Frisella et al v. Dallas College

Filing 34

MEMORANDUM OPINION AND ORDER granting 26 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Dallas College, and granting plaintiffs 28 days to replead. (Ordered by Senior Judge Sidney A Fitzwater on 3/10/2025) (Senior Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SALVATORE FRISELLA,
PAUL PATRICK DAY, and
HOWARD JEFFREY HUGHES,
Plaintiffs,
VS.
DALLAS COLLEGE,
Defendant.

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Civil Action No. 3:24-CV-0469-D

MEMORANDUM OPINION
AND ORDER
Three Dallas College Professors—plaintiffs Salvatore Frisella (“Professor Frisella”),
Paul Patrick Day (“Professor Day”), and Howard Jeffrey Hughes (“Professor Hughes”)
(collectively, “the Professors,” unless the context indicates otherwise)—bring this 42 U.S.C.
§ 1983 action complaining that defendant Dallas College unlawfully revoked their tenure.
Dallas College moves to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of Article III
constitutional standing and under Rule 12(b)(6) for failure to state a claim on which relief
can be granted. The Professors oppose the motion. For the reasons that follow, the court
grants the motion as to the Professors’ federal-law claims, declines to exercise supplemental
jurisdiction over their pendent state-law claims, and grants the Professors leave to replead.
I
The relevant background facts of this case are largely set out in a prior memorandum
opinion and order and need not be repeated at length for purposes of deciding Dallas

College’s motion to dismiss. See Frisella v. Dall. Coll. (Frisella I), 2024 WL 4448675, at
*1-2 (N.D. Tex. Oct. 8, 2024) (Fitzwater, J.). In Frisella I the court dismissed sua sponte the
Professors’ federal-law claims under Rule 12(b)(1) for lack of Article III constitutional
standing, declined to exercise supplemental jurisdiction over the Professors’ pendent statelaw claims, and granted the Professors leave to replead. Thereafter, the Professors filed a
second amended complaint, which is their operative pleading.
Dallas College now moves to dismiss under Rule 12(b)(1) for lack of Article III
constitutional standing and under Rule 12(b)(6) for failure to state a claim on which relief
can be granted. The Professors oppose the motion. The court is deciding the motion on the
briefs, without oral argument.
II
The court considers first whether the Professors have Article III constitutional
standing.
Article III of the United States Constitution confines the jurisdiction of a federal court
to an actual “case[]” or “controvers[y].” U.S. Const. art. III, § 2. The standing doctrine
implements this constitutional limitation by requiring that plaintiffs establish “a personal
stake in the outcome of the controversy as to warrant [their] invocation of federal-court
jurisdiction and to justify exercise of the court’s remedial powers on [their] behalf.” Warth
v. Seldin, 422 U.S. 490, 498 (1975) (citation and internal quotation marks omitted). To
establish constitutional standing, the Professors must demonstrate that they “(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
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that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016).
Dallas College contends that the Professors have not suffered an injury in fact. To
constitute an injury in fact, the harm to the plaintiff must be sufficiently “concrete.”
TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021).
[C]ertain harms readily qualify as concrete injuries under Article
III. The most obvious are traditional tangible harms, such as
physical harms and monetary harms. If a defendant has caused
physical or monetary injury to the plaintiff, the plaintiff has
suffered a concrete injury in fact under Article III. Various
intangible harms can also be concrete. Chief among them are
injuries with a close relationship to harms traditionally
recognized as providing a basis for lawsuits in American courts.
Those include, for example, reputational harms, disclosure of
private information, and intrusion upon seclusion.
Id. at 425 (citations omitted).
As the parties seeking to invoke this court’s jurisdiction, the Professors bear the
burden of establishing standing according to the degree of evidence required at the pleading
stage of litigation. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Procter &
Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001), abrogated in part on other
grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132 (2014).
“On a motion to dismiss, [the court] presumes that general allegations embrace those specific
facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal quotation
marks, citation, and alteration omitted). Additionally, “standing is not dispensed in gross.
Instead, [the Professors] must demonstrate standing for each claim [that they] seek to press
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and for each form of relief that is sought.” Reule v. Jackson, 114 F.4th 360, 367 (5th Cir.
2024) (cleaned up).
In pertinent part, the Professors allege four possible injuries in fact. Professors
Frisella and Day assert that they have suffered mental anguish, and Professor Hughes alleges
that Dallas College deprived him of his property interest in his tenured status, changed the
terms, conditions, or privileges of his employment, and breached his employment contract.
III
The court considers first whether the mental anguish alleged by Professors Frisella
and Day pleads a concrete Article III injury in fact.
A
“‘[E]motional distress’ is a traditional harm that satisfies TransUnion’s concreteness
requirement.” Calogero v. Shows, Cali & Walsh, L.L.P., 95 F.4th 951, 958 (5th Cir. 2024).
The parties disagree about whether the allegations supporting such harm are sufficiently
detailed. Dallas College contends that the supporting allegations are too “vague” to
“establish a concrete injury in fact.” D. Br. (ECF No. 26) at 8. Professors Frisella and Day
respond that, “[a]lthough general, [their] factual allegations of mental anguish are not
conclusory, and suffice to establish injury in fact.” Ps. Resp. (ECF No. 30) at 10.

