Austen v. Weatherford College
Filing
76
Memorandum Opinion and Order: The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted; and The court further ORDERS that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed. (See Opinion and Order for specifics) (Ordered by Judge John McBryde on 8/8/2012) (ewd)
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M REN LOPEZ AUSTEN
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Plaintiff,
NO . 4 :l1-CV -536-A
VS .
WEATHERFORD COLLEGE OF THE
PARKER COUNTY JUN IOR COLLEGE
DISTRICT ,
Defendant .
MEMORANDUM OPIN ION
and
ORDER
-
Before the court for decision is the motion of defendant,
Weatherford College of Parker County Junior College District, for
summary judgment. After having considered such motion, the
response thereto of p laintiff, Dr . Karen Lopez Austen ,
defendant' reply, the summary judgment record, and pertinent
s
legal authorities, the court has concluded that such motion
should be granted .
1.
Historv and Nature of the Action
This action was initiated on August 3 , 2011, by the filing
by plaintiff of her original comp laint . Plaintiff filed her
first amended comp laint on June 14 , 2012 . The following is an
abbreviated version of the allegations made and causes of action
asserted by plaintiff in her amended complaint :
Plaintiff, who says she is an Hispanic female , was hired in
August 2007 by defendant , a public community college in
Weatherford, Texas, which exists under the laws of the State of
Texas , as the Department Chair of Kinesiology . Her employment
continued until July 2010 . She received favorable rev iews from
her students and peers, and positive comments from the
administration concerning her performance as an employee .
Despite her superior performance , plaintiff was demoted and later
terminated because, according to plaintiff, of discriminatory and
retaliatory animus . She claimed that she Was treated differently
than her male and non-Hispanic colleagues in the terms and
conditions for employment, and that she was replaced as
kinesiology chair by a male , although she had better credentials
and greater experience than he had . Plaintiff alleged that she
was harassed by other members of the staff at the college based
on her gender and because she had asserted previous claims of
discrimination .
She filed a charge of discrimination in December 2008,
complaining of sex discrimination and retaliation related to a
hostile work environment , claims of discrimination , and her
demotion . The issues between plaintiff and defendant as they
existed in October 2009 were resolved by a Settlement Agreement
and General Release signed October 26, 2009 . However, plaintiff
alleged , soon after the agreement was made , the retaliatory and
discriminatory conduct of personnel at the college began again.
She described a series of events that occurred between January
2010 and June 2010 that she maintained constituted inappropriate
conduct directed to her by employees of defendant . Plaintiff
alleged that the conduct of a particular employee of defendant
toward her and other female employees created a hostile work
environment and demonstrated a pretext for his discriminatory and
retaliatory intent to unlaw fully term inate plaintiff '
s
employment . She alleged that defendant 's actions to endorse that
behavior and to rely on the false reports of that employee made
defendant vicariously liable for the discrim inatory and
retaliatory action of that employee .
According to plaintiff, those series of events culminated on
June 10, 2010 , when the Board of Trustees of defendant upheld the
decision of defendant' president not to renew plaintiff'
s
s
contract and to terminate her employment . Plaintiff alleged
that, upon information and belief, defendant discriminated
against her because of her sex, her race (
Hispanic), and because
she filed complaints of discrimination and retaliation . She
3
alleged that the nonrenewal of her contract was retaliatory for
her prior complaints of discrim ination and retaliation .
A charge of discrimination was jointly filed by plaintiff
with the Equal Employment Opportunity Commission ('
'EEOCI and the
Q
Texas Work Force Commission-civ il Rights Division within 180 days
of the nonrenewal of her employment agreement .
She received a
notice of right to sue from the EEOC on or about June 1, 2011,
less than ninety days before she filed this action . Plaintiff
sought relief at all levels of defendant 's grievance process ;
and , her grievance was denied at all levels . She made a demand
for full due process or name-clearing hearing , including any and
all hearing and procedural rights which she might have by v irtue
of defendant ' policies, her conduct , and state or federal law .
s
Defendant denied her request for a full due-process hearing or
non -clearing hearing ; and , the final grievance hearing before
defendant 's Board of Trustees did not comply with procedural due
PrOCeSS .
Plaintiff alleged nine separate causes of action in what she
designated in her complaint as Counts One through Nine ,
respectively , which may be summarized as follows :
Count One charged defendant under 42 U . .C . 5 1983 with
S
race/national origin discrimination. Plaintiff alleged that
defendant , acting through its agents, deprived her of her rights
4
under the First and Fourteenth Amendments of the United States
Constitution and of her rights to enforce her contract of
employment to the full benefit of al1 laws and proceedings and
for the security of persons and property as is enjoyed by white
citizens . she alleged that the conduct she described in the
complaint constituted unlawful discrimination on the basis of
race/national origin in violation of 42 U. C. 55 1981 and 1983,
S.
specifically claim ing that plaintiff terminated her employment ,
and disparately treated her in the terms and conditions of her
employment based on her race/national origin.
