                                 APPENDIX

                                                                     FILED IN
                                                              1st COURT OF APPEALS
A.   Caleb v. Grier, No. H-12-0675 (S.D. Tex. June 13,            HOUSTON, TEXAS
                                                         2015), Memorandum       and
     Order Granting Motion to Dismiss                         12/21/2015 3:10:49 PM
                                                              CHRISTOPHER A. PRINE
                                                                       Clerk
B.   Caleb v Grier, 598 F.App'x. 227 (5th Cir. 2015)

C.   Caleb v. Grier, No. H-12-0675 (S.D. Tex. Apr. 29, 2015) (Memorandum and
     Order Granting Motion for Summary Judgment)
Tab A
   Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 1 of 26



                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.                              §            CIVIL ACTION NO. H-12-0675
                                §
DR. TERRY GRIER, ELIZABETH MATA §
KROGER, DAVID FRIZELL, ESTEBAN §
MAJLAT, and HOUSTON INDEPENDENT §
SCHOOL DISTRICT,                §
                                §
     Defendants.                §


                         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,



                                                                    15-20297.1963
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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



                                                                       15-20297.1964
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law    firm   to   conduct    an    investigation          regarding    the   improper

transfer      of   HISD   property    from      Key   to    Kashmere,    cheating    on

standardized       tests,    and    other       alleged    improprieties      at   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.    Legal Standard


A.     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.”                      FED . R. CIV .



       3
           Id. at 5-6.

                                            3



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

1955, 1974 (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.”       Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009).      While   a   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



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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.      HISD’s and Terry Grier’s Motion to Dismiss


A.    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



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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



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performing   one’s     job.”    Williams,    480    F.3d   at   693   (quoting

Garcetti, 126 S. Ct. at 1962).           “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.”             Id.

at 692 (citing Garcetti, 126 S. Ct. at 1960).              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    and    suffered    an    adverse


                                     7



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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



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            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 effec-

            tive 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.         The alleged speech was not made


     9
         Id. at 95.

                                    9



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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



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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.      No allegation is made of Caleb making any

controversial    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    speech   the   next    day,   on   November     13,     was   in   a

non-public   internal    meeting      between   her   and   her       supervisor,

Superintendent Grier.      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.       Caleb’s comments to Grier, made in this

private   meeting   between    the    HISD    superintendent      and    an    HISD

principal concerning school administration issues and community


                                       11



                                                                          15-20297.1973
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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



                                                                    15-20297.1974
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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      that    the   investigators    engaged    in   rude   and   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



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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



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

246    (5th        Cir.    2002).         “The   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          by     the   First      Amendment–-namely,         speech,         assembly,



        17
             Id. at 94.
        18
        Id. at 99.     Plaintiff                    Banks   alleges       no    violation      of
protected association.

                                                  15



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petition       for   the    redress    of    grievances,       and    the     exercise    of

religion.       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      personal       relationship       caused       their   adverse

employment       actions.       The    complaint       alleges       only    professional

relationships         between    Caleb,        Anderson,       Banks,        Lenton,     and

Cockerham, and the same is true as regards Caleb’s relationships

with State Representatives Dutton and HISD Trustee Galloway.                             None

of     Plaintiffs     has     stated    a     claim    for     a   violation        of   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



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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      action     because         of    her   attendance      at   the

community/town      hall    meeting    or       for   visiting       with   one   of   its

sponsors, Representative Dutton.                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    Caleb       asserts     a    deprivation         of     her   liberty

interests,     a   type    of   procedural       due       process   claim    under    the


                                          17



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Fourteenth Amendment.      “[D]ischarge from public employment under

circumstances    that   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



                                                                    15-20297.1980
   Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 19 of 26



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

hearing.   Hughes, 204 F.3d at 226.21

     The   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



                                                                       15-20297.1981
     Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 20 of 26



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

1999).23     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



                                                                      15-20297.1982
      Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 21 of 26




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



                                                                           15-20297.1983
   Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 22 of 26




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.”    Lugar v. Edmondson Oil Co., Inc., 102 S. Ct. 2744,

2754 (1982).    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



                                                                    15-20297.1984
   Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 23 of 26




Standards,27      implying   that   Kroger,     Frizell,     and   Majlat     were

performing duties normally carried out by HISD staff.              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.”         Iqbal, 129 S. Ct. at 1948.

     For    the    reasons    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



                                                                         15-20297.1985
      Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 24 of 26




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



                                                                         15-20297.1986
      Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 25 of 26




                                     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
                                                                              15-20297.1987
   Case 4:12-cv-00675 Document 98 Filed in TXSD on 06/13/13 Page 26 of 26




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
                                                                    15-20297.1988
Tab B
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

