the defendant b e a r s the burden of pleading and proving that the plaintiff has failed to exhaust a d m i n i s t r a t i v e remedies." Williams v. Runyon, 130 F.3d 568, 573 (3rd Cir. 1997) ( c i t i n g Robinson V. Dalton, 107 F.3d 1018, 1021 (3rd Cir. 1997). Given that exhaustion of administrative remedies is a "precondition" t o filing suit (Taylor, 296 F.3d at 378-79), it is analytically synonymous with a "condition precedent" which a plaintiff must plead. See Fed. R. Civ. P. 9(c); E q u a l Employment Opportunity Commission v. Standard Forge Axle Co., 496 F.2d 1 3 9 2 , 1395 (5th Cir. 1974). Thus, Rule 12(b)(6) normally would supply the proper b a s i s for a failure-to-exhaust dismissal. But, when matters outside the p l e a d i n g s are relied on by the court in determining lack of exhaustion, or when a plaintiff invokes waiver, equitable tolling or estoppel to excuse lack of e x h a u s t i o n , Rule 56 will be a more appropriate vehicle. Finally, in pro se cases, where the court may examine not only a p l a i n t i f f ' s formal complaint, but also sworn testimony at a Spears hearing, m o t i o n s , briefs and other papers submitted by the plaintiff to determine the n a t u r e and scope of the action, any differences between Rule 12 and Rule 56 d i s m i s s a l s based on failure to exhaust are largely semantical.

13

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a r g u a b l y constituted much more than a mere offensive utterance, it was, n o n e t h e le s s , but a single instance of humiliation. There is no evidence that such c o n d u c t was pervasive, or permeated the workplace, or was so severe as to alter c o n d it io n s of employment. Instead, Thomas remained as an assistant or vice p r in c ip a l, and was compensated at the higher rate pertaining thereto (except w h e n on voluntary disability leave) for another sixteen months at different c a m p u s e s until his temporary certification to serve as an assistant principal e x p ir e d . These facts do not allege or establish a prima facie case of hostile work e n v i r o n m e n t under Title VII.1 4 S im ila r ly , Thomas fails to establish the first element of a prima facie case fo r actionable retaliation. He proceeds under the "opposition clause" because he s u b je c t i v e l y believes he was subject to retaliation because he opposed Norris's c o n d u ct by complaining to and filing a complaint with his superiors, and taking p a r t in an internal grievance procedure. Thomas must demonstrate that he had a n objectively reasonable belief that Norris's conduct ­ about which Thomas g r ie v e d ­ was an unlawful employment practice prohibited by Title VII, i.e, d i s c rim in a t io n and adverse employment actions based on a worker's race, color g e n d e r , religion, or national origin. Throughout his complaints, Thomas never m e n t io n s race, color or other protected status as being the reason he was treated u n f a ir ly . He did not subjectively believe he was being harassed based on one of t h e s e protected characteristics, and it was not objectively reasonable for him to b e l ie v e that during the grievance process he was complaining of activity

Defendants emphasized in their briefing that race or color based d i s c r i m i n a t i o n was not at play because the primary defendants, Norris and Carrol T h o m a s , and most of the staff who interacted with Thomas are also black. P l a i n t i f f responded that his Title VII claim should not be foreclosed merely b e c a u s e defendants Norris and Carrol Thomas are also black. Intra-racial discrimination is actionable under Title VII. See Hansborough v . City of Elkhart Parks & Recreation Dept., 802 F. Supp. 199, 206 (N.D. Ind. 1 9 9 2 ) ; see also Mitchell v. National R.R. Passenger Corp., 407 F. Supp.2d 213, 2 3 6 (D.D.C. 2005). However, it is not enough to merely identify a potential c a u s e of action. Thomas must also allege facts which, if proven, will entitle h i m to relief. Here, he disavows any suggestion that the allegedly harassing a c t s of any defendants were based on race or color.

