Presas Garciaopinionhanen

Case 1:14-cv-00010 Document 64 Filed in TXSD on 09/22/15 Page 1 of 57
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
LUCILA B. LONGORIA, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 1:14-cv-10

BROWNSVILLE INDEPENDENT
SCHOOL DISTRICT, et al.,
Defendants.
_______________________________________
MEMORANDUM OPINION AND ORDER
Plaintiffs Lucila B. Longoria (hereinafter Longoria) and Catalina Presas Garcia
(hereinafter Garcia) (hereinafter collectively referred to as Plaintiffs) filed suit in this Court
against Brownsville Independent School District (hereinafter BISD); BISD Board of Trustees
members Herman Otis Powers, Jr. (hereinafter Powers), Minerva M. Pena (hereinafter
Pena), Jose Hector Chirinos (hereinafter Chirinos), and Cesar Lopez (hereinafter Lopez)
in their individual capacities (hereinafter collectively referred to as the Trustee-Defendants);
BISD Superintendent Dr. Carl A. Montoya (hereinafter Dr. Montoya) in his individual
capacity; and BISD legal counsel Baltazar Salazar (hereinafter Salazar) in his individual
capacity.1 They request a judicial declaration that the alleged public censure and censor of
Plaintiffs by Defendants is null and void, together with damages and other legal and equitable
relief, on the grounds that Defendants violated their rights under the First, Fifth, and Fourteenth
Amendments of the United States Constitution, as well as various federal and state laws. [Doc.
No. 33 (First Am. Original Complaint)]. Plaintiffs federal claims can be best described as
alleged violations of their First Amendment rights by acts of retaliation, prior restraint, and
1
It is disputed in what capacity Salazar provides legal advice to the District or the Board.
1
violations of their free speech and free association rights, as well as violations of their rights to
liberty without due process brought under the Fifth and Fourteenth Amendments. [Id.].
Plaintiffs state law claims include violations of the Texas Open Meetings Act (TOMA),
intentional infliction of emotional distress (IIED), defamation (including common law
defamation, libel, and slander), and civil conspiracy. [Id.]. Jurisdiction is asserted under the
First, Fifth, and Fourteenth Amendments, as well as pursuant to 42 U.S.C. 1983.2
In response to the Original Complaint filed by Plaintiffs, BISD and the Trustee-Defendants
timely filed a Motion to Dismiss the Original Complaint under Federal Rule of Civil Procedure
12(b) [Doc. No. 24]; a Motion to Dismiss Pursuant to Texas Tort Claims Act (Election of
Remedies) [Doc. No. 23]; and a Motion for More Definite Statement [Doc. No. 25]. Defendant
Salazar also filed a Rule 12(b)(6) Motion to Dismiss the Original Complaint [Doc. Nos. 20, 22].
Subsequently, Plaintiffs filed a First Amended Original Complaint (hereinafter the Complaint),
which is the active complaint in this case [Doc. No. 33]. BISD and the Trustee Defendants have
now filed a Renewed Rule 12(b) Motion to Dismiss [Doc. No. 44]; a Renewed Motion for More
Definite Statement [Doc. No. 42]; a Renewed Motion to Dismiss Pursuant to Texas Tort Claims
Act (Election of Remedies) [Doc. No. 43]; and a Motion to Strike Portions of Plaintiffs First
Amended Complaint [Doc. No. 46]. Similarly, Defendant Salazar has filed a Rule 12(b)(6)
Motion to Dismiss the First Amended Complaint, asserting that he is entitled to various forms of
2
Plaintiffs fail to allege a basis for this Court to exercise supplemental jurisdiction over their state law claims; this
failure, however, is not fatal to those causes of action. The Court clearly has subject matter jurisdiction over those
claims in light of the federal law claims, which are based on the same or similar factual allegations as the state law
claims. See Wright & Miller, 5 Fed. Prac. & Proc. Civ. 1207 (3d ed.) (noting that, while pleading supplemental
jurisdiction is obviously a recommended practice, a jurisdictional basis for claims falling within what formerly
were called the ancillary or pendent jurisdiction doctrines probably did not need to be pleaded inasmuch as the
district court already had subject matter jurisdiction over the claims to which the ancillary or pendent claims were
attached for purposes of satisfying Rule 8(a)(1).).
2
immunity [Doc. Nos. 40-41]. Plaintiffs filed responses to each of the above-cited motions.
These briefings are now pending before the Court and are addressed herein.
I. Factual Summary
This lawsuit arises from certain alleged retaliatory actions taken against Plaintiffs while
serving on the Board of Trustees of BISD (hereinafter the Board). During the relevant time
period, both Plaintiffs were Trustees, as were Defendants Powers, Pena, Lopez, and Chirinos.
Dr. Montoya was BISDs superintendent. According to Plaintiffs pleadings, Defendant Salazar
was contracted by BISD to serve as School Board Counsel, and he served as such during
portions of the time period at issue. [Doc. No. 33 at 15]. Plaintiffs claim that in their roles as
BISD Trustees, they became aware of several corrupt or questionable practices involving the
school district and the Board. They allege a whole range of unscrupulous financial,
administrative, and hiring practices, including nepotistic contracting with insurance vendors and
construction companies, politicized hiring of unqualified or incompetent individuals, and giving
inappropriate pay increases to certain favored BISD employees.
Plaintiffs assert that, in their capacities as both Trustees and concerned citizens, they spoke
out against these practices in board meetings, which led to what was essentially a retaliatory
campaign of harassment, suppression of speech, defamation, [and] ridicule. [Doc. No. 33 at
5]. Notably, most, if not all of Plaintiffs expressed concerns during Board meetingsand the
resulting retaliation they claim to have experiencedstemmed from various BISD business
ventures undertaken by the then-president of the Board, Enrique Escobedo.3 According to
3
Escobedo is not a defendant to this action. In fact, Escobedo has passed away since the events complained herein.
Defendants persuasively argue that, despite Escobedo not being named a defendant, Plaintiffs suit is largely
directed at the alleged unlawful and tortious conduct of Escobedo rather than any affirmative actions taken by the
Trustee-Defendants. Further, the Complaints ubiquitously unspecific allegations of acts committed by
3
Plaintiffs, the Trustee-Defendants ratified Escobedos alleged unlawful conduct by failing to
prevent Escobedo from acting out against Plaintiffs and by voting in favor of and seconding his
motions.
II. Standard on Motions to Dismiss
BISD and the Trustee-Defendants move to dismiss Plaintiffs claims against them under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and conditionally under
Rule 12(b)(1). [Doc. No. 44]. They assert various forms of immunity as bases for dismissal:
qualified immunity, absolute legislative immunity, Texas Education Code Professional
Employee Immunity, sovereign immunity under Texas law for the state law tort claims against
BISD, and common law official immunity. BISD and the Trustee-Defendants further complain
that the Complaint does not meet general pleading requirements under Federal Rule of Civil
Procedure 8(a) and fails to attain the level of factual specificity required by the Supreme Court in
Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Defendant Salazar likewise moves to dismiss Plaintiffs claims against him under Rule
12(b)(6). [Doc. No. 40-41]. Salazar asserts absolute prosecutorial or quasi-prosecutorial
immunity, absolute legislative immunity, qualified immunity, and sovereign immunity under
Texas law.
In deciding a motion to dismiss under Rule 12(b)(6), the district court accepts as true those
well-pleaded factual allegations in the complaint. C.C. Port, Ltd. v. Davis-Penn Mortg. Co., 61
F.3d 288, 289 (5th Cir. 1995). Taking the facts alleged in the complaint as true, if it appears
certain that the plaintiff cannot prove any set of facts that would entitle it to the relief it seeks,
Defendants or the Board Majority make it difficult, if not impossible at times, to identify against which
Defendant(s) each claim is asserted. The Court addresses this in more detail below.
4
dismissal is proper. Id. The plaintiff cannot, however, simply state conclusory legal or factual
allegations; rather, she must allege enough facts to state a claim to relief that is plausible on its
face. Landavazo v. Toro Co., 301 Fed. Appx 333, 336 (5th Cir. 2008) (quoting Twombly, 550
U.S. at 569). Factual 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). Id. (quoting Twombly, 550 U.S. at 589).
BISD and the Trustee-Defendants also conditionally move to dismiss the First Amended
Complaint pursuant to Rule 12(b)(1). Under Rule 12(b)(1), a case may be properly dismissed for
lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case. Home Builders Assn of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187
(2d Cir. 1996)). When making this determination, the Court may consider: (1) the complaint
alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the courts resolution of disputed facts. Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996)). Here, no evidence currently exists in the record before the
Court and, thus, the Court considers the complaint alone. On a Rule 12(b)(1) motion to dismiss,
the party asserting jurisdiction bears the burden of proof to show that jurisdiction does in fact
exist. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
III. Discussion
A. Plaintiffs Claims Against Superintendent Montoya Are Dismissed
Before reaching the specific issues raised in Defendants motions, the Court, as an initial
matter, dismisses any and all claims asserted against Defendant Dr. Carl Montoya. Plaintiffs fail
5
to allege with any factual specificity how Dr. Montoya acted unlawfully or how his actions
contributed to the alleged violations of their constitutional rights. See Iqbal, 556 U.S. at 683
(stating that defendant-officials cannot be held liable unless they themselves acted
unconstitutionally). A review of all thirty pages of the First Amended Complaints substantive
allegations shows that Plaintiffs only mention Dr. Montoya twice. Plaintiffs never claim that he
was in any of the Board meetings where the alleged conduct made the subject of this suit
occurred. (Although Plaintiffs speculate that the Trustee-Defendants were at times conspiring
prior to meetings to violate their rights during the meetings, they never specify how Dr. Montoya
would or could have been involved in this alleged conspiracy or what his relationship to the
Board and its Trustees was.) Instead, Plaintiffs implicate him in speculative factual scenarios
occurring outside Board meetings that, at best, are indirectly and tangentially related to alleged
unlawful conduct by the other Defendants:
(1) In February 2013, Plaintiffs witnessed Dr. Montoya having lunch with Salazar
at Amigas Restaurant, where it appeared to Plaintiffs that they were negotiating
Salazars contract. This is a violation of Board policy and of the Texas Open
Meetings Act. Plaintiffs then allege that, because Salazar had a criminal record
(which prohibited employment with BISD under current policies) and was
allegedly the least qualified person for the position, it was clear to Plaintiffs
that the new board majority was out to hire an attorney that would do their dirty
work, [sic] and return to the ways of the past. [Doc. No. 33 at 8 (emphasis
added)].
(2) Plaintiff Garcia alleges that, from June 20, 2013 to June 30, 2013, she
questioned Dr. Montoya about Salazars refusal to respond to her e-mails and
documented how Salazar would only work with the Board majority and would
not address any of her concerns or Lucis concerns. According to Plaintiff, [s]he
never received back a response. From this, Plaintiffs claim that it became very
clear that BISD and Defendants were conspiring on upcoming issues and
deliberately thwarting Plaintiffs attempts to bring these issues to the publics
view. [Doc. No. 33 at 18]. Earlier in the Complaint, Plaintiffs define
Defendants as the Board Majority. [Id. at 4].
6
Even assuming that it was a violation of the Texas Open Meetings Act and BISD policy
to have lunch with an attorney the school board or district is considering hiring (to the extent that
Plaintiffs pure speculation concerning the subject of this lunch could even be regarded as a
factual allegation), Plaintiffs would lack standing to assert these violations.4 They fail to connect
this acthaving lunch with Salazarto any injury they may have suffered. As far as the second
mention of Dr. Montoya, it is clearly not unlawful or tortious not to respond to an email. To the
extent that Plaintiffs allege that Dr. Montoya was involved with the failure to respond to the
email and allege that was part of the conspiracy to prevent Plaintiffs from bringing certain issues
to the public view, the Court addresses that claim and any liability of Dr. Montoya below.5 The
Court finds that Plaintiffs factual allegations concerning Dr. Montoya are not enough to raise
a right to relief above the speculative level and thus dismisses the allegations against him. See
Twombly, 550 U.S. at 589.
B. Absolute Legislative Immunity
The Trustee-Defendants assert that they are entitled to absolute legislative immunity.
Due to the fact that the Court finds that much of the conduct alleged in Plaintiffs Complaint is
legislative in nature, it addresses this issue before turning to Plaintiffs individual causes of
action.