                                                                 [6] lawyer and private investigators did not violate procedural
                                                                 due process rights of principal.
                   598 Fed.Appx. 227
             United States Court of Appeals,
                      Fifth Circuit.                             Affirmed.
      Mable CALEB; Patrick Cockerham; Diann
     Banks; Herbert Lenton, Plaintiffs–Appellants                Attorneys and Law Firms
                           v.
     Doctor Terry GRIER; Houston Independent                     *228 Laurence Wade Watts, Watts & Associates, Missouri
        School District, also known as HISD;                     City, TX, for Plaintiffs–Appellants.
        Elizabeth Mata Kroger; David Frizell;                    Arturo Garcia Michel, John M. Hopkins, Esq., Kevin Frank
       Esteban Majlat, Defendants–Appellees.                     Risley, Thompson & Horton, L.L.P., Houston, TX, Richard
                                                                 Alan Morris, Adam David Courtin, Rogers, Morris & Grover,
             No. 13–20582.       |   Jan. 6, 2015.
                                                                 L.L.P., Houston, TX, for Defendants–Appellees.
Synopsis
                                                                 Appeal from the United States District Court for the Southern
Background: Employees commenced action against
                                                                 District of Texas. No. 4:12–CV–675.
school district, superintendent, lawyer hired for internal
investigation, and private investigators, alleging freedom of    Before KING, DENNIS, and CLEMENT, Circuit Judges.
speech, retaliation, freedom of association, and procedural
due process claims. The United States District Court for         Opinion
the Southern District of Texas, Ewing Werlein, Jr., J., 2013
WL 2902785, dismissed the claims against the lawyer and          PER CURIAM: *
investigators, and granted motion in part for certification
                                                                 *      Pursuant to 5TH CIR. R. 47.5, the court has determined
and entry of final judgment, 2013 WL 5614310. Employees
appealed.                                                               that this opinion should not be published and is not
                                                                        precedent except under the limited circumstances set
                                                                        forth in 5TH CIR. R. 47.5.4.
                                                                 Plaintiffs–Appellants appeal the district court's dismissal of
Holdings: The Court of Appeals held that:
                                                                 their complaint for failure *229 to state a claim on which
                                                                 relief can be granted. Appellants sued under 42 U.S.C. § 1983
[1] lawyer and investigators were not state actors;
                                                                 for violations of their rights to freedom of speech, freedom of
                                                                 association, and procedural due process. For the reasons that
[2] speech by teacher's assistant, teacher, and school
                                                                 follow, we AFFIRM.
custodian was outside ambit of First Amendment protection
on retaliation claim;

[3] teacher's assistant, teacher, and school custodian did not             I. Factual and Procedural Background 1
suggest intimate relationship protected by First Amendment;
                                                                 1      Since we are reviewing the district court's judgment
[4] mere reference by lawyer that public school principal               granting a motion under Federal Rule of Civil Procedure
whose employment was terminated had relationships with                  12(b)(6), we accept the allegations in the amended
state representative and school board member did not                    complaint as true.
plausibly suggest that lawyer, or investigators, took any        This case arises out of the Houston Independent School
action against principal based on that association;              District's (“HISD”) investigation of Appellants' activities
                                                                 while employed by HISD. Plaintiff–Appellant Mable Caleb
[5] teacher's assistant, teacher, and school custodian did not   was formerly the principal of Key Middle School (“Key”)
state that they had been denied procedural due process; and      and later of Kashmere High School (“Kashmere”). Key
                                                                 and Kashmere are both schools within HISD. Plaintiff–



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

Appellant Diann Banks was a sixth grade math teacher at Key.          was appointed. On Caleb's recommendation, *230 Bernett
Plaintiff–Appellant Herbert Lenton was an “operator” at Key,          Harris took over as principal of Key.
meaning he was responsible for cleaning and maintenance
duties. Plaintiff–Appellant Patrick Cockerham was a teacher's         After Terry Grier was hired, in September 2009, as the
assistant at Key, starting at the beginning of the 2008–2009          new superintendent of HISD, he decided to remove Harris
school year.                                                          as principal. Members of the community, including the
                                                                      pastor of New Mt. Calvary Baptist Church, Willie Jones,
In 1993, Caleb was appointed principal of Key, a school               were concerned about Grier's decision, as they believed
serving an “at risk” student population. In 2005, Richard             that Harris was the right person for the principal's job at
Adebayo, Key's math department chairman/coordinator,                  Key. Reverend Jones asked Grier not to remove Harris until
was accused of facilitating student cheating on the Texas             Grier had met with the community's leaders; Grier agreed.
Assessment of Knowledge and Skills (“TAKS”) standardized              However, he allegedly went back on his promise and replaced
test. Caleb alleges that she exercised protected speech when          Harris before any such meeting was held. On November 12,
she refused to agree with purportedly false accusations that          2009, a town hall meeting was held at New Mt. Calvary
Adebayo was involved with TAKS cheating at Key.                       Baptist Church to discuss Grier's decision to remove Harris
                                                                      as principal of Key. At 5:00 p.m., Grier called Caleb “to
In 2007, students and staff alleged that they were made ill by        ask if she would be present at the meeting and, if so, to
toxic mold within Key, though HISD apparently denied that             apologize for his absence.” Caleb attended the meeting,
there was a mold problem. Caleb voiced agreement with the             apologized for Grier's absence, and applauded the audience's
students' and staff's concerns to the media. Subsequently, the        “display of personal responsibility and parental involvement
Centers for Disease Control and the Environmental Protection          [by] attending the meeting and showing concern for their
Agency found mold at Key. HISD ordered that Key be                    children's education.” On November 13, 2009, Reverend
reconditioned in order to address the problem. Key was                Jones and Texas State Representative Harold Dutton picketed
reopened under Caleb's leadership for the 2008–2009 school            the HISD administration building in support of Harris. On
year.                                                                 November 14, 2009, Grier attended a second meeting at
                                                                      the church, where he was questioned and criticized by the
In January 2009, in order to help teachers prepare their              audience.
students for the math portion of the 2008–2009 TAKS
test, preparation materials were distributed by Key's math            Appellants allege that shortly thereafter Grier resolved to
department. During the preparation period, Banks was given a          terminate Caleb. He allegedly decided to lay a basis for
handwritten set of math problems and was told that they were          Caleb's termination by conducting an investigation into an
being delivered on behalf of the math department and that she         anonymous allegation that Caleb, Lenton, and others had
needed to type the handwritten material. Rather than type the         stolen HISD property from Key when they moved Caleb's
material, Banks re-wrote the set of math problems in neater           belongings from Key to Kashmere on October 31, 2009.
handwriting. Later, Soo Jin Lee, another teacher at Key, typed
Banks's handwritten version, and then distributed them as a           After her transfer to Kashmere, Caleb had asked Cockerham
practice set to the rest of Key's math teachers. Appellants           and Lenton to transfer to Kashmere with her. During the
allege that those math problems were actual TAKS questions,           summer of 2009, Cockerham was assigned to organize
and that Lee and another teacher had planned to introduce             Kashmere's book room. After completing that task,
those questions into Key students' preparation materials in           Cockerham was asked to return to Key to document
order to artificially inflate the students' scores, thus qualifying   information on computers in the AV room, including a
the teachers for a bonus. Appellants allege that Banks was an         computer assigned to Caleb. Later, Cockerham's involvement
unwilling participant in this scheme.                                 with those tasks prompted HISD's investigators to question
                                                                      him about whether school equipment, including the
In April 2009, Caleb was notified that she would be                   computers, was removed from Key.
transferred to serve as principal at Kashmere for the 2009–
2010 school year; she was told to accept the transfer, or she         On October 31, 2009, Harris and Caleb decided to transfer
would be forced into early retirement. After accepting, Caleb         Caleb's collection of personal items from Key, along with
served as transitional principal of Key, until a new principal        “items needed to start up the new Kashmere administration.”



