Caleb et al v. Grier et al

Filing 98

MEMORANDUM AND ORDER on 75 MOTION for Extension of Time File Response to Defendants' Motion to Dismiss, 60 Third MOTION to Dismiss Pursuant to Rule 12(b)(6), 92 Opposed MOTION to Supplement Third Amended Complaint as to 40 O pposed MOTION to Amend 7 Amended Complaint/Counterclaim/Crossclaim etc.Opposed MOTION to Amend 7 Amended Complaint/Counterclaim/Crossclaim etc.Opposed MOTION to Amend 7 Amended Compl, 83 MOTION for Leave to File Designation of Expert Witness, 64 Second MOTION to Dismiss, 59 Second MOTION to Dismiss. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MABLE CALEB, JACKIE ANDERSON,
DIANN BANKS, HERBERT LENTON,
and PATRICK COCKERHAM,

§
§
§
§
Plaintiffs,
§
§
v.
§
§
DR. TERRY GRIER, ELIZABETH MATA §
KROGER, DAVID FRIZELL, ESTEBAN §
MAJLAT, and HOUSTON INDEPENDENT §
SCHOOL DISTRICT,
§
§
Defendants.
§

CIVIL ACTION NO. H-12-0675

MEMORANDUM AND ORDER
Pending are Defendants David Frizell and Esteban Majlat’s
Second Motion to Dismiss Pursuant to Rule 12(b)(6) (Document No.
59), Defendant Elizabeth Mata Kroger’s Third Motion to Dismiss
Pursuant to Rule 12(b)(6) (Document No. 60), and Defendants Houston
Independent School District and Terry Grier’s Second Motion to
Dismiss Pursuant to Rule 12(b)(6) (Document No. 64).1

After having

1

Plaintiffs’ Motion for Extension of Time to File Response to
Defendants’ Motion to Dismiss (Document No. 75) is denied as moot,
inasmuch as Plaintiffs have since filed further responses, which
have all been considered. Plaintiffs recently filed an Opposed
Motion for Leave to File Supplement to Their Third Amended
Complaint (Document No. 92). 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. See FED . R. CIV . P. 15(d).
Plaintiffs’ Motion for Leave to File Designation of Expert
Witness (Document No. 83), which is opposed by Defendants HISD,

carefully considered the motions, responses, replies, sur-reply,
and applicable law, the Court concludes as follows.
I.

Background

Plaintiff Mable Caleb (“Caleb”) was formerly the principal of
Key

Middle

School

(“Key”),

and

Plaintiffs

Jackie

Anderson

(“Anderson”), Diann Banks (“Banks”), Herbert Lenton (“Lenton”), and
Patrick Cockerham (“Cockerham”) had all worked at Key in various
capacities.2 Plaintiffs’ prolix Third Amended Original Complaint-111 pages in length--describes in minute detail all sorts of events
and interactions that Plaintiffs allege give rise to this action.
In essence, Plaintiffs allege that the Superintendent of the
Houston Independent School District (“HISD”), Defendant Terry Grier
(“Grier”), targeted Caleb 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 High School
(“Kashmere”).

Plaintiffs Anderson, Banks, and Cockerham, who did

not lose their jobs, and Lenton, who did, allegedly were targeted
because they worked closely with Caleb. The complaint alleges that
Grier retained Defendant Elizabeth Mata Kroger (“Kroger”) and her

Grier, and Kroger, is DENIED as having not been timely filed before
the deadline for identifying expert witnesses expired.
2

Document No. 48-1 at 4 (3d Am. Cmplt.).
2

law

firm

transfer

to
of

standardized

conduct
HISD

an

investigation

property

tests,

and

from

other

Key

regarding

to

alleged

Kashmere,

the

improper

cheating

improprieties

at

on

Key.

Kroger, in turn, hired David Frizell (“Frizell”) and Esteban Majlat
(“Majlat”) to assist in the investigation.3

During their investi-

gation Kroger, Frizell, and Majlat interviewed Anderson, Banks,
Lenton, and Cockerham on more than one occasion, and allegedly
treated them rudely, made accusations that they were lying, were
protecting Caleb, and were otherwise guilty of being involved in
the alleged improprieties.
Plaintiffs allege that their First Amendment rights to free
speech and free association were violated, and Plaintiff Caleb
alleges a deprivation of her constitutionally-protected liberty
interests in the form of a procedural due process name-clearing
hearing.