Under the doctrine of absolute legislative immunity, state and local officials performing
legislative functions or activities are absolutely immune from 1983 liability. Bogan v. Scott
Harris, 523 U.S. 44, 48 (1998); see also Bryan v. City of Madison, 213 F.3d 267, 272 (5th Cir.
2000) (finding that a city mayor was entitled to absolute legislative immunity for certain actions
4
As will be later discussed, Plaintiffs have conceded that their claims based upon the Texas Open Meetings Act are
without merit.
5
As explained later in this Opinion, to the extent Plaintiffs adequately allege a civil conspiracy claim against Dr.
Montoya, he is nonetheless entitled to immunity on that claim as a professional employee of a school district.
7
taken during meetings on a zoning application); Wilson v. Marshall Indep. Sch. Dist., 2011 WL
1431410 (E.D. Tex. Feb. 1, 2011), adopted by 2011 WL 1431460 (E.D. Tex. Apr. 14, 2011)
(finding that members of a school board were engaged in legislative activity when they
disciplined a fellow member). Legislative immunity applies to activities, not offices. Bryan,
213 F.3d at 272 (Legislative immunity protects officials fulfilling legislative functions, even if
they are not legislators.) (citations omitted); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d
129 (5th Cir. 1986). In other words, the availability of absolute immunity is not predicated on
the title of the official but instead on whether the official was acting in the sphere of legitimate
legislative activity. Bogan, 523 U.S. at 53.
Since legislative immunity focuses on the activity rather than the office, [i]t follows that
not everything an official with legislative duties does is protected by absolute immunity.
Minton, 803 F.2d at 135. The Fifth Circuit has declined to establish a particular standard for
determining whether an act is legislative and, instead, has adopted tests used in other circuits as
general guidelines. See Bryan, 213 F.3d at 273. Specifically, this Circuit applies two tests to
determine if a particular activity is legislative and therefore protected by absolute immunity:
The first test focuses on the nature of the facts used to reach the given decision. If
the underlying facts on which the decision is based are legislative facts, such as
generalizations concerning a policy or state of affairs, then the decision is
legislative. If the facts used in the decisionmaking are more specific, such as those
that relate to particular individuals or situations, then the decision is
administrative. The second test focuses on the particularity of the impact of the
state action. If the action involves establishment of a general policy, it is
legislative; if the action single[s] out specific individuals and affect[s] them
differently from others, it is administrative.
Id. Importantly, although the second test focuses on the impact of the action and whether the
action singles out specific individuals, the Court cannot consider the actors motive or intent:
Whether an act is legislative turns on the nature of the act, rather than the motive or intent of the
8
official performing it. Bogan, 523 U.S. at 55 (citing Tenney v. Brandhove, 341 U.S. 367, 377
(1951), which concluded that a defendants motive to intimidate and silence plaintiff and deter
and prevent him from exercising his constitutional rights did not preclude the action from being
legislative).6 Even actions affecting specific individuals may be legislative activities if they are
actions that only the legislative body has the power to perform. Wilson, 2011 WL 1431410, at
*4 (citing Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997)).
In Bryan, the mayor-defendant asserted he was protected by absolute legislative
immunity against a real estate developers 1983 action against him. The Fifth Circuit analyzed
the circumstances surrounding each of the four challenged activities of the mayor and found that
only one activity was protected by legislative immunity. See Bryan, 213 F.3d at 272. First, the
Court concluded that the mayors repeated vetoes of plaintiffs site and development plans was
not legislative because he was vetoing a determination that a specific individuals plan satisfied
city ordinances, which did not involve the determination of a policy[r]ather than
constituting a prospective rule, an overall plan, or general policy, this determination entered the
realm of enforcement with respect to approval of a specified proposed plan. Id. at 273. The
Court emphasized that the determination was based on specific, particular facts and affected
[the plaintiffs] development alone. Id. Importantly, the Court distinguished an earlier case
where it held that a mayors veto of a rezoning ordinance was protected by legislative immunity
because [z]oning is general and prospective and directly affects the entire community rather
6
Despite this clear precedent, Plaintiffs insist that Defendants motive and intent must be considered by the Court in
determining whether Defendants engaged in legitimate legislative activity. [See Doc. No. 52 at 11]. The Court is
unpersuaded by Plaintiffs assertion. See Bogan, 523 U.S. at 54 (Whether an act is legislative turns on the nature of
the act, rather than on the motive or intent of the official performing it . . . . [I]t simply is not consonant with our
scheme of government for a court to inquire into the motives of legislators. We therefore held that the defendant in
Tenney had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order
to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights.
(citations omitted)).
9
than one piece of property as in Bryan. Id. at 273-74 (citing Hernandez v. City of Lafayette, 643
F.2d 1188 (5th Cir. 1981)).
Second, the mayors act of delaying decisions on approval of the plaintiffs plans at
several board meetings was also not legislative. Because the point at issue in those meetings
was specifically and particularly related to the proposed development the Court concluded that
any decision to delay voting on that issue was also too specific and particular to be deemed
legislative in nature. Id. at 274. The third challenged activity, the vote to apply for a rezoning,
was deemed non-legislative as well. The Fifth Circuit reasoned that, unlike a vote to rezone, the
mayors vote was to apply for a rezoning, just as private citizens are able to do. Id. According
to the Court, that type of activity was more like ad hoc decisionmaking than the formulation of
a policy. Id. The fourth set of activities, however, was granted legislative immunity. The
challenged conduct occurred in a board meeting where the mayor placed the rezoning decision
back on the agenda without notifying the parties and then, along with two aldermen, voted to
rezone the property notwithstanding the boards earlier vote against the rezoning. The Court
found that, despite the activities being irregular and inappropriate, they were still legislative in
nature because they involved a rezoning provision. Id.
In Wilson, the court found that members of a school board were immune from liability for
disciplining a fellow board member. See Wilson, 2011 WL 1431410, at *4. There, the plaintiff
had reported to the police that she had found guns in the superintendents office; when the police
arrived to investigate, however, they discovered the guns were only BB guns. Id at *1.
Thereafter, the school board publicly reprimanded the plaintiff for individually conducting an
investigation. Id. at *2. The plaintiff subsequently brought several claims against the
defendants, including a violation of her First Amendment rights pursuant to 42 U.S.C. 1983.
10
Noting that the Fifth Circuit had not yet addressed the specific issue of whether disciplining a
fellow elected official is legislative action, the court looked to the Fourth Circuits opinion in
Whitener v. McWatters, 112 F.3d 740 (4th Cir.1997). There, the Fourth Circuit held that board
members acted in their legislative capacity when they voted to discipline a fellow board member
for using abusive language in expressing his opinion. Like Plaintiffs in this case, the plaintiff
there had brought a 1983 action alleging that his First Amendment rights were violated when
the board disciplined him for his speech conduct. Relevant to the present action, the Wilson
court summarized the Fourth Circuits opinion as follows:
The court first noted that legislative action typically involves the promulgation
of prospective, general rules, rather than actions taken against specific
individuals. Id. at 742. The court, however, recognized that the factual
circumstances in Whitener were unique because the case involved a local
legislature disciplining one of its own elected members. Id. at 743. As such, the
court undertook an analysis of the historical development of legislative immunity
to determine the scope of such immunity in these unique circumstances. Id. at
74344. After exploring this history, the court surmised that:
Americans at the founding and after understood the power to
punish members as a legislative power inherent even in the
humblest assembly of men. This power, rather than the power to
exclude those elected, is the primary power by which legislative
bodies preserve their institutional integrity without compromising
the principle that citizens may choose their representatives.
Further, because citizens may not sue legislators for their
legislative acts, legislative bodies are left to police their own
members. Absent truly exceptional circumstances, it would be
strange to hold that such self-policing is itself actionable in a court.
Id. at 744 (internal quotations omitted). As such, the court concluded that the
disciplinary action taken by the defendant board members against one of their
own members was legislative in nature and, thus, protected by absolute immunity.
Id.
Wilson, 2011 WL 1431410, at *4-5 (emphasis added).
This Court is persuaded by the Fourth Circuits reasoning in Whitener and the Eastern
District of Texas analysis in Wilson. In both of those cases, the plaintiffs were elected board
11
members who were affected by the boards self-policing activities. The plaintiff in Bryan, on
the other hand, was a real estate developer who did not serve on any legislative body with the
defendants. Here, similar to the plaintiffs in Whitener and Wilson, Plaintiffs sue their fellow
elected board members for voting to censure them during board meetings, allegedly in retaliation
for their speech.7 To the extent Plaintiffs allege that the Trustee-Defendants ratified certain
alleged unconstitutional conduct of Escobedo and Salazar by voting with the majority, this Court
finds that the Trustee-Defendants are absolutely immune from their actions in voting. Further, to
the extent that the Board (primarily through Escobedo) promulgated certain rules or policies that
applied generally to everyone but that Plaintiffs allege had the effect of restricting their speech,
Defendants are absolutely immune from any allegations related to those actions. Establishment
of a general policy is clearly a legislative action. Bryan, 213 F.3d at 273. Although Plaintiffs
allege that Escobedo set certain policies with the goal of silencing Plaintiffs, the Court does not
consider individual motive or subjective intent in classifying an activity as legislative or not.
Bogan, 523 U.S. at 54. Lastly, any allegations complaining of the multiple alleged censures of
Plaintiffs for speech activities in which they engaged is subject to absolute immunity. See
Wilson, 2011 WL 1431410, at *4-5 (citing Whitener, 112 F.3d at 744).
C. Federal Law Causes of Action
i. First Amendment Claims: Retaliation, Prior Restraint, and
Violations of Rights to Speech and Association
Plaintiffs bring their action under 42 U.S.C. 1983 alleging that Defendants publicly
censured and censored them in violation of and in retaliation for Plaintiffs exercise of their First
7
Although Plaintiffs allege that censorship of them was put on the agenda for one board meeting, they note that
the Board had confused the spelling of censure and censor and that what actually occurred was a censure.
Neither the in-fighting nor the spelling bodes well for BISD students. Regardless, any claim by Plaintiffs that they
were threatened with censorship or were actually censored is contradicted by their own pleadings.
12
Amendment rights. They allege that Defendants conduct has damaged the dignity and stature of
their office as well as their liberty interest in the same and has imposed a chilling effect on the
exercise of free speech and association guaranteed to them and their constituency by the First
Amendment. According to Plaintiffs, Defendants continuously silenced and prohibited them
from speaking during Board meetings and censured and threatened them with removal from
office and criminal action, in order to chill their persistent speech against what they perceived
as violations of policy and other questionable, unethical, and unlawful conduct by Defendants.
Plaintiffs allege that Defendants actions in changing existing Board policies, disallowing
discussion and comment, disallowing debate, censuring Plaintiffs, and threatening Plaintiffs with
removal or criminal action constitute policies of BISD that caused their rights to be violated.
According to Plaintiff Garcia, she lost her job as a result of the practices and policies of the
Defendants.8
Relying on the public employee retaliation law stemming from the Supreme Courts
opinion in Garcetti v. Ceballos, 547 U.S. 410 (2006), BISD and the Trustee-Defendants argue
that Plaintiffs did not engage in protected speech activity as private citizens on matters of public
concern but, rather, acted as Trustees of the Board at all relevant times, and, as such, their speech
was not entitled to protected status. In addition, all Defendants (including Salazar) contend that
either absolute legislative immunity or qualified immunity shields them from liability. BISD
further argues that municipal liability is not available because the facts do not supportand
Plaintiffs fail to allegethe existence of any policy, custom, or practice which caused the
alleged constitutional violations.
8
It is unclear which job Garcia allegedly lost, but, given this vague assertion, the Court assumes she does not refer
to her position as a Trustee. As for Longoria, there is no assertion that she was demoted, discharged, terminated, or
otherwise suffered an adverse action typically involved with First Amendment retaliation claims against employers.
13
The Supreme Court has long held that [t]he First Amendment protects a public
employees right, in certain circumstances, to speak as a citizen on matters of public concern.
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Nevertheless, when 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. Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (quoting Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006)). The Fifth Circuit has held that before 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 part of [her] public job. Davis, 518 F.3d at 312 (quoting
Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir. 2006)). Even if the speech at issue is
of great public or social importance, it is not protected by the First Amendment if it was made
pursuant to an employees official duties. See Garcetti, 547 U.S. at 421-22.
