     Case: 13-50983      Document: 00512621492         Page: 1    Date Filed: 05/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 13-50983                            May 7, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



HELEN LEE-KHAN,

                                                 Plaintiff–Appellant,

versus

AUSTIN INDEPENDENT SCHOOL DISTRICT,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CV-147




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Helen Lee-Khan was a counselor at Martin Middle School within the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 13-50983
Austin Independent School District (“AISD”) from 2007 until she was laid off
in a district-wide reduction-in-force (or “RIF”) in 2011. She applied for but was
denied rehire. She sued under 42 U.S.C. § 1983, alleging that AISD saw to it
that no schools in the district would rehire her, despite preferences given to
former employees who were subject to the RIF, as retaliation for her exercise
of constitutionally protected speech. 1 Agreeing with the district court that Lee-
Khan has failed to allege enough facts to support a plausible inference of any
unconstitutional conduct or policy fairly attributable to AISD under § 1983, we
affirm.
      After she was laid off, Lee-Khan applied for twelve different positions
within the district, including several counselor positions (which were consis-
tent with her professional background) and a variety of positions such as assis-
tant principal, security guard, head custodian, manager of media relations,
public relations coordinator, band teacher, library media technician, technol-
ogy help desk, and human resources administrative support. She was granted
interviews for some of these positions but ultimately was not hired, despite an
ostensible preference for employees laid off under the RIF. Several of the
positions were filled with transfers from other schools (rather than new hires)
and some with former retirees. At least three counseling positions, though,
were filled with persons from out of state who did not have Texas certification.
      Lee-Khan alleges that her failure to be rehired manifested AISD’s retali-
ation against her for engaging in the following putatively protected speech:
      1. In October 2008, she testified in an employment discrimination case
          against AISD on behalf of a colleague.
      2. In 2009, she “advised the School Administration of several potential



      1  Lee-Khan also originally sued under other theories, but only the § 1983 claim is
relevant for this appeal.
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                                        No. 13-50983
           testing and scheduling violations,” “raised concerns to the campus
           administration about issues affecting the Special Education Pro-
           gram,” and “complained about a number of Special Ed students being
           placed into Pre-AP classes to accommodate glitches in the master
           schedule.”
       3. In November 2010, she “complained about a student being potentially
           harmed if improperly placed in Special Ed without full-scale testing
           and timely implementation and monitoring. . . .”
       We review dismissals under Federal Rule of Civil Procedure 12(b)(6)
de novo. Gibson v. Tex. Dep’t of Ins.—Div. of Workers Comp., 700 F.3d 227, 233
(5th Cir. 2012). To survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege sufficient facts to state a claim to relief that is plausible on its face. Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007).
       The particular defendant that Lee-Khan has chosen to sue is AISD—not
any individual who was actually involved in the hiring and decisions for the
dozen positions she applied for. Having chosen AISD as the defendant, Lee-
Khan has a difficult burden to meet. Local governments, municipalities, and
school boards are “persons” subject to liability under § 1983, but they cannot
be held liable under § 1983 on a respondeat superior theory. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). So, it is not enough for Lee-Khan to show
that any particular individual decided not to hire her because of her First
Amendment activities; 2 she must find some action attributable directly to
AISD to obtain a judgment against it. 3


       2We assume, without deciding, that Lee-Khan’s speech was actually protected under
Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007).
       3  Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 167 (5th Cir. 2010) (“Municipal
liability requires deliberate action attributable to the municipality that is the direct cause of
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                                           No. 13-50983
        Lee-Khan attempts to meet this burden by presenting a theory that the
only explanation for her lack of success is an official policy on AISD’s part to
retaliate against her for engaging in protected speech several years ago. 4 She
alleges that AISD “pervasively discriminate[s] against individuals who prac-
tice their rights of free speech and association to speak out against discrimina-
tory practices within the school district” and that such retaliation betrays the
“custom and practice” of AISD. Yet, she has failed to identify a single other
individual who suffered from this alleged “pervasive[]” policy. In fact, she fails
to allege that her lack of success as to any of the positions she ultimately did
not get was a result of speech she engaged in years prior or even that any per-
son making hiring decisions had any idea that she had engaged in them (much
less that AISD was aware of her speech at the relevant times, cared much
about them, and thereby ensured that she would not be rehired years later
because of them).
        The lack of any indication that Lee-Khan’s speech activities were known
by or of concern to the AISD, the veritable kaleidoscope of positions she applied
to, the context in which most of those positions were ultimately filled, and the
remarkable time lag between her putative protected speech and the hiring
decisions are all such that the inference that she would like the court to draw
(viz., that there can be no explanation of why she was not rehired except that



the alleged constitutional violation.”); see also Piotrowski v. City of Hous., 237 F.3d 567, 578
(5th Cir. 2001) (“[M]unicipal liability . . . requires proof of . . . a policy maker; an official policy;
and a violation of constitutional rights whose moving force is the policy or custom.”); Jett v.
Dall. Indep. Sch. Dist., 7 F.3d 1241, 1243 (5th Cir. 1993) (describing several ways to meet
this burden).
        4 See Zarnow, 614 F.3d at 168–69 (“We have identified two forms that an ‘official pol-
icy’ may take. First, a plaintiff may point to a policy statement formally announced by an
official policymaker. . . . In the alternative, the plaintiff may demonstrate a persistent wide-
spread practice . . . [which] is so common and well settled as to constitute a custom that fairly
represents municipal policy.”).
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                                      No. 13-50983
AISD had a policy of retaliating against employees who speak out that mani-
fested throughout the hiring decisions of the district) is facially implausible. 5
Therefore, the district court rightly dismissed, and the judgment is
AFFIRMED.




       5 Cf. id. at 169 (affirming a dismissal where a plaintiff presented “no testimony that
the plain view doctrine was misused in another case”).
                                             5