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B
The court concludes that Professors Frisella and Day have plausibly pleaded their
emotional injury. In particular, the second amended complaint alleges:
In order to avoid the hostility at Eastfield, given the lies and
accusations against himself and his wife, Day moved his office
to the Cedar Valley campus. Both his health, and Frisella’s
health, have suffered as a result of Dallas College’s conduct,
including the exacerbation of stress-related illnesses. The stress
and pressure which Dallas College brought to bear against
Plaintiffs Day and Frisella in retaliation for their protected
speech . . , caused emotional distress and mental anguish,
including physical manifestations thereof.
2d Am. Compl. ¶ 4.16. From these allegations, the court can reasonably infer that Professors
Frisella and Day suffered emotional distress and therefore plausibly pleaded a concrete
Article III injury in fact. See Calogero, 95 F.4th at 958 (concluding that plaintiffs’ emotional
distress was a concrete Article III injury in fact where they “complained of ‘fear, anxiety, and
emotional distress,’” and one plaintiff “was so ‘terrified’ . . . that she agreed to make monthly
payments on a promissory note”).
Accordingly, the court denies Dallas College’s motion to dismiss the actions of
Professors Frisella and Day under Rule 12(b)(1) for lack of Article III constitutional
standing.1

1

Implicit in Dallas College’s briefing of its jurisdictional defense is the contention
that, if the mental anguish alleged by Professors Frisella and Day pleads an Article III injury
in fact, that injury would only support standing to assert their “constitutional causes of
action.” D. Br. (ECF No. 26) at 8. If Dallas College intends to advance this argument, the
court declines to accept it at the pleading stage. Although it is true that “[Professors Frisella
and Day] must demonstrate standing for each claim [that they] seek to press and for each
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IV
The court next considers whether Professor Hughes has plausibly pleaded a concrete
Article III injury in fact based on his alleged injuries stemming from the deprivation of his
property interest in his tenured status, the change in the terms, conditions, or privileges of his
employment, and the breach of his employment contract.
A
The second amended complaint does not plead a concrete Article III injury in fact
based on the alleged deprivation of Professor Hughes’s property interest in his tenured status.
A deprivation of property is a violation of personal rights that may constitute an
Article III injury in fact. See TransUnion, 594 U.S. at 427; Servicios Azucareros de
Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 800 (5th Cir. 2012). Whether
the alleged removal of Professor Hughes’s tenured status deprived him of property is a
question of Texas state law. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Under
Texas state law, a tenured educator has a property interest in his continued employment that