To establish a First Amendment retaliation claim under 42 U.S.C. 1983 against a public
employer, an employee must prove: (1) that she suffered an adverse employment action; (2) that
she spoke as a private citizen (as opposed to speaking in her official capacity as a public
employee) on a matter of public concern; (3) that the plaintiffs interest in the speech on a matter
of public concern outweighed the government-employers interest in the efficient provision of
public services; and (4) that the speech motivated the adverse employment action. See Modica v.
Taylor, 465 F.3d 174, 179-80 (5th Cir. 2006).9 In their Rule 12(b)(6) Motion, the Trustee-
Defendants argue that Plaintiffs have failed to plead factsbeyond conclusory allegations
regarding the third and fourth elements and that the facts pled concerning the first element are
9
To prevail on their retaliation claim against BISD, Plaintiffs must establish that (1) they were engaged in a
protected activity, (2) they suffered adverse employment actions, (3) there was a causal connection between the two,
and (4) the execution of a policy, custom, or practice of BISD caused the adverse action. Sharp v. City of Houston,
164 F.3d 923 (5th Cir. 1999).
14
legally insufficient to state a claim upon which relief may be granted. As to the second element,
while they do not dispute that Plaintiffs spoke on matters of public concern, they argue that
Plaintiffs speech is nonetheless unprotected because at all relevant times they spoke in their
capacities as Trustees of the Board and pursuant to their official job duties.10 Defendants
specifically cite to Plaintiffs own allegations, which they contend demonstrate Plaintiffs were
fulfilling their duties as Trustees by engaging in the speech activity at issue.11
(a) First Amendment Protection of Elected Officials
Before getting to the determination of whether Plaintiffs have sufficiently made out a
claim under 1983 for First Amendment retaliation, the Court must address and decide the
preliminary issue raised by the parties: the degree of First Amendment protection conferred on
elected officials who allege they were retaliated against by their peers for engaging in speech
activity in the course of performing their official duties in school board meetings. As described
above, it is BISDs and the Trustee-Defendants argument that Plaintiffs should be treated like
public employees whose speech is afforded less First Amendment protection than that of private
citizens, under the law established in Garcetti v. Ceballos. In response, Plaintiffs attempt to
draw a distinction between a non-elected public employee who earns a salary from the
government and an elected public official who does not, arguing that, as elected officials, they
are afforded the same protections as private citizens and are thus not subject to the same
limitations as Garcetti set out for public employees.
10
BISD and the Trustee-Defendants attempted to expressly reserve the ability to argue that Plaintiffs were not
speaking on matters of public concern and thus do not want to waive that argument by their concession with regard
to this Court considering the motions to dismiss.
11
Defendants point to specific paragraphs of the Complaint where they argue Plaintiffs have conceded that the
speech at issue was made in their capacities as Trustees. For instance, Plaintiffs complain that the suppression of
their speech activities interfere[d] with [their] duties and responsibilities in the[ir] capacit[ies] as public
officer[s] entrusted with governing and overseeing the management of the District. [Doc. No. 33 69].
15
Defendants, alternatively, argue that the law on this issue was not clearly established at
the time of the alleged deprivations of Plaintiffs rights, and, thus, Defendants are entitled to
qualified immunity on Plaintiffs First Amendment claims. As explained immediately below,
this Court agrees and concludes that Plaintiffs First Amendment rights (i.e., the First
Amendment protection afforded Plaintiffs as elected officials) were not sufficiently defined at
the time of the alleged violations.
(b) Qualified Immunity
Under Supreme Court precedent, a two-step analysis governs whether an official is
entitled to qualified immunity: first, whether the facts alleged by Plaintiffs demonstrate the
violation of a constitutional right and, second, whether the right at issue was clearly established
at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). In conducting
a qualified immunity analysis, courts are free to address the two prongs in either order. Pearson
v. Callahan, 555 U.S. 223, 236 (2009). This Court concludes that the law at issue here was not
clearly established, and, thus, it begins with the second prong.
A Government official's conduct violates clearly established law when, at the time of the
challenged conduct, [t]he contours of [a] right [are] sufficiently clear that every reasonable
official would have understood that what he is doing violates that right. Ashcroft v. alKidd,
131 S. Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
Supreme Court recently emphasized that [w]e do not require a case directly on point before
concluding that the law is clearly established, but existing precedent must have placed the
statutory or constitutional question beyond debate. Stanton v. Sims, 134 S. Ct. 3, 5, (2013)
(quoting alKidd, 131 S. Ct. at 2083) (emphasis added).
16
(c) It was not Clearly Established That an Elected Officials Speech is
Entitled to Full Protection Under the First Amendment
As explained above, for a law to be clearly established, the law, as it existed at the time
of the alleged constitutional violations, must so clearly and unambiguously prohibit an officials
conduct that every reasonable official would have understood that what he is doing violates that
right.12 Cutler v. Stephen F. Austin St. Univ., 767 F.3d 462, 471 (5th Cir. 2014) (quoting al-
Kidd, 131 S. Ct. at 2083). What is crucial is that the Defendants had fair warning. Id.
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).13 As laid out below, the law at the time of
the alleged violations by Defendants in this case was far from clear on whether elected officials,
post-Garcetti, possess First Amendment protection that is more akin to that possessed by private
citizens or public employees.
In Garcetti, a non-elected public employeea deputy district attorneybrought a First
Amendment retaliation claim against the county and his supervisors. In his capacity as deputy
district attorney, he had prepared a memorandum to his supervisors addressing concerns he had
about possible government misconductspecifically, inaccuracies in an affidavit supporting a
warrant. The memo recommended against prosecuting the case. See Garcetti, 547 U.S. at 413-
14. Based on the plaintiffs statements, a meeting was held with plaintiff and his supervisors, as
well as the warrant affiant and other employees from the sheriffs office, to discuss the affidavit.
During the meeting, discussions became heated and one lieutenant allegedly sharply criticized
12
The relevant time period for which the Court considers whether the law was clearly established in this case is
from approximately July 20, 2011 to January 20, 2014. [Doc. No. 33 at 5, 27].
13
Interestingly, Plaintiffs themselves allege that Defendants (without specifying which ones) told Plaintiffs that
they gave up their Constitutional rights when they were elected to office. [Doc. No. 33 at 4; see also id. at 18
([Plaintiff] was told by Salazar that she gave up her rights when she was elected to office.)]. While the qualified
immunity test asks whether the hypothetical, reasonable official would have understood that what he was doing
violated a plaintiffs rights, Plaintiffs allegations also indicate that at least some of these defendants certainly did
not believe they were violating Plaintiffs rights.
17
the plaintiff for his handling of the case. Id. at 414. Prosecution of the case was carried forward,
in which the plaintiff was called by the defense attorney and described his observations about the
affidavit. The plaintiff alleged that he was then subjected to a series of retaliatory actions in
response to his speech activities. Specifically, he claimed that he was re-assigned to another
position, transferred to another courthouse, and denied a promotion. Id. at 415.
The Supreme Court held that Ceballos speech was not protected under the First
Amendment because it was made pursuant to his official duties, specifically in fulfillment of his
obligation to counsel supervisors on how best to proceed with pending cases. Id. at 421-23. The
Court distinguished between a public employee like Ceballos and a private citizen who speaks
on behalf of herself. It concluded that restrictions on the speech of public employees were
permissible because when a citizen enters government service, the citizen must accept certain
limitations on his or her freedom. Id. at 418. Additionally, [e]mployers have heightened
interests in controlling speech made by an employee in his or her professional capacity. Official
communications have official consequences, creating a need for substantive consistency and
clarity. Id. at 422. As noted by the Court, some limitations on employees speech were
necessary because [s]upervisors must ensure that their employees official communications are
accurate, demonstrate sound judgment, and promote the employers mission. Id. at 422-23.
Restrictions on a public employees speech are not unconstitutional because it simply reflects
the exercise of employer control over what the employer itself has commissioned or created.
Id. at 422. Even so, public employees do not surrender all their First Amendment rights by
reason of their employment. Rather, the First Amendment protects a public employees right, in
certain circumstances, to speak as a citizen addressing matters of public concern . . . . So long as
employees are speaking as citizens about matters of public concern, they must face only those
18
speech restrictions that are necessary for their employers to operate efficiently and effectively.
Id. at 417, 419.
Since the Supreme Courts ruling in Garcetti, there has been substantial disagreement
amongst both circuit and district courts concerning whether elected officials speech is entitled to
the First Amendment protection afforded private citizens or that afforded public employees. On
the one hand, elected officials speaking in their capacities as such owe the existence of their
speech to their professional responsibilitiesthe Garcetti Court emphasized repeatedly that the
controlling factor in that case was that the speech was made pursuant to [the plaintiffs] duties
as a calendar deputy and that the significant point was that the memorandum at issue was
written pursuant to [the plaintiffs] official duties. Id. at 421-22 (Restricting speech that owes
its existence to a public employees professional responsibilities does not infringe any liberties
the employee might have enjoyed as a private citizen.). On the other hand, an elected officials
speech is not controlled or created in the same manner in which a public employer controls
the speech of his employee. Further, members of legislative bodies are presumably intended to
have differing opinions and viewpoints and are thus not expected to speak with one voice but to
represent their constituencies. See Werkheiser v. Pocono Tp., 780 F.3d 172, 178-179 (3d Cir.
2015) (reviewing in detail the competing justifications for applying Garcetti to the speech of an
elected official). Further, and as noted by the Third and Ninth Circuits, when an elected official
brings a retaliation action against another elected official, like Plaintiffs have in this case, there
are competing First Amendment rights involved. Id. at 178 (Appellants may well have been
exercising a competing First Amendment right to make a political statement by removing [the
plaintiff].). While an elected official may have the right to criticize other officials for their
votes, the elected officials he is criticizing had the corresponding right to replace [him] with
19
someone who, in their view, represented the majority view. Id. (quoting Blair v. Bethel Sch.
Dist., 608 F.3d 540, 545 (9th Cir. 2010)).
In Werkheiser, an elected official who served on a townships board of supervisors
asserted that his fellow board members retaliated against him for objecting to certain positions
and actions taken by the board majority. The defendants filed a motion to dismiss, asserting,
among other things, that they were entitled to qualified immunity. According to defendants,
because the plaintiffs speech concerning Township resources and payments was made in his
official capacity as an elected representative of the Township, Garcetti applied, and his speech
was not protected by the First Amendment. Thus, as per the defendants argument, he was
unable to show any violation of his constitutional rights under the first prong of qualified
immunity. The district court agreed with the plaintiff that Garcetti did not apply to his speech as
an elected official and that, as an elected official, his speech was entitled to First Amendment
protection not granted public employees. It ultimately concluded that the plaintiff had
established a constitutional violation. On appeal, the Third Circuit was asked to decide the issue
of whether elected officials are entitled to qualified immunity when they retaliate against a
fellow official by denying him reappointment to a non-elected position because of comments he
made in his capacity as an elected official. Id. at 174.
As this Court does here, the Third Circuit began with the second prong of the qualified
immunity analysis. Vacating the district courts ruling, the Court concluded that the contours of
the First Amendment right at issue were not clearly established, and thus defendants were
entitled to qualified immunity on the First Amendment retaliation claim. Id. After a thorough
review of the justifications for differentiating the speech of an elected official and a public
employee and recognizing the sound reasons for not applying Garcetti to elected officials
20
speech, the Third Circuit ultimately found that it was nonetheless not beyond debate that such
was clearly established law at the time of the adverse action taken against plaintiff. Id. at 179.14
Before the Third Circuits opinion vacating the district courts ruling in Werkheiser, the
Middle District of Pennsylvania, in 2013, found persuasive the Werkheiser district courts
conclusion that Garcetti did not apply to elected officials and held that the plaintiff therean
elected officialwas not a government employee in the traditional sense and thus not subject
to the limited First Amendment protection under Garcetti. Willson v. Yerke, 2013 WL 6835405,
No. 3:10-cv-1376 (M.D. Penn. Dec. 23, 2013). The plaintiff in that case, Willson, was an
elected member of a Townships Board of Supervisors who had complained to the Board as well
as to sources outside the Board (including an ethics commission and the district attorneys office)
about certain actions taken by another Board member. Willson alleged that in retaliation for his
complaints, he was, among other things, denied access to the Township solicitor, brought up on
charges by a Township employee, and subjected to personal harassment by the board member
who was the subject of Willsons complaints. The Yerke court reasoned that Garcetti did not
apply because, unlike the plaintiff in Garcetti, Willson was an elected public official who was
not reporting up the chain of command and did not possess a traditional employer-employee
relationship with the defendant; rather, they were peers on a public board. Id. at *9.