Finally, Caleb accuses Defendant Grier of denying her

equal protection under the law.

All Defendants have moved to

dismiss the claims under 12(b)(6).
II.
A.

Legal Standard

Rule 12(b)(6) Standard
Rule 12(b)(6) provides for dismissal of an action for “failure

to state a claim upon which relief can be granted.”

3

Id. at 5-6.
3

FED . R. CIV .

P. 12(b)(6).

When a district court reviews the sufficiency of a

complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.

See Scheuer v.

Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982).

The issue is not

whether the plaintiff ultimately will prevail, but whether the
plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.

See Lowrey v. Tex. A&M Univ. Sys.,

117 F.3d 242, 247 (5th Cir. 1997).

To survive dismissal, a

complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
1955, 1974 (2007).

Bell Atl. Corp. v. Twombly, 127 S. Ct.

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”
(2009).

While

a

that

the

defendant

is

liable

for

the

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

complaint

“does

not

need

detailed

factual

allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).”

Twombly, 127 S. Ct. at 1964-65 (citations and internal

footnote omitted).

4

B.

42 U.S.C. § 1983
Plaintiffs seek compensatory and punitive damages for alleged

violations

of

their

constitutional

rights.

Although

their

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.”

Albright v. Oliver, 114 S. Ct. 807, 811 (1994)

(quoting Baker v. McCollan, 99 S. Ct. 2689, 2694 n. 3 (1979)).

To

state a viable claim under § 1983, “a plaintiff must (1) allege a
violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was
committed by a person acting under color of state law.”

Leffall v.

Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994).

A

§ 1983 plaintiff must support his claims with specific facts
demonstrating a constitutional deprivation and may not simply rely
on conclusory allegations.

Schultea v. Wood, 47 F.3d 1427, 1433

(5th Cir. 1995).
III.
A.

HISD’s and Terry Grier’s Motion to Dismiss

First Amendment Free Speech Claims
To recover on a First Amendment retaliation claim, a plaintiff

must show that: (1) she suffered an adverse employment action;
(2) her speech involved a matter of public concern; (3) her

5

interest in commenting on matters of public concern outweighs the
public employer’s interest in efficiency; and (4) the speech
motivated the adverse employment action.

DePree v. Saunders, 588

F.3d 282, 286-87 (5th Cir. 2009), cert. dismissed, 130 S. Ct. 3450
(2010).

In other words, “[t]o prevail, [plaintiff] must show that

she engaged in protected conduct and that it was a motivating
factor in her discharge.”

Beattie v. Madison Cty. Sch. Dist., 254

F.3d 595, 601 (5th Cir. 2001).
“[B]efore asking whether the subject-matter of particular
speech is a topic of public concern, the court must decide whether
the plaintiff was speaking ‘as a citizen’ or as part of her public
job.”

Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008)

(quoting Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.
2006)); see also Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006)
(“[W]hen

public

employees

make

statements

pursuant

to

their

official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.”).

The focus of

this inquiry is not on the content of the speech, but on “the role
the speaker occupied when [she] said it.”

Davis, 518 F.3d at 312

(quoting Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692
(5th Cir. 2007)).

The distinction is between “speech that is ‘the

kind of activity engaged in by citizens who do not work for the
government,’ . . . and activities undertaken in the course of

6

performing

one’s

job.”

Williams,

Garcetti, 126 S. Ct. at 1962).

480

F.3d

at

693

(quoting

“Even if the speech is of great

social importance, it is not protected by the First Amendment so
long as it was made pursuant to the worker’s official duties.”
at 692 (citing Garcetti, 126 S. Ct. at 1960).

Id.

Moreover, even if

speech is “not necessarily required” by an employee’s job duties,
it is not protected if it is sufficiently related to them.

Charles

v. Grief, 522 F.3d 508, 513 (5th Cir. 2008) (discussing Williams,
480 F.3d at 693).