form of relief that is sought,” Reule, 114 F.4th at 367 (cleaned up), the question whether a
single injury supports multiple claims is a question of traceability, see, e.g., Legacy Cmty.
Health Servs., Inc. v. Smith, 881 F.3d 358, 367 (5th Cir. 2018), as revised (Feb. 1, 2018). A
single injury can support standing to assert multiple claims if Professors Frisella and Day
establish that the injury is fairly traceable to the challenged conduct of the defendant that
underlies each claim. Professors Frisella and Day have satisfied this obligation. In
particular, the court can reasonably infer from the second amended complaint that their
alleged mental anguish is fairly traceable, not only to the conduct that underlies their
constitutional claims, but to Dallas College’s alleged revision of its policies in breach of the
Professors’ employment contracts, which underlies their breach of contract claim, and Dallas
College’s alleged revision of its policies without adequate notice to the public of its
deliberations, which underlies their Texas Open Meetings Act claim.
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encompasses the right not to be terminated without good cause. See, e.g., Levitt v. Univ. of
Tex. at El Paso, 759 F.2d 1224, 1227 (5th Cir. 1985); Collins v. Wolfson, 498 F.2d 1100,
1104 (5th Cir. 1974).2
Acknowledging that he has not been terminated without good cause, Professor Hughes
contends that he also had a property interest in his tenured status under Curtis v. University
of Houston, 940 F. Supp. 1070 (S.D. Tex. 1996), and Rathjen v Litchfield, 878 F.2d 836 (5th
Cir. 1989).3 He maintains that Curtis recognized “the status of tenure . . . as a property
interest itself,” Ps. Resp. (ECF No. 30) at 6, when the court observed that “although [the
plaintiff] has a property interest in his status as a tenured associate professor, he has no
property right to the promotion,” Curtis, 940 F. Supp. at 1078 (emphasis added). He further
maintains that, in Rathjen, “the Fifth Circuit observed that under Roth, ‘a tenured city
employee’ has ‘a constitutionally protected property interest in her position.’” Ps. Resp.
(ECF No. 30) at 6.

2

Professor Hughes contends that Collins is inapposite because the professors in that
case “did not allege a deprivation of property interest, but instead complained that their
employer deprived them of their liberty interest in their good name.” 2d Am. Compl. ¶ 2.4
n.1. But Collins is not inapposite on that basis; at a minimum, its statement that the
professors had not “suffered an injury in fact, since they continue in their respective posts,”
Collins, 498 F.2d at 1104, is dicta.
3