The Yerke court acknowledged that, in so holding, it disagreed with various cases cited
by the defendants, including: Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606, 615
(W.D. Mich. 2009) (As a board member, Plaintiff Shields may not technically have been an
14
While the Werkheiser opinion was decided after the relevant time periods alleged in this action, the Court finds
the Third Circuits qualified immunity discussion nonetheless instructive, especially to the extent that it provides a
thorough outline of the unsettled nature of the law in district and circuit courts after Garcetti. This Court has
reviewed the same cases reviewed in Werkheiser and, as evidenced by the following discussion on the competing
conclusions reached by federal courts around the country, the Court agrees with the Third Circuit that the law was
not clearly established at the time of the alleged actions taken against Longoria and Garcia.
21
employee of the Township, but he surely was a representative of the Township, and the concerns
underlying Garcetti apply with equal force to his situation.); Hartman v. Register, No. 06CV
33, 2007 WL 915193, at *6 (S.D. Ohio Mar. 26, 2007) (The distinction between the public
employee in Garcetti and an elected official in this case, Plaintiff, is inconsequential.); and
Hogan v. Twp. of Haddon, No. 042036, 2006 WL 3490353, at *6 (D. N.J. Dec. 1, 2006)
(finding the plaintiff's speech was made in her capacity as a Township commissioner (and not a
private citizen)). Id. at *9, n.7. (The Hogan court found that the defendant was entitled to
qualified immunity on plaintiffs First Amendment claim because it concluded that Garcetti
applied to elected officials speech and speech made in the plaintiffs capacity as an elected
official was thus not afforded First Amendment protection.15)
Not mentioned by the Yerke court are the following cases that add even more uncertainty:
Zimmerlink v. Zapotosky, No. 10237, 2011 U.S. Dist. LEXIS 53186, at *6-7, 8-11 (W.D. Pa.
Apr. 11, 2011) (denying the defendants' motion to dismiss because governmental interest in
regulating speech of public employees to promote efficient operations does not apply to speech
of an elected official); Carson v. Vernon Twp., No. 096126, 2010 WL 2985849, at *14 (D.
N.J. July 21, 2010) (denying a motion to dismiss plaintiffs claim of deprivation of free speech,
at least in part, because the elected official's political expression on township matters was
unquestionably protected under the First Amendment). See Werkheiser, 780 F.3d at 178
(citing Zimmerlink and Carson).
The law in this Circuit is equally unclear. While there have been multiple Fifth Circuit
opinions applying Garcetti to cases in which non-elected public employees were retaliated
against, to this Courts knowledge the only occasion since Garcetti in which the Fifth Circuit
15
The district courts opinion in Hogan was affirmed by the Third Circuit in 2008, but on other grounds. See 278
Fed. Appx 98 (3d Cir. 2008).
22
addressed the First Amendment rights of an elected official post-Garcetti was in Rangra v.
Brown, 566 F.3d 515 (5th Cir. 2009). There, however, the Fifth Circuit dealt with a different
issue altogether: whether elected city council members could bring a 1983 action against the
state attorney general and district attorney challenging certain criminal provisions of TOMA.
The district court in Rangra had concluded that elected officials speech made pursuant to their
official duties was unprotected by the First Amendment under the precedent established in
Garcetti. A panel of the Fifth Circuit disagreed:
Job-related speech by public employees is clearly less protected than other speech
because the Court has held that government employees' speech rights must be
balanced with the government's need to supervise and discipline subordinates for
efficient operations. The First Amendment does not protect government
employees' job-related speech unless the speech is about a matter of public
concern, and even then, a government employee may be fired or disciplined for
her speech if the government employer can show, on balance, that the efficient
operation of the office justified the action. But when the state acts as a sovereign,
rather than as an employer, its power to limit First Amendment freedoms is much
more attenuated. That is because a state's interest in regulating speech as
sovereign is relatively subordinate ... [as] [t]he government cannot restrict the
speech of the public at large just in the name of efficiency. Garcetti itself, like
the Court's other public employee speech cases, recognizes the state's very limited
power as sovereign to infringe on First Amendment freedoms. None of the
Supreme Court's public employee speech decisions qualifies or limits the First
Amendment's protection of elected government officials' speech. Contrary to the
district court's reasoning, there is a meaningful distinction between the First
Amendment's protection of public employees' speech and other speech, including
that of elected government officials.
Id. at 522-24. The panel noted that [w]hile Garcetti added a new qualification of public
employees' freedom of expression recognized by the Court's long line of cases concerning public
employee speech rights, it did nothing to diminish the First Amendment protection of speech
restricted by the government acting as a sovereign rather than as an employer and did nothing to
impact the speech rights of elected officials whose speech rights are not subject to employer
supervision or discipline. Id. at 523 n.23.
23
Based on the very different factual scenario and legal allegations involved in Rangra
(which did not involve parties exercising or even possessing competing First Amendment rights),
this Court cannot conclude that it is controlling precedent on the specific issue of whether an
elected official alleging retaliation by his peers (i.e., other elected officials who have exercised
competing freedom of speech rights) is entitled to the same First Amendment protection afforded
private citizens. In any event, despite the panels seemingly clear stance on the general issue of
elected officials freedom of speech rights, this holding was effectively vacated by the Fifth
Circuit who reheard the case en banc. The Third Circuit, in the course of concluding that the law
was not clearly established on this issue, described the result of the Fifth Circuits actions in
Rangra as follows: the continuing viability of the panels decision in Rangra is . . . somewhat in
doubt. Following the publication of its decision, the Fifth Circuit reheard the case en banc, and,
in a one sentence opinion devoid of any analysis, simply ordered the case dismissed as moot. See
Rangra v. Brown, 584 F.3d 206, 207 (5th Cir. 2009). Werkheisner, 780 F.3d at 180. Indeed,
the judge who authored the panel opinion in Rangra was the sole dissenter in the en banc
opinion.
Thus, the contours of the First Amendment rights bestowed upon elected officials who
allege they were retaliated against by their fellow officials is far from clear in this Circuit. See
Ashcroft v. al-Kidd, 131 S. Ct. at 2083 (A Government officials conduct violates clearly
established law when, at the time of the challenged conduct, [t]he contours of [a] right [are]
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.) (citations omitted). To this Courts knowledge, the only other Circuit court
to opine on the issue was the Eighth Circuit in Parks v. City of Horseshoe Bend, 480 F.3d 837
(8th Cir. 2007). There, in a footnote, also devoid of further analysis, the Court stated that under
24
Garcetti . . . , Parks [an elected official] speech would not be protected under the First
Amendment if it was made in the course of her official duties. Id. at 840 n.4.
Based on the above-cited cases, which reach different conclusions regarding the level of
First Amendment protection afforded elected officials whose peers have retaliated against
them, this Court cannot conclude that every reasonable official would have understood that
what he is doing violates that right. Ashcroft v. al-Kidd, 131 S. Ct. at 2074. Existing precedent
certainly does not place the statutory or constitutional question beyond debate, id. at 2083, and
thus it would not have been clear to a reasonable officer that his conduct was unlawful in the
situation he confronted. Saucier, 533 U.S. at 202. Accordingly, the Court finds that, to the
extent that any of the Defendants and/or any of Defendants actions are not afforded absolute
legislative immunity as discussed above, they are entitled to qualified immunity on Plaintiffs
First Amendment claims.
(d) Plaintiffs Additionally Fail to Allege a Violation of the First Amendment
Plaintiffs also fail the first prong of the qualified immunity analysis because they fail to
demonstrate the violation of a constitutional right insofar as they do not state a claim for First
Amendment retaliation.
As an initial matter, for purposes of evaluating Plaintiffs retaliation claim, and in light of
the specific pleadings in this case, this Court, for the following reasons, treats Garcia and
Longoria as public employees.16 The Court first notes that Plaintiffs argument that they are not
employees for purposes of the First Amendment runs counter to the very nature of the cause of
16
By deeming Plaintiffs in this case public employees, this Court does not today decide as a matter of law whether
Garcetti is applicable to all elected officials speech. Rather, the Court concludes only that (a) the law was not
clearly established on this point during the relevant time period in this case, and (b) Plaintiffs own allegations in
this case and (as discussed below) their judicial admissions in Fuller constitute admissions that they should be
treated as public employees.
25
action they bring and the elements they allege as applicable in this case: those for employment
retaliation. In other words, they identify (in multiple pleadings) the four factors specifically
required for a public employee to prove a First Amendment retaliation claim against her
employer but then ask this Court not to treat them as public employees. [See Doc. No. 52 at 22
(Plaintiffs First Amendment Retaliation Claim against Defendants should not be dismissed. To
state a First Amendment retaliation claim, an employer suing his employer must establish four
elements: (1) the employee must suffer an adverse employment decision; (2) the employees
speech must involve a matter of public concern; (3) the employees interest in commenting on
matters of public concern must outweigh the defendants interest in promoting efficiency; and
(4) the employees speech must have motivated the employers the [sic] adverse action. This
case differs from cases that discuss many first [sic] Amendment retaliation issues because in this
case there is no conventional employee-employer relationship.)].17 These are not the same
elements as those required for a retaliation claim outside the employment context. For a private
citizen not employed by the government to bring a First Amendment retaliation claim against a
government official, the citizen must prove: (1) she was engaged in constitutionally protected
activity, (2) the defendants actions caused her to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) the defendants adverse
actions were substantially motivated against the plaintiffs exercise of constitutionally protected
conduct. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Nowhere do Plaintiffs identify
these elements as applicable to their cause of action in order for them to bring a retaliation claim
as private citizens.
17
See also Plaintiffs Complaint, Doc. No. 33 at 27 (In order for Plaintiffs to establish a claim for retaliation based
on exercise of their First Amendment rights, each Plaintiff herein must prove the following four elements, (1) that
she suffered an adverse action; (2) that she spoke as a private citizen (as opposed to a public employee) on a matter
of public concern; (3) that her interest in the speech outweighed the governments interest in the efficient provision
of public services; and (4) that her speech precipitated the adverse action.).
26
Similarly, within their other federal law cause of action in this case under the Fourteenth
Amendment, Plaintiffs identify themselves as employees, alleging a deprivation of their liberty
interests in their employment. [See, e.g., Doc. No. 52 at 34 (setting out the law Plaintiffs claim
applicable to their Fourteenth Amendment cause of action: A constitutional deprivation occurs
only if an employee is discharged in a manner that creates a false and defamatory impression
about him and thus stigmatizes him and forecloses him from other employment opportunities . .
. . The employee must show that the employer has made or is likely to make the allegedly
stigmatizing charges public in any official or intentional manner.)].
Furthermore, as Defendants persuasively argue, Plaintiffs attempt to avoid the label of
public employees or employees of BISD is in complete contradiction to their assertions
elsewhere. Specifically, in Fuller v. BISDanother case before this CourtPlaintiffs Garcia
and Longoria, named as defendants there, asserted that, as Trustees, they were professional
employees of BISD, deserving of immunity under Texas Law.18 Fuller v. BISD, No. 1:13-cv-
109 (S.D. Tex., filed Jun. 7, 2013) (Doc. No. 9). That law provides that members of a board of
trustees of an independent school district of the state, such as BISD, are employees of the school
district. Tex. Educ. Code 22.051(a)(5).
Plaintiffs cannot have their cake and eat it too. They cannot claim to occupy a public
employee role as a defense in other cases before this Court and then assert causes of action in
18
In the Fuller case, which is an ongoing case in this Court, Garcia and Longoria (as defendants in that case, along
with other Trustees, Dr. Montoya, and BISD) substituted counsel presumably to avoid a conflict with the current
action. Despite having new counsel, BISD thereafter filed a Motion to Dismiss All State Law Claims Against
Individual Defendants, arguing that all Trusteesincluding Garcia and Longoriaand the Superintendent must be
dismissed because they are employees of the district. Under Texas law, when a plaintiff sues a school district and
its employees for claims arising out of a common nucleus of fact, the action must be dismissed against the
employees. [See No. 1:13-cv-109, Doc. No. 58 at 3 (Plaintiffs own allegations establish the employee status of
Catalina Presas Garcia, Lucy Longoria . . . .)]. In the Certificate of Conference, BISDs counsel certifies that he
conferred with counsel for Plaintiff Fuller and Co-Defendants Lucy Longoria and Catalina Presas Garcia, and the
latter are unopposed to the relief sought by way of this motion. [Id. at 4].