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

Caleb and Harris also decided to “move and 4 relocate any          met with Kroger, Frizell, Majlat, and others for a second
HISD assets which should be at Kashmere from Key, in               round of questioning. Allegedly, Kroger and Frizell called
accordance with HISD practices.” They allegedly scheduled          Cockerham a liar and said that they could not understand
the move with an HISD administrator, Tony Shelvin. Later           why he would protect Caleb. On December 18, 2009, Caleb
that day, Harris, Caleb, Lenton, and other Key employees           attended a three hour meeting with Kroger, Frizell and Majlat.
moved Caleb's personal property and HISD property from
Key to Kashmere.                                                   On January 15, 2010, Cockerham was reassigned to the
                                                                   HISD Transportation Department. Cockerham alleged that
Appellants allege that Grier used the movement of HISD             he was transferred because he refused to corroborate the
property from Key to Kashmere as the basis for hiring              false accusations against Caleb. HISD also attempted to
Defendant–Appellee Elizabeth Mata Kroger, a partner of the         terminate Cockerham's employment. After a hearing, an
private law firm Martin, Disiere, Jefferson & Wisdom, L.L.P.       Independent Hearing Officer found for Cockerham and
(“MDJW”). Kroger then hired Defendants–Appellees David             refused to terminate him. Grier allegedly refused to reinstate
Frizell and Esteban Majlat to assist with the investigation.       Cockerham or allow him to be rehired for the following
MDJW's involvement began with a preliminary inquiry                school year. Consequently, Cockerham was unemployed until
to determine whether a more thorough investigation was             2011, when Grier allowed him to be reemployed by HISD.
necessary.
                                                                   On January 20, 2010, Banks was told to appear at HISD's
On December 4, 2009, Cockerham was instructed by Caleb             Administration Building, where Kroger interviewed her. On
to help Majlat and others locate and check the serial numbers      February 25, 2010, Banks was told to schedule another
of computers. On December 7, 2009, Majlat met with                 meeting with Kroger. At that meeting, she was questioned
Cockerham for two hours. During the meeting, Majlat asked          regarding the allegations of cheating on the TAKS exam.
whether *231 Cockerham had moved anything for Caleb, or            It is alleged that Majlat and the others “suggest[ed] that
if Caleb had stolen district property or taken district property   Adebayo had caused cheating,” and that Majlat and the others
home with her. Cockerham answered that he did not know.            “coax[ed] Banks to confirm [Adebayo's] participation.”
According to the complaint, “[t]he meeting terminated with         On April 8, 2010, Grier notified HISD's board that he
Cockerham stating that he had never taken any property for         recommended Banks be terminated for insubordination,
Caleb or witnessed her take any property from the school.” On      violating district policies, falsifying records, and other
December 10, 2009, Cockerham received a letter instructing         offenses. On July 22, 2010, a hearing was conducted by an
him to meet with Kroger, Frizell and others. At the meeting,       Independent Hearing Officer regarding Banks's termination.
Kroger explained that Cockerham was not the target of              At the conclusion of the hearing, the hearing officer
the investigation, but he may have relevant information.           completely exonerated Banks. But because Banks was
Cockerham left after he stated that he wouldn't answer any         “deeply disturbed and distrustful of Defendants herein,” she
more questions without an attorney present.                        “believed [that] she was forced to resign from HISD in order
                                                                   to save her career.”
On December 11, 2009, MDJW recommended that HISD hire
them to conduct an investigation of the “purchase, inventory       Lenton was interviewed by Frizell on December 7, 2009.
and use of fixed assets, including technology equipment,           Frizell explained that the purpose of the interview was to
intended for Key Middle School, as well as 5 the transfer          determine what happened when the property was moved on
and removal of such assets to Kashmere High School.” The           October 31, 2009. On December 15, 2009, Lenton met with
scope of the investigation expanded to include, in addition        Frizell, Majlat, and others for a second time. During this
to the allegations of misappropriation of school property:         meeting, Lenton was asked by *232 Majlat if Caleb had
“overtime work and benefits to relatives of Mabel Caleb ...        taken anything from Key. At this meeting, Majlat and Frizell
[and] possible improprieties concerning TAKS testing at Key        allegedly called Lenton a liar and accused him of using drugs
during [the] 2008–2009 academic school year.”                      and alcohol. Lenton stated that he was not going to lie about
                                                                   Caleb to save his job. In October 2010, Lenton alleges that
Over the next several months, all of the Appellants were           he was terminated, after an independent hearing, for refusing
questioned by Kroger, Frizell, and Majlat as part of the           to make false statements about Caleb's involvement in the
internal investigation. On December 17, 2009, Cockerham            alleged misappropriation of school district property.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

