Caleb et al v. Grier et al

Filing 172

MEMORANDUM AND ORDER Granting 136 MOTION for Summary Judgment , Denying 162 MOTION for Reconsideration MOTION to Amend. (Signed by Judge Ewing Werlein, Jr) Parties notified.(hcarr, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MABLE CALEB,
Plaintiff,
v.
DR. TERRY GRIER and HOUSTON
INDEPENDENT SCHOOL DISTRICT,
Defendants.

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CIVIL ACTION NO. H-12-675

MEMORANDUM AND ORDER
Pending are Defendants Houston Independent School District and
Terry Grier’s Motion for Summary Judgment and Entry of Final
Judgment on All Claims (Document No. 136), Plaintiff’s Motion for
Leave to Amend Complaint to Reassert Dismissed Claims (Document No.
162), and Defendants Houston Independent School District and Terry
Grier’s

Objections

to

(Document No. 165).
responses,

reply,

Plaintiff’s

Summary

Judgment

Evidence

After carefully considering the motions,
sur-reply,

and

applicable

law,

the

Court

concludes as follows.
I. Background
Plaintiff Mable Caleb (“Plaintiff”) was formerly employed by
Defendant Houston Independent School District (“HISD”) as the
principal of Key Middle School (“Key”) and later, of Kashmere High
School (“Kashmere”).

Plaintiff’s Corrected Third Amended Original

Complaint--111 pages in length--alleges, in essence, that HISD’s
Superintendent, Defendant Dr. Terry Grier (“Grier,” and together
with HISD, “Defendants”) targeted Plaintiff for dismissal because
of things she said and people with whom she associated, and that he
instituted a harassing investigation into her activities at Key and
her transition when she was appointed principal at Kashmere.1

HISD

retained outside counsel, Elizabeth Mata Kroger (“Kroger”) and her
law firm, to conduct the investigation, which culminated in an
extensive March 5, 2010 Investigation Report finding that Plaintiff
and other HISD employees had engaged in improprieties including
(1)

removal

of

equipment

from

Key,

(2)

solicitation

of

contributions from teachers who wished to teach summer school
classes, (3) unauthorized student-targeted fundraising activities,
(4) nepotism and payroll discrepancies, and (5) testing improprieties

relating

to

the

2009

administration

of

the

Texas

Assessment of Knowledge and Skills (“TAKS”) test.2
Grier testifies in his Declaration that based on the findings
of the Investigation Report, he decided to terminate Caleb.3

On or

about March 9, 2010, a Houston Chronicle reporter made a request
under the Texas Public Information Act for the Investigation

1

Document No. 48-1 (Pls.’ Corrected 3d Am. Orig. Compl.).

2

Document No. 136, ex. C-4.

3

Id., ex. A ¶ 11.
2

Report, pursuant to which Grier released the Report.4

On March 22,

2010, Caleb made a written 10-page response to HISD to rebut the
findings of the Investigation Report and delivered to HISD a
separate letter, also dated March 22, 2010, notifying Defendants of
her intent to retire effective August 31, 2010 “due to personal and
family medical issues.”5

Plaintiff released her 10-page response

to The Houston Chronicle (the “Chronicle”) as an “open letter,” and
the Chronicle on March 22, 2010 published an article that quoted
extensively from the written response denying the allegations of
wrongdoing and stated that Plaintiff had given notice to retire.6
On April 8, Grier recommended to HISD’s Board (the “Board”) that it
terminate or non-renew the contracts of Caleb and several other Key
employees based on the Investigative Report’s findings, and the
Board terminated Caleb.7
In cooperation with Defendants and Kroger, the Texas Education
Agency launched a separate investigation into the TAKS testing
improprieties, and ultimately sought to revoke Caleb’s teaching
certificate.8

After a hearing, the State Office of Administrative

Hearings concluded that “a severe breach of testing security and

4

Id., ex. A ¶ 12.

5

Document No. 160, ex. 20 at 3 of 5; id., ex. 35.

6

Id., ex. 10.

7

Document No. 136, ex. A ¶ 14; id., ex. A-5.