Count Two charged defendant with sex discrimination under
Title VII, 42 U . C . 5 2000e-2(
S.
a). Plaintiff alleged that her
sex was a motivating factor in defendant' decision to terminate
s
her and/or not renew her contract, and that she was disparately
treated based on her gender in the terms and conditions of her
employment by defendant .
Count Three charged defendant w ith retaliation under Title
VII, 42 U . C. 5 2000e-3(
S.
a). She alleged that she previously had
opposed an employment practice that she maintained was unlawful
under Title VII, and had participated in a proceeding protected
by Title VII . According to her , those protected activities were
a motivating factor in defendant ' decision to term inate her
s
and/or not renew her contract; and, she alleged that she was
5
disparately treated in the terms and conditions of her emp loyment
because she engaged in such protected activity .
Count Four charged defendant with sex discrimination under
Section 21.051 of the Texas Labor Code . It appears to be the
state-law version of the same sex -discrimination claim alleged by
plaintiff under federal 1aw in Count Two .
Count Five charged defendant with retaliation under
Section 21.055 of the Texas Labor Code .
It appears to be the
state-law version of the retaliation claim alleged on the basis
of federal law in Count Three .
Count Six charged defendant w ith v iolation of Title IX , 20
U.S. 5 l681 (
C.
a). The court interprets comments made by
plaintiff in her response to the motion for summary judgment to
be a concession that she cannot successfully defend the motion as
to her Count Six, and that she is withdrawing her Count Six cause
of action . Therefore, the court is not devoting further
attention to that cause of action .
Count Seven charged defendant with violation of her right to
free speech guaranteed by the Texas Constitution and the United
States Constitution , and that plaintiff 's protected exercise of
speech was a motivating factor in adverse employment actions
taken against her by defendant . She also alleged that
plaintiff ' complaints regarding defendant ' conduct amounted to
s
s
a petition protected by the Petition Clause of the First
Amendment, and that adverse employment decisions made against her
were retaliation for her protected activity . Plaintiff included
in her Count seven cause of action complaints that she was denied
procedural and substantive due process in violation of state and
federal law, including a provision of the Texas Constitution and
the Fourteen Amendment of the United States Constitution . The
Count Seven cause of action is being brought under 42 U . .C .
S
55 1983 and 1988 .
Count Eight charged defendant with breach of en emp loyment
contract between plaintiff and defendant . Apparently she alleges
that the breach was in the form of the failure of defendant 'to
'
tender Plaintiff go-days notice of the non-renewal of her
contract .'
'
Count N ine charged defendant with breaching the Settlement
Agreement and General Release plaintiff and defendant signed in
October 2009. Specifically , plaintiff alleged that use of
certain complaints and disciplinary actions in the hearing
against plaintiff was in v iolation of the agreement and that she
believes that defendant has not followed an agreed procedure
regarding references and inquiries regarding her employment by
defendant .
Plaintiff prayed for back pay , including lost wages and
other employment benefits; reinstatement to the position from
which she was discharged (
or, alternatively, front pay and
benefits); actual damages; compensatory damages in the maximum
amount allowed by law ; attorneys ' fees, expert fees , costs of
suit, and pre-judgment and post-judgment interest.
II .
Grounds of the Motion
A.
A ffirmative Defenses of Release and Statute of
-
Limitations
Defendant starts its supporting arguments w ith contentions
that certain of plaintiff ' claims are barred by the affirmative
s
defenses of release and statute of limitations . It summarized
its arguments on those subjects as follows:
In summary , any of Plaintiff 's claims that accrued
prior to October 26, 2009, are barred by the doctrine
of release . Moreover, any of Plaintiff' claims
s
asserted under Title VII that were previously exhausted
in her December 3, 2008, charge of discrimination, as
well as any claims under Title V II that accrued prior
to November l3 , 2009 are barred by the applicable
statute of limitations, as are any of Plaintiff 's
previously exhausted TCHRA claims and any TCHRA claims
that accrued prior to March l3, 2010 . Finally , any
claims asserted by Plaintiff under Section 1983 or
8
Title IX that accrued before August 3, 2009, are time
barredx
Br . in supp . of Mot . at 7 .
According to defendant, all claims asserted by plaintiff
arising on or before October 26, 2009, are barred by the release
plaintiff signed on October 26, 2009. Defendant also asserted
that al1 Title V II claims made by plaintiff based on events that
occurred more than 300 days before she filed the EEOC charge on
September
2010, leading to this action are time barred, and
that a11 claims made under the TCHRA based on events that
occurred more than l8O days prior to the filing by plaintiff of
her complaint with the TCHRA are time -barred . Defendant
contended that plaintiff is barred from pursuing any action based
on conduct about which she complained in her December
2008
EEOC complaint because of her failure to bring an action as to
that conduct within ninety days from her receipt from EEOC of the
dismissal of her complaint and of EEOC' notice of right to sue.
