Powers et al v. Northside Independent School District et al
ORDER GRANTING Defendants Northside Independent School District and BrianT. Woods's 23 Motion to Dismiss for Failure to State a Claim. Claims against Woods should be dismissed based on qualified immunity. ORDER GRANTING Defendants' 28 Correctd Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
DON POWERS and KARON WERNLI,
Case No. A-14-CA-1004-SS
DISTRICT and BRIAN T. WOODS,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendants Northside Independent School District and Brian T. Woods's 12(b)(6)
Motion to Dismiss in Part for Failure to State a Claim Upon Which Relief Can Be Granted, or in the
Alternative, 12(c) Motion for Judgment in Part on the Pleadings [#23], Plaintiffs Don Powers and
Karon Wernli's Response [#26] thereto, Defendants' Reply [#28-1] thereto, and Defendants'
Corrected Opposed Motion for Leave to Allow Defendants' Reply to Plaintiffs' Response to
Defendants' Second Motion to Dismiss to Exceed Page Limits [#28].1 Having reviewed the
documents, the governing law, and the file as a whole, the Court now enters the following opinion
This case arises from the termination of Plaintiffs Don Powers and Karon Wernli, formerly
the principal and assistant principal of Adams Hill Elementary School in San Antonio, Texas, by
Defendants' Corrected Opposed Motion for Leave to Allow Defendants' Reply to Plaintiffs' Response to
Defendants' Second Motion to Dismiss to Exceed Page Limits [#28] is GRANTED.
their former employer, Defendant Northside Independent School District (NISD). Plaintiffs claim
they were fired in retaliation for reporting the administration's failure to reasonably accommodate
a disabled student, and allege Defendant Brian T. Woods, NISD superintendent, "us[ed] his
influence as superintendent" to effect their terminations. While Plaintiffs bring claims against NISD
for violation of the Texas Whistleblower Act and Plaintiffs' free speech rights under the federal and
Texas constitutions, the presently pending motion to
concerns only Plaintiffs' 42 U.S.C.
1983 claim against Woods, in his individual capacity, for alleged violation
of Plaintiffs' First
Amendment rights to free speech.
The following facts are drawn from Plaintiffs' complaint. During the 2012-13 school year,
Plaintiffs and three other Adams Hill educators served on a "504 committee" tasked with conducting
an evaluation of J.B., a student whose ability to read is impaired.3 The 504 committee was convened
pursuant to the implementing regulations of Section 504 of the Rehabilitation Act of 1973, which
require federally-fimded school districts to "conduct an evaluation. . . of any [student] who, because
of handicap, needs or is believed to need special education or related services[.]" 34 C.F.R.
794(a). Plaintiffs and the other members of the 504 committee
determined J.B. had a reading disability and was therefore entitled to an accommodation concerning
the upcoming 2013 STAAR test, a Texas standardized test used to measure students' academic
performance. Specifically, the committee found J.B. was entitled to an oral administration of the
motion for summaryjudgment is presently pending on the docket.
motion for summary judgment will be dealt with in a separate opinion.
The pleadings do not reveal the nature of J.B. 's reading impairment.
Mot. Summ. J. [#30]. The
test, meaning the test questions would be read aloud to J.B. by a test proctor rather than given to LB.
On June 21,2013, NISD's Section 504 coordinator, AimaDraker, "decided that J.B. was not
disabled" and "directed the school to not give J.B. an oral administration of the test." First Am.
Compi. [#22] ¶7(b)(2). Plaintiffs feltDraker'sunilateral actionwas aviolationoftheRehabilitation
Act, as "only the committee is authorized to determine a student's
504 eligibility and any
accommodations to which the student is entitled." Id. ¶ 7(c). As such, on July 22, 2013, Plaintiffs
reported NISD and Draker's allegedly unlawful conduct concerning J.B. to the Texas Education
On July 24 and July 30, 2013, respectively, NISD suspended Powers and Wernli. Id.
¶J 7(e)(2), (5). While it is not entirely clear from their complaint, it appears Plaintiffs were told they
were being suspended because NISD suspected them of misconduct related to administration of the
¶ 7(e)(3) (suggesting NISD accused both Powers and Wernli of"cheat[ing] on
the STAAR test"). On September 4 and September 5, 2013, Plaintiffs filed grievances contesting
their suspensions and claiming NISD was retaliating against them for reporting the J.B. incident to
the Texas Education Agency.