Professor Hughes also appears to rely on Winkler v. DeKalb Cnty., 648 F.2d 411 (5th
Cir. June 1981). Winkler held that a county engineer with de facto tenure was deprived of
property when he was “demoted to a position of vastly diminished responsibilities without
cause.” Id. at 414. It is unclear from the briefing, however, what bearing, if any, Winkler
has on the Professors’ deprivation-of-property theory of Article III standing. But the court
need not speculate because it is granting the Professors leave to replead.
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But neither Curtis nor Rathjen supports the proposition that Professor Hughes had a
property interest in his tenured status as a matter of Texas state law. Although both cases
involved Texas plaintiffs, neither provides support from Texas authorities. Instead, both
cases cite Roth, which held that property interests are determined by reference to state law.
Roth, 408 U.S. at 577. Roth does not answer the question whether tenured educators have
a property interest in their tenured status; it instructs courts to look to state law. Curtis and
Rathjen therefore do not support the conclusion that tenured educators have a property
interest in their tenured status as a matter of Texas state law.
Accordingly, Professor Hughes has failed to allege an Article III injury in fact based
on the deprivation of his property interest in his tenured status.
B
Nor has Professor Hughes pleaded a plausible Article III injury in fact based on
alleged changes in the terms, conditions, or privileges of his employment.
Professor Hughes maintains that Dallas College’s removal of his tenured status was
a change in the terms, conditions, or privileges of his employment that constitutes an injury
in fact under Muldrow v. City of St. Louis, 601 U.S. 346 (2024), and Hamilton v. Dallas
County, 79 F.4th 494 (5th Cir. 2023) (en banc). Muldrow and Hamilton hold that plaintiffs
suing under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
have statutory standing to sue for discrimination with respect to the terms, conditions, or
privileges of employment. Professor Hughes maintains that a such change “meets the test
for Article III standing,” 2d Am. Compl. ¶ 2.5, because, “[a]s explained in TransUnion and
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Spokeo, the Title VII claims in Hamilton and Muldrow do not have a different test for Article
III standing simply because of their statutory basis,” id. ¶ 2.7.
The court disagrees. Neither Hamilton nor Muldrow stands for the proposition that
a change in the terms, conditions, or privileges of a person’s employment is a concrete
Article III injury in fact. Statutory standing does not automatically confer constitutional
standing. See Spokeo, 578 U.S. at 341 (“Article III standing requires a concrete injury even
in the context of a statutory violation.”); TransUnion, 594 U.S. at 426 (same). And to the
extent those plaintiffs had constitutional standing, their Article III injury in fact was likely
sex-based discrimination. See TransUnion, 594 U.S. at 427 (“[Concrete] harms may also
include harms specified by the Constitution itself.”); Perez v. McCreary, Veselka, Bragg &
Allen, P.C., 45 F.4th 816, 822 (5th Cir. 2022) (“[I]ntangible harms can also be concrete.
Think of the kind of harms recognized in . . . the Constitution itself.”); U.S. Const. amend.
XIV (“No State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.”).
Instead, the proper inquiry is whether the alleged change in the terms, conditions, or
privileges of Professor Hughes’s employment are a “traditional tangible harm” or an
intangible harm “with a close relationship to harms traditionally recognized as providing a
basis for lawsuits in American courts.” See TransUnion, 594 U.S. at 425. Professor
Hughes’s loss of his assurance of long-term employment is not a traditional tangible harm,
“such as physical harms and monetary harms.” Id. Nor is it an intangible harm “with a close
relationship to harms traditionally recognized as providing a basis for lawsuits in American
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courts.” Id. The court cannot locate, and Professor Hughes does not identify, any “close
historical or common-law analogue for [such] asserted injury.” Id. at 424.
Accordingly, the court holds that Professor Hughes has failed to plead an Article III
injury in fact based on alleged changes in the terms, conditions, or privileges of his
employment.
C
Last, the court considers whether Professor Hughes has pleaded an Article III injury
in fact based on Dallas College’s alleged breach of his employment contract.
Professor Hughes alleges that Dallas College’s failure to renew his 2021-2024
employment contracts with 2022-2025 contracts was a breach of contract and therefore
caused an injury in fact. Although a breach of contract can be “a sufficient injury for