8

Document No. 160, ex. 33 at 5 of 63.
3

confidentiality” had occurred, but that Plaintiff “did not commit
any act or fail to take any action as principal of [Key] that
resulted in a breach of test security.”9
Plaintiff, together with four other HISD employees who had
been subjects of HISD’s investigation, filed this suit against
Defendants, Kroger, and two of Kroger’s investigators.10

After

several rounds of amendments and motions to dismiss, the Court on
June 13, 2013 dismissed all claims “except only for Plaintiff
Caleb’s claims that Defendants HISD and Terry Grier retaliated
against her for making protected speech to The Houston Chronicle in
response to the report published regarding her alleged misconduct,
and Plaintiff Caleb’s claim that Defendants HISD and Grier deprived
her of her liberty interest by denying her a procedural due process
hearing to clear her name.”11
Judgment

dismissing

all

The Court then entered a Final

claims

of

the

plaintiffs

other

than

Plaintiff Caleb, and dismissing all of Plaintiff Caleb’s claims
against all defendants other than Grier and HISD.12

The Fifth

Circuit affirmed the decision on appeal.13

9

Id., ex. 33 at 5 of 63, 59 of 63.

10

Document No. 1 (Orig. Compl.).

11

Document No. 98 at 25.

12

Document No. 114.

13

Caleb v. Grier, No. 13-20582, 2015 WL 66478 (5th Cir.
Jan. 6, 2015) (found at Document No. 145).
4

Defendants now move for summary judgment on Plaintiff’s two
remaining claims, arguing that (1) Plaintiff’s First Amendment
retaliation claim fails because her speech to the Chronicle was not
a

substantial

or

motivating

factor

in

her

termination,

(2) Plaintiff’s due process claim fails because she did not request
a name-clearing hearing, (3) there is no evidence of an HISD Board
of Trustees’ unconstitutional policy or practice that could subject
HISD to liability under § 1983, and (4) Grier is protected by
qualified immunity.14

Plaintiff responds to Defendants’ motion and

also moves for leave to amend her complaint and reassert her
dismissed claims against Defendants.15
II. Plaintiff’s Motion for Leave to Amend
Plaintiff seeks leave to amend her complaint to reassert the
following claims which were dismissed in June 2013:

(1) Plain-

tiff’s First Amendment retaliation claim based on her November 12,
2009 speech at a town hall meeting, (2) Plaintiff’s First Amendment
retaliation claim based on her November 13, 2009 speech in a
private meeting with Grier, (3) Plaintiff’s First Amendment freedom
of association claim based on her political associations, and
(4) Plaintiff’s Equal Protection claim.16

14

Document No. 136.

15

Document Nos. 158, 162.

16

Document No. 162.
5

Defendants oppose the

motion, arguing that (1) Plaintiff has previously had multiple
opportunities to cure pleading deficiencies and failed to do so,
(2)

Plaintiff

unnecessarily

delayed

seeking

leave

to

amend,

(3) amendment would be futile, and (4) Defendants would be severely
prejudiced if amendment is allowed.17
Plaintiff’s
reconsideration

motion
of

the

is

largely

Court’s

Order

a
of

second
June

motion
13,

for

2013.18

Plaintiff’s previous motion for reconsideration, entitled “Motion
for New Trial,”19 was denied by Order dated September 3, 2013.20

In

the previous motion, as here, Plaintiff complains about dismissal
of her November 12, 2009 and November 13, 2009 public speech
claims, and of her freedom of association claim.

Serial motions

for reconsideration are not favored, and here there is only a
rehash of what previously was considered. See LeClerc v. Webb, 419
F.3d 405, 412 n.13 (5th Cir. 2005) (“A motion for reconsideration
may not be used to rehash rejected arguments or introduce new
arguments.”).
Plaintiff already has been allowed multiple amendments, and
failed to correct the deficiencies despite two earlier rounds of

17

Document No. 166.

18

Document No. 98.

19

Document No. 101.

20

Document No. 108.
6

motions to dismiss.21

See, e.g., Herrmann Holdings Ltd. v. Lucent

Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002) (affirming denial of
leave to replead where plaintiff already had twice been given leave
to amend).

For all of these reasons, as well as the inexplicable

filing of the motion more than 20 months after the claims were
dismissed and the unfair prejudice that Defendants would suffer if
long-since dismissed claims were now resurrected, Plaintiff’s
Motion for Leave to Amend is denied.
III. Defendants’ Evidentiary Objections
Defendants object to several exhibits attached by Plaintiff to
her Response to Defendants’ Motion for Summary Judgment.22
Defendants’

objection

to

the

“Rhetorical

Analysis”

of

Dr. Kevin Cummings (Plaintiff’s Exhibit 12) is SUSTAINED because
Dr. Cummings was not timely disclosed as an expert; moreover, the
Court previously denied as untimely Plaintiff’s attempt to name
Dr. Cummings as an expert witness.23

See FED. R. CIV. P. 37(c)(1)

21

See Document No. 98 at 1 n.1 (June 13, 2013 Memorandum and
Order dismissing most of Plaintiff’s claims) (“In light of
Plaintiffs’ prior filings of complaints--the Third Amended
Complaint is now under review--and with no consequential
transactions, occurrences, or events having occurred after
Plaintiffs filed their current pleading of more than 100 pages in
length, the Motion to file Supplement (Document No. 92) is
DENIED.”) (emphasis in original).
22

Document No. 165.