S
A s to plaintiff ' claims under 42 U .S . . 5 1983, defendant
s
C
asserted that a two-year statute of lim itations applies to those
claims , and that it prevented plaintiff from pursuing any claims
based on conduct that occurred prior to August
2009.
I TCHRA 'i a abbr at r e encef t TexasCom mi son on Hum an Ri sAct s i
'
sn
evi ed ef r
or he
si
ght
, ecton
21. oft Te LaborCode.
001 he xas
9
B.
Reasons for Summarv Dismissal of Plaintiff 's
Race/National Oriqin Discrimination Claim
Defendant urged multiple reasons , in addition tho those
discussed above, why plaintiff' race/national origin
s
discrimination claim brought under 42 U . . . 5 1983 should
S C
summarily be dismissed, starting with arguments that plaintiff
cannot establish a prima facie case of race/national origin
discrim ination because : first, she is not a member of a protected
class; second , she was not replaced by someone outside of the
class of which plaintiff claims to be a member , nor was she
treated differently w ith respect to her nonrenewal, nor was she
treated less favorably than others similarly situated with
respect to her pay ; and , third , she has not established any
adverse emp loyment action or disparate treatment w ith respect to
her benefits. Defendant added that it had numerous legitimate ,
nondiscriminatory reasons to nonrenew plaintiff ' contract .
s
Finally, defendant argued that plaintiff cannot establish
municipal liability against defendant under 5 1983, which
requires proof of three elements--a policymaker ; an official
policy ; and a violation of constitutional rights the moving force
of which was a policy or custom of defendant--none of which is
supported by ev idence in this case .
10
C.
Reasons for Summarv Dismissal of Plaintiff 's Cla ims of
Sex Discrimination
-
Defendant starts his argument on this subject by maintaining
that plaintiff cannot establish a prima facie case of sex
discrimination because she cannot adduce probative evidence that
she was replaced by someone outside her protected class or
treated differently with respect to her nonrenewal or with
respect to her pay , and she cannot establish any adverse
emp loyment action or disparate treatment w ith respect to her
benefits . And , again , defendant urges that , if one were to
assume hypothetically that plaintiff could make out a prima facie
case , defendant had numerous legitimate, nondiscrim inatory
reasons to nonreneW her Contract .
D.
Reasons for Summarv Dismissal of Plaintiff'
s
Retaliation Claims
Defendant started by arguing that plaintiff cannot establish
a prima facie case of retaliation because , first, she did not
engage in protected activities after October 26, 2009; second ,
she cannot estab lish any adverse emp loyment action with respect
to the terms and conditions of her employment; and , third , she
cannot establish a causal link between any alleged protected
activity known to defendant and any adverse employment actions .
Defendant added , again , that, even if the ability to prove a
prima facie case of retaliation is assumed , arguendo , defendant
11
had numerous , legitimate, nondiscriminatory reasons not to renew
her contract .
E.
Reasons for Summarv Dismissal of Plaintiff ' Free
s
Speech and Petition Claims
Defendant noted that plaintiff 's free speech and petition
claims are retaliation claims in another form--claims that
plaintiff was demoted and nonrenewed in retaliation for asserting
her rights to free speech and petition . Defendant argued that
the speech to which plaintiff refers in her complaint did not
address a matter of public concern but, instead , the speech
concerned the conditions of her emp loyment, a private matter .
Defendant added that plaintiff cannot establish municipal
liability under 5 1983 because she cannot establish a
policymaker, an official policy, or a violation of constitutional
rights the moving force of which is an official policy or custom.
Reasons for Summarv Dismissal of Plaintiff ' Procedural
s
and Substantive Due-process Claims
-
Defendant contended in its motion that plaintiff had no
liberty or property interest in her employment or expectancy of
renewal in her employment with defendant , bearing in mind that
the employment contract stated that it did not grant or create
any property rights in any position or assignment , did not grant
or create any contractual right, expectancy of continued
employment , or claim of entitlement to employment beyond the term
12
of the contract, and did not provide for tenure . Defendant noted
that plaintiff ' contract was nonrenewed , not terminated during
s
the term of the contract , that p laintiff received a1l pay of
benefits prov ided for under the contract, and that the contract
simply exp ired by its own term s . A lternatively , defendant
contended that if plaintiff had established a liberty or property
interest that entitled her to procedural due process , she cannot
adduce any evidence that she was not given all process due to
her--she was given notice of , and opportun ity to be heard at , the
hearing at which the nonrenewal of her contract was considered .