standing purposes,” Denning v. Bond Pharmacy, Inc., 50 F.4th 445, 451 (5th Cir. 2022),
Professor Hughes has the burden to plausibly plead that the breach resulted in a concrete
injury, see Lujan, 504 U.S. at 561; Pierre v. Vasquez, 2022 WL 68970, at *3 (5th Cir. Jan.
6, 2022). Professor Hughes alleges that Dallas College’s “breach of contract has caused
damage to [him], for which [he] here sue[s]. [He] lost [his] tenure rights[.]” 2d Am. Compl.
¶ 4.20. “From this bare and conclusory allegation, the court cannot reasonably infer that
Dallas College’s alleged breach of contract caused [Professor Hughes] to suffer a concrete
harm.” Frisella I, 2024 WL 4448675, at *5 (collecting supporting authority).
Accordingly, Professor Hughes has not pleaded an Article III injury in fact based on
his breach of contract claim. Because Professor Hughes has not plausibly pleaded that he
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suffered an injury in fact, the court grants Dallas College’s motion to dismiss his action under
Rule 12(b)(1) for lack of Article III constitutional standing.
V
Having concluded that Professors Frisella and Day have plausibly pleaded Article III
constitutional standing, the court now evaluates whether they have stated a claim on which
relief can be granted.
“In deciding a Rule 12(b)(6) motion to dismiss, the court evaluates the sufficiency of
[the plaintiffs’] complaint by ‘accept[ing] all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff[s].’” Bramlett v. Med. Protective Co. of Fort Wayne,
Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (second alteration in
original) (internal quotation marks omitted) (quoting In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiffs must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff[s] plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly,
550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the
speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not
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‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (alteration omitted)
(quoting Rule 8(a)(2)). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 678.
VI
Professors Frisella and Day assert claims under 42 U.S.C. § 1983 for deprivation of
their property and First Amendment liberty without due process of law, in violation of the
First and Fourteenth Amendments.
A
Section 1983 provides a private right of action to redress a violation of a federal
constitutional or statutory right by those acting under color of state law. See Manuel v. City
of Joliet, 580 U.S. 357, 361 (2017). “Section 1983 is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights elsewhere conferred.” Albright
v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks omitted).
To state a claim under § 1983, a plaintiff must allege a violation of a federal
constitutional or statutory right and demonstrate that the alleged deprivation was committed
by a person acting under color of state law. See, e.g., Leffall v. Dall. Indep. Sch. Dist., 28
F.3d 521, 525 (5th Cir. 1994). To assert a claim against a local government entity like a
community college, a plaintiff must also allege that (1) an official policy or custom was a
cause in fact of the deprivation of rights inflicted; (2) a final policymaker approved or
sanctioned the official policy or custom; and (3) the official policy or custom is a “moving
force” behind the deprivation. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658,
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690-91 (1978). These three elements “are necessary to distinguish individual violations
perpetrated by local government employees from those that can be fairly identified as actions
of the government itself.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
The court can consider whether the plaintiffs have alleged a violation of a federal
constitutional right before reaching the issue of municipal liability. See Peterson v. City of
Fort Worth, 588 F.3d 838, 844 (5th Cir. 2009) (addressing “threshold issue” of whether
defendants violated plaintiff’s constitutional rights before addressing the issue of municipal
liability).
B
The court considers first whether Professors Frisella and Day have plausibly pleaded
that Dallas College deprived them of their property interest in continued employment without
due process of law, in violation of the Fourteenth Amendment.
“To state a Fourteenth Amendment due process claim under § 1983, ‘a plaintiff must
first identify a protected life, liberty or property interest and then prove that governmental
action resulted in a deprivation of that interest’” without due process of law. Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Baldwin v. Daniels, 250 F.3d 943, 946 (5th
Cir. 2001) (per curiam)). The parties dispute whether Professors Frisella and Day had a
property interest in continued employment.4 The court need not reach this question. Even