27
this case that are only available to private employees who have been retaliated against for
exercising their First Amendment rights and those whose liberty interests in their employment
have been violated. Thus, based on Plaintiffs judicial admissions to being employees of BISD
in Fuller and on the law they claim applicable in this case, this Court finds that Plaintiffs First
Amendment retaliation claim is subject to the law governing public employees, as set out in
Garcetti.
(e) Plaintiffs Speech is Not Protected Under Garcetti
Nevertheless, even as public employees, Plaintiffs speech may still be deserving of First
Amendment protection if and when they were speaking on matters of public concern outside
their roles as Trustees pursuing their official job duties. Under the precedent established by the
Supreme Court, although public employees do not enjoy full First Amendment protection, they
are protected to the extent they speak as private citizens.
Plaintiffs allege that their speech and actions in questioning the Majoritys decisions
were made as Trustees and as private citizens and concerned matters of immediate and public
concern. [See, e.g., Doc. No. 33 at 4, 9, 18-19]. There is little doubt that Plaintiffs were
speaking on matters of public concern. See Rendon v. Brownsville Indep. Sch. Dist., No. 1:10-
cv-198, Doc. No. 75 at 15 (S.D. Tex. Aug. 17, 2011) (Matters of public concern are those which
can be fairly considered as relating to any matter of political, social, or other concern to the
community . . . . Proper operation of a major division of a large school district would certainly
qualify.) (quoting Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004)). Nevertheless, the face
of the Complaint itself reveals that, with the exception of one area, every allegation of speech
activity involved speech made pursuant to [their] duties as Trustees. Garcetti, 547 U.S. at 421
(The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties
28
as a calendar deputy.). Plaintiffs do not identify any instances of speech made outside the
context of official board meetings (with the exception of their filings with the Texas Education
Agency, the Attorney General, the Texas Rangers, and the District Attorney, which are discussed
below). Rather, the remaining instances of speech at issue were made in the course of
performing what they were elected to do: speak on matters concerning BISD in Board meetings
with their fellow trustees. See Wetherbe v. Smith, 593 Fed. Appx 323, 327 (5th Cir. 2014) (A
government employee cannot claim the protection of the First Amendment to set his own job
conditions . . . . Restricting speech that owes its existence to a public employees professional
responsibilities does not infringe any liberties the employee might have enjoyed as a private
citizen.) (quoting Garcetti, 547 U.S. at 421-22).
Plaintiffs themselves provide the District Policy BE definition of a Board meeting: a
gathering in which board members receive information from, give information to, ask questions
of, or receive questions from any third person, including an employee of the district, about the
public business or public policy over which the Board has supervision or control. [Doc. No. 33
at 10]. With the exception of one allegation as described below, this is precisely what occurred
in every instance of speech cited by Plaintiffs in their Complaint. The Fifth Circuit has
previously found that when a public employees speech was made externally and concerned
matters entirely unrelated to his job and from a perspective that did not depend on his job as a
[public] employee, the employees speech is protected under the First Amendment. Cutler v.
Stephen F. Austin State Univ., 767 F.3d 462, 473 (5th Cir. 2014). Here, Plaintiffs speech was
made internally during official Board meetings and concerned matters that were intimately
29
related to their jobs and duties as Trustees.19 Tellingly, Plaintiffs concede in their response to
Defendants Motion to Dismiss that the speech activity in which they engaged was pursuant to
their official duties: [i]n so silencing Plaintiffs, Defendants violated Plaintiffs rights, and
perhaps duties, to bring these matters of public concern to the publics attention. [Doc. No. 37
at 14 (emphasis added)].20 This Court finds that Plaintiffs speech made during Board meetings
constitutes activities undertaken in the course of performing [their] job[s] and is thus not
protected. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007). Just like the
plaintiff in Garcetti, Plaintiffs speech owe[d] its existence to [their] professional
responsibilities as Trustees and, thus, any restrictions on their speech did not deprive them of
rights or liberties they might have enjoyed as . . . private citizen[s]. Garcetti, 547 U.S. at 422-23.
With that said, the Court finds the only plausible allegation of protected speech to be
Plaintiffs communications with certain authorities outside of BISD or the Board. [See Doc. No.
33, para. 41]. Plaintiffs allege that they filed complaints with the Texas Education Agency
(TEA), the Attorney General, and the Texas Rangers. The Plaintiffs, however, completely fail to
19
This Court finds that Plaintiffs claim that they tried to step into the role of a private citizen and speak to be
unavailing. They still were Board Trustees speaking on the very matters they were elected to govern. Moving from
the Board table to the lectern does not change the applicable law.
20
The Court notes that, to the extent that Plaintiffs were exercising their free speech rights, it is arguableand even
likelythat the actions taken by Defendants were also the result of an exercise of the free speech rights they
possessed. The Ninth Circuit has held that retaliation against an elected official is largely not actionable when it is
at the hands of his peers in the political arena. Werkheiser v. Pocono Tp., 780 F.3d 172, 181 (3d Cir. 2015) (citing
Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). In Blair and Werkheiser, the elected official plaintiffs,
although still serving on the boards, had been removed from board positions by the very people who elected [them]
to the position in the first place. Id. (citing Blair, 608 F.3d at 544). Such adverse action was not actionable.
Likewise, in this case, to the extent that Plaintiffs allege that Garcias removal from her position as Vice President
(which is mentioned briefly in passing in the Complaint) was in retaliation for speech activity, the Court does not
find that to be actionable retaliation. She was not removed from the Board itself but only from a position on the
Board by the very people who appointed or elected her there in the first place. The Ninth Circuit in Blair noted that,
absent the Board removing the officials full range of rights and prerogatives that came with having been publicly
elected, a deprivation could not occur. It rejected the plaintiffs argument that the First Amendment prohibits
elected officials from voting against candidates whose speech or views they dont embrace. Experience and political
reality convince us this argument goes too far. Blair, 608 F.3d at 545. Here, Defendants voting and seconding of
motions made by Board President Escobedo (not a defendant) do not constitute a deprivation of Plaintiffs rights.
30
allege anything about the substance of these complaints, including whether they involved
matters of public concern as required for a public employees speech to be protected. See
Juarez v. BISD, No. 1:09-cv-14 (S.D. Tex. Apr. 23, 2010) (citing Foley v. Univ. of Houston Sys.,
355 F.3d 333, 342 (5th Cir. 2003)). The same paragraph states that Luci also met with Luis
Saenz, the District Attorney, to express her concerns about what was occurring in the District.
While this is perhaps somewhat more specific regarding the substance of the speech occurring
outside of Board meetings, it still fails to sufficiently identify what those concerns were.
Indeed, it does not even allege that the concerns were directed toward the Board itself but, rather,
toward the entire school district. This could encompass a number of different concerns wholly
unrelated to the concerns Plaintiffs allegedly expressed during Board meetings for which they
were allegedly retaliated against.21
Even if the allegations regarding speech made to outside authorities were sufficiently
pleaded, Plaintiffs utterly fail to connect this speech to the alleged retaliation committed by
Defendants. To allege a retaliation claim, Plaintiffs must show that the speech activity at issue
was the actual cause of any alleged adverse employment action. See Beattie v. Madison Cty.
Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001). This requires that the defendant have actual
knowledge of the speech activity prior to the adverse employment action. Garcia v. City of
Harlingen, 2009 WL 159583, at *6 (S.D. Tex. Jan. 21, 2009) (citing Beattie, 254 F.3d at 603-04
(If there is no evidence that the [defendants] knew of the protected activity, [the plaintiff]
21
Moreover, even if the Court were to assume that those concerns involved the same subject matter of speech
alleged elsewhere in the Complaint (for which Plaintiffs claim they were retaliated against), their speech to outside
authorities would still not be protected because, although made externally, it is still speech intimately connected to
[Plaintiffs] jobs as Trustees of BISD. See Rendon, No. 1:10-cv-198, Doc. No. 75 at 15 (That he asked for
changes that were not made, raised issues which might ultimately be of concern to the public, and reported these
kinds of issues to third parties (including law enforcement agencies) does not change the fact that this speech was
intimately connected with his job as Administrator of Special Services.).
31
cannot show that the activity motivated retaliatory behavior.)). In Juarez v. BISD, this Court
denied Defendants motion for a summary judgment on plaintiffs claim that BISD Trustees had
retaliated against him for exercising his First Amendment rights when they chose not to renew
his contract because plaintiff had described in detail his report to the FBI about matters of public
concern (specifically, wrongdoing and corruption of public officials); he averred that he had told
the trustee-defendants of such report at a board meeting; and, further, he swore that after he
informed them of his report to the FBI of their criminal and unlawful acts, his contract was not
renewed. Juarez v. BISD, No. 1:09-CV-14 (S.D. Tex. Apr. 23, 2010) (Doc. No. 66).
In stark contrast to Juarez, Plaintiffs here fail to allege that any of the Defendants knew
of their alleged complaints to outside authorities. Plaintiffs fail to allege that the only potentially
protected speech activity in which they allegedly engaged triggered any actionable adverse
action against them. In sum, they have not alleged facts that, if proven, would support an
essential element of a retaliation claim based on their protected speech activities.
(f) Plaintiffs Fail to Allege That Their Interest in the Speech Outweighed
Defendants Interest in Promoting Efficiency
A public employee bringing a First Amendment retaliation claim must allege, as one of
the key elements, that her interest in the speech on a matter of public concern outweighed the
government employers interest in the efficient provision of public services. See Modica, 465
F.3d at 179-80. The Fifth Circuit has noted that [i]n some cases, the balancing of rights
required by the First Amendmenteither to determine what constitutes protected speech or to
balance, e.g., the public employees rights against those of the employerstrongly favors
qualified immunity. Keenan v. Tejeda, 290 F.3d 252, 262 n.7 (5th Cir. 2002) (citations
omitted). Nowhere do Plaintiffs allege that they had an interest greater than that of the Board or
32
BISD when they engaged in the speech activity alleged. Their First Amendment cause of action
is thus insufficiently pleaded under Rule 8(a), and it fails to allege a constitutional deprivation as
required to survive the first prong of qualified immunity and a Rule 12(b)(6) motion to dismiss.
(g) Other Pleading Deficiencies With the First Amendment Claims
Even if Plaintiffs were speaking on matters of public concern outside of their official job
duties as Trustees (and thus hypothetically their speech was entitled to First Amendment
protection), Plaintiffs have failed to plead a cause of action against the Trustee Defendants.
Assuming, arguendo, that the alleged retaliatory actions taken against Plaintiffs were sufficient
to constitute actual employment retaliation, every alleged retaliatory action taken against
Plaintiffs was at the hands of the then-Board President, Escobedo (and to some extent, Salazar).
[See, e.g., Doc. No 33 at 12 ([Escobedo] stated they were excluded from participating in these
committees, [sic] because they always asked questions during the meetings, thus delaying the
process to vote.)]. Plaintiffs have woefully failed to plead how any actions taken by the
Defendants sued in this action constituted employment retaliation that was motivated by
Plaintiffs speech. They simply have not pleaded enough facts (other than asserting conclusory
statements that Defendants ratified Escobedos behavior by voting or seconding motionsi.e.,
exercising their own First Amendment rights) to make out claims against any of the Defendants
actually sued in this case. To the extent that Plaintiffs argue that ratification of others violations
of their First Amendment rights is a viable cause of action, the Complaint is deficient in alleging
how or when or who ratified what conduct. Moreover, in other places, it is clear that, despite
Plaintiffs insistence that Defendants conspired with Escobedo to violate their rights by voting as
a majority against them, the Board majority did not always vote with Escobedo. [See, e.g., Doc.
No. 33 at 21].