A number of factors guide a court in determining

whether an employee is speaking pursuant to her official duties:
the relationship between the topic of the speech and the employee’s
job; whether the employee spoke internally up the chain of command
at her workplace; and whether the speech resulted from special
knowledge gained as an employee.

See Davis, 518 F.3d at 312-14;

see also Gentilello v. Rege, No. 3:07-CV-1564-L, 2008 WL 2627685,
at *3 (N.D. Tex. June 30, 2008).

Whether an employee is speaking

as a citizen or pursuant to her employment is a question of law for
the Court to resolve, even though it “involves the consideration of
factual circumstances surrounding the speech at issue.”

Charles,

522 F.3d at 513 n.17.
1.

Caleb

Caleb alleges that her First Amendment rights were violated
because

she

made

protected

speech

7

and

suffered

an

adverse

employment action because of that speech.4

Caleb asserts that she

made the following protected speech:
!

In

2005,

Caleb’s

speech

refusing

to

agree

with

accusations made against Key Math Department Chairman,
Richard

Adebayo,

regarding

cheating

on

standardized

testing.5
!

In 2007, Caleb’s speech when she agreed with students’
and staff’s claims that there was toxic mold at Key when
questioned by the media;6 and again, when she spoke to
federal agencies dealing with public health at Key.7

!

On November 12, 2009, Caleb’s speech at a town hall
meeting at New Mt. Calvary Baptist Church that was held
to discuss the appointment of a new principal to replace
Caleb at Key Middle School when she moved to Kashmere
High School.8

!

On November 13, 2009, Caleb’s speech in a non-public
meeting between her and Grier, when she admonished Grier

4

Document No. 48-1 at 92, 99.

5

Id. at 92-93.

6

Id. at 8-9, 92-93.

7

Id. at 92.

8

Id. at 92-93.
8

for making a remark to her during their conversation that
she believed was “racially dismissive.”9
!

On or about March 22, 2010, Caleb’s speech to The Houston
Chronicle about her intention to retire from HISD effective August 2010, and denying “Grier’s and Mata Kroger’s
substantially false accusations against her.”

Caleb alleges no facts to show that her 2005 speech--five
years before her separation from HISD--was protected speech.

From

what she does plead, the plain inference is that her speech
addressed an issue on which she was speaking as the principal of
Key, regarding an issue on which she had special knowledge based on
her position at Key, and on which there was a direct relationship
between the topic of speech and the performance of her job.
Moreover, the gap of time between this 2005 speech and the alleged
retaliation in 2010--a period within which Caleb was promoted from
middle school principal to being a high school principal--makes
wholly implausible any inference of free speech retaliation. Caleb
has pled no facts regarding this alleged speech to state a claim
for relief above a speculative level.
Almost as remote in time from when she separated from HISD was
Caleb’s speech on toxic mold, in which she alleges that she
answered questions from the media and spoke to federal agencies
about this condition at Key.

9

The alleged speech was not made

Id. at 95.
9

internally within HISD, which is an important factor to consider in
determining whether Caleb was speaking as part of her public job.
It was also speech regarding a matter of public concern, namely,
toxic mold at a public school.

But this speech was also made years

before the alleged retaliation in 2010, and Plaintiffs allege no
direct evidence or any “plausible chronology” that permits a
reasonable inference of free speech retaliation.

Compare Brady v.

Houston Indep. Sch. Dist., 113 F.3d 1419 (5th Cir. 1997).

Other

facts pled by Plaintiffs lead to the inevitable inference that
Caleb’s 2007 speech was not a cause of her 2010 separation.
Plaintiffs’

complaint

alleges

that

Caleb

was

correct

in

her

assessment of the presence of toxic mold, that HISD thereafter
ordered the reconditioning of Key, and that HISD then reopened Key
“under Caleb’s leadership” in the 2008-09 school year.

Caleb’s

2007 speech was made long before Grier became HISD Superintendent,
Caleb

was

vindicated

in

what

she

said,

and--according

to

Plaintiffs’ pleading--she was rewarded with Key being reopened
“under

Caleb’s

leadership.”