23

Document No. 98 at 1-2 n.1 (“Plaintiffs’ Motion for Leave
to File Designation of Expert Witness (Document No. 83), which is
7

(“If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.”).
Defendants’ hearsay objection to newspaper articles that are
Plaintiff’s Exhibits 11, 22, 29, 30, and 31 is SUSTAINED, and the
articles are excluded as evidence of the truth of the matters
asserted therein; but the objection is OVERRULED as to Plaintiff’s
limited offers for the purposes of showing newspaper coverage of
HISD

events

and

exhibiting

articles

about

which

Grier

was

questioned in his deposition.
Defendants’ relevance objection to the affidavit of Carol Mims
Galloway (Plaintiff’s Exhibit 15), which Plaintiff admits “does not
relate to facts of this case,”24 is SUSTAINED.
Defendants’ relevance and foundation objections are SUSTAINED
as to Plaintiff’s Exhibit 23, which includes an affidavit of Glen
White and part of an affidavit of Tony Shelvin, both unrelated to
Plaintiff, and unauthenticated documents relating principally to
the investigation of Herbert Lenton.

opposed by Defendants HISD, Grier, and Kroger, is DENIED as having
not been timely filed before the deadline for identifying expert
witnesses expired.”).
24

Document No. 171 at 2.
8

Defendants’ relevance objection to the affidavit of Sabrina
Norman and news article at Plaintiff’s Exhibit 25 is OVERRULED.
Defendants’ hearsay objection to the news article is SUSTAINED.
Defendants’

relevance

and

foundation

objections

to

the

declaration of Rep. Harold Dutton (Plaintiff’s Exhibit 2) are
OVERRULED.
Those

portions

of

the

evidence

to

which

objections

are

sustained are STRICKEN, and all remaining objections are OVERRULED.
IV. Motion for Summary Judgment
A.

Legal Standard
Rule 56(a) provides that “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”

FED. R. CIV. P. 56(a).

Once the movant carries

this burden, the burden shifts to the nonmovant to show that
summary judgment should not be granted. Morris v. Covan World Wide
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).

A party opposing

a properly supported motion for summary judgment may not rest upon
mere allegations or denials in a pleading, and unsubstantiated
assertions that a fact issue exists will not suffice.

Id.

“[T]he

nonmoving party must set forth specific facts showing the existence
of a ‘genuine’ issue concerning every essential component of its
case.”

Id.

“A party asserting that a fact cannot be or is
9

genuinely disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . . or (B) showing
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1).
“The court need consider only the cited materials, but it may
consider other materials in the record.”

Id. 56(c)(3).

In considering a motion for summary judgment, the district
court must view the evidence “through the prism of the substantive
evidentiary burden.”

Anderson v. Liberty Lobby, Inc., 106 S. Ct.

2505, 2513 (1986). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 106 S. Ct. 1348, 1356 (1986).

“If the record, viewed in

this light, could not lead a rational trier of fact to find” for
the nonmovant, then summary judgment is proper.

Kelley v. Price-

Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993).

On the other

hand, if “the factfinder could reasonably find in [the nonmovant’s]
favor, then summary judgment is improper.”

Id.

Even if the

standards of Rule 56 are met, a court has discretion to deny a
motion for summary judgment if it believes that “the better course
would be to proceed to a full trial.”
2513.

10

Anderson, 106 S. Ct. at

B.

Analysis
1.

First Amendment Retaliation

Plaintiff’s

First

Amendment

retaliation

claim

is

that

“Defendants HISD and Terry Grier retaliated against her for making
protected

speech

[through

her

‘open

letter’]

to

The

Houston

Chronicle in response to the report published regarding her alleged
misconduct.”25

This claim relates to a March 22, 2010 article

written by Ericka Mellon in the Chronicle, reporting Plaintiff’s
announcement on that same date that she intended to retire.26

The

article reported:
HISD Superintendent Terry Grier said he had not seen
Caleb’s letter giving notice.
But he said he would
discuss with the school district’s attorneys whether to
accept her retirement or to fire her sooner. The school
board would have to approve the termination, and it could
end up in an expensive legal battle.27
After summarizing portions of Plaintiff’s written response to the
investigation,

in

which

she

maintained

her

innocence

of

any

wrongdoing and characterized the investigation as a “personal
attack” by Grier, the article concluded by quoting Grier: “‘It’s
sad that she wants to blame me for this type of conduct at Key and

25

Document No. 98 at 25.