33
(h) Conclusion as to First Amendment Claims
This Court concludes that Plaintiffs have failed to adequately allege a deprivation of their
First Amendment rights and, as such, the First Amendment claims must be dismissed against all
Defendants. The Court additionally finds that the law as to what First Amendment protection
elected officials are afforded was not clearly established at the time of the alleged violations such
that every reasonable official would have understood that they were violating the rights of the
Plaintiffs. Thus, even if Plaintiffs had properly alleged a violation of their constitutional rights,
Defendants are entitled to qualified immunity on Plaintiffs First Amendment claims.
ii. Fifth and Fourteenth Amendments Claims
Plaintiffs claim that Defendants false accusations of criminal acts and the subsequent
lack of any meaningful hearing provided to Plaintiffs to clear their names constitutes a
deprivation of Plaintiffs right to liberty without due process, in violation of the Fifth and
Fourteenth Amendments. According to Plaintiffs, during a closed session of the Board,
Defendant Salazar accused Plaintiff Garcia of violating the Texas Open Meetings Act for an e-
mail she had sent to a BISD staff member. [Doc. No. 33 at 21]. Plaintiffs allege that Salazar
then told the Board that it should file criminal charges against Garcia and that she would go to
jail for violating the law. [Id.]. Claiming that the Board Majority had clearly met before the
closed session and conspired to silence and intimidate Longoria and Garcia, Plaintiffs assert that
Defendant Pena quickly looked at the e-mail at issue, responding [o]h yes. This is definitely
criminal. [Id.]. Likewise, Defendant Lopez allegedly looked at it, agreeing that criminal
charges should be brought against Garcia. [Id.]. Plaintiffs note that there was never a posting on
the agenda that the Board intended to vote on pressing formal charges against Garcia. [Id.].
34
Plaintiff Garcia alleges that she lost her job as a result of the practices and policies engaged in
by Defendants. [Id. at 28]. No Board action was apparently ever taken.
The Supreme Court and Fifth Circuit recognize that in some cases there may be
constitutional due process requirements (i.e. notice and opportunity to be heard) when an
employee is dismissed from government employment. See Perry v. Sindermann, 408 U.S. 593
(1972); Bd. of Regents of St. Colleges v. Roth, 408 U.S. 564, 573 (1972); Wells v. Hico Indep.
Sch. Dist., 736 F.2d 243 (5th Cir. 1984). Before the procedural requirements of notice and
opportunity to be heard arise, however, Plaintiffs must first demonstrate a deprivation of liberty
or property as set forth in the Fourteenth Amendment. Hughes v. City of Garland, 204 F.3d 223
(5th Cir. 2000) (citing Perry v. Sindermann, 408 U.S. 593 (1972); Wells, 736 F.2d at 251; Moore
v. Mississippi Valley St. Univ., 871 F.2d 545, 548 (5th Cir. 1989) (discussing the threshold
requirement that the plaintiff demonstrate either a liberty or a property interest in her public
employment)). In this case, Plaintiffs allege only a liberty interest in their employment; there is
no allegation that they had any property interest in their positions as Trustees. Thus, this Court
focuses only on precedent recognizing individual liberty interests in public employment.
In White v. Thomas, 660 F.2d 680 (5th Cir. 1981), the Fifth Circuit explained that a
constitutional deprivation of the right to liberty occurs only if an employee is discharged in a
manner that creates a false and defamatory impression about him and thus stigmatizes him and
forecloses him from other employment opportunities. [See Doc. No. 52 at 34 (Pl. Resp.)
(acknowledging and quoting the Courts holding in White v. Thomas)]. The circumstances in
which this right has been recognized are narrow: the employee must show that the employer has
made or is likely to make the allegedly stigmatizing charges public in any official or intentional
manner. Ortwein v. Mackey, 511 F.2d 696, 699 (5th Cir. 1975) (citations omitted). The
35
employee must allege more than merely the stigma of discharge. Hughes, 204 F.3d at 226
(citations omitted). [C]oncern about the impact of the [employees] discharge on his or her
general reputation is not, standing alone, sufficient to give rise to the required liberty interest.
Id. The Supreme Court has previously suggested that the alleged stigmatizing charges must
include allegations of dishonesty, or immorality, and must forecelose[] . . . freedom to take
advantage of other public opportunities. Roth, 408 U.S. at 573.
Based on this precedent, Plaintiffs Complaint clearly falls short of what is required to
allege a deprivation of their liberty interests. First, it is unclear why both Plaintiffs allege a
Fourteenth Amendment violation based on Defendants alleged accusations of criminal behavior
by Garcia especially since the Complaint only asserts facts pertaining to Garcia. Moreover, there
is no allegation that Plaintiff Longoria is now foreclosed from taking advantage of other public
opportunities (or even that she was discharged at allfrom any employment). Thus, the Court
finds that Plaintiff Longorias Fourteenth Amendment claim against Defendants fails to state a
claim upon which relief can be granted and is accordingly dismissed under Rule 12(b)(6).
As to Plaintiff Garcias Fourteenth Amendment challenge, she has failed to allege
fundamental elements of a 1983 liberty interest claim. For one, she does not clarify what job
she lost as a result of Defendants alleged actions. It is not even clear whether she was
discharged from any public employment, let alone discharged by any of the defendants named in
this action or discharged from serving on the Board of Trustees. As the Supreme Court and Fifth
Circuit have emphasized, [r]eputation alone is not a constitutionally protected interest . . .;
[r]eputation must be impugned in connection with the termination of employment. Rosenstein
v. City of Dallas, 876 F.2d 392, 395 n.1 (5th Cir. 1989) (citing Paul v. Davis, 424 U.S. 693
(1976); White v. Thomas, 660 F.2d 680, 684 (5th Cir.1981), cert. denied, 455 U.S. 1027 (1982)).
36
Further, Plaintiffs fail to allege that any of the Defendants made the allegedly false
charges public or that the accusations were otherwise spread to anyone outside the closed Board
meeting where they were discussed. Rosenstein, 876 F.2d at 396 (stating as a required element
of a Fourteenth Amendment liberty interest claim that the defamatory charges made upon a
plaintiffs discharge be made public or at least be likely to be made public). To the contrary, the
Complaint alleges that no formal agenda item on the topic was posted and that the Board met in a
closed session, with only the Trustees (half of whom Garcia alleges made the harmful
statements) and Salazar present.
Plaintiffs further allege that Salazar then apologized to Garcia for accusing her of
criminal acts (and for the alleged accusation that she solicited sexual favors from him, which
Plaintiffs include as part of the overall conspiracy and campaign of harassment in retaliation for
exercising their constitutional rights) and that neither the Trustee Defendants nor Salazar ever in
fact submitted any charges to the District Attorneys office. Thus, not only is there not even a
general allegation that the alleged defamatory or stigmatizing charges were made public, but
Plaintiffs factual allegations lend themselves to the very opposite conclusion: that the criminal
accusations made against Garcia were made privately amongst Board members in closed session,
the accusations (as well as the Boards intention to discuss them) were not posted on any meeting
agenda (which is presumably publicly accessible), and Garcia was thereafter approached by her
accuser with an apology and assurance that the allegations would go nowhere. Although the
Complaint attempts to allege key elements by nakedly asserting that Defendants have made or
will likely make these stigmatizing charges public in an official or intentional manner, other than
in connection with the defense of this legal action, under Rule 12(b)(6), the Court cannot
assume the veracity of legal conclusions especially those based upon suppositions that are yet to
37
happen. Moreover, in this case, the surrounding factual allegationswhich must be accepted as
true on a motion to dismissdemonstrate the opposite of Plaintiffs legal conclusions.
The Court additionally notes that even were it to find that a deprivation of Garcias
liberty interest was adequately alleged, she also fails to allege that she requested a hearing in
which to clear her name and that the request was deniedboth of which are required elements of
her Fourteenth Amendment cause of action.22 See Rosenstein, 876 F.2d at 396, n.8. Without
elaboration, Plaintiffs complain that they never received a meaningful hearing to clear their
respective names, [Doc. No. 33 at 22], yet there is no indication or allegation that they
requested one and were denied the same. As stated by the Fifth Circuit, a name-clearing
hearing is not a prerequisite to publication, and the state is not required to tender one prior to
disclosing the charges or discharging the employee . . . The state deprives an employee of a
liberty interest only when it denies his request for an opportunity to contest the charges and clear
his name. Rosenstein, 876 F.2d at 396 n.8 (citing In re Selcraig, 705 F.2d 789, 796 (5th Cir.
1983)).
This Court hereby grants Defendants Motions to Dismiss Plaintiffs Fourteenth
Amendment claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may
be granted.
22
The Court acknowledges that elsewhere in the Complaint, Plaintiffs allege that Defendants denied their attempts
to speak out against the Boards actions on certain issues, whether by silencing Plaintiffs, censuring them, cutting
them off from speaking, or by not affording [them] the opportunity to defend against certain accusations made
against them. For instance, Plaintiffs allege that Salazar stated in a Board Meeting that Garcia had solicited sexual
favors from him and that, after censuring Garcia and attempting to censure Longoria, Longoria told the public
that this was all retaliation, harassment, intimidation, and a personal vendetta against her by Salazar, after which
the Board Majority voted to table the matter until the next meeting. According to Plaintiffs, Garcia was never
afforded the opportunity to defend the unspeakable accusations flung at her during that meeting. [Doc. No. 33 at
19-20]. Nevertheless, the instances cited by Plaintiffs as examples of their attempts to speak out or defend
themselves (a) fall short of alleging that Plaintiffs requested a hearing in which to clear their names and (b) were
never made in association with the allegations of Defendants false criminal accusations against Garciathe subject
matter at issue in her Fourteenth Amendment claim.
38
D. State Law Causes of Action
i. Applicability of the Texas Tort Claims Act
BISD moves to dismiss all state law claims against the Trustee-Defendants and Salazar
(hereinafter jointly referred to as the individual Defendants) pursuant to the Texas Tort Claims
Act (TTCA). [Doc. No. 43]. Defendants correctly point out that when a plaintiff sues both a
governmental unit and any of its employees for virtually any state common law tort claim,
Tex. Civ. Prac. & Rem. Code 101.106(e) mandates dismissal of the employee-defendants if the
governmental unit so moves. See Bustos v. Martini Club, Inc., 599 F.3d 458, 463 (5th Cir. 2010)
(holding that the TTCA barred intentional tort claims against individual officers when plaintiff
sued both the officers and the city, even though the plaintiff never specified that he was suing
under the TTCA). Section 101.106(a) of the TTCA provides that a plaintiffs suit against a
governmental unit constitutes an irrevocable election by the plaintiff and bars suit against any
individual employee of the governmental unit regarding the same subject matter. Tex. Civ.
Prac. & Rem. Code 101.106(a). Plaintiffs respond that they never intended to sue both BISD
and the individual defendants for defamation. [See Doc. No. 50]. As to the other causes of
action, Plaintiffs merely respond that, to the extent those claims survive the motions to dismiss,
the facts alleged pertaining to them are relevant to the alleged campaign of retaliatory
harassment against Plaintiffs.
Defendants appear to assume that, because the Trustee-Defendants are professional
employees of the school district under the Texas Education Code, they are also governmental
employees for purposes of the election of remedies provisions of the TTCA. They cite the
district courts opinion in The Gil Ramirez Group, LLC v. Houston Indep. Sch. Dist., No. 4:10-
39
cv-4872 (S.D. Tex. Nov. 18, 2013), which found that a trustee of an independent school board
was an employee of the governmental unit for purposes of the TTCA. As explained below, the
Defendants argument as to the dismissal of the Trustee-Defendants is foreclosed by both the
language in the TTCA and the Fifth Circuits recent reversal of the district court opinion in Gil
Ramirez. See The Gil Ramirez Group, LLC v. Houston Indep. Sch. Dist., 786 F.3d 400 (5th Cir.
2015) (reversing the district courts conclusion that a board trustee was an employee under the
TTCA).23
An employee of a governmental unit falling within the scope of the election of
remedies provisions of the TTCA is defined as a person, including an officer or agent, who is in
the paid service of a governmental unit by competent authority, but does not include an
independent contractor, an agent or employee of an independent contractor, or a person who
performs tasks the details of which the governmental unit does not have the legal right to
control. Tex. Civ. Prac. & Rem. Code 101.001(2). Dr. Montoya, as Superintendent, is clearly
a paid employee of BISD and the performance of his tasks is controlled by the district. Thus, to
the extent that he is charged with any state law claim in this case, he is dismissed from all state
law claims. Salazar alleges that he is a staff attorney of BISD and that, for all purposes (under
both the TTCA and the Texas Education Code), an employee of the district. Plaintiffs dispute
this characterization and assert that the staff attorney for BISD during the relevant time period
was Leandra Ortiz (who was then alleged to have been recently replaced by Miguel Salinas).
