Rawlings v. Houston Independent School District

Filing 21

MEMORANDUM AND ORDER granting 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Signed by Magistrate Judge Stephen Wm Smith) Parties notified.(jmarchand, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J OHN R AWLINGS,
Plaintiff,
v.
H OUSTON INDEPENDENT S CHOOL
D ISTRICT,
Defendant.

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C IVIL A CTION N O. 4:13-CV-418

MEMORANDUM AND ORDER
This free speech retaliation suit is before the court on defendant Houston
Independent School District’s (“HISD” or “District”) motion to dismiss (Dkt. 15). Oral
argument on the motion was heard on November 22, 2013. Defendant’s motion is
granted.
I.
The following allegations from Rawlings’ second amended complaint (Dkt. 14)
are accepted as true for the purposes of this Rule 12(b)(6) motion.
In late July 2009, plaintiff John Rawlings, an employee of the HISD Police
Department, met with staff of the Harris County District Attorney’s Office. Rawlings
reported that members of the HISD Police Department command staff were using
official vehicles for private profit while off duty. A few months later, Rawlings was told
that top HISD staff members were aware of his report to the District Attorney.
In November of 2010, a subordinate of Rawlings accused him of making
inappropriate remarks in the workplace. An investigation ensued, and HISD found that
the plaintiff had violated an HISD Police Department Directive concerning workplace
conduct. On February 17, 2011, Rawlings received a notice that his employment had

been recommended for termination.

Rawlings filed an appeal of his proposed

termination the next day. A Level One appeal hearing resulted in HISD Assistant Chief
Victor Mitchell upholding the proposed termination. A Level Two appeal was scheduled,
but Rawlings requested a postponement due to illness. The Level Two hearing
ultimately never took place, and Rawlings’ grievance was dismissed.
Rawlings asserts that termination of his employment was an act of retaliation for
his exercise of his First Amendment right to report suspected illegal conduct of
coworkers. Further, Rawlings claims that HISD’s dismissal of his grievance denied him
a hearing to clear his name, in violation of his Fourteenth Amendment right to a liberty
hearing.
II.
Title 42 U.S.C. § 1983 creates a private right of action for violations of
constitutional rights – including deprivation of free speech under the First Amendment
and liberty under the Fourteenth Amendment–through an act of retaliation.

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municipality may be held liable for a retaliation claim “when execution of a
government's policy or custom, whether made by its lawmakers” or those who execute
official policy, “inflicts the injury that the government as an entity is responsible for
under § 1983.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978). The court considers the defendant’s motion to dismiss in accordance with the
Monell standard.
When considering a motion to dismiss, the “court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff. ” Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (citation and
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internal quotation omitted). However, only facts are entitled to an assumption of truth;
legal conclusions unsupported by factual allegations do not suffice. Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S., at 663.
III.
Rawlings first alleges a violation of his First Amendment speech rights based on
HISD’s retaliation against him. However, Rawlings’ complaint does not present factual
content providing any reason to believe that an unconstitutional HISD policy or custom
caused his termination. Rawlings merely references isolated actions taken by specific
municipal employees. A school district cannot be held liable under 42 U.S.C. § 1983 for
an injury inflicted by its employees or agents based on a theory of vicarious liability or
respondent superior liability. Bd. of County Com’rs of Bryan County, Okl. v. Brown,
520 U.S. 397, 403 (1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1416 (5th
Cir. 1997).

Thus, Rawlings’ First Amendment retaliation claim is dismissed with

prejudice.
Rawlings alternatively alleges a due process violation of his Fourteenth
Amendment liberty interest based on HISD’s denial of an opportunity to clear his name.
To establish a liberty interest sufficient to implicate the Fourteenth Amendment’s due
process safeguards, a public employee must show that 1) “the governmental employer's
charges against her rise to such a level that they create a ‘badge of infamy’ which
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destroys the claimant's ability to take advantage of other employment opportunities,” 2)
the claims are false, and 3) damage to her reputation and employment opportunities has
actually occurred. Evans v. City of Dallas, 861 F.2d 846, 851 (5th Cir. 1988). “Due
process concerns are not triggered by the discharge, without more, of an employee for
unsatisfactory performance.” Id.
Here, Rawlings has not indicated that HISD’s termination of his employment
without a second level grievance hearing inflicted any actual damage to his reputation or
employment opportunities. At the hearing, counsel for plaintiff candidly admitted he had
no evidence that HISD had publicly disclosed the reasons for his discharge. Rather,
Rawlings merely speculates about potential future harms arising from his own
disclosure about the facts of his discharge. (Dkt. 16). The Fifth Circuit has held that the
government employer cannot be liable when it has kept the charges confidential and
only the plaintiff has caused them to be public. See Hughes v. City of Garland, 204 F.3d
223, 228 (5th Cir. 2000) (rejecting the compelled self-publication theory in the Section
1983 context as inconsistent with prior circuit precedent).1 Therefore, Rawlings’
Fourteenth Amendment claim is also dismissed with prejudice.
IV.
For these reasons, defendant’s motion to dismiss is GRANTED.
Section 1983 claims are dismissed with prejudice.

Rawlings’

A separate final judgment

accompanies this order.

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In light of this ruling, there is no need to consider the other grounds for dismissal
raised in HISD’s motion, and the court expressly declines to do so.

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Signed at Houston, Texas on November 26, 2013.

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