4

The parties also appear to assume that, if Professors Frisella and Day were entitled
to due process, that process would consist of the sort of notice and opportunity contemplated
in the prior version of Dallas College’s policies. The court need not reach this question to
decide the instant motion to dismiss. But to the extent that Dallas College’s revision of its
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assuming arguendo that Professors Frisella and Day were tenured, and therefore had a
property interest in their employment, they have not plausibly pleaded that Dallas College
deprived them of that supposed property interest considering the fact that both retain their
employment with Dallas College. “The court has located no Texas authority that defines a
tenured professor’s property interest as encompassing anything more than his right not to be
terminated without good cause.” Frisella I, 2024 WL 4448675, at *4.
Accordingly, the court grants Dallas College’s motion to dismiss the Fourteenth
Amendment due process claim of Professors Frisella and Day under Rule 12(b)(6).

policies was a “legislative action,” Professors Frisella and Day may not have been entitled
to any process at all. See Jackson Ct. Condominiums, Inc. v. City of New Orleans, 874 F.2d
1070, 1074 (5th Cir. 1989) (“[I]t is well established law that once an action is characterized,
as legislative, procedural due process requirements do not apply.”); Martin v. Mem’l Hosp.
at Gulfport, 130 F.3d 1143, 1149 (5th Cir. 1997) (same); McMurtray v. Holladay, 11 F.3d
499, 504 (5th Cir. 1993) (“[W]hen a legislature extinguishes a property interest via
legislation that affects a general class of people, the legislative process provides all the
process that is due.”); Buford v. Holladay, 791 F. Supp. 635, 644 (S.D. Miss. 1992)
(concluding that legislative enactment that “extinguished Plaintiffs’ property interests in
employment with the Department of Economic Development” did not deprive plaintiffs of
property without due process, because the “legislative process . . . afforded Plaintiffs all the
process they were due”), aff’d sub nom. McMurtray, 11 F.3d at 504. But see Atkins v.
Parker, 472 U.S. 115, 130 (1985) (holding that food-stamp beneficiaries were not deprived
of property without due process by legislative enactment lessening value of entitlement
where there was “no claim that there was any defect in the legislative process”); Couf v.
DeBlaker, 652 F.2d 585, 590 (5th Cir. Aug. 1981) (citation omitted) (“Our opinions
repeatedly characterize local zoning decisions as ‘legislative’ in nature. If this word is used
advisedly as it appears to be then the plaintiffs cannot complain of a denial of procedural due
process, for no constitutional limitation on legislative procedure is relevant here.”); Laza v.
City of Palestine, Tex., 2022 WL 946342, at *20 (E.D. Tex. Mar. 29, 2022) (denying
summary judgment dismissing due process claim based on alleged Texas Open Meetings Act
violation).
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C
The court now considers the claim that Dallas College revised its policies in retaliation
for the speech activities of Professors Frisella and Day, in violation of the First and
Fourteenth Amendments.
1
The First Amendment has been held to apply to the states through the Fourteenth
Amendment’s Due Process Clause and protects “[s]peech by citizens on matters of public
concern[.]” Lane v. Franks, 573 U.S. 228, 235 (2014). “[P]ublic employees do not renounce
their citizenship when they accept employment,” id. at 236, and they cannot be discharged,
disciplined, or punished for exercising their right to free speech, see Page v. DeLaune, 837
F.2d 233, 237 (5th Cir. 1988). “To prove a claim of First Amendment retaliation, []
plaintiff[s] must establish that (1) [they] suffered an adverse employment decision; (2) [their]
speech involved a matter of public concern; (3) [their] interest in commenting on matters of
public concern . . . outweighs the [d]efendant’s interest in promoting efficiency; and (4)
[their] speech motivated the adverse employment decision.” Haverda v. Hays Cnty., 723
F.3d 586, 591 (5th Cir. 2013) (fifth alteration in original) (internal quotation marks omitted)
(quoting Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001)).
Dallas College maintains that Professors Frisella and Day have not satisfied the
second prong.5 Whether speech involves a matter of public concern is a question of law.

5

Dallas College also challenges whether Professors Frisella and Day can satisfy the
first prong—that they suffered an adverse employment decision. The court need not reach
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See, e.g., James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008). “Whether an
employee’s speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record.” Connick v. Myers,
461 U.S. 138, 147-48 (1983). “When employee expression cannot be fairly considered as
relating to any matter of political, social, or other concern to the community, government
officials should enjoy wide latitude in managing their offices, without intrusive oversight by
the judiciary in the name of the First Amendment.” Id. at 146.
2
Dallas College contends that the First Amendment claims of Professors Frisella and
Day “fail[] because . . . [they] did not speak as citizens on a matter of public concern.” D.
Br. (ECF No. 26) at 15. Professors Frisella and Day respond that they “spoke outside of their
official duties as professors,” and therefore as citizens. Ps. Resp. (ECF No. 30) at 17. They
posit that, in discussing “the faculty’s concern regarding the execution and implementation
of the new ‘One College’ policy by the Board,” which served to “warn taxpayers of the
possibility that their tax dollars were being grossly misused,” they spoke on a matter of
public concern. Id. at 18. The court concludes that Professors Frisella and Day have not
plausibly alleged that they spoke on a matter of public concern.6

this issue, however, because it concludes that Professors Frisella and Day have not plausibly
alleged that they spoke on a matter of public concern.
6