                                                                  that allows the court to draw the reasonable inference that
On March 2, 2012, Appellants filed their original complaint.      the defendant is liable for the misconduct alleged.” Ashcroft
On August 29, 2012, the plaintiffs filed their “Corrected Third   v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
Amended Original Complaint,” the operative complaint for          868 (2009). “Threadbare recitals of the elements of a cause
purposes of this appeal, alleging First Amendment retaliation     of action, supported by mere conclusory statements, do not
claims, due process claims, and an equal protection claim.        suffice.” Id. Although a complaint “does not need detailed
Appellees filed motions to dismiss for failure to state a claim   factual allegations ... [the] allegations must be enough to
under Federal Rule of Civil Procedure 12(b)(6).                   raise a right to relief above the speculative level.” Twombly,
                                                                  550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted).
On October 1, 2013, the district court dismissed all of           Furthermore, “dismissal is proper if the complaint lacks an
the claims made by Banks, Lenton, and Cockerham. 2                allegation regarding a required element necessary to obtain
Furthermore, the district court dismissed all of Caleb's claims   relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931
against Kroger, Frizell, and Majlat, and her equal protection     (5th Cir.1995) (internal quotation *233 marks, citation, and
claim against Grier. However, the court did not dismiss all       brackets omitted). Finally, “conclusory allegations or legal
of Caleb's claims against HISD and Grier. On September            conclusions masquerading as factual conclusions will not
5, 2013, Appellees filed a joint motion for certification and     suffice to prevent a motion to dismiss.” Beavers v. Metro. Life
entry of final judgment pursuant to Federal Rule of Civil         Ins. Co., 566 F.3d 436, 439 (5th Cir.2009) (internal quotation
Procedure Rule 54(b). On October 14, 2013, the district court     marks and citation omitted).
granted in part and denied in part the Appellees' motion. The
district court entered final judgment as to all of the claims
made by Banks, Lenton, and Cockerham. Furthermore, the                           III. Freedom of Speech Claims
district court entered final judgment as to all claims made
by Caleb against Kroger, Frizell, and Majlat. However, the        Appellants have failed to plead sufficient facts to state a
district court did not enter final judgment as to the claims      First Amendment free speech retaliation claim. In order to
made by Caleb against HISD and Grier, noting that “Caleb's        sufficiently plead such a claim, Appellants must have alleged
remaining claims against Grier and HISD in this case at least     facts that show: (1) they “suffered an adverse employment
tangentially relate to ... much of the same set of facts as the   decision; (2) [their] speech involved a matter of public
dismissed claims.” Accordingly, Caleb's claims made against       concern; (3) [their] interest in commenting on matters of
HISD and Grier are not a part of this appeal. 3                   public concern ... outweigh[s] the [Appellees'] interest in
                                                                  promoting efficiency; and (4) [their] speech motivated the
2                                                                 adverse employment decision.” Beattie v. Madison Cnty. Sch.
       The district court also dismissed all claims made by
                                                                  Dist., 254 F.3d 595, 601 (5th Cir.2001) (internal citations and
       another plaintiff, Jackie Anderson; however, her claims
                                                                  quotation marks omitted). In other words, a plaintiff must
       are not a part of this appeal.
                                                                  plead facts to show that he “engaged in protected conduct and
3      For this reason, we do not address Caleb's equal           that it was a motivating factor in [his] discharge.” Id. Further,
       protection cause of action.                                a plaintiff who is a public employee must show that he spoke
                                                                  as a citizen, not as an employee pursuant to his official
                                                                  duties. That is because while “the First Amendment protects
                  II. Standard of Review                          a public employee's right, in certain circumstances, to speak
                                                                  as a citizen addressing matters of public concern,” Garcetti
“This court reviews a district court's dismissal under Rule
                                                                  v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d
12(b)(6) de novo, accepting all well-pleaded facts as true
                                                                  689 (2006), not all speech by public employees is protected
and viewing those facts in the light most favorable to the
                                                                  by the First Amendment. For “when public employees make
plaintiffs.” Dorsey v. Portfolio Equities, 540 F.3d 333, 338
                                                                  statements pursuant to their official duties, the employees are
(5th Cir.2008) (internal quotation marks omitted). In order
                                                                  not speaking as citizens for First Amendment purposes, and
to survive a motion to dismiss, a complaint must plead
                                                                  the Constitution does not insulate their communications from
“enough facts to state a claim to relief that is plausible on
                                                                  employer discipline.” Id. at 421, 126 S.Ct. 1951; Williams v.
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
                                                                  Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007)
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has
                                                                  ( “These cases, when viewed as a whole, distinguish between
facial plausibility when the plaintiff pleads factual content