To

allege

that

Grier

and

HISD

retaliated against Caleb in April 2010 for this remote speech given
in 2007 is entirely conclusory and insufficient to state a claim
upon which relief can be granted.
On November 12, 2009, when Caleb at the invitation of a state
representative attended a town hall meeting that was convened to
discuss with HISD Superintendent Grier whether he would appoint

10

Bernett Harris to succeed Caleb as principal at Key, the complaint
alleges that Superintendent Grier called Caleb about 5 p.m. to ask
if she would be present at the meeting and, if so, to apologize for
Superintendent Grier’s absence.

The complaint alleges that Caleb

did relay the Superintendent’s message and applauded the audience
for attending the meeting and showing parental support for their
children’s education.
controversial

No allegation is made of Caleb making any

statement

or

any

statement

with

which

Grier

disagreed, the plain inference being that Caleb’s speech at the
meeting was made in her role as an HISD principal, and at the
instance of the Superintendent.

Caleb has alleged no facts to

support her claim that she was speaking as a citizen and not as
part of her public employment.
Caleb’s
non-public

speech

internal

Superintendent Grier.

the

next

meeting

day,

on

between

November

her

and

13,

her

was

in

a

supervisor,

Her comments were not made public.

Grier

was relating his views on the appointment of a new principal for
Key, told Caleb that he had promised to attend a community meeting
the next day at a church, and “abruptly asked Caleb, who had spoken
for him the previous night, ‘How do you speak to those people?’”
Caleb thought the question carried an overtone of racial bigotry,
and admonished him.
private

meeting

Caleb’s comments to Grier, made in this

between

the

HISD

superintendent

and

an

HISD

principal concerning school administration issues and community

11

communications, does not constitute protected speech under the
First Amendment.
Lastly, Caleb’s speech to The Houston Chronicle in March, 2010
rebutting misconduct allegations made against her does not plainly
constitute speech in her role as an HISD administrator.

Because

Caleb has stated facts regarding an adverse employment action
she suffered within temporal proximity the following month,10 and
because she has alleged some facts in support of her claim that the
protected speech motivated the adverse employment action,11 Caleb
has stated a claim for violation of her First Amendment right to
free speech based on this incident.
2.

Anderson, Banks, Lenton, and Cockerham

Anderson, Banks, Lenton, and Cockerham also allege that their
First Amendment rights to free speech were violated because they
remained silent and/or refused to be dishonest when questioned
about Caleb.12

The complaint contains detailed descriptions of the

10

The nature of Caleb’s departure from HISD is not completely
clear, but the pleading alleges that Grier recommended to the Board
of Trustees that she should be terminated without cause, and
informed Caleb that her last day at HISD would be April 28, 2010.
Document No. 48-1 at 31.
11

Caleb also alleges that when Grier learned of Caleb’s speech
to The Houston Chronicle denying the allegations of impropriety, he
made a comment regarding whether he would let her resign or fire
her sooner. Id. at 25.
12

Id. at 99.
12

experiences of Anderson, Banks, Lenton, and Cockerham in answering
questions from Defendants Kroger, Frizell, Majlat,13 and others
regarding their knowledge of and/or involvement in various alleged
improprieties at Key that were under investigation.

The complaint

alleges

and

that

the

investigators

engaged

in

rude

abrasive

treatment of Plaintiffs when asking their questions, expressed
disbelief at the answers, and ridiculed Plaintiffs’ answers.

The

complaint does not allege, however, that Anderson, Banks, Lenton,
and Cockerham made any protected speech or that they were deprived
of a constitutionally protected right to refrain from speaking. In
all of the interviews, Anderson, Banks, Lenton, and Cockerham were
allegedly speaking, and at times making denials of accusations,
about their own job performances and their knowledge of Caleb’s
activities at Key Middle School.

They were speaking as HISD

employees to HISD retained investigators in connection with an
official HISD investigation.