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p r o s c r ib e d under Title VII. See, e.g., Turner, 476 F.3d at 349 (holding that it w a s not reasonable to believe that email containing no reference to discriminat o r y conduct constituted unlawful employment practice under Title VII); Watts v . Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (finding that complaints to m a n a g e r regarding supervisor's comments about personal life did not constitute p r o t e ct e d activity because employee did not report sexual harassment). Under th a t circumstance, even if retaliation did occur, it is not actionable under Title V II. V I II . Due Process T h o m a s repeatedly complains in multiple documents submitted to the c o u r t that the defendants violated his constitutional right to due process of law. T h e Due Process Clause of the Fourteenth Amendment provides that "[n]o State s h a ll . . . deprive any person of life, liberty, or property, without due process of t h e law." U.S. CONST. amend XIV. Interpretive jurisprudence recognizes that t h is clause provides both procedural and substantive protections. A. P r o c ed u r a l Due Process Deprivation of a constitutionally-protected life, liberty, or property in t e r e s t is actionable only if the deprivation is without due process of the law. Z in e rm o n v. Burch, 494 U.S. 113, 124-26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). I n procedural due process cases, therefore, courts employ a sequential analysis. T h e analysis begins with an inquiry into whether challenged conduct affected a lif e , liberty or property interest protected by the Constitution. Board of Regents v . Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). If so, the se co n d step is to determine whether the level of process afforded to the plaintiff w a s deficient. This second inquiry involves a three-pronged, balancing of

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in t e r e s t s articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 4 7 L.Ed.2d 18 (1976).1 5 Finally, when the level of process afforded was In that

in a d e q u a t e , the court determines what additional process is due.

r e s p e c t , Due Process is a flexible concept, calling only for "such procedural p r o t e c t io n s as the particular situation demands." See Morrissey v. Brewer, 408 U .S . 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). 1. P r o p e r t y Interests

T o allege a deprivation of a property interest protected under the F o u r te e n t h Amendment, the plaintiff must demonstrate a "legitimate claim of e n t it le m e n t " to that interest. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2 7 0 1 , 88 L.Ed.2d 548 (1972). Public employment may endow an employee with a legally cognizable property interest. Cleveland Bd. of Ed. v. Loudermill, 470 U .S . 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, a property interest is not inherent in public employment, instead it must be created by an in d e p e n d e n t source, such as state law. Perry v. Sindermann, 408 U.S. 593, 601, 9 2 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Conner v. Lavaca Hosp. Dist. 267 F.3d 426 (5 th Cir. 2001). Generally, a property interest is created when a public entity has acted to co n fer , or alternatively, has created conditions which infer, existence of a

The court considers and weighs: (1) T h e private interest affected by government action; (2) T h e risk of an erroneous decision inherent in the procedure e m p l o y e d , along with the probable value of any additional or d i f f e r e n t procedural safeguard; and (3) T h e government's interest, including fiscal and administrative b u r d e n s involved in providing additional or substituted procedures. M a t h e w s v. Eldridge, 424 U.S. at 334-35.

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p r o p e r t y interest by abrogating its right to terminate an employee without c a u s e . Muncy v. City of Dallas, Tex., 335 F.3d 394, 398 (5th Cir. 2003). This a b r o g a t io n may take the form of a statute, rule, handbook, or policy which limits t h e condition under which the employment may be terminated, Henderson v. S o t e lo , 761 F.2d 1093, 1096 (5th Cir. 1985) (quoting Perry, 408 U.S. at 602-03, 9 2 S.Ct. at 2700); or it may take the form of a more particularized mutual u n d e r s ta n d in g with the employee. Stapp v. Avoyelles Parish School Board, 545 F .2 d 527 (5th Cir. 1977) ; Perry, 408 U.S. at 602, 92 S.Ct. at 2700. U ltim a te ly , however, the question of whether a property interest exists is a n individualized inquiry which is guided by the specific nature and terms of the p a r tic u la r employment at issue, and informed by the substantive parameters of th e relevant state law. Muncy, 355 F.3d at 298. With respect to public

e d u c a to r s , a constitutionally protected property interest exists if the public e d u c a to r can "demonstrate a reasonable expectation of continued employment." C o a t s v. Pierre, 890 F.2d 728, 732 (5th Cir. 1989); see also Ferguson v. Thomas, 4 3 0 F.2d 852 (5th Cir. 1970); Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970). 2. L ib e r t y Interest