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

speech that is ‘the kind of activity engaged in by citizens who      “In the typical case raising a state-action issue, a private
do not work for the government,’ and activities undertaken in        party has taken the decisive step that caused the harm to the
the course of performing one's job. Activities undertaken in         plaintiff, and the question is whether the State was sufficiently
the course of performing one's job are activities pursuant to        involved to treat that decisive conduct as state action.” NCAA
official duties.” (internal citation omitted) (quoting Garcetti,     v. Tarkanian, 488 U.S. 179, 192, 109 S.Ct. 454, 102 L.Ed.2d
547 U.S. at 423, 126 S.Ct. 1951)). However, “the mere fact           469 (1988). Yet this is not the typical case. Here, Caleb
that a citizen's speech concerns information acquired by virtue      alleges that Kroger, Frizell, and Majlat violated her First
of his public employment does not transform that speech into         Amendment rights merely by recommending her termination
employee—rather than citizen—speech.” Lane v. Franks,                by HISD based on protected speech; it was HISD that did the
573 U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312                 actual firing. We hold that these allegations are insufficient to
(2014). Accordingly, “[t]he critical question under Garcetti is      hold Kroger, Frizell, and Majlat liable as state actors.
whether the speech at issue is itself ordinarily within the scope
of an employee's duties, not whether it merely concerns those        In NCAA v. Tarkanian, the Supreme Court confronted
duties.” Id. We first address Caleb's First Amendment claims         a similar situation. The NCAA, a private association,
separately from those of Cockerham, Banks, and Lenton.               investigated the recruiting practices of Tarkanian, the
                                                                     basketball coach at the University of Nevada Las Vegas
 [1] Caleb has failed to state a claim under section 1983 for        (“UNLV”), a public university. Tarkanian, 488 U.S. at 185–
First Amendment retaliation. We begin by noting that only            86, 109 S.Ct. 454. Based on the NCAA's recommendation
Caleb's claims against Kroger, Frizell, and Majlat are before        that Tarkanian be disciplined for violations of the NCAA's
us as part of this appeal; the district court has not entered        recruiting rules, UNLV suspended Tarkanian, in part to avoid
final judgment as to Caleb's claims against HISD and Grier.          further sanctions threatened by the NCAA if UNLV did not
Generally speaking, in order to state a claim under section          adopt its recommendation. Id. at 186–87, 109 S.Ct. 454.
1983, the plaintiff must show that the defendant's challenged        Tarkanian sued the NCAA under section 1983. Id. at 187–
conduct constituted “state action.” Rundus v. City of Dallas,        88, 109 S.Ct. 454. The Supreme Court noted that the case
634 F.3d 309, 312 (5th Cir.2011); see Blum v. Yaretsky, 457          presented a unique question, given that the private entity, the
U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). The           NCAA, did not “take[ ] the decisive step that caused the harm
state action requirement preserves the “essential dichotomy”         to the plaintiff.” Id. at 192, 109 S.Ct. 454. Therefore, the
set forth in the Fourteenth Amendment between a deprivation          question was not “whether UNLV participated to a critical
of rights by the state, “subject to scrutiny under its provisions,   extent in the NCAA's activities, but whether UNLV's actions
and private conduct, ‘however discriminatory or wrongful,’           in compliance with the NCAA rules and recommendations
 *234 against which the Fourteenth Amendment offers no               turned the NCAA's conduct into state action.” Id. at 193, 109
shield.” Jackson v. Metro. Edison Co., 419 U.S. 345, 349,            S.Ct. 454. The Court held that they did not. Id. at 199, 109
95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (quoting Shelley v.              S.Ct. 454. The Court relied on the fact that the NCAA could
Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)).        not “directly discipline Tarkanian or any other state university
While the Supreme Court has pronounced several legal tests           employee;” rather, the decision to adopt the recommendation
for determining whether challenged conduct is state action,          of the NCAA was the university's. Id. at 197, 109 S.Ct. 454.
the core inquiry asks whether the deprivation of a federal right     The same distinction applies here. Kroger, Frizell, and Majlat
is fairly attributable to the State. See Brentwood Academy           are not alleged to have had any power to discipline HISD
v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295–           employees. Rather, the conduct of which Caleb complains is
96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). The Supreme               a mere recommendation to HISD that she be disciplined—a
Court has described a two-part approach to resolving that            recommendation that HISD was free to accept or reject. As
issue: first, “the deprivation must be caused by the exercise        such, the Supreme Court's reasoning in Tarkanian leads to
of some right or privilege created by the State or by a rule of      the conclusion that Kroger, Frizell, and Majlat were not state
conduct imposed by the state or a person for whom the State is       actors, at least as far as Caleb's claims are concerned.
responsible;” second, “the party charged with the deprivation
must be a person who may fairly be said to be a state actor.”         *235 To be sure, there are facts in Tarkanian that are
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct.             distinguishable from this case. In Tarkanian, the Court noted
2744, 73 L.Ed.2d 482 (1982).                                         that, in the posture of the NCAA investigation, the NCAA
                                                                     and UNLV were antagonists, comparing the situation to that



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Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