On September 5, 2013, the day after Wernli filed her grievance, she received a phone call
"demanding that she meet with" Defendant Woods. Id. ¶ 1 7(e)(9). Woods, Wernli, and an unnamed
person "whom Ms. Wernli had accused of violating the law in her grievance" met on September 6,
2013. Id. ¶ 17(e)(10). During the meeting, Wernli alleges the unnamed person "interrogate[d] her
about the testing issue," id., and on September 9,2013, Wemli filed an amended grievance asserting
claims regarding Woods's conduct during the meeting. Id. ¶ 17(e)(1 1).
On November 20, 2013, Plaintiffs contacted the Texas Education Agency once again to
discuss their previous report of unlawful conduct concerning J.B. Id. ¶ 1 7(e)(1 6). One month later,
on December 10, 2013, Woods recommended to NISD's board of trustees that Plaintiffs'
employment be terminated. Id. ¶ 17(e)(17). Finally, on April 22, 2014, the board of trustees
terminated Plaintiffs "pursuant to Defendant Woods' behest." Id. ¶ 17(e)(18).
Plaintiffs initiated this action on May 22, 2014, by filing suit against NISD in the 216th
Judicial District Court of Gillespie County, Texas, alleging NISD terminated their employment in
violation of the Texas Whistleblower Act. Notice Removal [#11 at 1; id. [#1-2] at 3-10 (Orig. Pet.)
¶ 26. On October 13,2014, Plaintiffs amended their state court petition to add Woods as a defendant
and to raise additional causes of action under the Texas and United States Constitutions,
Rehabilitation Act, and the Americans with Disabilities Act. Id. at 28-3 5 (First Am. Pet.) ¶J 3 3-37.
Defendants removed the suit to this Court on November 6,2014, invoking the Court's federal
Notice Removal [#1] at 2. Following initial motions practice, a motion
to continue, and a hearing, the Court ordered Plaintiffs to file an amended complaint clearly setting
forth their individual causes of action.
Amended Complaint" on August 4, 2015.
July 21, 2015 Order [#21]. Plaintiffs filed their "First
First Am. Compl. [#22]. The instant motion to
Motion to Dismiss
A motion under Federal Rule of Civil Procedure 1 2(b)(6) asks a court to dismiss a complaint
for "failure to state a claim upon which relief can be granted."
R. Civ. P. 12(b)(6). In deciding
a motion to dismiss under 1 2(b)(6), a court generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507
U.s. 163, 164 (1993). However, a court is notbound to accept legal conclusions couched as factual
allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will
be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory
allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Jqbal, 556
U.s. 662, 678 (2009); Bell All. Corp.
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 678. Although
a plaintiffs factual allegations need not establish the defendant is probably liable, they must establish
more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility
is a "context-specific task," that must be performed in light of a court's "judicial experience and
common sense." Id. at 679. In deciding a motion to dismiss, courts may consider the complaint,
as well as other sources courts ordinarily examine when ruling on Rule 1 2(b)(6) motions to dismiss,
such as documents incorporated into the complaint by reference, and matters of which a court may
take judicial notice. Tellabs, Inc.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Motion for Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are
enough not to delay triala party may move for judgment on the pleadings."
Civ. P. 12(c).
Motions for judgment on the pleadings are "designed to dispose of cases where the material facts
are not in dispute and a judgment on the merits can be rendered by looking to the substance of the
pleadings and any judicially noticed facts." Great Plains Trust Co.
Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal quotation marks omitted). "A motion for
judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss
under Rule 12(b)(6)." Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008).
Defendants argue Plaintiffs'
Woods in his individual
1983 claims against Woods, which Plaintiffs bring against
must be dismissed because Woods is entitled to qualified
immunity. Specifically, Defendants argue (1) Plaintiffs have failed to plead any specific facts with
respect to Woods that, if proven, would constitute a deprivation of Plaintiffs' constitutionally
protected rights, and (2) even if Plaintiffs have alleged a deprivation, Plaintiffs have failed to
establish that Woods's conduct was objectivelyunreasonable in light of clearly established law. As
set forth below, the Court finds that while Plaintiffs have adequately stated a claim for relief against
Woods, he is entitled to qualified immunity. Accordingly, Plaintiffs'
1983 claim against Woods
is subject to dismissal.