All of their speech was therefore

made pursuant to their official duties. There are no facts alleged
to support a claim that they were speaking as private citizens in
any

of

these

meetings.14

Anderson’s,

Banks’s,

Lenton’s,

and

13

Whether Kroger, Frizell, and Majlat should be regarded as
state actors--at this pleading stage--is considered below at pages
21 through 24.
14

Plaintiffs rely on the Second Circuit’s holding in Jackler
v. Byrne, 658 F.3d 225 (2d Cir. 2011), in support of their free
speech claim.
Document No. 72 at 4.
Soon after the Jackler
decision, the District of Columbia Circuit--in denying rehearing in
Bowie v. Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011), cert. denied,
13

Cockerham’s claims that their First Amendment rights to free speech
were violated are therefore dismissed.
B.

First Amendment Free Association Claims
Caleb claims that her First Amendment free association rights

were also violated when she engaged in protected association by
accepting State Representative Harold Dutton’s invitation to attend
the town hall meeting at New Mt. Calvary Baptist Church on November
12, 2009, and then spoke with Dutton after the meeting.15

Caleb

also asserts that she exercised protected association in her
political support of Dutton and HISD Board member Carol Mims
Galloway, an alleged opponent of Grier,16 but pleads no facts beyond
her conclusory allegations that her political support of Dutton and
Galloway resulted in any adverse action against her by HISD.

In

support of her claim that Defendants violated her right to free
association, Caleb asserts that Defendants had views that Caleb had
“friends in high places,” that she knew everything that went on at

132 S. Ct. 1636 (2012)--persuasively rejected the rationale of
Jackler pointing out that under Garcetti v. Ceballos, 126 S. Ct.
1951 (2006), it is “only when public employees ‘make public
statements outside the course of performing their official duties’
do they ‘retain some possibility of First Amendment protection.’”
Id. at 47 (quoting Garcetti, 126 S. Ct. at 1961). The D.C. Circuit
summarized, “The Second Circuit gets Garcetti backwards.” Id. at
48. The Fifth Circuit appears not to have written on this point
but this Court believes it would follow Garcetti and Bowie.
15

Document No. 48-1 at 93.

16

Id.
14

HISD,

and

that

she

had

a

“clique”

at

Key

Middle

School.17

Plaintiffs Anderson, Lenton, and Cockerham, who were requested by
Caleb to move with her from Key to Kashmere, also claim that they
“exercised

protected

association

with

Caleb,

in

that

they

constituted members of what Majlat characterized to Anderson as
Caleb’s ‘clique’.”18
To establish a violation of one’s First Amendment right to
freedom of association, a plaintiff must show that (1) she suffered
an adverse employment action, (2) her interest in “associating”
outweighed

the

public

employer’s

interest

in

efficiency,

and

(3) her protected activity was a substantial or motivating factor
in the adverse employment action.
246

(5th

Cir.

2002).

“The

Hitt v. Connell, 301 F.3d 240,

Constitution

does

not

include

a

‘generalized right of ‘social association.’” Wallace v. Tex. Tech.
Univ., 80 F.3d 1042, 1051 (5th Cir. 1996) (quoting City of Dallas
v. Stanglin, 109 S. Ct. 1591, 1595 (1989)).

The United States

Supreme Court has determined that the First Amendment encompasses
two categories of association: (1) the choice to enter into and
maintain certain intimate human relationships, and (2) the right to
associate for the purpose of engaging in expressive activities
protected

17

18

by

the

First

Amendment–-namely,

speech,

assembly,

Id. at 94.

Id. at 99.
Plaintiff
protected association.

Banks

15

alleges

no

violation

of

petition

for

religion.

the

redress

of

grievances,

and

the

exercise

of

See id.; see also Ibarra v. Houston Indep. Sch. Dist.,

84 F. Supp. 2d 825, 837 (S.D. Tex. 1999) (same).

Intimate

relationships include marriage, the bearing of children, child
rearing and education, and cohabitation with familial relatives.
Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 107 S. Ct.
1940, 1945-46 (1987).

“Relationships with colleagues ordinarily

are not afforded protection as intimate associations.”