of public defenders, held not to be liable as state actors
in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445,              We also respectfully reject the district court's reasoning in
70 L.Ed.2d 509 (1981). Id. at 196, 109 S.Ct. 454 (“[T]he            finding state action—that Kroger, Frizell, and Majlat were
NCAA is properly viewed as a private actor at odds with the         “performing duties normally 13 carried out by HISD staff.”
State when it represents the interests of its entire membership     The Supreme Court's “holdings have made clear that the
in an investigation of one public university.”). In contrast,       relevant question is not simply whether a private group is
here HISD commissioned the internal investigation itself.           serving a ‘public function.’ ” Rendell–Baker v. Kohn, 457
Further, unlike in Tarkanian, HISD used its governmental            U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).
powers to facilitate the investigation by having administrators     Rather, “the question is whether the function performed has
summon Appellants to meetings with Kroger, Frizell, and             been ‘traditionally the exclusive prerogative of the state.’
Majlat. See id. at 197, 109 S.Ct. 454 (“[The NCAA] had no           ” Id. (quoting Jackson, 419 U.S. at 353, 95 S.Ct. 449).
power to subpoena witnesses, to impose contempt sanctions,          Appellants cite no authority for the proposition that internal
or to assert sovereign authority over any individual.”).            investigations of employee misconduct are traditionally the
Yet other distinctions are countervailing. In Tarkanian, the        exclusive *236 prerogative of the state. Rather, they merely
NCAA was able to coerce the university, through sanctions           allege that, in practice, internal investigations are generally
and possible expulsion from the association, to adopt its           conducted by HISD itself. But the fact that a state elects to
recommendation. Id. at 198, 109 S.Ct. 454. Here, Kroger,            perform a public service itself does not make such a service
Frizell, and Majlat had no authority over HISD, much less the       “traditionally the exclusive prerogative of the state.” See
ability to impose sanctions. On balance, we are not persuaded       Rendell–Baker, 457 U.S. at 842, 102 S.Ct. 2764 (emphasis
that these distinctions affect the fundamental consideration        omitted). As such, we hold that Appellants have failed to
in Tarkanian, which was that the NCAA's recommendation              plead sufficient facts to show that Kroger, Frizell, and Majlat
was not the decisive step that caused the harm to the               were state actors because they were performing functions
plaintiff—rather, UNLV retained decision-making authority           traditionally exclusively reserved to the state. 4
to discipline its employee. See id. at 197–98, 109 S.Ct. 454.
                                                                    4       Tangentially related is Texas Education Code Section
We also note that, even where the private party's act did
                                                                            44.031(f), which allows school districts to hire outside
not itself deprive the plaintiff of his constitutional rights, a
                                                                            attorneys without going through the normal bidding
showing of “joint action” would likely be sufficient to find                process for awarding contracts.
state action. See id. at 197 n. 17, 109 S.Ct. 454. The joint
                                                                    Given the foregoing, we conclude that the recommendation
action test provides that a private person can be held liable
                                                                    by Kroger, Frizell, and Majlat as to Caleb was not state action.
as a state actor where “he is a willful participant in joint
                                                                    As such, Caleb has failed to state a section 1983 claim against
activity with the State or its agents.” Adickes v. S.H. Kress
                                                                    Kroger, Frizell, and Majlat.
& Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970). This test generally requires a showing of a conspiracy
                                                                     [2] Cockerham, Banks, and Lenton have also failed to
between the private party and the state official. See id.; Dennis
                                                                    state a claim for First Amendment retaliation, because their
v. Sparks, 449 U.S. 24, 28–29, 101 S.Ct. 183, 66 L.Ed.2d 185
                                                                    speech was made pursuant to their official duties. In their
(1980). Yet Appellants expressly waived any argument for
                                                                    complaint, Cockerham, Banks, and Lenton alleged that they
state action based on a conspiracy between Kroger and HISD
                                                                    exercised free speech when they refused to agree with
in their response to Kroger's Third Rule 12(b)(6) Motion to
                                                                    purportedly false accusations made against Caleb in their
Dismiss before the district court when they conceded that
their conspiracy argument “has been abandoned explicitly.”          interviews by Appellees. 5 But they also allege that they were
An appellant who abandons an argument before the district           ordered by HISD officials to take part in those interviews.
court may not resurrect it on appeal. MacArthur v. Univ. of         Furthermore, the plaintiffs have pled facts that show that
Tex. Health Ctr. at Tyler, 45 F.3d 890, 896 (5th Cir.1995)          these meetings were directly related to their employment.
(“[W]e must dismiss this appeal ... on the basis that the one       The interviews concerned allegations of cheating on state
claim that [the plaintiff] raises—Title VII retaliation—was         standardized tests and misappropriation of school property.
abandoned at the district court, thus is not embodied in the        Accordingly, it is undisputed that the speech at issue here
district court judgment, and consequently is not before this        was made within the chain of command and that it was
court on appeal.”).                                                 related to the employees' jobs, which are both factors that this



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    6
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

court has previously considered in determining that speech          Id. Those intimate human relationships include marriage, the
was made as an employee and not as a citizen. See, e.g.,            begetting and bearing of children, child rearing and education,
Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008) (“Cases         and cohabitation with relatives. See Bd. of Dirs. of Rotary Int'l
from other circuits are consistent in holding that when a           v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940,
public employee raises complaints or concerns up the chain          95 L.Ed.2d 474 (1987). The second category is association
of command at his workplace about his job duties, that speech       for the purposes of engaging in other activities protected by
is undertaken in the course of performing his job.”). Further,      the First Amendment, such as speech or the free exercise of
it seems obvious to state that assisting in an employer's           religion. United States Jaycees, 468 U.S. at 618, 104 S.Ct.
investigation into workplace theft is ordinarily within the         3244.
scope of an employee's job duties, equally so to state that
it is ordinarily within the scope of a teacher's duties to          If Cockerham's, Banks's, and Lenton's claimed association
ensure compliance with standardized testing procedures. That        is to be protected under the First Amendment, it must
Cockerham, Banks, and Lenton were required to speak in the          fall under the first category. The types of association
course of their assistance in the investigation did not “mean       properly characterized as “intimate human relationships” are
[their] supervisors were prohibited from evaluating [their]         limited to “relationships that presuppose deep attachments
performance.” Garcetti, 547 U.S. at 422, 126 S.Ct. 1951; see        and commitments to the necessarily few other individuals
also id. at 424, 126 S.Ct. 1951 (“[T]he First Amendment does        with whom one shares not only a special community of
not prohibit managerial discipline based on an employee's           thoughts, experiences, and beliefs but also distinctively
expressions made pursuant to official responsibilities.”). As       personal aspects of one's life.” Wallace v. Tex. Tech Univ., 80
such, the speech that Cockerham, Banks, and Lenton have             F.3d 1042, 1051–52 (5th Cir.1996) (internal quotation marks
alleged as the basis for their employer's retaliation was made      omitted). These relationships “are distinguished by such
pursuant to their official duties. It is therefore outside the      attributes as relative smallness, a high degree of selectivity
 *237 ambit of First Amendment protection, and they have            in decisions to begin and maintain the affiliation, and
failed to state a claim on which relief may be granted.             seclusion from others in critical aspects of the relationship.”
                                                                    United States Jaycees, 468 U.S. at 620, 104 S.Ct. 3244.
5      That Appellants have alleged retaliation based on their      The First Amendment “does not include a generalized
       refusal to speak does not affect the analysis. See Riley     right of social association.” Wallace, 80 F.3d at 1051
       v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 796–      (internal quotation marks omitted). For example, we have
       97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (“There is        previously held that association in certain private clubs was
       certainly some difference between compelled speech and       protected under the freedom of association, but that a college
       compelled silence, but in the context of protected speech,   basketball coach's relationship with his players was not. See
       the difference is without constitutional significance, for   id. at 1052. It therefore follows that “[r]elationships with
       the First Amendment guarantees ‘freedom of speech,’ a        colleagues ordinarily are not afforded protection as intimate
       term necessarily comprising the decision of both what to     associations.” Hernandez v. Duncanville Sch. Dist., No. 3:04
       say and what not to say.”).
                                                                    CV 2028 BH(B), 2005 WL 3293995, at *10 (N.D.Tex.
                                                                    Dec. 5, 2005) (citing Swanson v. City of Bruce, Miss., 105
                                                                    Fed.Appx. 540, 542 (5th Cir.2004) (unpublished)); see also
                IV. Free Association Claims
                                                                    Martsolf v. Christie, 552 Fed.Appx. 149, 152 (3d Cir.2013)
 [3] In order to state a claim for retaliation based on the First   (unpublished); Colbert v. City of McKinney, No. 4:12cv612,
Amendment right to freedom of association, a plaintiff must         2013 WL 3368237, at *7 (E.D.Tex. July 3, 2013).
show: “(1) he suffered an adverse employment action, (2) his
interest in ‘associating’ outweighed the [employer's] interest      Here, Cockerham, Banks, and Lenton have not alleged
in efficiency, and (3) his protected activity was a substantial     sufficient facts to state a freedom of association claim. They
or motivating factor in the adverse employment action.” Hitt        have alleged that they “exercised protected association with
v. Connell, 301 F.3d 240, 246 (5th Cir.2002). The First             Caleb, in that they constituted members of what Majlat [had]
Amendment protects two broad categories of association.             characterized ... as Caleb's ‘clique.’ ” However, without more,
Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S.Ct.      this “association” appears to be nothing more than a group
3244, 82 L.Ed.2d 462 (1984). The first protects “choices to         of close work colleagues. While the complaint does allege
enter into and maintain certain intimate human relationships.”      that “Cockerham and Lenton were members of a small group