26

Document No. 159, ex. 10.

27

Id., ex. 10 at 1.
11

at Kashmere,’ Grier said.

‘Nothing could be further from the

truth.’”28
To establish a § 1983 claim for retaliation against protected
speech, Plaintiff must show: (1) she suffered an adverse employment
action; (2) she spoke as a citizen on a matter of public concern;
(3)

Plaintiff’s

interest

in

the

speech

outweighs

the

public

employer’s interest in efficiency; and (4) the speech precipitated
the adverse employment action.29 Nixon v. City of Houston, 511 F.3d
494, 497 (5th Cir. 2007).

Once a plaintiff has shown that his

protected speech “was a substantial or motivating factor in the
defendant’s adverse employment decision, a defendant may still
avoid liability by showing, by a preponderance of the evidence,
that it would have taken the same adverse employment action even in
the absence of the protected speech.”

Haverda v. Hays Cnty., 723

F.3d 586, 591-92 (5th Cir. 2013) (citing Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 97 S. Ct. 568, 576 (1977)).

“An

employee can, however, refute that showing by presenting evidence
that ‘his employer’s ostensible explanation for the discharge is

28

Id., ex. 10 at 3.

29

As noted in Court’s June 13, 2013 Memorandum and Order,
“[a]lthough [Plaintiff’s] complaint does not cite 42 U.S.C. § 1983,
Section 1983 is the statute that provides a private cause of action
for redressing a violation of federal law or ‘vindicating federal
rights elsewhere conferred.’”
Document No. 98 at 5 (citing
Albright v. Oliver, 114 S. Ct. 807, 811 (1994)).
12

merely pretextual.’”

Id. at 592 (citing Coughlin v. Lee, 946 F.2d

1152, 1157 (5th Cir. 1991)).
Defendants do not dispute that Plaintiff suffered an adverse
employment action when she was terminated by HISD on April 8, 2010,
and the Court assumes--as Plaintiff insists--that Plaintiff spoke
as a citizen on a matter of public concern, and that her interest
in the speech outweighs HISD’s interest in efficiency.30 Defendants
argue, however, that there is no evidence that Plaintiff’s speech
to the Chronicle was a motivating factor in Grier’s decision to
recommend her termination; to the contrary, Grier wanted Plaintiff
fired because he believed that her discharge was warranted by the
findings of the Investigation Report.31 Plaintiff responds that the

30

Defendants also “assum[e] arguendo” that Plaintiff’s speech
to the Chronicle was protected, but reurge in a footnote their
argument--which the Court rejected when ruling on their motion to
dismiss--that Caleb’s speech is not protected because it concerned
her individual employment and answered claims about her misconduct.
Document No. 136 at 13, n.6. Although “[s]peech that is primarily
motivated by, or primarily addresses, the employee’s own employment
status rather than a matter of public concern does not give rise to
a cause of action under § 1983,” Foley v. Univ. of Houston Sys.,
355 F.3d 333, 341 (5th Cir. 2003) (emphasis added), Plaintiff’s
employment and the allegations against her had received extensive
media coverage in this case after Defendants released video footage
and the Investigation Report to the press.
Thus, viewing the
evidence on summary judgment in the light most favorable to the
non-movant, Plaintiff’s evident release to the Chronicle of her
written response to HISD may therefore arguably be characterized as
addressing a matter of public concern. See Connick v. Myers, 103
S. Ct. 1684, 1690 (1983) (“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.”).
31

Document No. 136 at 14-21.
13

close

timing

between

her

speech

to

the

Chronicle

and

her

termination is sufficient to make out a prima facie case of
retaliation,

and

that

Grier’s

purported

reliance

on

the

Investigation Report is pretextual because the report “found the
opposite of what Grier says he believed and for which he decided to
terminate Caleb.”32
Defendants first argue that “there is nothing in the record or
Plaintiff’s petition to indicate that Grier had seen the article at
the time he decided to terminate Caleb, or before the Board vote on
her termination.”33

Grier testified in his deposition that he did

not recall, but did not deny, his reported conversation with Mellon
that resulted in her use of quotes attributed to him in the
Chronicle article.34

However, Grier’s quotes themselves raise an

inference that he was aware--if only because of his conversation
with

Mellon--of

at

least

some

of

Plaintiff’s

speech

to

the

Chronicle; namely, that Plaintiff had submitted a notice of her
intent to retire and that she “want[ed] to blame [Grier] for this
type

of

conduct

at

Key

and

Kashmere.”35

This

evidence

when

construed in the light most favorable to Plaintiff is sufficient to

32

Document No. 158 at 28.