Hernandez

v. Duncanville Sch. Dist., No. 3:04 CV 2028 BH(B), 2005 WL 3293995,
at *10 (N.D. Tex. Dec. 5, 2005) (citing Swanson v. City of Bruce,
Miss., 105 F. App’x 540, 542 (5th Cir. 2004)).
None of Plaintiffs has alleged any facts to support a claim
that

any

intimate

employment

personal

actions.

relationships

The

between

relationship

complaint

Caleb,

caused

alleges

Anderson,

only

Banks,

their

adverse

professional
Lenton,

and

Cockerham, and the same is true as regards Caleb’s relationships
with State Representatives Dutton and HISD Trustee Galloway.
of

Plaintiffs

has

stated

a

claim

for

a

violation

of

None
the

constitutional right to free association under the first category.
Furthermore, none of Plaintiff Caleb’s alleged associations
was

for

the

purpose

of

carrying

on

a

protected

activity.19

Representative Dutton invited Caleb, the outgoing principal at Key,

19

None of the other Plaintiffs makes any allegations regarding
the second category.
16

to attend a community/town hall meeting called to discuss the
appointment of Caleb’s successor at Key.

At the request of

Superintendent Grier himself, Caleb spoke--as an HISD principal and
Grier’s spokesperson, to apologize for Grier’s absence and went on
to laud the attending citizens for their involvement in educational
issues affecting the community’s children.

Caleb’s participation

in the meeting, therefore, was not for the purpose of her engaging
in constitutionally protected activity.

She was invited as a

school principal and educational leader in the community and, when
she attended, she delivered a message in behalf of and at the
request of the Superintendent himself and added her own praise
for the citizens’ participation, as school superintendents and
principals regularly do. Plaintiff Caleb’s pleading of these facts
alone belies any conclusory claim that she was targeted for an
adverse

employment

community/town

action

hall

meeting

because
or

of

for

sponsors, Representative Dutton.

her

attendance

visiting

with

one

at

the

of

its

Caleb, Anderson, Banks, Lenton,

and Cockerham have failed to allege facts sufficient to state a
claim for a Constitutional violation of their rights to free
association.
C.

Liberty-Interest Due Process Claims
Plaintiff

interests,

a

Caleb
type

of

asserts

a

procedural

17

deprivation

of

due

claim

process

her

liberty

under

the

Fourteenth Amendment.
circumstances

that

“[D]ischarge from public employment under

put

the

employee’s

reputation,

honor

or

integrity at stake gives rise to a liberty interest under the
Fourteenth Amendment to a procedural opportunity to clear one’s
name.”

Rosenstein v. City of Dallas, Tex., 876 F.2d 392, 395 (5th

Cir. 1989).20

See also Hughes v. City of Garland, 204 F.3d 223, 225

(5th Cir. 2000).

The Fifth Circuit has stated:

[P]ublic officials do not act improperly in publicly
disclosing charges against discharged employees, but they
must thereafter afford procedural due process to the
person charged.
Moreover, the process due such an
individual is merely a hearing providing a public forum
or opportunity to clear one’s name, not actual review of
the decision to discharge the employee.
Rosenstein, 876 F.2d at 395.

To prevail on a claim that a

plaintiff’s liberty interests were violated, the plaintiff must
show: (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

20

A rehearing was granted by 884 F.2d 174 (5th Cir. 1989), and
the panel opinion was reinstated in part by 901 F.2d 61 (5th Cir.
1990). Certiorari was denied by 111 S. Ct. 153 (1990).
18

her name; and (7) that the employer refused her request for a
hearing.
The

Hughes, 204 F.3d at 226.21
complaint

is

not

a

model

of

clarity

as

to

whether

Plaintiff Caleb requested and was denied a name-clearing hearing
such as to support a liberty interest claim.

It is alleged that

Caleb was told, “the effective date of your separation from HISD
will [sic] April 28, 2010.”

Caleb alleges she was not afforded due

process before her demotion or discharge, and was “denied without
due process of law . . . the opportunity to confront the charges
and have a meaningful hearing to clear her name . . . .”

Given

that the allegations are construed favorably to Plaintiff on a Rule
12(b)(6) motion, and because a fact intensive issue such as this is
better determined with an evidentiary record, the motion to dismiss
this claim as to Caleb will be denied.