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

of individuals chosen by Caleb to ... move with her [to            employee is ‘discharged in a manner that creates a false and
Kashmere]” and that Caleb was “highly selective of those           defamatory impression about him and thus stigmatizes him
with whom she chose to ... go with her to Kashmere,”               and forecloses him from other employment opportunities.’ ”
such selectivity is no different from any manager's *238           Bledsoe v. City of Lake Horn, Miss., 449 F.3d 650, 653 (5th
prudent hiring decisions. These allegations are consistent         Cir.2006) (quoting White v. Thomas, 660 F.2d 680, 684 (5th
with a relationship amongst colleagues and fail to suggest an      Cir.1981)). “ ‘[T]he process due such an individual is merely
intimate relationship protected by the First Amendment.            a hearing providing a public forum or opportunity to clear
                                                                   one's name, not actual review of the decision to discharge the
 [4] Caleb's claims against Kroger, Majlat, and Frizell also       employee.’ ” Hughes v. City of Garland, 204 F.3d 223, 226
fail. Caleb's freedom of association claim derives from the        (5th Cir.2000) (quoting Rosenstein, 876 F.2d at 395).
second category of protected association—association for
political purposes. She alleges that her right to political        In order to state a claim that their liberty interest to a name
association was violated as the Appellees retaliated against       clearing hearing was infringed, Appellants must have alleged:
her for associating with a state representative, Representative
Dutton, at the town hall meeting on November 12, 2009                           (1) that [they were] discharged; (2)
and with HISD Board Member Carol Mims Galloway. Aside                           that stigmatizing charges were made
from conclusory allegations, the only facts asserted in the                     against [them] in connection with the
complaint that could plausibly be understood to relate to                       discharge; (3) that the charges were
Caleb's relationships with these individuals are that Majlat                    false; (4) that [they were] not provided
stated that Caleb had “friends in high places” and that, if                     notice or an opportunity to be heard
anyone reported her to the HISD board, Caleb would find                         prior to [their] discharge; (5) that
out about it immediately. Yet even assuming those statements                    the charges were made public; (6)
referred to Dutton and Galloway, merely noting that Caleb                       that [they] requested a hearing to
had those relationships does not plausibly suggest that Majlat,                 clear [their] name[s]; and (7) that the
much less Frizell and Kroger, took any action against Caleb                     employer refused [their] request for a
based on that association. As such, Caleb has failed to state                   hearing.
a claim against Kroger, Frizell, and Majlat based on her First
                                                                   Id. The district court did not err in dismissing the complaint
Amendment rights to freedom of association.
                                                                   for failure to state a *239 procedural due process claim,
                                                                   because the allegations in the complaint itself establish that
                                                                   Banks, Cockerham, and Lenton cannot meet the elements of
            V. Procedural Due Process Claims                       the claim. To the contrary, Banks, Cockerham, and Lenton
                                                                   have alleged facts that show that they were given a hearing to
 [5] Appellants have also failed to state a claim for violations   address the charges associated with the investigation.
of their procedural due process rights. We first note that,
assuming the allegations in the complaint are true, Appellants     Cockerham has alleged that he was afforded an independent
were entitled to procedural due process protections. “It is now    hearing and that the independent hearing officer refused
beyond any doubt that discharge from public employment             to terminate him. Banks has pleaded that she received a
under circumstances that put the employee's reputation, honor      two-day independent hearing where she had the opportunity
or integrity at stake gives rise to a liberty interest under the   to “proclaim[ ] the falsity of the charges against her.”
Fourteenth Amendment to a procedural opportunity to clear          Furthermore, Lenton has alleged that he requested and
one's name.” Rosenstein v. City of Dallas, Tex., 876 F.2d 392,     received a due-process hearing before an independent hearing
395 (5th Cir.1989), reh'g granted, 884 F.2d 174, reinstated        officer. Cockerham's, Banks's, and Lenton's failure to allege
901 F.2d 61 (5th Cir.1990) (en banc). Government officials         that they asked for and were refused a hearing is dispositive.
do not violate the Fourteenth Amendment by “publicly               See Bledsoe, 449 F.3d at 653 (plaintiffs must plead that they
disclosing charges against discharged employees,” provided         requested and were denied a name-clearing hearing). It is
that they afford procedural due process protections that           immaterial whether the Plaintiffs were given an opportunity
allow the implicated employees to clear their names. Id.           to clear their names before the Kroger report was released.
“[A] liberty interest is infringed, and the right to notice and    See Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir.1984)
an opportunity to clear one's name arises, only when the           (“It is not necessary that the hearing occur prior to publication