Defendant argued that plaintiff ' claim of violation of
s
substantive due process is without merit considering the rule
that reliance on the generalized notion of substantive due
process is inappropriate when , as in this case, there are other
constitutional or statutory provisions that provide the remedial
framework for the alleged deprivation. Defendant contended that,
in any event, she cannot prevail on her substantive due process
claim as there is no evidence that she was denied any right in an
arbitrary or capricious manner , nor can plaintiff establish
municipal liability under 5 l983--she cannot establish a
policymaker , an official policy , or a violation of constitutional
rights resulting from such a policy or custom .
13
G.
Reasons for Summarv Dismissal of Plaintiff ' Breach of
s
Contract Claim
The reasons given by defendant for summary dismissal of
plaintiff' breach of contract claim are
s
the contract was not
breached , as plaintiff claimed , inasmuch as she received the
requisite ninety days' notice of nonrenewal of the contract, and
in any event , plaintiff would be unable to show that she Was
damaged by failure to receive timely notice, if there had been
such a failure .
H.
Rea sons for Summarv Dismissal of Plaintiff I Claim for
s
- -
Breach of Settlement Aqreement
Defendant contended that p laintiff ' alleged cause of action
s
based on a claimed breach of the settlement agreement should be
summarily dismissed because there is no evidence that defendant
did not comply with its obligations under the settlement
agreement .
111.
Analysis
A.
Pertinent Summarv Judqment Principles
This action is particularly suited for summary disposition
under the rules and standards expressed by the Supreme Court in
Matsushita Electric Industrial Co . v . Zenith Radio Corp w 475
-
U . 574 (
S.
1986)7 Celotex Corp . v . Catrett, 477 U . 317 (
S.
1986);
and, Anderson v . Libertv Lobbv , Incw
14
(
1986). There
is no genuine dispute as to any material fact , and defendant is
entitled on the existing record to judgment as a matter of law.
The party moving for a summary judgment may discharge its
burden of showing that there is no genuine issue of material fact
by pointing out the absence of evidence to support one or more of
the essential elements of the non-moving party ' claim 'since the
s
'
complete failure of proof concerning an essential element of the
nonmoving party ' case necessarily renders all other facts
s
immaterial .l Celotex Corp w 477 U . . at 323-25. Once the mov ing
'
S
party has carried its burden under Rule
the nonmoving party
must do more than merely show that there is some metaphysical
doubt as to the material facts . Matsushita Elec . Indus . Co .,
Ltd w 475 U . . at 586. The party opposing the motion may not
S
rest on mere allegations or pleaded denials, but must set forth
specific facts showing a genuine issue for trial . Anderson , 477
U . . at 248, 256 . To meet this burden , the nonmovant must
S
'identify specific evidence in the record and articulate the
'
'
precise manner' in which that evidence support l
s) (
itsl
claim l .' Forsvth v . Barr,
s) '
F . 1527, 1537 (
3d
5th Cir. 1994).
Conclusory allegations are insufficient to defeat a motion for
summary judgment. Simmons v. Lvons, 746 F.2d 265, 269 (
5th Cir.
1984). An issue is material only if its resolution could affect
the outcome of the action . Anderson, 477 U . . at 248 .
S
15
The only evidence in the summary judgment record that is
properly before the court in determining the outcome is evidence
specifically brought to the attention of the court by the
proponent of the evidence . Malacara v . Garber , 353 F .
3d 393 , 405
(5th Cir . 2003)7 Ragas v . Tenn . Gas Pipeline co ., l36 F.3d 455,
458 ( th Ci 1998) ('
5
r.
'
The part opposi s
y
ng ummary judgment is
required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his
or her claim . Rule 56 does not impose upon the district court a
duty to sift through the record in search of evidence to support
a party' opposition to summary judgment.' (
s
' citation and internal
quotation marks omittedl). Only competent summary judgment
evidence can serve to defeat a Rule 56 motion . Clark v .
America ' Favorite Chicken Co ., ll0 F .
s
3d 295,
(
5th Cir. 1997)
('
'
unsupported allegations or deposition testimony setting forth
ultimate or conclusory facts and conclusions of law are
insufficient to defeat a motion for summary judgment.' . See
s
also United States v . Lawrence , 276 F .3d 193,
(
5th Cir. 2001)
(
holding that an affidavit containing a recitation of fact that
could not be proved at trial was but a self-serving allegation ,
and was not of the type of significant probative evidence
16
required to defeat summary judgment). Rule 56 itself requires
that :
(
4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge , set out facts that would be
admissible in evidence , and show that the affiant or
declarant is competent to testify on the matters
stated .
Fed. R . Civ . P. 56 ( (
c) 4).