33

Document No. 136 at 15.

34

Document No. 159, ex. 3 at Vol. 2, 78:1-79:7.

35

Id., ex. 10 at 3 of 6.
14

raise at least a fact issue that Grier had notice of Plaintiff’s
speech to the Chronicle before he recommended her termination.
Plaintiff

produces

no

direct

evidence

that

Defendants

terminated her because of her speech to the Chronicle, and relies
only on the close timing between her speech and termination.

In

evaluating a First Amendment retaliation claim, “[c]lose timing
between an employee’s protected activity and an adverse employment
action can be a sufficient basis for a court to find a causal
connection required to make out a prima facie case of retaliation.”
Mooney v. Lafayette Cnty. Sch. Dist., 538 F. App’x 447, 454 (5th
Cir. 2013) (citing Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001) (reversing summary judgment dismissal of Title VII
retaliation claim)).

“[T]emporal proximity between protected

activity and an adverse employment action should be viewed in the
context of other evidence.

The causal connection prong, for

example, may also be satisfied when the plaintiff relies upon a
chronology of events from which retaliation may plausibly be
inferred.”

Id. (citing Brady v. Houston Indep. Sch. Dist., 113

F.3d 1419, 1424 (5th Cir. 1997)) (footnote omitted).
The relevant chronology of events, according to Plaintiff,
began

in

mid-November

2009,

when

“Grier,

the

relatively

new

Superintendent of HISD, was publically [sic] embarrassed by the
community church rally where he was labeled a ‘liar,’ picketed, and

15

chided by Caleb.”36 Plaintiff argues that shortly thereafter, Grier
retained investigators “for the specific purpose of investigating
of Caleb and Key Middle School,” and that “Grier targeted Mable
Caleb” in that investigation.37 The uncontroverted summary judgment
evidence is that the HISD investigation began after HISD received
an

anonymous

complaint

in

November,

2009,

concerning

“funny

business” at Key, stating that “many things are missing from the
school,” and encouraging examination of surveillance tapes on
October 31, 2009, a Saturday. When the tapes were examined persons
were seen carrying various boxes and materials out of the audio
visual rooms at Key, and Plaintiff is seen observing some of the
activity.38
Kashmere

Two men--the plant operator at Kashmere and the

custodian--were

seen

exiting

with

various

boxes

equipment that were placed in a truck driven away from Key.

and

Items

removed included a desk, a leather chair, computer equipment in
original boxes, metal cabinets in their original boxes, and also
some personal items belonging to Plaintiff.
The Investigation Report was issued on March 5, 2010, the
Chronicle article was published on March 22, 2010, and Plaintiff

36

Document No. 158 at 25-26.
As noted above, Plaintiff
attempts to reurge her dismissed retaliation claims based on these
earlier events.
37

Id. at 26.

38

Document No. 136, ex. C-2.
16

was terminated at the April 8, 2010 Board meeting.39
Plaintiff

was

Plaintiff

refers

Plaintiff’s

terminated
to

fewer

than

three

as

her

“open

letter”

allegations

and

weeks
to

testimony--like

after

the

her

Although
what

Chronicle,

argument

in

opposition to summary judgment--have consistently claimed that
Grier targeted Plaintiff for investigation and termination when
Plaintiff and Grier had confrontations in the Fall of 2009, months
before Plaintiff’s letter to the Chronicle.40

Indeed, Plaintiff

alleges that “Grier’s personal hostility towards Caleb peaked on or
about

November

discharged.41

39

12-13,

2009,”

five

months

before

she

was

Plaintiff’s chronological narrative is thus at odds

See id. ex. A-4 (notice of termination).

40

See Document No. 159, ex. 1 at 70:24-71:24 (“Q. I’m really
just trying to establish, do you have a belief as to why they
started that investigation? A. [Plaintiff Ms. Caleb] Yes. Q. And
what was that?
What is your belief?
Why did HISD begin that
investigation? A. The--I know that the investigation started, it
was because I got Dr. Grier really upset after those community
meetings and after the meeting with him and with him being so rude
and unprofessional and making his statements, and I decided to
stand up and speak up for myself. And I believe that Dr. Grier,
with the shouting and all he was doing in his office, never thought
that I would just take a stand. So I took a stand, told him how I
felt. And when he asked me about didn’t I know that they were
going to picket me, and I had an obligation to tell him, just one
thing led to another and remarks that he made to me and with my
response to him--or responses to him during that con--during that
Friday evening meeting. So I felt that it was retaliation or I did
not bow down to his intimidation. Q. And do you believe that the
termination of your employment was for the same reasons? A. Yes,
I believe it was for the same reason.”).
41

See Document No. 48-1 at 13.
17

with her retaliation theory, namely, that it was Plaintiff’s speech
to the Chronicle that caused Grier to seek her termination.
Regardless,

assuming

the

temporal

proximity

between

Plaintiff’s speech to the Chronicle and her termination were
sufficient to make out a prima facie case of retaliation, Plaintiff
has presented no evidence to show that Defendants’ proffered
legitimate reason for her termination was pretextual. See Haverda,
723 F.3d at 591-92.