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Caleb v. Grier, 598 Fed.Appx. 227 (2015)
316 Ed. Law Rep. 29, 2015 IER Cases 174,060

of the stigmatizing charges.” (quoting Wells v. Hico Indep.
                                                                      [6] As to Caleb's claims, she has alleged no facts indicating
Sch. Dist., 736 F.2d 243, 256–57 (5th Cir.1984))). As to
                                                                     that Kroger, Frizell, and Majlat had any ability, authority, or
Lenton's claim relating to the incident with White at his due
                                                                     even influence to deny her access to a name-clearing hearing,
process hearing, we do not address the issue as it was not
                                                                     much less that they did so. As such, she has failed to state
adequately briefed. See United States v. Scroggins, 599 F.3d
                                                                     a claim for violation of her procedural due process rights by
433, 446 (5th Cir.2010) ( “A party that asserts an argument
                                                                     Kroger, Frizell, and Majlat.
on appeal, but fails to adequately brief it, is deemed to have
waived it.” (internal quotation marks omitted)). Lenton cites
no legal authority for his argument that not allowing White to
be called at his hearing violated his due process rights, and,                              VI. Conclusion
as such, it is waived. See Fed. R.App. P. 28(a)(8)(A) (stating
that the argument must contain “appellant's contentions and          For the foregoing reasons, the judgment of the district court
the reasons for them, with citations to the authorities and          is AFFIRMED.
parts of the record on which the appellant relies” (emphasis
added)); Scroggins, 599 F.3d at 447 (“In addition, among
                                                                     All Citations
other requirements to properly raise an argument, a party
must ordinarily identify the relevant legal standards and            598 Fed.Appx. 227, 316 Ed. Law Rep. 29, 2015 IER Cases
any relevant Fifth Circuit cases.” (internal quotation marks         174,060
omitted)).

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                9
Tab C
     Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 1 of 26



                    IN THE UNITED STATES DISTRICT COURT
                     FOR THE SOUTHERN DISTRICT OF TEXAS
                              HOUSTON DIVISION


MABLE CALEB,                           §
                                       §
       Plaintiff,                      §
                                       §
v.                                     §        CIVIL ACTION NO. H-12-675
                                       §
DR. TERRY GRIER and HOUSTON            §
INDEPENDENT SCHOOL DISTRICT,           §
                                       §
       Defendants.                     §


                            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   Plaintiff’s    Summary    Judgment    Evidence

(Document No. 165).         After carefully considering the motions,

responses,     reply,    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




                                                                        15-20297.5607
      Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 2 of 26



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 impro-

prieties       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



                                                                          15-20297.5608
   Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 3 of 26



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



                                                                    15-20297.5609
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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            The Court then entered a Final

Judgment     dismissing   all   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



                                                                      15-20297.5610
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      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           Defendants oppose the


      14
           Document No. 136.
      15
           Document Nos. 158, 162.
      16
           Document No. 162.

                                       5



                                                                     15-20297.5611
      Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 6 of 26



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     motion    is    largely     a    second     motion       for

reconsideration       of   the   Court’s    Order   of   June     13,    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



                                                                             15-20297.5612
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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



                                                                      15-20297.5613
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(“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



                                                                    15-20297.5614
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       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



                                                                            15-20297.5615
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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.”          Anderson, 106 S. Ct. at

2513.




                                    10



                                                                    15-20297.5616
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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



                                                                          15-20297.5617
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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



                                                                      15-20297.5618
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 13 of 26



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



                                                                    15-20297.5619
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 14 of 26



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



                                                                                       15-20297.5620
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 15 of 26



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



                                                                          15-20297.5621
     Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 16 of 26



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       Two men--the plant operator at Kashmere and the

Kashmere      custodian--were    seen   exiting   with    various   boxes   and

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



                                                                       15-20297.5622
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 17 of 26



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

Plaintiff       was     terminated    fewer     than   three    weeks       after    what

Plaintiff       refers    to   as    her   “open   letter”      to    the     Chronicle,

Plaintiff’s       allegations        and   testimony--like       her     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    12-13,      2009,”     five   months        before    she    was

discharged.41         Plaintiff’s chronological narrative is thus at odds




        39
             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



                                                                                 15-20297.5623
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 18 of 26



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 student-

targeted 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



                                                                    15-20297.5624
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 19 of 26



     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



                                                                    15-20297.5625
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 20 of 26



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   of   misconduct,   just   as   he   recommended   for

Plaintiff.     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



                                                                    15-20297.5626
  Case 4:12-cv-00675 Document 172 Filed in TXSD on 04/29/15 Page 21 of 26



reference to equipment acquired by only            one   of   eight   recent

purchase orders that were listed in the Report.          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

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     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.

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       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

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      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
recommendations were not followed.”      Id. at 820.     Here, in
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



                                                                     15-20297.5630
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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     To prevail on such a claim, 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 her name; and (7) that the employer refused her

request for a hearing.     Hughes v. City of Garland, 204 F.3d 223,

226 (5th Cir. 2000).     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 name-
clearing 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



                                                                    15-20297.5631
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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



                                                                    15-20297.5632