*
The parties to this action have devoted significant
attention to the development of a summary judgment record; and,
plaintiff has had ample opportunity to come forward with
probative evidence that would support the elements of one or more
of her causes of action , but has failed to do so . Were this case
not to be resolved summarily under the authority of Rule 56,
tremendous litigant and judicial resources would unnecessarily be
devoted to its resolution . Thus , the wholesome utility of the
summary judgment rule is realized by a summary disposition of
th is action . Apropos is the following language used by the Fifth
Circuit in Little v . Licuid Air CorD .:
Nor should a defendant be required to bear the
unnecessary costs of delay and trial to defend against
a claim that has no merit . Neither party should be
required to bear the costs of trying all of the issues
in a case when some can and should be resolved on
summary judgment. Nor is it fair to require other
cases to languish on the district courts ' trial dockets
because of cases that present no genuine questions of
material fact . As Judge Rubin stated for this court in
Fontenot, 780 F . at 1195, ' T)rial would be a
2d
'(
bootless exercise, fated for an inevitable result but
at continued expense for the parties, the preemption of
a trial date that m ight have been used for other
litigants waiting impatiently in the judicial queue,
and a burden on the court and the taxpayers .'
'
37 F. 1069, 1076 (
3d
5th Cir . 1994) ( banc).
en
W ith the foregoing summary j
udgment princi
ples in mi
nd, the
court now considers each of plaintiff ' pleaded causes of action .
s
B.
The Breach of Emplovment Contract Cause of Action
(
Count Eiqht)
The employment contract between plaintiff and defendant said
that :
Notification of non -renewal of this Contract will be
made on or before the notification date provided for in
board policy DMAB (
Local) in effect at the time this
Contract was awarded preceding the end of the
employment term fixed in the Contract .
Mot ., App . at 285. The applicable 'board policy DMAB (
'
Local)'
'
provided that plaintiff, a third-year employee , was entitled to
notice of the decision of defendant' President not to recommend
s
the renewal of her contract '90 days prior to the end of the
,
contract .' Id . at 384 . She received notice on May 17, 2010,
'
that the President was not recommending the renewal of her
contract for the 2010-2011 school year . Id . at 356-57 . N inety
days before the end of the contract was approximately June 3,
18
2010. Thus, the summary judgment record establishes Without
2
dispute that plaintiff received notice of the President '
s
nonrenewal recommendation more than ninety days prior to the end
of the contract . Moreover, even if timely notice had not been
given , p laintiff has not pointed to any ev idence that would
support a conclusion that she has a breach of contract cause of
action inasmuch as there is no ev idence that the timing of the
notification to plaintiff of the President ' decision not to
s
recommend renewal of her contract caused her any harm or damage .
Therefore, the court has concluded that summary judgment is
should be granted as to plaintiff ' Count Eight breach of
s
employment contract cause of action .
The Breach of Settlement Aqreement Cause of Action
.
(
Count Nine)
On October 26, 2009 , the parties entered into a document
titled 'Settlement Agreement and General Release' ('settlement
'
' f
Agreementl . Mot w App . at 287-99. The section of that document
s
pertinent to plaintiff ' Count Nine cause of action reads in
s
pertinent part as follows :
1.
Consideration and Release . In consideration
for the release and waiver of all Complaints , claims,
grievances and causes of action by Austen , as well as
2 contac ofempl entunam bi
The
r t
oym
guousy sat t pl ntf empl
l t ed hat ai ifs
oymentw ih def
t
endant
e
nded Augus 31 2010.M ot,App.a 285.
t ,
.
t
19
the other promises, agreements and consideration
provided herein, Respondent agrees
.:
(
b). to remove the performance notice/disciplinary
warnings attached to this Agreement as Exhibit ' ' from
A'
Austen ' official Weatherford personnel file and
s
phy sically relocate such documents to a separate file ,
to be maintained by the President of Weatherford in a
locked drawer/cabinet for a period of no longer than
two years after the Effective Date of this Agreement
and thereafter such file shall be destroyed .
(
e). to the extent Austen desires to obtain a
reference from Weatherford , Austen shall direct any
potential future employers to contact only the
Weatherford Director of Human Resources, currently
Ralinda Stone, who shall only provide such entity with
Austen ls dates of emp loyment, as well as her position
and salary at the time of the request.
Id . at 287-88 .
First, plaintiff alleges that defendant ' use of certain
s
complaints and disciplinary actions at a hearing against
plaintiff was in violation of the document . Am . Compl . at 22 ,
! 119. T only e
he
vidence that any of the co
mplaints or
discip linary actions that predated the Settlement Agreement were
considered in a hearing was the evidence that , among the things
considered by defendant 's Board of Trustees at the June l0, 2010
hearing , were certain items descriptive of alleged misconduct on
plaintiff ' part that predated the Settlement Agreement . Mot w
s
App . at 82-283. Shortcomings with this first argument are: (
1)
20
there is no summary judgment ev idence that the pre-settlement
Agreement material played a role in defendant 's nonrenewal
decision , with the consequence that plaintiff has adduced no
ev idence that she suffered any harm or damage as a result of any
use made of the material, and ( nothing in the Settlement
2)
Agreement prohib ited use of pre-settlement Agreement documents or
information in the making of future decisions concerning
plaintiff--the very fact that the Settlement Agreement
contemp lated that defendant could maintain the documents for two
years indicates that the parties contemplated that defendant was
entitled to make further use of the documents .