Plaintiff was terminated after Defendants

received an extensive investigation report which concluded that
Plaintiff had engaged in numerous instances of misconduct including
mismanagement of fixed assets resulting in tens of thousands of
dollars in missing computer equipment, inappropriate studenttargeted fundraising activities, misuse of Title I funds, misuse of
HISD’s resources and personnel, nepotism, and poor oversight of
TAKS testing which resulted in cheating.42

Grier’s uncontroverted

declaration testimony is that
I considered the report’s findings of financial
mismanagement and misconduct to be very serious. Taken
as a whole, the findings indicated to me that Ms. Caleb
was not following district policies, was not properly
managing the District’s assets, and was not properly
supervising campus staff.
Therefore, based on these
findings, I made the determination that the District
should initiate termination or nonrenewal proceedings
against Ms. Caleb and several other Key staff.
* * *

42

See Document No. 136, ex. C-4.
18

After making the determination to terminate or non-renew
Ms. Caleb and other employees, I became aware that Ms.
Caleb submitted a request to retire at the end of her
contract.
I chose to instead move forward with her
termination because I believed at the time, and still do
believe, that these findings evidence gross mismanagement
and misconduct by Ms. Caleb. I would do the same with
any employee who I believed engaged in such serious
misconduct. In fact, I did do the same with Ms. Delores
Westmoreland, who was the Dean of Instruction at Key
Middle School during the time period at issue in the
report.43
HISD’s General Counsel Elneita Hutchins-Taylor testifies in her
Declaration, “I was present when Ms. Mata-Kroger met with Dr. Grier
and went over the findings of the investigation.

He expressed to

me his belief that the report demonstrated that Ms. Caleb, among
others, needed to be terminated.”44
The further uncontroverted evidence is that Grier followed the
same practice for each investigated employee implicated in gross
mismanagement and/or misconduct and whom Grier recommended be
terminated. For example, the summary judgment evidence is that Ms.
Westmoreland, Dean of Instruction at Key, was also implicated by
the Investigation Report and, like Plaintiff, filed with HISD a
response denying the findings and notifying HISD of her intent to

43

Id., ex. A ¶¶ 11, 13. See also Document No. 159, ex. 3 at
Vol. 2, 64:12-20 (“Q. Now, do you recall what prompted you to make
that--to make the decision to terminate her on April the 14th,
2010? A. Basically, the result of the investigation that had been
conducted. Q. The report? A. Uh-huh. Q. The Mata Kroger report?
A. Yes.”).
44

Document No. 136, ex. C ¶ 7.
19

retire.

Unlike Plaintiff, however, Ms. Westmoreland did not speak

to or release her response to the Chronicle.

Nonetheless, Grier

recommended that she be terminated based on the Investigative
Report’s

findings

Plaintiff.

of

misconduct,

just

as

he

recommended

for

On this summary judgment record, Defendants have met

their burden to produce uncontroverted evidence that HISD had a
legitimate reason for terminating Plaintiff and would have done so
in the absence of her speech to the Chronicle.
Plaintiff responds that Grier’s purported reliance on the
Investigation Report is pretextual because “[i]f Grier believed the
findings of the Report, however, he would have to believe that all
the alleged assets, property, and computers, were accounted for-that is what the Report found.”45

Plaintiff’s characterization of

the Report is a demonstrable misstatement.

The paragraph of the

Report cited by Plaintiff, read in context of the Report, states
that after an unannounced physical inventory had been conducted at
Key in December 2009, in which there were found missing 21 of
55 CPUs acquired by Key in June, 2009 under P.O. No. 4501361495, a
subsequent physical inventory was taken on January 13, 2010, in
which “all twenty-one (21) previously unaccounted for CPUs were
located at Key.”46 This finding cited by Plaintiff for her argument
that “all the alleged assets . . . were accounted for” is a

45

Document No. 158 at 28 (emphasis in original).