21

The complaint alleges that “[W]hile Anderson, Cockerham, and
Banks each had a due process hearing and were not terminated with
the Texas Education Agency Independent Hearing Examiner’s finding
in each case the charges were unfounded by preponderance of the
evidence, all (except Lenton) were vindicated . . . .” The three
vindicated Plaintiffs allege no violation of their procedural due
process rights. The plain implication of the allegation that “all
(except Lenton) were vindicated,” is that Lenton also had a due
process, name-clearing hearing. Indeed, Lenton separately alleges
no liberty-interest due process claim.
19

D.

Equal Protection Claim
Caleb alleges that Defendant Grier denied her equal protection

of the law.22

“To state a claim under the Equal Protection Clause,

a § 1983 plaintiff must allege that a state actor intentionally
discriminated against the plaintiff because of membership in a
protected class.”
1999).23

Williams v. Bramer, 180 F.3d 699, 705 (5th Cir.

Caleb, a black woman, alleges that “Grier has denied her

equal protection of the law in that he has treated her adversely
while not treating adversely white Principals in whose schools
occurred TAKS irregularities or cheating, and/or student record
alterations, and/or permitting faculty to cause minors to serve
alcoholic

beverages

for

student

credit,

and/or

alteration

of

student dropout documents, and/or other violations of law and
policies.”24

Later in the complaint Caleb claims that she was

denied the same protections afforded to “white Principals or
Associate Principals Crum, Mosteit, Wichmann, and Dambrino.”25
Apart from stating their race, Caleb alleges no facts regarding any
of these individuals, their conduct as principals or associate

22

Id. at 98-99.

23

The class-of-one theory of equal protection does not apply
in the public employment context. Engquist v. Ore. Dep’t of Agr.,
128 S. Ct. 2146, 2155-57 (2008).
24

Document No. 48-1 at 98.

25

Id. at 111.
20

principals, how they were similarly situated to her, or how any of
the

comparators

was

treated,

or

any

other

facts

that

would

plausibly state a claim for a violation of her equal protection
rights.

Allegations must “raise a right to relief above the

speculative level.”

Twombly, 127 S. Ct. at 1965.

This claim is

likewise dismissed.26
IV.

Kroger’s, Frizell’s, and Majlat’s Motions to Dismiss

Plaintiffs assert First Amendment retaliation claims and a
Fourteenth Amendment due process claim against Defendants Kroger,
Frizell, and Majlat.

Kroger, Frizell, and Majlat move to dismiss

the claims against them because they are not state actors and
Plaintiffs have not alleged facts to support a conspiracy that
might render them liable despite not being state actors.

They

further move for dismissal on the grounds that, even if they were
state actors, Plaintiffs have not stated a claim against them for
violations of Plaintiffs’ constitutional rights.
To state a viable claim under § 1983, “a plaintiff must
(1) allege a violation of rights secured by the Constitution or
laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state

26

Caleb is the only Plaintiff who asserts an equal protection
claim. Although the claim is only made against Defendant Grier, to
the extent that it may be construed to be alleged also against
HISD, it is also dismissed.
21

law.”

Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th

Cir. 1994).

“[T]he party charged with the deprivation [of a

federal right] must be a person who may fairly be said to be a
state actor.

This may be because he is a state official, because

he has acted together with or has obtained significant aid from
state officials, or because his conduct is otherwise chargeable to
the State.”
2754 (1982).

Lugar v. Edmondson Oil Co., Inc., 102 S. Ct. 2744,
Determining whether a party’s conduct constitutes

state action is a “necessarily fact-bound inquiry.”

Id. at 2755;

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 121 S. Ct.
924, 932 (2001).

The fact that an individual is not a full-time

public employee with the state entity does not preclude that person
from being considered to be acting under color of law.

See West v.

Atkins, 108 S. Ct. 2250, 2259 (1988) (“The fact that the State
employed respondent pursuant to a contractual arrangement that did
not generate the same benefits or obligations applicable to other
‘state

employees’

does

not

alter

the

analysis.

It

is

the

physician’s function within the state system, not the precise terms
of his employment, that determines whether his actions can fairly
be attributed to the State.”).
The complaint alleges that Kroger, Frizell, and Majlat were
working for HISD to conduct an investigation into the alleged
improprieties at Key.