A public employer unconstitutionally deprives its employees of a liberty in t e r e s t when it subjects them to adverse employment actions under stigmatizin g circumstances without giving the employees an opportunity to clear their n a m e s . Arrington v. County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992). To su p p o rt a claim for deprivation of the right to a name-clearing hearing plaintiffs m u s t establish that they were public employees, that they were subjected to an a d v e r s e employment action, that stigmatizing charges were made against them in connection with the adverse employment action, that the charges were made p u b lic , that the charges were false, that they requested name-clearing hearings, Page 24 of 34

a n d that the hearings were denied. Id. The public charges must be so stigmatizin g that they create a "badge of infamy" that destroys plaintiff's ability to obtain o th e r employment. Evans v. City of Dallas, 861 F.2d 846, 851 (5th Cir.1988). 3. A p p lic a tio n a. W e r e Protected Property Interests Deprived?

Plaintiff asserts deprivation by defendants of two protected property in t e r e s t s : (1) his job assignment as assistant principal and (2) his right to be r e a s s i g n e d at the same level of pay. Defendants argue that they are entitled to s u m m a r y judgment on these claims because plaintiff has no protected property in t e r e s t in continued employment as an assistant principal. Additionally,

d e fe n d a n ts argue that plaintiff has no protected property interest in being r e a s s i g n e d at the same level of pay because expiration of his certification to s e r v e as vice principal rendered him unqualified to remain in that position and t h e r e fo r e ineligible to collect the same salary. i. R e a s s ig n m e n t (assistant principal to teacher)

E m p lo y e e s have no protected property interest in non-economic benefits s u c h as work assignments. Kinsey v. Salado Independent School Dist., 950 F.2d 9 8 8 , 997 (5th Cir) (en banc), cert. denied, 504 U.S. 941, 119 L.Ed.2d 201 (1992) (n o constitutionally protected property interest in non-economic benefit of s e r v in g as superintendent); Davis v. Mann, 882 F.2d 967, 973 n.16 (5th Cir. 1 9 8 9 ) (unless the state specifically creates a property interest in a non-economic b e n e fit ­ such as a work assignment ­ a property interest in employment g e n e r a lly does not create a due process property protection for such benefits); see a ls o Johnson v. Houston Independent School Dist., 930 F.Supp. 276, 286-87 (5th C ir . 1996). Plaintiff's employment contract specifically states that "[e]mployee Page 25 of 34

s h a ll be subject to assignment and reassignment of positions or duties, changes in responsibilities or work, transfers, or reclassification at any time during the c o n t r a c t term." See Pl.'s Compl., Ex. 11, Attach. Y, ¶ 4, August 17, 2007; Pl.'s R e p ly , Ex. 4, October 5, 2009. Thus, plaintiff proffers no evidence establishing a protected property interest in his work assignment as assistant principal. ii. R e a s s ig n m e n t (lower pay-grade)