Plaintiffs Have Adequately Stated a Claim Against Woods
In their First Amended Complaint, Plaintiffs allege Woods "used his authority
superintendent to create a bogus case for termination against Plaintiffs and, in conjunction with his
influence over the Board of Trustees, effected the termination of Plaintiffs' employment by Board
action." First Am. Compl. [#22] ¶ 15. According to Plaintiffs, Woods's "conduct in causing the
termination of Plaintiffs' employment. . was in retaliation for their exercising their right to freedom
of speech under the First Amendment," rendering Woods liable under
1983. Id. ¶ 16.
Resp. [#26] at 2 ("Plaintiffs have clearly sued Dr. Woods in his individual capacity.").
Defendants challenge the sufficiency of these allegations, contending neither "creat[ing] a
bogus case for termination" nor recommending to the Board that Plaintiffs be terminated are
actionable adverse employment actions5 under § 1983. Additionally, Defendants argue that because
only the Board of Trustees had the authority to terminate Plaintiffs' employment contracts under
Texas law, Woods cannot be held liable for effecting or influencing Plaintiffs' terminations, because
"he did not cause the adverse employment action." Mot. Dismiss [#23] at 9.
Both of Defendants' arguments have at their core the same objection: that Plaintiffs have
failed to allege Woods caused their termination. In support of the proposition that "if Dr. Woods
did not cause the adverse employment action, he cannot be liable under § 1983," Id., Defendants cite
Madison County School District, 254 F.3d 595 (5th Cir. 2001) (en banc). In Beattie, the
Fifth Circuit considered the individual liability of Acton, a school principal, and Jones, a school
superintendent, who allegedly retaliated against Beattie for exercising her right to free speech by
recommending her termination to the school board. 254 F.3d at 604-05. In its discussion affirming
summary judgment in favor of Acton and Jones, the Beattie court stated Acton and Jones "did not
fire Beattie directly, but merely recommended her termination to the board, which made the final
decision. If Acton and Jones did not cause the adverse employment action, they cannot be liable
1983, no matter how unconstitutional their motives." Id. at 605.
Here, because only the
Board of Trustees had the power to terminate Plaintiffs under Texas law, Defendants claim Beattie
controls, and therefore that Plaintiffs have failed to state a § 1983 claim against Woods. See Mot.
To state a claim for First Amendment retaliation against a public employee, Plaintiffs must allege (1) they
suffered an adverse employment decision; (2) the plaintiff's speech involved a matter ofpublic concern; (3) the plaintiff's
interest in speaking outweighed the governmental defendant's interest in promoting efficiency; and (4) the protected
speech motivated the defendant's conduct. Culbertson v. Lykos, 790 F.3d 608, 617 (5th Cir. 2015) (quoting Kinney v.
Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc)).
Dismiss [#23] at 10.
The Fifth Circuit, however, recently cast doubt upon Defendants' interpretation of Beattie
Lykos, 790 F.3d 608 (5th Cir. 2015).
In Culbertson, two contractors whose
company provided breath-alcohol testing services for Harris County brought a § 1983 claim against
the Harris County assistant district attorney (ADA) in her individual capacity, alleging First
Amendment retaliatory termination. Id. at 614, 625. The contractors alleged after they spoke out
regarding the unreliability of certain breath-alcohol testing equipment, the ADA pressured the Harris
County Commissioners Court, the relevant decision-making body, to terminate their contract with
Harris County. See id. at 621. Considering whether the contractors stated a claim against the ADA
in her individual capacity, the Culbertson court discussed Beattie in detail, noting that "some later
decisions. . . have interpreted Beattie to hold that only final decision-makers may be held liable for
First Amendment retaliation under
1983." Id. at 626 (internal quotation omitted).