[Doc. No. 51]. Rather, according to Plaintiffs, Salazar is of Counsel to BISD, [sic] and serves
as Counsel to the Board. [Id. at 16]. Neither BISD (in its Motion, which moves to also dismiss
23
The Court notes that Defendants Motion, in which they cited the Gil Ramirez district courts conclusion
regarding the definition of an employee, was filed before the Fifth Circuit reversed the district courts conclusion on
the same, and, thus, it was certainly reasonable for Defendants to have argued that the Trustees were employees
under the TTCA at that time.
40
Salazar despite the latter being represented by different counsel) nor Salazar has alleged whether
or not Salazar earns a salary from BISD or whether BISD has the legal right to control him.
Thus, without more, this Court cannot determine the employment status of Salazar, and, given
that the Court must accept Plaintiffs allegations as true, the Court denies Salazars and BISDs
motion to dismiss Salazar from the state law claims pursuant to the TTCA.24
As for the Defendant-Trustees, they also have not alleged that they are in BISDs paid
service or that the district has any right to control them, nor is this Court aware of either factor
being the case. Despite not fitting within the TTCAs definition of an employee, Defendants
Motion cites precedent in this Circuitthe district courts opinion in Gil Ramerizfinding that a
professional employee under the Texas Education Code (which explicitly includes trustees of
school district board) is also an employee under the TTCA. As stated above, the Fifth Circuit
subsequently rejected that argument, finding that an elected school board trustee was neither in
the districts paid service nor under the control of the district; therefore, according to the Court,
the trustee was not an employee under the TTCA simply by virtue of being an employee under
the Education Code. See 786 F.3d at 416-17. The defendant in Gil Rameriz had tried to
analogize his position to that of a medical resident in Franka v. Velasquez, 332 S.W.3d 367 (Tex.
2011). In that case, the Supreme Court of Texas deemed a medical resident who did not fit in the
TTCAs definition of employee nonetheless an employee under the TTCA pursuant to a
provision of the Texas Health and Safety Code, which designated medical residents as
employees for purposes of determining liability. As noted by the Fifth Circuit in rejecting the
defendants argument, provisions of the Texas Education Code grant immunity to employees for
24
It is more readily apparent that Salazar may be an employee in other contexts, however. For instance, under the
Texas Education Code, a professional employee of a school district may be any other person employed by a
school district whose employment requires certification and the exercise of discretion. Tex. Edu. Code
22.051(a)(6).
41
any act that is incident to or within the scope of the duties of the employees position . . . and
that involves the exercise of judgment or discretion. Gil Rameriz, 786 F.3d at 416. The Court
held:
But even if some employees under these Education Code provisions might fall
within the scope of Franka, [the defendant] does not. The same Education Code
provision limits personal liability for any act that is incident to or within the
scope of the duties of the employees position of employment . . . . [the
defendant] is not alleged to have been acting within the scope of his duties. To
the contrary, bribery and peddling influence are not within the scope of a trustees
duty.
Id. at 416-17.
In the present case, applying the Fifth Circuits reasoning in Gil Rameriz, and taking
Plaintiffs factual allegations as true (as the Court must on a motion to dismiss), the Court cannot
determine, without the benefit of summary judgment evidence, whether or not Defendants were
acting within the scope of their duties. Accordingly, the Court denies Defendants Renewed
Motion to Dismiss Pursuant to Texas Tort Claims Act [Doc. No. 43] to the extent it requests
dismissal of the state law tort claims against Defendants Powers, Pena, Chirinos, Lopez, and
Salazar.25 It grants that Motion to the extent it requests dismissal of state law tort claims against
Dr. Montoya.
25
The Northern District of Texas in Jackson v. Dallas Indep. Sch. Dist., 1998 WL 386158, at *5 (N.D. Tex. July 2,
1998), faced a similar issue on a motion to dismiss brought by individual school district employees who alleged they
were entitled to professional employee immunity under the Texas Education Code. The Court was unable to
determine whether all defendants were professional employees as that term was defined in the statute: [b]ecause the
court cannot decide this issue based on Jackson's petition, the court denies the motion without prejudice to the
individual defendants' seeking relief in the context of a motion for summary judgment. Id. This Court also denies
the motion to dismiss without prejudice for refiling the same on summary judgment, to the extent that any state law
claims remain against any of the Trustee-Defendants and Salazar.
42
ii. Plaintiffs Tort Claims Against BISD Sovereign Immunity
BISD asserts that it is an agency of the state, exercising government functions, and, thus,
that it is immune from all causes of actions sounding in tort under the doctrine of sovereign
immunity.
In Texas, the doctrine of sovereign immunity protects agencies of the state from lawsuits
that are sounding in tort, unless the legislature expressly waives immunity. See Leatherwood v.
Prairie View A & M University, No. 010201334CV, 2004 WL 253275, at *23 (Tex. App.
Houston [1st Dist.] Feb. 12, 2004, no pet.) (citing Tex. Natural Res. Conservation Comm'n v. IT
Davy, 74 S.W. 3d 849, 853 (Tex. 2002); Barr v. Bernhard, 562 S.W. 2d 844 (Tex. 1978). The
law is well settled in this state that an independent school district is an agency of the state.
Barr, 562 S.W. 2d at 846; see also Davis v. Houston Indep. School Dist., 654 S.W. 2d 818, 821
(Tex. App.Houston [14th Dist.] 1983, no writ). Therefore, when a party brings a lawsuit
sounding in tort against an agency of the state in the absence of a waiver of sovereign
immunity, a court has no jurisdiction to entertain the suit, and the court must dismiss the cause
and refrain from rendering a judgment on the merits. Leatherwood, 2004 WL 253275, at *2
(citing Li v. Univ. of Tex. Health Sci. Ctr., 984 S.W. 2d 647, 654 (Tex. App.Houston [14th
Dist.] 1998, pet. denied)).
The Texas Tort Claims Act (TTCA) waives governmental immunity in three general
areas: use of publicly owned vehicles, premises defects, and injuries arising from conditions or
use of property. Tex. Civ. Prac. & Rem. Code 101.021.26 Plaintiffs do not assert that any of
26
In addition, courts have found that [t]he Open Meetings Act expressly waives sovereign immunity for violations
of the act. Hays Cty. v. Hays Cty. Water Planning P'ship, 69 S.W. 3d 253, 258 (Tex. App.-Austin 2002, no pet)
(citing Tex. Gov. Code 551.142). Nevertheless, despite the TTCAs waiver of immunity in certain areas (as
previously defined), the Legislature further limits the waiver of immunity for school districts specifically, only
permitting suits against school districts in causes of action arising from the use of motor vehicles. See Doe v. S & S
43
the alleged tortious conduct of Defendants (including their claims for defamation, IIED, and civil
conspiracy) was related to the operation or use of a motor vehicle, a premises defect, or the use
or misuse of property owned or controlled by BISDthe only three areas in which the State
waives immunity for torts. Thus, they do not bring their suit within the waiver provisions of the
TTCA.
Moreover, intentional torts, such as defamation, IIED, and civil conspiracy, do not fall
within the scope of the waiver of immunity under the Tort Claims Act.27 Tex. Civ. Prac. & Rem.
Code 101.057(2); City of Hempstead v. Kmiec, 902 S.W. 2d 118, 122 (Tex. App.Houston
[1st Dist.] 1995, no writ). Thus, Plaintiffs defamation, civil conspiracy, and IIED claims fail for
an additional reason because they are intentional torts, for which the Tort Claims Act does not
waive immunity. See id. Accordingly, BISD has demonstrated its right to sovereign immunity,
depriving this Court of subject matter jurisdiction over Plaintiffs defamation, civil conspiracy,
and IIED claims against it. See Jones, 8 S.W. 3d at 638 (holding that a trial court lacks
jurisdiction to hear a suit against the State unless the State has waived governmental immunity).
Since BISD has sovereign immunity with respect to Plaintiffs defamation, civil conspiracy, and
IIED claims, the Court hereby dismisses those claims against BISD with prejudice, as well as
any claims against BISD for injunctive relief and damages arising from those claims.
Consol. Indep. Sch. Dist., 149 F. Supp. 2d 274, 297 (E.D. Tex. 2001) (Texas courts hold that 101.051 stands for
the proposition that the waiver of governmental immunity provided for in TEX. CIV. PRAC. & REM. CODE
101.001 et seq. is restricted to actions arising from the use of motor vehicles in cases involving school districts.).
27
Because liability for a civil conspiracy cause of action depends on participation in some underlying tort,
conspiracy is considered a derivative tort. See Tilton v. Marshall, 925 S.W. 2d 672, 681 (Tex. 1996).
44
iii. Defamation
Plaintiffs bring defamation claims against Defendants Salazar, Lopez, and Pena.28
According to Plaintiffs, on October 1, 2013, Lopez, Pena, and Salazar defamed Plaintiff Garcia
during a closed session of the Board when they allegedly accused her of criminal conduct for an
email Garcia sent to a BISD employee. Plaintiffs allege the following with regard to Salazar: In
closed session, Salazar led the conversation and accused [Garcia] of violating the Texas Open
Meetings Act for an e-mail she sent out earlier that week to a BISD staff member. Salazar told
the Board that the Board should file criminal charges against [Garcia] and that she would go to
jail for this violation of the law. With the Boards permission, he wanted to have charges
brought against [Garcia] for sending an email to a BISD employee. [Doc. No. 33 at 21]. As to
Pena, Plaintiffs allege that Pena looked at the document, the e-mail, and stated, [o]h yes. This
is definitely criminal. [Id.]. Additionally, according to Plaintiffs, Lopez looked at the same
document and agreed that criminal charges should be brought against [Garcia]. [Id.].
Plaintiffs further allege that, on July 23, 2013, Salazar defamed Plaintiff Garcia when he
accused her of soliciting sex from him in an open meeting, thereby publishing his defamatory
statements to those present and those watching via the meeting remotely. [Doc. No. 33 at 29].
Defendants Lopez and Pena move to dismiss the defamation claims on the basis that,
among other things, Plaintiffs allegations fail to meet the pleading requirements of Rule 8(a).
[See Doc. No. 44].29 They argue that the Complaint does not allege, let alone show, facts
28
Plaintiffs also allege that Escobedo defamed each Plaintiff when he implied that neither possessed the education
or experience to serve on the BISD Board of Trustees. [Doc. No. 33 at 29]. As previously noted, Escobedo is not a
defendant to this action. To the extent Plaintiffs allege that BISD must be liable for the conduct of Escobedo, this
Court has already found BISD immune from the defamation claim, as described above.
29
The Trustee-Defendants also assert that they are immune from personal liability from Plaintiffs state law claims
under the Texas Education Code because they are professional employees who were at all relevant times
performing acts incident to or within the scope of the duties of [their] position of employment and that involve[d]
45
sufficient to satisfy the pleading requirements laid out by the Supreme Court in Twombly and
Iqbal. Specifically, they argue that Plaintiffs have failed to allege actual malice and that the
statements at issue were not privileged. [Doc. No. 44 at 34].
Under Texas law, a statement is defamatory if it tends to harm the reputation of a
person, lower the person in the estimation of the community, deter third persons from associating
or dealing with him or her, or tends to expose the person to public hatred, contempt, or ridicule.
Wagner v. Texas A&M Univ., 939 F. Supp. 1297, 1327 (S.D. Tex. 1996) (citing Hardwick v.
Houston Lighting & Power Co., 881 S.W. 2d 195, 197 (Tex.App.Corpus Christi 1994, writ
dism'd w.o.j.)). To sustain a Rule 12(b)(6) motion to dismiss, a defamation claim must
specifically state the time and place of the publication, as well as the alleged defamatory
statement and the speaker. Jackson v. Dallas Indep. Sch. Dist., 1998 WL 386158, at *5 (N.D.