A public employee's interest in his or her salary normally is a property in t e r e s t protected by the Constitution because salary is an economic benefit. E g u ia v. Tompkins, 756 F.2d 1130, 1138 (5th Cir. 1985) (citing Sniadach v. F a m ily Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). H o w e v e r , a public school teacher whose certification lapses has no protected p r o p e r t y interest in continued employment because he cannot comply with a c o n t r a c t which requires certification. Nunez v. Simms, 341 F.3d 385, 392 (5th C ir . 2003); see also Montez v. South San Antonio ISD, 817 F.2d 1124 (5th Cir. 1 9 8 7 ) (stating that an uncertified teacher had no property right to continued e m p l o y m e n t ). Additionally, in Frazier v. Garrison ISD, 980 F.2d 1514 (5th Cir. 1 9 9 3 ), the 5th Circuit concluded that once a teacher's certification validly t e r m in a t e s , the school board may, without a hearing, terminate the teacher n o tw ith s ta n d in g that her fixed term contract has not expired. Thomas's certification, like the plaintiffs in Nunez and Frazier, expired d u r in g the term of his contract. However, Thomas, unlike the plaintiffs in N u n e z and Frazier, was not terminated but merely transferred to a lower paying p o s it io n for which he was qualified. Once the certification expired, Thomas's c o n t r a c t to serve as vice principal became void because he was no longer q u a lifie d to hold the position. Therefore, plaintiff had no property interest in c o n tin u e d employment after his certification lapsed. Page 26 of 34

b.

W e r e Protected Liberty Interests Deprived?

P l a in t iff has failed to allege or produce evidence that "stigmatizing" c h a r g e s were made against him, or that any such charges were made public, or t h a t he requested name-clearing hearings, or that any requested hearings were d e n ie d , or that any charges made against him damaged or destroyed other e m p l o y m e n t opportunities. Plaintiff has thus failed to raise a genuine issue of m a t e r ia l fact concerning either existence or violation of a liberty interest p r o te c te d by the Fourteenth Amendment. c. W a s Process Adequate?

E v e n if Thomas had property interests in reassignment at the same c la s s ific a tio n and level of pay, or a liberty interest in clearing his good name, the p r o c e s s afforded to him was ample and adequate. The root requirement of p r o c e d u r a l due process is that an individual be given notice and an opportunity to be heard before being deprived of a property or liberty interest. Cleveland Bd. o f Educ. v. Loudermill, 470 U.S. 532, 541 & 544-46, 105 S.Ct. 1487, 84 L.Ed.2d 4 9 4 (1985). An employer provides procedural due process when it provides its e m p lo y e e s notice and an opportunity to tell their side of the story. Rosenstein v . City of Dallas, Tex., 876 F.2d 392, 395 (5th Cir. 1989). P la in t iff was notified by letter of his reassignment to a classroom teacher a t a lower pay grade. See Pl.'s Compl., Ex. 11, Attach W, ¶ 4, August 17, 2007. P u r s u a n t to BISD's Personnel-Management Relations, Employee Comp l a in t s /G r ie v a n c e s Policy, plaintiff was entitled to file a grievance if he believed h is reassignment to a lower pay grade was inequitable. See Pl.'s Reply, Ex. 2, A t t a c h . A, October 5, 2009. Plaintiff was aware of his right to file a grievance b e ca u s e he previously used grievance procedures to challenge his reprimand as a result of his confrontation with Norris. Additionally, plaintiff admits in his O c to b e r 13, 2009 supplemental response to defendants' motion for summary Page 27 of 34

ju d g m e n t that he was aware of his right to file a grievance, but specifically chose n o t to. d . Summary and Conclusion D e f e n d a n t s are entitled to summary judgment regarding claims of d e p r iv a t io n of a protected property or liberty interest on dual grounds. First, T h o m a s fails to present competent evidence to establish that he was deprived of a protected property or liberty interest. Second, Thomas fails to present