46

Document No. 136, ex. C-4 at 15.
20

reference to equipment acquired by only

one

purchase orders that were listed in the Report.

of

eight

recent

The Investigation

Report’s “Summary of Missing Fixed Assets”--ignored by Plaintiff-reports the findings of HISD’s Property Management Department after
it was asked to locate at Key fixed assets on eight purchase
orders, which assets were received during the final seven months
that Plaintiff was principal at Key, from December 2008 through
June 2009.

(Ms. Caleb was appointed principal of Kashmere on June

29, 2009.)

After identifying the eight purchase orders by number

(only one of which was P.O. 4501361495, the one referred to in
Plaintiff’s argument), the Report summarizes:
The physical inventory related to these eight (8) PO’s
revealed missing equipment with a total original cost of
$36,645.00.47
Plaintiff’s argument that the Report found that “all of the alleged
[missing] assets, property, and computers, were accounted for” has
no factual basis in the summary judgment record.48

47

Id., ex. C-4 at 20.

48

The details of the missing and later-found CPUs on this one
Key purchase order referred to by Plaintiff are perplexing, to say
the least.
An unannounced physical inventory was conducted at
Kashmere on December 4, 2009, which turned up some but not all of
the missing items on this Key purchase order.
After that
December 4 physical inventory at Kashmere, the missing Key Item
No. 5 (a CPU)) “was later found in its original box in Ms. Caleb’s
office at Kashmere,” and missing Key Item Nos. 8 and 9 (HP
monitors) “were later found the following week on December 10,
2009, in their original boxes in Ms. Caleb’s office at Kashmere.”
All of the 21 “previously unaccounted for CPUs [found] located at
21

It is uncontroverted that the Investigative Report presented
to Superintendent Grier, consisting of approximately 87 pages, was
the product of a three months’ investigation by outside counsel,
who interviewed more than 50 witnesses and other individuals during
the course of the investigation.

It was this report that Grier

states he relied upon when he determined that Caleb should be
fired.

Excerpts from the Executive Summary, at pages 2-4 of the

Investigative Report, evidence the kinds of findings made with
respect to Plaintiff and those whom she was charged to manage:
Mable Caleb, Key’s former principal, and others at Key
often stated during their interviews that their first
priority was “the children” of Key and their protection
and education. Unfortunately, the acts and omissions of
several at Key belie these stated sentiments.
Key
students were seemingly not the priority when fixed
assets and other resources purchased for their education
were not properly safeguarded or managed. Thousands of
dollars of Key equipment is either missing or unaccounted
for and was never reported missing, lost or stolen. The
inventory signed and submitted by Ms. Caleb in March 2009
denotes over $200,000 of equipment as “Lost During Move,”
referring to Key’s move during the mold remediation at
the school in the 2007-2008 school year.
The move,
however, had occurred 12 months prior to Key’s submission
of the inventory to the District and missing equipment
was denoted as “Lost During Move” even though [the
equipment] was received after the move. In addition,
tens of thousands of dollars of recently purchased
equipment for Key students is also missing; this amount
does not include the value of the fixed assets
purportedly borrowed for use at Kashmere.
* * *

Key” on January 13, 2010 were items acquired on this one purchase
order in June 2009.
22

District policies were regularly ignored at Key and
there were seemingly no effective checks and balances so
that violations of policy could be promptly detected,
reported and addressed: a grossly inadequate inventory
of Key’s fixed assets was not detected when it was
submitted, and thousands of dollars of District funds and
grant money were used to purchase banned food items which
were not only available to students in violation of State
and District guidelines but actually sold to these
students for profit.
How much money was raised from
student-targeted fundraising at Key and what happened to
it remains a mystery.
Other forms of mismanagement and misconduct were
also found.
Nepotism resulted in Ms. Caleb’s niece,
Elgie Wade, earning an additional 75% of her base pay, in
the 2008-2009 school year, through overtime, extended pay
and summer school work.
No one else in the school
received such favorable treatment.
Moreover, the
evidence reflects that at Ms. Caleb’s direction, overtime
was paid to Ms. Wade regardless of hours reflected on the
District’s sign-in sheets. In addition, Ms. Caleb’s son
was allowed to work in a federally-funded summer school
program and during summer school at Key while Ms. Caleb
was still the principal, in violation of the District’s
rules prohibiting nepotism.
* * *
The evidence reflects that there was a pattern and
practice of gross mismanagement and abuse of authority by
Key administration including Mable Caleb, Bernett Harris,
and Peggy Collins. Other Key employees participated by
distributing live TAKS tests and misrepresenting their
credentials during this investigation (Richard Adebayo),
attempting to obstruct the investigation (Herbert
Lenton), participating in a fraud on the school district
by accepting compensation for hours not documented as
worked and misuse of the PROCARD (Elgie Wade), failing to
oversee the proper administration of the TAKS testing as
well as misuse of the PROCARD (Dolores Westmoreland), and
failing to properly oversee special education services at
Key (Jackie Anderson).
There was no credible evidence found that the
unauthorized activities and policy violations taking
place at Key were done with students’ interests in mind
(as suggested by some witnesses). Rather, the evidence
23