The Culbertson court reviewed the facts of Beattie, noting in particular that the board "fired
Beattie for permissible, constitutional motives independently of Acton' s and Jones's
recommendation" and that those permissible motives were a "superseding cause" which "shield[ed]
[Acton and Jones] from liability." Id. at 625 (quotingBeattie). In short, Acton and Jones's unproven
retaliatory motives were "displaced by other motives." Id. As the court explained:
Our conclusion as to the individual liability of [Acton and Jones] was that because
the ultimate decision was made by the board independently of these unproven
unconstitutional aims, summary judgment was proper. We did not necessarily hold
that there was no individual liability simply because the board made the decision.
Id. at 626 (internal quotes and citations omitted) (emphasis added).
The Culbertson court then pointed to Jett v. Dallas Independent School District, 798 F.2d
748, 758 (5th Cir. 1986), a pre-Beattie decision which required only that a plaintiff show "an
affirmative causal link" between the individual actor's conduct and the adverse employment action
taken by the decision maker for individual liability to attach. Culbertson, 790 F.3d at 626 (quoting
Jett, 798 F.2d at 758). The Jett court explicitly rejected the individual defendant's "contention that
the judgment as to him must be reversed because.
he had only recommending authority." Jett,
798 F.2d at 758. Acknowledging the "tension" between Jett and the later decisions interpreting
Beattie to hold that only final decision makers may be held liable for First Amendment retaliation
1983, the Culbertson court concluded:
It can at least be said that before [the ADA] could be individually liable despite not
being the final decision-maker, it must be shown that her recommendation was made
in retaliation for constitutionally protected speech and was the reason the adverse
employment decision was made by the final decision-maker. A "superseding cause"
would shield [the ADA] from liability.
Culbertson, 790 F.3d at 626.
Following Culbertson, the Court finds as Plaintiffs have alleged Woods "effected the
termination of [their] employment by Board action," they have adequately stated a
1983 claim for
First Amendment retaliation against Woods. The Court notes, however, that under Culbertson,
Plaintiffs must ultimately show Woods's recommendation to the Board that Plaintiffs be terminated
(1) was made in retaliation for their reporting of the J.B. incident to the Texas Education Agency,
and (2) was the reason the Board ultimately terminated Plaintiffs. If the evidence shows otherwise,
individual liability cannot attach.
Defendants argue Plaintiffs'
1983 claim against Woods must nevertheless be dismissed
because Woods is entitled to qualified immunity for his conduct. The Court agrees. Qualified
immunity requires a court to "determine whether the plaintiff has suffered a violation of his
constitutional rights and, if so, whether a reasonable official should have known that he was violating
the plaintiff's constitutional rights." Culbertson, 790 F .3 d at 627 (quoting Murray v. Earle, 405 F. 3d
278, 285 (5th Cir. 2005)). Confronted with the question whether the ADA was entitled to qualified
immunity despite its holding the plaintiffs stated a claim against her, the Culbertson court found as
We have already noted ambiguity as to the liability of a person for recommending an
adverse employment decision. . . . It was unsettled at the time of [the ADA's]
actions, and remains so now, whether someone who is not a final decision-maker and
makes a recommendation that leads to the plaintiff being harmed can be liable for
retaliation under Section 1983. Cf Beattie, 254 F.3d at 595, 604-05; Jett, 798 F.2d
at 758 . . . . In fact, some clear statements in the caselaw have held there can be no
We conclude the claims against [the ADA] should be dismissed based on qualified
Id. (additional citations omitted). In light
of the foregoing analysis and the Culbertson court's
statement the law in this area remains unsettled, the Court finds Plaintiffs' claims against Woods
should be dismissed based on qualified immunity.
IT IS ORDERED that Defendants Northside Independent School District and Brian
T. Woods's 12(b)(6) Motion to Dismiss in Part for Failure to State a Claim Upon Which
Relief Can be Granted, or in the Alternative, 12(c) Motion for Judgment on the Pleadings
[#23] is GRANTED; and
IT IS FINALLY ORDERED that Defendants' Corrected Opposed Motion for Leave
to Allow Defendants' Reply to Plaintiffs' Response to Defendants' Second Motion to
Dismiss to Exceed Page Limits [#28] is GRANTED.
SIGNED this the
day of October 2015.
SAM SPARKS CI
UNITED STATES DISTRICT JUDGE
1004 mtd ordba.frrn
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