Washington v. La Marque Independent School District et al

Filing 50

ORDER denying 47 Motion for Reconsideration.(Signed by Judge Gregg Costa) Parties notified.(arrivera, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
RUSSEL WASHINGTON,
Plaintiff,
VS.
ECOMET BURLEY, et al,
Defendants.
RUSSEL WASHINGTON,
Plaintiff,
VS.
LA MARQUE ISD,
Defendant.

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CIVIL ACTION NO. 3-12-154

CIVIL ACTION NO. 3-12-41

ORDER

This is a continuation of Plaintiff Russel Washington’s suit against his
former employer, Defendant La Marque Independent School District (“LMISD”).
In March 2013, this Court granted in part and denied in part LMISD’s motion for
summary judgment on Washington’s procedural due process claim. Washington v.
Burley, -- F. Supp. 2d --, 2013 WL 943812, at *14 (S.D. Tex. Mar. 11, 2013).
LMISD now moves for the Court to reconsider the denial of summary judgment on
Washington’s pretermination procedural due process claims, and to that end reurges its earlier argument that Washington received adequate pretermination due
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process because he could have appealed his termination. Docket Entry No. 47.
Washington has filed an untimely response opposing the motion to reconsider.
Docket Entry No. 48.
In its earlier ruling, the Court held that Washington received sufficient posttermination due process as a matter of law because he could have appealed his
firing to the Texas Commissioner of Education and to state court. Washington,
2013 WL 943812, at *8, 13 (citing, among other cases, Myrick v. City of Dallas,
810 F.2d 1382, 1388 (5th Cir. 1987)). However, following binding Fifth Circuit
precedent, the Court held that LMISD’s separate duty to provide Washington with
due process before it fired him was not satisfied simply because he could appeal:
“Because a tenured public employee is entitled to some predeprivation process, the
existence of an adequate postdeprivation remedy cannot by itself defeat that
employee’s procedural due process claim.” Id. at *8–9 (quoting Chiles v. Morgan,
53 F.3d 1281, 1995 WL 295391, at *1–2 (5th Cir. 1995) (per curiam, unpublished
opinion)); see 5th Cir. R. 47.5.3 (unpublished opinions issued before January 1996
have precedential force).
LMISD now contends that the Court’s reliance on Chiles was in error
because the specific administrative appeals scheme available to Washington in this
case did give Washington pretermination due process.

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LMISD notes the

undisputed fact that, had Washington appealed his termination to the Texas
Commissioner of Education, he might have won an order vacating the termination
and remanding his case to the LMISD board of trustees for a de novo decision on
whether he should be terminated. It argues that such an order “could have turned
the clock back” and provided Washington with due process before he was fired.
Docket Entry No. 47 at 8 (quotation marks omitted).
However, LMISD cites no case holding that the procedural remedies
available to employees of Texas public schools overcome Chiles, despite the
frequency of such cases. The one federal case it cites on this point, Burns v. Harris
Cnty. Bail Bond Bd., 139 F.3d 513 (5th Cir. 1998), did not involve the due process
right of a public employee. That case arose out of a county’s refusal to renew a
bail bondsman’s license and thus did not address the distinction between
predeprivation and post deprivation process that underlies the Supreme Court’s
Loudermill decision. Id. at 515.
As the Supreme Court has stated, “the only meaningful opportunity to
invoke the discretion of the decisionmaker is likely to be before the termination
takes effect.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985). If
accepted, LMISD’s argument that pretermination due process is satisfied when an
appeals process is available “would eviscerate Loudermill.” Washington, 2013

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WL 943812, at *8. The Court sees no reason to depart from its earlier holding.
LMISD’s motion to reconsider (Docket Entry No. 47) is DENIED.
SIGNED this 28th day of May, 2013.

___________________________________

Gregg Costa
United States District Judge

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