c o m p e t e n t evidence to establish that the process available to him upon being t r a n s f e r r e d to classroom teacher at a lower grade of pay was, in any event, in a d e q u a t e . The Due Process Clause is not a guarantee against incorrect or ill-a d v is e d personnel decisions, it merely ensures that there must be notice and a meaningful opportunity to be heard, and such opportunity was provided in this r e g a r d . See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 129, 112 S.Ct. 1 0 6 1 , 117 L.Ed.2d 261 (1992) (quoting Bishop v. Wood, 426 U.S. 341, 350, 96 S .C t. 2074, 48 L.Ed.2d 684 (1976)).1 6 B . Substantive Due Process The conceptual essence of "substantive" due process is the notion that the D u e Process Clause ­ in addition to setting procedural minima for deprivations o f life, liberty, or property ­ bars outright "certain government actions regardless o f the fairness of the procedures used to implement them." Daniels v. Williams, 4 7 4 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). One example is the s u b s t a n t iv e protections in the Bill of Rights that have been "incorporated" into t h e Fourteenth Amendment to limit the power of the states. Brennan v.

Thomas also appears to contend that Due Process protected him against w r o n g f u l accusations by his employer. There is, however, no property or liberty i n t e r e s t in being free from wrongful accusations. See Bessman v. Powell, 991 F . S u p p . 830, 836 (S.D.Tex., 1998) (citations omitted).

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S t e w a r t , 834 F.2d 1248, 1255 (5th Cir. 1988). Another form is the judicial ban o n laws or actions by government officials that "shock the conscience" and thus fa ll outside the bounds of legitimate governmental activity. Id. Claims based on substantive due process in public employment require two s h o w in g s : (1) a property interest/right in such employment, and (2) arbitrary or c a p r i c i o u s termination of that interest by an employer. Harrington v. Harris, 1 1 8 F.3d 359, 368 (5th Cir. 1994) (quoting Moulton v. City of Beaumont, 991 F .2 d 227, 230 (5th Cir.1993)); Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 198 6). And, when reviewing academic decisions, courts must determine whether t h e governmental action was "such a substantial departure from accepted a c a d e m ic norms as to demonstrate that the person or committee responsible did n o t actually exercise professional judgment." Regents of University of Michigan v . Ewing, 474 U.S. 214, 223 n. 4, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985). P la in tiff's allegations regarding transfer and demotion implicate only the s e c o n d category of substantive due process. But, as determined earlier, he has n o t produced competent evidence establishing a protected property or liberty in t e r e s t or other right to continued employment as an assistant principal at a h ig h e r pay grade. Nor has he produced evidence establishing that BISD's or any d e f e n d a n t 's action in transferring him to a lower-paid position of classroom t e a ch e r was arbitrary and not reasonably related to a legitimate governmental in te r e s t. To survive BISD's motion for summary judgment on this issue, plaintiff m u s t present evidence from which a reasonable jury could conclude that there w a s no rational academic basis for the decision to reduce plaintiff's pay grade. A decision to transfer a teacher to a lower pay grade because that employee's t e m p o r a r y certification to work at a higher pay grade expired, has a rational Page 29 of 34

a ca d e m ic basis ­ the employee was no longer qualified to hold the position ­ and it does not shock the judicial or any conscience. What would shock the

c o n s c ie n c e and have no rational academic basis would be just the opposite, i.e., c o n t in u in g to employ an assistant principal who did not have the requisite c e r tific a t io n to hold the position in violation of Texas Educational Code §§ 2 1 .0 0 3 (a ) 1 7 and 21.053(b) 1 8 . R a t h e r than terminate plaintiff when his temporary certification expired, B I S D transferred him to the position of classroom teacher; a position with an in h e r e n t ly lower pay grade. Because this decision to reassign plaintiff to a lower p a y grade was not arbitrary and capricious, and was rationally related to the le g it im a te government interest of complying with applicable Texas educational la w s, plaintiff fails to produce evidence to establish the essential elements of a s u b s ta n t iv e due process cause of action. Summary judgment must be granted in favor of defendants on this claim. I X . First Amendment Plaintiff's complaints and his sworn testimony at the March 2008 hearing, in c lu d e d no claim that defendants violated his right to freedom of speech or o t h e r rights guaranteed by the First Amendment.1 9 In his October 13, 2009,

s u p p le m e n ta l response to defendants' motion for summary judgment, he a d v a n c e s a First Amendment claim. Specifically, Thomas contends that he