suggests that the students and the many hard working
teachers who labor on their behalf were not the priority
for Key’s administration.49
Plaintiff has failed to present any evidence sufficient to raise a
fact issue that Superintendent Grier’s declared reliance upon this
Investigative Report for concluding that Caleb should be discharged
was pretextual and that the real reason was because Caleb had in
her

“open

letter”

to

the

Houston

Chronicle

stated

that

the

allegations were false, that she was wrongfully targeted, and that
she was announcing her intention to retire.50

Because there is no

fact issue on pretext, and because Defendants have met their burden
to establish a legitimate reason for terminating Plaintiff and that
they would have done so in the absence of her speech to The Houston

49

Document No. 136, ex. C-4 at 2-4.

50

Plaintiff relies on Guerra v. Roma Indep. Sch. Dist., 444
F. Supp. 812 (S.D. Tex. 1977), in which the court found after a
bench trial that the school district’s proffered explanation for
termination and demotion was pretextual where “the only credible
explanation for the nonrenewal and/or demotion of these four
teachers was their relationship with Arnulfo Guerra, a political
opponent of three recently elected board members and of their Old
Party leader.”
Id. at 819.
However, in Guerra, “[a]ll four
teachers in question were praised by their supervisors; both their
principal and their superintendent recommended that their
three-year contracts be renewed,” and “[n]o dissent from these
evaluations or recommendations came in evidence. Yet without any
contrary recommendation, without any discussion or any vote, those
Here, in
recommendations were not followed.”
Id. at 820.
contrast, the Investigation Report provides a compelling basis for
Plaintiff’s termination, and the uncontroverted evidence is that
Defendants terminated her because of the report’s findings.
24

Chronicle,

Defendants

are

entitled

to

summary

judgment

on

Plaintiff’s First Amendment retaliation claim.
2.

Liberty Interest Due Process Violation

Plaintiff’s remaining claim is that Defendants deprived her of
her liberty interest by denying her a procedural due process
hearing to clear her name.51
must show:

To prevail on such a claim, Plaintiff

(1) that she was discharged; (2) that stigmatizing

charges were made against her in connection with the discharge;
(3) that the charges were false; (4) that she was not provided
notice or an opportunity to be heard prior to her discharge;
(5) that the charges were made public; (6) that she requested a
hearing to clear her name; and (7) that the employer refused her
request for a hearing.
226 (5th Cir. 2000).

Hughes v. City of Garland, 204 F.3d 223,

Plaintiff admits that she never requested a

name-clearing hearing.52

Accordingly, Defendants are entitled to

summary judgment on Plaintiff’s liberty interest due process claim.
See Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th

51

Document No. 98 at 25-26.

52

Document No. 159, ex. 1 at Vol. 102:13-17 (“Q. Let me ask
it again because I’m not sure. Did you make a request for a nameclearing hearing to HISD?
[Objection.]
A. No.”).
See also
Document No. 136, ex. C ¶ 12 (“At no time did Ms. Caleb request a
name clearing hearing to defend the conclusions contained in
Ms. Kroger’s report.”).
25

Cir. 2006) (“Bledsoe’s undisputed failure to request a hearing
defeats his liberty interest claim.”).53
V. Order
For the foregoing reasons, it is
ORDERED that Defendants Houston Independent School District
and Terry Grier’s Motion for Summary Judgment and Entry of Final
Judgment on All Claims (Document No. 136) is GRANTED, and Plaintiff
Mable Caleb’s claims are DISMISSED with prejudice.

It is further

ORDERED that Plaintiff’s Motion for Leave to Amend Complaint
to Reassert Dismissed Claims (Document No. 162) is DENIED.
The Clerk shall notify all parties and provide them with a
true copy of this Order.
SIGNED at Houston, Texas, on this 29th day of April, 2015.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

53

See also Caleb v. Grier, 2015 WL 66478, at *10 (Fifth
Circuit’s opinion affirming dismissal of co-plaintiffs’ claims in
this case) (“Cockerham’s, Banks’s, and Lenton’s failure to allege
that they asked for and were refused a hearing is dispositive.”).
26