Second, plaintiff alleges that ' ilt is also believed that
'l
Weatherford College has not followed an agreed procedure
regarding references and inquiries regarding Plaintiff '
s
employment at Weatherford Colle
ge.' Am. Compl. at 22, ! 1
'
20.
Plaintiff fails in her response to support this contention by any
record reference , nor does she in her response present any
argument in support of this second alleged breach of the
Settlement Agreement pleading . Br . in Supp . of Resp . at 42-43 .
In her response to the motion for summary judgment,
p laintiff seems to be making the unpleaded claim that defendant
breached the confidentiality provision of the Settlement
Agreement by using pre-settlement Agreement material at the
21
nonrenewal hearing . Id . at 42 . The confidentiality paragraph of
the Settlement Agreement reads, in pertinent part, as follows:
4 . Confidentiality . Austen agrees to keep the
terms and conditions of this Agreement strictly
confidential and shall not disclose them to any other
person or entity, with the limited exception that
Austen may disclose the terms to her spouse , attorney ,
and/or financial advisor, provided such individualt
s)
also agree to keep such information confidential.
Weatherford also agrees to keep the terms and
conditions of this Agreement strictly confidential and
shall not disclose them to any other person or entity ,
with the limited exception that Weatherford may
disclose the terms to its attorney, accountant and/or
advisor, provided such individual t also agree to keep
s)
such information confidential.
Mot., App . at 289. If plaintiff is now claiming that defendant
breached its confidentiality undertaking , her claim is without
support in the summary judgment record. The only use made of the
material was that made at the June l0, 2010 hearing to which
plaintiff and defendant were the only parties and only persons
having access to the information that was available at the
hearing . There is no reasonab le interpretation of the
confidentiality prov ision that would lead to the conclusion that
it is breached if the only disclosure of information is by one
party to the agreement to the other party to the agreement .
The court has concluded that summary judgment should be
granted as to plaintiff ' Count Nine breach of Settlement
s
22
Agreement cause of action. She has adduced no summary judgment
ev idence that there was a breach , nor , if there had been a
breach, has she adduced any summary judgment evidence that she
suffered any damage or harm by reason of inclusion of preSettlement Agreement material in the items considered by
defendant ' Board of Trustees at the June
s
D.
2010 hearing .
The Race/National Oriqin Discrimination (
Count One),
Sex Discrimination (
Counts Two and Four) , and
-
Retaliation (
Counts Three and Five) Causes of Action
The court questions whether plaintiff has pointed to
probative summary judgment evidence that would raise a prima
facie case as to any of her causes of action based on alleged
race/national origin and sex discrimination and retaliation; and,
the summary judgment record indicates that significant parts, if
not all, of those causes of action are barred by limitations.
However , the court does not need to devote further time and
attention to a discussion of those reasons why plaintiff '
s
discrim ination and retaliation causes of action are without
merit . Even if a prima facie case had been made by the summary
j
udgment evidence as to one or mor of those causes of acti
e
on,
and even if one or more of the causes of action were not barred
by limitations, the summary judgment record establishes that
defendant had legitimate, nondiscriminatory reasons for
employment actions taken by defendant in reference to plaintiff;
23
and , plaintiff has not called the court ' attention to any
s
probative summary judgment evidence that would raise an issue
that any of those reasons was a pretext for discrimination .
The May 26, 2010 letter from defendant 's President to
plaintiff informing her of his reasons for recommending to the
Board of Trustees nonrenewal of plaintiff ' employment contract
s
with defendant does not hint at any discriminatory motive,
intent, or design . Mot ., App . at 371-72 . The decision as to
whether there would be a nonrenewal rested w ith defendant ' Board
s
of Trustees. Id. at
The transcript of the hearing conducted
by the Board of Trustees on June l0, 2010, relative to nonrenewal
provides ev idence that plaintiff ' conduct totally unrelated to
s
her race/national origin, sex, or any discrimination complaint
provided the sole reasons for nonrenewal of the employment
contract . Mot w App . at 393-494 . The explanations given by
defendant ' President for his recommendation that plaintiff '
s
s
employment contract not be renewed did not include anything that
could be viewed to be an improper motive . Id . at 404 -22 . The
concern he expressed was with plaintiff' rather bizarre conduct
s
that had no relationship to her race/national origin, sex, or any
comp laint of discrimination . Id . The decision of the Board of
Trustees to accept the President ' recommendation of nonrenewal
s
contained no hint of an improper motive . Id . at 494 . Plaintiff
24
has pointed to no summary judgment evidence that would suggest
that defendant 's President or Board of Trustees was motivated by
anything other than nondiscriminatory reasons in making their
employment decisions relative to plaintiff.