The complaint alleges that investigations

were generally conducted by HISD’s Department of Professional
22

Standards,27

implying

that

Kroger,

Frizell,

and

performing duties normally carried out by HISD staff.

Majlat

were

Plaintiffs’

claims all arise out of Kroger’s, Frizell’s, and Majlat’s conduct
in performing the investigation, and in Kroger’s role in allegedly
leaking

the

report

for

publication.

At

the

pleading

stage,

therefore, Plaintiffs have stated sufficient facts to support the
assertion that Kroger, Frizell, and Majlat were acting under color
of law during the course of their investigation.
Defendants Kroger, Frizell, and Majlat also move for dismissal
on the basis that Plaintiffs fail to allege facts to support a
claim that these Defendants violated Plaintiffs’ Constitutional
rights. “Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has
violated the Constitution.”
For

the

reasons

Iqbal, 129 S. Ct. at 1948.

explained

at

length

above

as

to

why

Plaintiffs’ claims against HISD and Grier are deficient, those same
claims are likewise insufficient to state a plausible right to
relief against Kroger, Frizell, and Majlat.

Moreover, as to all

claims alleged against Kroger, Frizell, and Majlat, Plaintiffs fail
to allege that these Defendants had any authority to make decisions
regarding any of Plaintiffs’ employments and allege nothing but
conclusory allegations that Kroger, Frizell, and Majlat had any
27

Document No. 48-1 at 6.
23

role in making those decisions. The complaint alleges that Kroger,
Frizell, and Majlat conducted their investigations in a manner that
was

abrasive,

insulting,

and

demeaning

to

Plaintiffs.

The

complaint further alleges that Kroger was involved in leaking the
investigation

report

to

the

press.

These

do

not

state

constitutional violations of Plaintiffs’ rights even if the outside
lawyers were regarded as state actors. The complaint charges Grier
with initiating termination proceedings against each of Plaintiffs
and complains of some review procedures conducted by HISD as part
of HISD’s process.

Plaintiffs fail to allege any facts to support

an assertion that Kroger, Frizell, or Majlat had any role in
deciding whether Plaintiffs should be terminated, or that they were
the decision makers in any other adverse employment action against
any Plaintiff.

Plaintiffs do not allege that Kroger, Frizell, and

Majlat owed Plaintiffs any process, or that they had any control
over deciding whether to give Plaintiffs a name-clearing hearing.
Plaintiffs allege no facts that would raise their right to relief
against any of these individuals above the speculative level.
Accordingly, Plaintiffs’ claims against Defendants Kroger, Frizell,
and Majlat are dismissed.

24

V.

Order

For the foregoing reasons, it is
ORDERED that Defendants David Frizell and Esteban Majlat’s
Second Motion to Dismiss Pursuant to Rule 12(b)(6) (Document
No. 59) and Defendant Elizabeth Mata Kroger’s Third Motion to
Dismiss Pursuant to Rule 12(b)(6) (Document No. 60) are both
GRANTED, and all claims made by Plaintiffs Mable Caleb, Jackie
Anderson,

Diann

Banks,

Herbert

Lenton,

and

Patrick

Cockerham

against Defendants Frizell, Majlat, and Kroger are DISMISSED WITH
PREJUDICE.

It is further

ORDERED that Defendants Houston Independent School District’s
and

Terry

Grier’s

Second

Motion

to

Dismiss

Pursuant

to

Rule

12(b)(6) (Document No. 64) is GRANTED in its entirety as to the
claims of Plaintiffs Anderson, Banks, Lenton, and Cockerham, and
all

claims

made

by

Plaintiffs

Anderson,

Banks,

Lenton,

and

Cockerham against these Defendants are DISMISSED WITH PREJUDICE;
and Defendants HISD’s and Terry Grier’s Second Motion to Dismiss is
GRANTED in part as to Plaintiff Caleb, and otherwise DENIED, and
all

claims

by

Plaintiff

Caleb

against

Defendants

Houston

Independent School District and Terry Grier are DISMISSED WITH
PREJUDICE, 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

25

Defendants HISD and Grier deprived her of her liberty interest by
denying her a procedural due process hearing to clear her name.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this 13th day of June, 2013.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

26