Texas Educational Code § 21.003 states that "[a] person may not be e m p l o y e d as a[n] . . . administrator . . . unless the person holds an appropriate c e r t i f i c a t e or permit issued as provided by Subchapter B." Texas Educational Code § 21.053 states that "[a]n educator who does n o t hold a valid certificate may not be paid for teaching or work done before the e f f e c t i v e date of issuance of a valid certificate." "Congress shall make no law . . .abridging the freedom of speech, or o f the . . . people to . . . petition the Government for a redress of g r i e v a n c e s . " U.S. CONST. amend. I.
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e n g a g e d in protected speech when reporting his confrontation with Norris and p e t it io n in g for redress. e n g a g in g in such speech. A. E le m e n t s of Cause of Action T h e First Amendment provides protection against retaliation for engaging in protected speech in the course of employment under certain circumstances. T o establish a retaliation claim under the First Amendment, the plaintiff must p r o v e that: (1) he suffered an adverse employment action, (2) his speech involved a matter of public concern, (3) his interest in commenting on the matter of public c o n c e r n outweighed the defendant's interest in promoting efficiency (balancing u n d e r Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 8 1 1 (1968)), and (4) his speech was a substantial or motivating factor behind the d e f e n d a n t 's actions. James v. Texas Collin County, 535 F.3d 365, 375 -376 (5th C ir . 2008) (quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th C ir. 1999). W h e t h e r an employee's speech addresses a matter of public concern turns o n whether the affected individual speaks "primarily as a citizen rather than as a n employee." Dorsett v. Bd. of Trustees State Colleges & Universities, 940 F.2d 1 2 1 , 124 (5th Cir. 1991). Additionally, "[w]hether an employee's speech He contends that he was subject to retaliation for

a d d r e s s e s a matter of public concern must be determined by the content, form, a n d context of a given statement." Communications Workers of America v. Ector C o u n t y Hosp. Dist., 467 F.3d 427, 437 (5th Cir. 2006) (quoting Connick v. M e y e r s , 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Here, all relevant speech arose from the confrontation and internal d is a g r e e m e n t between Thomas, as assistant principal, and Norris, as principal. W h e n Thomas reported the incident to the Superintendent and Assistant Page 31 of 34

S u p e r in t e n d e n t, he spoke as an employee about an internal disagreement as o p p o s e d to a citizen on a matter of broad public concern. Therefore, Thomas' s p e e c h was not on a matter of public concern and is not protected under the First A m e n d m e n t. Even if plaintiff's speech were a matter of public concern and thus p r o t e ct e d by the First Amendment, defendants nevertheless would be entitled to summary judgment. Thomas has failed to adduce any evidence that his s p e e c h , as opposed to some other catalyst ­ such as expiration of his temporary c e r tific a tio n to serve as assistant principal ­ motivated BISD to reassign him a n d lower his pay. Thomas was reassigned approximately seven months after t h e conclusion of the lengthy grievance proceedings. Temporal proximity

b e tw e e n protected conduct and an alleged retaliatory employment action is to be c o n s id e r e d in a retaliation case, but is not, by itself, conclusive. Shirley v. C h r y s le r First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Here, the lapse of sixteen m o n t h s between the allegedly protected speech and the demotion ­ coupled with u n d is p u t e d evidence that the challenged action occurred simultaneously with e x p ir a tio n of his temporary certification to serve as assistant principal ­ is in s u ff ic ie n t to raise a genuine issue of material fact as to whether Thomas's s p e e c h motivated BISD or any other defendant. X . Americans With Disabilities Act T h o m a s does not explicitly mention or attempt to assert a claim under T i t le I of the American with Disabilities Act ("ADA"), 42 U.S.C § 12101 et seq. B e