The court has concluded that summary judgment should be
granted as to p laintiff ' Counts One , Two , Three, Four , and Five
s
discrimination and retaliation claims.
E.
The Alleqed Violation of Plaintiff ' Riqhts to Free
s
speech and Petition (
Count Seven)
Plaintiff contends in Count Seven that she was demoted and
nonrenewed in retaliation for asserting her rights to free speech
and petition. Am. Compl. at 19-20, !! 10
4-05. For plai
ntiff to
establish a retaliation claim under the First Amendment , she
would be required to adduce evidence that :
( plaintiff
1)
suffered an adverse employment action; ( plaintiff' speech
2)
s
involved a matter of public concern;
plaintiff' interest in
s
commenting on matters of public concern outweigh defendant '
s
interest in promoting efficiency; and ( plaintiff' speech
4)
s
motivated defendant ' action . Teaque v . Citv of Fàower Mound ,
s
F.
3d
38û (
5th Cir. 1999). See also Borouqh of Durvea v .
Guarnieri, 131 S.
-
2488 (
2011).
A basic shortcom ing of plaintiff ' free speech and petition
s
claims is that there is no summary judgment evidence that her
speech involved a matter of public concern , which is a question
of law for the court . Id . In making the 'public concernl
'
'
determination , the speech in question is to be evaluated with
respect to its content , form , and context .
Connick v . Mvers, 46l
138, 147 (
1983). In an employment situation , there is a
determinative difference between an employee speaking on matters
of public concern and speech on the subject of the employee'
s
personnel issues . The Supreme Court said in Connick :
We hold only that when a public employee speaks not as
a citizen upon matters of public concern , but instead
as an employee upon matters only of personal interest ,
absent the most unusual circumstances , a federal court
is not the appropriate forum in which to review the
wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee ' behavior .
s
Id . The 'speechn on which plaintiff hangs her First Amendment
'
hat related only to the terms and conditions of her employment-thus, the speech is not upon a matter of public concern . See
Folev v . Univ. of Houston Sysw 355 F . 333, 341 (
3d
Sth Cir.
2003).
Although plaintiff contends that she spoke on matters of
public concern , she acknowledged that all of her matters of
'
'
public concern ' were related to complaints about her emp loyment .
l
Mot ., App . at 578-79 . Because a11 the speech at issue concerns
the conditions of plaintiff ' employment, as a matter of law
s
26
plaintiff cannot establish a violation of her right to free
speech or petition . see Teaque, 179 F .3d at 381 . The court,
therefore, has concluded that summary judgment should be granted
as to plaintiff ' Count Seven causes of action based on alleged
s
denial of her rights to free speech and petition .
The A lleqed Violations of Plaintiff ' Procedural and
s
Substantive Due Process Rights (
Count Seven)
-
The court is assuming that plaintiff is asserting her Count
Seven denial of due process claims through the vehicle of 42
U .S . . 5 1983 . See World Wide St . Preachers Fellowship v . Town
C
of Columbia, 591 F. 747, 752 (
3d
5th Cir. 2009). In order to
state such a claim, plaintiff must establish
a violation of
rights secured by the Constitution or laws of the United States
and ( demonstrate that the alleged deprivation was committed by
2)
a person acting under color of state law . See Rendon v .
Brownsville Indep . Sch . Dict w No . 10-CV-198 , 2011 U . . Dist .
S
LEXIS 65627, at *12 ( D . Tex . June 2l, 2011) (
S.
quoting Leffall v .
Dallas Indeo . Sch . Dist., 28 F.3d 521, 525 (
5th Cir . 1994)).
Stated another way, ' tlo bring an action within the purview of
'E
section 1983, (
plaintiffl must first identify a protected life,
liberty, or property interest, and then prove that government
action resulted in a deprivation of that interest .' San Jacinto
'
Sav . & Loan v. Kacal, 928 F. 697, 700 (
2d
5th Cir. 1971).
27
In order for plaintiff to succeed on a due process claim ,
whether procedural or substantive, she must first establish a
legitimate claim of entitlement to a property interest, as
determ ined by state law . See Bd . of Reqents v . R0th , 408 U .S .
564, 577 (
1972): Nunez v . Simms, 341 F. 385, 387-88 (
3d
5th Cir.
2oû3). Plaintiff alleged that she was deprived of 'liberty and
property interests recognized by and/or created by state law,
including her objective expectancy of renewed employment as
Department Chair of Kinesiology and/or Professor of Kinesiology
and property interests guaranteed by the college ' policies and
s
her e
mplo
yment contract.' Am. Compl. at 20, f 106. Plai
'
ntiff is
incorrect in thinking that she had such a liberty and property
interest .