The court assumes arguendo that Professors Frisella and Day have plausibly alleged
that they spoke as citizens.
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Professors Frisella and Day allege that:
Dallas College took action to punish their faculty base due to
some faculty (including Plaintiff Paul Patrick Day) engaging in
vocal and collaborative efforts to establish a faculty senate as an
internal academic shared governance body of the college, as
well as on account of some faculty (including Plaintiffs Paul
Patrick Day and Plaintiff Salvator Frisella) establishing and
holding membership in the American Association of University
Professors (“AAUP”). The AAUP is an external, private,
professional organization. Professor Day was among the nine
founders of a Dallas College chapter of the AAUP, and served
as its parliamentarian. Professor Frisella was an AAUP member.
The local chapter of AAUP sent formal letters to the Dallas
College Board of Trustees, critical of policies and actions by the
Board and administration under the new “One College” policy.
2d Am. Compl. ¶ 4.10. Professors Frisella and Day maintain that this speech was on a matter
of public concern:
The content of the speech weighs in favor of public concern
because the AAUP letters discussed the faculty’s concern
regarding the execution and implementation of the new “One
College” policy by the Board, serving to warn taxpayers of the
possibility that their tax dollars were being grossly misused. . .
. The Plaintiffs recognized the mismanagement—and sounded
the alarm over wasted public funds. No reading of the
Plaintiffs’ allegations suggests that their purpose was to magnify
a personal dispute between themselves and Dallas College. As
such, the content of Plaintiffs’ speech weighs in favor of public
concern. . . .The form of the speech suggests it is of public
concern because the letters were submitted “[to a] place where
one might make a complaint of public concern.” Sending letters
to the Board is “a place where one might make a complaint of
public concern,” because the Board ultimately had the authority
to address Plaintiffs’ concerns. . . .Finally, the context of the
letters indicates that Plaintiffs spoke on a matter of public
concern. AAUP wrote to speak on behalf of faculty as a whole,
not for specific professors. Here, Plaintiffs Day and Frisella
participated in actions intended to improve Dallas College by
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creating a faculty senate, working to strengthen academic
freedoms, and making the Board of Trustees aware of faculty
concerns over spending decisions.
Ps. Resp. (ECF No. 30) at 18-19 (citations omitted) (cleaned up).
The court disagrees. The facts alleged by Professors Frisella and Day do not allow
the court to draw the reasonable inference that their alleged speech—considering its content,
form, and context—was on a matter of public concern. The court cannot assess, for example,
whether the alleged speech “does not involve solely personal matters or strictly a discussion
of management policies that is only interesting to the public by virtue of a manager’s status
as an arm of government,” or whether “releasing the speech to the public would inform the
populace of more than the fact of an employee’s employment grievance[.]” Branton v. City
of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).
Accordingly, the court grants Dallas College’s Rule 12(b)(6) motion to dismiss the
First Amendment retaliation claims of Professors Frisella and Day.
VII
The court now considers whether it should exercise supplemental jurisdiction over the
pendent state-law claims of Professors Frisella and Day given that it is dismissing their
federal-law claims.
In addition to their federal-law claims, Professors Frisella and Day assert state-law
claims against Dallas College. Although the court can exercise supplemental jurisdiction
over the state-law claims under 28 U.S.C. § 1367(a), in this circuit “[t]he general rule is that
a court should decline to exercise jurisdiction over remaining state-law claims when all
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federal-law claims are eliminated before trial[.]” Brookshire Bros. Holding, Inc. v. Dayco
Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009). Having dismissed the federal-law claims of
Professors Frisella and Day, the court in its discretion declines to exercise supplemental
jurisdiction over their state-law claims. Accordingly, the court dismisses the state-law claims
of Professors Frisella and Day without prejudice.
VIII
Although the court is dismissing the Professors’ claims, it will permit them to replead.
See, e.g., In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552, 567-68 (N.D. Tex.
2005) (Fitzwater, J.) (noting that district courts often afford plaintiffs at least one opportunity
to cure pleading deficiencies before dismissing case, unless it is clear that defects are
incurable or plaintiffs advise court that they are unwilling or unable to amend in a manner
that will avoid dismissal). There is no indication that the Professors cannot, or are unwilling
to, cure the defects that the court has identified. And allowing them to file a third amended
complaint is not excessive under the circumstances of this case. The Professors filed their
first amended complaint before the court addressed the adequacy of their original complaint.
The court in Frisella I dismissed the first amended complaint on grounds that it raised sua
sponte. Today’s decision addressing the Professors’ second amended complaint is the first
that analyzes arguments that the parties, rather than the court alone, have raised.
Accordingly, the court will grant the Professors 28 days from the date this memorandum
opinion and order is filed to file a third amended complaint. See, e.g., Reneker v. Offill, 2010
WL 1541350, at *2, *7 (N.D. Tex. Apr. 19, 2010) (Fitzwater, C.J.) (concluding, after twice
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granting motions to dismiss, that plaintiff’s second amended complaint stated claim on which
relief could be granted).
*

*

*

For the reasons explained, the court dismisses the Professors’ claims without prejudice
and grants them leave to file a third amended complaint within 28 days of the date this
memorandum opinion and order is filed.
SO ORDERED.
March 10, 2025

_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE

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