The existence of a property interest for purpose of due
process , as determined by state law , must come from an
independent source , such as statutes , contractual provisions , or
mutually explicit understandings. Neither plaintiff ' employment
s
contract nor defendant 's policies created any property interest
in her employment. The contract specifically stated that it did
not '
'
grant or create any property right in any position or
assignment,' that it 'does not grant or create any contractual
'
'
right , expectancy of continued employment, or claim of
entitlement to employment beyond the term of (
the) Contract .'
l
28
Mot w App . at 285 . Such a contract does not establish any
expectancy of employment after the term of the contract that
would give rise to a property interest . See Ray v . Nash , 438 F .
App l 332, 335 (
x
5th Cir. 2011). See also Tex . Educ. Code
5l.943(
g). Nor would a unilateral expectation of plaintiff in
continued employment serve as a basis to assert a property
interest . Rav , 438 F . App ' at 335 . Because plaintiff '
x
s
contract was nonrenewed (
not terminated during the term of the
contract), plaintiff received all pay and benefits under the
contract to which she was entitled. Mot., App. at
!
Adding emphasis to the absence of a property interest in
continued employment is the policy of defendant stating that the
employment contract 'creates a property interest in the position
'
only for the period of time stated in the contract .' Id . at 26 .
'
Equally without merit is p laintiff ' assertion that she Was
s
denied a liberty interest becau se her name was harmed by actions
taken by defendant to nonrenew her employment .
In order to
establish a liberty interest that is subject to due process,
plaintiff was required to prove that her 'good name , reputation ,
'
honor, or integrity is at stake because of what the government is
doing to (
herl.' R0th, 408 U . at 573 (
'
S.
citing Wis. v .
Constantineau, 400 U . 433, 437 (
S.
1971))
In such an event, due
process--notice and an opportunity to be heard --would be
29
essential .
Id . However , nonrenewal standing alone does not
invoke a liberty interest . For example , in Roth , the Supreme
Court concluded that the liberty interest of the plaintiff in
that case was not implicated by reason of the nonrenewal of his
contract, because the nonrenewal did not involve 'any charge
'
against him that might seriously damage his standing and
associations in his community ' as it was not based on a charge of
'
dishonesty or immorality . Id . As the Supreme Court noted in
Roth, ' ilt stretches the concept too far to suggest that a
'l
person is deprived of '
liberty ' when he simply is not rehired in
one job but remains as free as before to seek another.' Id. at
'
575 .
The stigma of discharge standing alone does not establish a
deprivation of a liberty interest . See Huqhes v . Citv of
Garland, 204 F. 223, 226 (
3d
5th Cir. 2000). A liberty interest
is implicated 'only if an employee is discharged in a manner that
'
creates a false and defamatory impression about him and thus
stigmatizes him and forecloses him from other employment
opportunities.' Id . Plaintiff has pointed to no summary
'
judgment evidence that would support a finding that her
nonrenewal , which was based on numerous incidents of performance
deficiencies from different witnesses, was based on false
information or allegations. Moreover, in order for plaintiff'
s
30
nonrenewal to create a false and defamatory impression , there
must be evidence that false and defamatory information was
published about plaintiff . See Loudermill, 470 U . . at 547 n . .
S
13
An employee is not deprived of a 'liberty interest when the
'
employer has alleged merely improper or inadequate performance ,
incompetence , neglect of duty or malfeasance .' Claborn v . Ohio,
'
No. 2:11-CV-679, 2011 U . Dist . LEXIS 137629, at *23 ( D . Ohio
S.
S.
Nov. 30, 2011) (
citing Sieqert v. Gillev, 500 U.S. 226 (
1991)).
There is no summary judgment evidence that defendant published
any statements about plaintiff . Her hearing was in a closed
session. She cannot prevail on a mere subjective belief on her
part that defendant created a 'false and defamatory impression '
'
about her that was pub licized and prevented her from obtaining
emp loyment .
There are other reasons, which are outlined in defendant '
s
brief, why plaintiff cannot prevail on her due process claims .
However , the reasons discussed above are sufficient to support
the court' conclusion that summary judgment should be granted as
s
to plaintiff 's Count Seven procedural and substantive due process
claims .
Conclusion
For the reasons given above , the court has concluded that
defendant' motion for summary judgment should be granted in its
s
entirety . Defendant supports the grounds of its motion by other
arguments that the court has not discussed . The court 's silence
on those other arguments is not to be taken as an implied comment
as to their merits . Rather, the court simply was not required to
consider or discuss them in this memorandum opinion in order to
explain the court ' reasons for granting defendant ' motion .
s
s
IV .
Order
Therefore ,
The court ORDERS that defendant ' motion for summary
s
judgment be, and is hereby, granted; and
The court further ORDERS that all claims and causes of
action asserted by plaintiff against defendant be, and are
hereby , dismissed .
SGE A g s 6 ,2 1 .
IN D uu t 1 02
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32
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