Tex. July 2, 1998), affd 232 F.3d 210 (5th Cir. 2010); Ameen v. Merck & Co., 226 Fed. Appx
363, 370 (5th Cir. 2007). Courts require more particular pleading for defamation to allow the
opposing party to raise the appropriate defenses. Jackson, 1998 WL 386158, at *5 (citing
several courts who have adopted this higher pleading requirement); Moyer v. Jos. A. Bank
Clothier, Inc., 2013 WL 4434901, at *6 (N.D. Tex. Aug. 19, 2013) (noting that the pleading
must specify the time, place, content, speaker and listener.).
Viewing the Complaint in the light most favorable to Plaintiffs, as the Court must on a
motion to dismiss, the Court finds that Plaintiff Garcia has alleged enough facts to state a claim
to relief that is plausible on its face for her defamation causes of action against Salazar, Pena,
and Lopez. Twombly, 550 U.S. at 569. As described above, Plaintiff alleges that on October 1,
the exercise of judgment or discretion. [See Doc. No. 44 at 18]. As stated above this Court cannot resolve this
issue on the pleadings and must wait to resolve this issue if and when an appropriate summary judgement motion is
filed.
46
2013, Lopez, Pena, and Salazar defamed her during a closed session of the Board when they
allegedly accused her of criminal conduct for an email Garcia sent to a BISD employee. This
allegation sufficiently identifies the time, place, content, speaker, and listener, as required to
plead defamation. Likewise, for the other alleged instance of defamation committed by Salazar,
Plaintiff sufficiently identifies each of the above requirements to survive a Rule 12(b)(6) motion
to dismiss.
Defendants also assert that the statements at issue are privileged. Under Texas law, a
communication made on a subject matter in which the person making it has an interest is
privileged if made to persons having a corresponding interest or duty. Danawala v. Houston
Lighting & Power Co., 14 F.3d 251, 254 (5th Cir. 1993) (citations omitted). This privilege
protects statements made by an employer concerning an employee. Danawala, 14 F.3d at 254
(citations omitted). A party loses her qualified privilege, however, when she acts with actual
malice. ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 442 (5th Cir.1995). Actual malice
in the defamation context does not include ill will, spite or evil motive, but rather requires
sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts
as to the truth of his publication. Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772
(Tex.1994) (quotations omitted). Once any underlying factual disputes are resolved, whether a
qualified privilege exists is a question of law. Danawala, 14 F.3d at 254. Despite Defendants
contention otherwise, Plaintiffs have alleged that the statements at issue were made with malice.
[See, e.g., Doc. No. 33 at 23]. Without the benefit of summary judgment evidence, the Court is
unable to conclude that a privilege applies to Defendants statements. Thus, the Court denies
without prejudice Defendants privilege claim.
47
Salazar has specifically moved to dismiss the claims against him under Rule 12(b)(6)
asserting various forms of immunity. (Unlike the other defendants, he does not argue that
Plaintiffs fail to meet Rule 8 pleading requirements.) Salazar first asserts that he is entitled to
professional employee immunity under the Texas Education Code for all state law claims,
including the defamation claim. Under Texas law, professional employees of a school district
are not personally liable for any act that is incident to or within the scope of the duties of the
employees position of employment and that involves the exercise of judgment or discretion on
the part of the employee . . . . Tex. Edu. Code 22.0511(a). Excessive force or negligence
resulting in bodily injury to students are the only explicitly excepted acts from this grant of
immunity. As is relevant here, a professional employee includes a member of the board of
trustees of an independent school district and any other person employed by a school district
whose employment requires certification and the exercise of discretion. Id. 22.051(a)(5), (6).
Thus, unlike the members of a board of trustees, legal counsel for a school board or a district is
not explicitly identified by the Education Code as falling within the definition of a professional
employee. Instead, Salazar claims that he falls within the catchall definition: that he is employed
by BISD and that his employment requires certification and the exercise of discretion.
The Court is unable to conclude that Salazar is a professional employee within the
meaning of 22.051(a) from the Plaintiffs pleadings alone. Put another way, the Court is
without the means to conclusively decide whether Salazar falls within this catchall definition to
be deemed a professional employee and potentially entitled to immunity under the Education
Code. [See this Courts discussion above on the TTCA]. Taking Plaintiffs allegations as true,
Salazar is Of Counsel to BISD and the Board. Salazar, on the other hand, asserts that he is a
staff attorney of the district. These labels, however, do not assist the Court in determining
48
whether Salazar is employed by BISD or whether his employment requires certification and
the exercise of discretion, as those terms are defined under Texas law. Even if the Court were to
deem Salazar a professional employee under Texas law, however, it nonetheless finds that,
taking Plaintiffs allegations to be true as it must on a motion to dismiss, Salazars alleged
conduct in telling the Board and the public that Plaintiff Garcia solicited sexual favors from him
and made other disgusting sexual innuendos did not embody acts incident to or within the
scope of the duties of [his] position of employment . . . that involve[d] the exercise of judgment
or discretion on the part of the employee, as required for him to avoid personal liability under
the Texas Education Code. Tex. Edu. Code 22.0511(a). See Gil Rameriz, 786 F.3d at 416-17
([Defendant] is not alleged to have been acting within the scope of his duties. To the contrary,
bribery and peddling influence are not within the scope of a trustees duty.). Therefore,
Salazars request to grant him immunity as a professional employee of BISD is hereby denied
without prejudice for refiling the same on summary judgment.30
iv. Intentional Infliction of Emotional Distress Claim
Defendants move to dismiss Plaintiffs claim for intentional infliction of emotional
distress (IIED) arguing that it fails to state a claim for relief under Rule 12(b)(6). Under Texas
law, the elements of an IIED claim are: (1) the defendant acted intentionally or recklessly; (2) the
conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff's
emotional distress; and (4) the plaintiff's emotional distress was severe. Gillum v. City of
Kerrville, 3 F.3d 117, 122 (5th Cir.1993), cert. denied, 510 U.S. 1072 (1994). In order for
conduct to be extreme and outrageous, it must be beyond the bounds of decency,
30
To the extent that Lopez and Pena also moved to dismiss asserting professional employee immunity, the Court,
without evidence on the record, is unable at this juncture to determine whether Lopez and Pena could be said to be
acting within the scope of their duties. Thus, the Court denies their claims of immunity without prejudice for
refiling the same on summary judgment.
49
atrocious, and utterly intolerable in a civilized community. Diamond Shamrock Refining &
Marketing Co. v. Mendez, 844 S.W. 2d 198 (Tex. 1992).
After setting out the elements required to prove a claim for IIED, Plaintiffs nakedly
allege that Defendants actions were outrageous and caused Plaintiffs to suffer extreme
emotional and mental distress. [Doc. No. 33 at 31]. This is not enough under the pleading
requirements in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009) (Nor does a complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement.). Plaintiffs fail to identify what actions and whose actions (i.e.,
which Defendants) caused them to suffer extreme emotional distress. While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a
plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than
labels and conclusions. Twombly, 550 U.S. at 555. Plaintiffs formulaic recitation of the
elements of IIED with no accompanying factual allegations is not sufficient under federal
pleading requirements. Id. Rule 8(a)(2) requires a showing, rather than a blanket assertion, of
entitlement to relief. Id. n.3. Only well-pleaded facts must be accepted as true; legal
conclusions are not entitled to an assumption of veracity. Iqbal, 556 U.S. at 678-79. Plaintiffs
pleadings alleging IIED woefully fail to attain the level of factual specificity required to survive
a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. It
is not the Courts job to blindly guess which acts described above satisfy each of the evidentiary
requirements of an IIED claim as Plaintiffs would have it do.
Even if Plaintiffs had satisfied Rule 8 pleading requirements, the Court finds, with the
possible exception of the acts of defamation specified above, that no factual allegation in the
Complaint rises to the level of conduct that is atrocious or utterly intolerable in a civilized
50
community. Liability does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th
Cir. 1993); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991). There is no
occasion for the law to intervene in every case where someone's feelings are hurt. Wagner, 939
F. Supp. at 1326. Specifically, in the employment context, the Fifth Circuit, applying Texas law,
has held that a claim for IIED will not lie for mere employment disputes. MacArthur v. Univ.
of Tex. Health Ctr., 45 F.3d 890, 898 (5th Cir. 1995). Courts acknowledge that in order to run a
business properly, an employer must be able to supervise, review, criticize, demote, transfer, and
discipline employees. See Wagner, 939 F. Supp. at 1326 (citations omitted). Even actions that
may be unlawful in the employment setting may not constitute extreme and outrageous
conduct for purposes of an IIED claim. Id. (citing Ugalde, 990 F.2d at 243). Here, although
Plaintiffs may have suffered from emotional distress as a result of Defendants alleged retaliatory
campaign of ridicule and harassment, they have not shown, with the possible exceptions of the
solicitation of sexual favors allegations and the accusations of criminal email conduct, the type
of extreme or outrageous conduct contemplated by an IIED cause of action.
This Court, however, need not address whether the allegations regarding the solicitation
of sexual favors or the accusations of criminal email conduct rise to the level of extreme and
outrageous conduct contemplated by IIED because, under Texas law, the mere availability of a
non-IIED cause of action forecloses a claim for IIED based on the same facts. The Supreme
Court of Texas held, [w]here the gravamen of a plaintiff's complaint is really another tort,
intentional infliction of emotional distress should not be available. Hoffmann-La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (citing Provencher v. CVS Pharmacy, 145 F.3d 5,
12 (1st Cir.1998); Thompson v. Sweet, 194 F.Supp.2d 97, 103 (N.D.N.Y.2002); Norris v. Bangor
51
Publ'g Co., 53 F.Supp.2d 495, 50809 (D.Me.1999); Barker v. Huang, 610 A.2d 1341, 1351
(Del.1992); Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.Ct.App.2001); Nazeri v. Mo. Valley Coll.,
860 S.W.2d 303, 316 (Mo.1993); Quaker Petroleum Chems. Co. v. Waldrop, 75 S.W.3d 549,
555 (Tex.App.San Antonio 2002, no pet.); Rice v. Janovich, 109 Wash.2d 48, 742 P.2d 1230,
1238 (1987)). Numerous Texas Court of Appeals cases have since followed the rule set out in
Hoffmann-La Roche, with several applying it in instances where defamation provided the
alternative cause of action. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005)
(sexual harassment); Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364 (Tex. App.Beaumont
2009, pet. denied) (false imprisonment and assault); Draker v. Schreiber, 271 S.W.3d 318 (Tex.
App.San Antonio 2008, no pet.) (defamation); Richard Rosen, Inc. v. Mendivil, 225 S.W.3d
181 (Tex. App.El Paso 2005, pet. denied) (defamation); Oliphint v. Richards, 167 S.W.3d 513
(Tex. App.Houston [14th Dist.] 2005, pet. denied) (defamation); Priebe v. A'Hearn, No. 01-
09-00129-CV, 2011 WL 1330808 (Tex. App.Houston [1st Dist.] Apr. 6, 2011, no pet.)
(defamation). The rule that the availability of an alternative claim forecloses an IIED claim
based upon the same facts holds true whether the plaintiff succeeds or fails in her alternative
claim, and it holds true regardless of whether or not the plaintiff even brings the alternative
claim. See Draker, 271 S.W.3d at 322 (citing HoffmannLa Roche at 448).
In the case at hand, Plaintiffs have not, as observed above, cited any facts beyond the
vague Defendant[] actions as a basis for their IIED claim; Plaintiffs have, however, cited a
host of facts as the basis for their defamation claim, including allegations of solicitation of sexual
favors and accusations of criminal email conduct. Whether it is these facts or other unstated ones
Plaintiffs desire to serve as the basis of their IIED claim, Plaintiffs IIED claim merits dismissal.
Where [the plaintiff does] not even attempt to base his intentional infliction of emotional
52
distress claim on facts independent of his defamation claim . . . an intentional infliction of
emotional distress claim is not available. Oliphint, 167 S.W.3d at 517. See also Mendivil, 225
S.W.3d at 194 (finding that the plaintiff [could] not recover under th[e] gap-filler tort
[intentional infliction of emotional distress] where the same actions that form[ed] the basis of his
defamation claim [were] asserted to support his independent tort claim for intentional infliction
of emotional distress); Draker, 271 S.W.3d at 324 (citing HoffmannLa Roche at 447
(upholding the trial courts finding of summary judgement for defendant where [Plaintiffs]
failed to allege[] facts independent of [their] defamation claim in support of [their] claim for
intentional infliction of emotional distress.)); Lexicon Genetics, 279 S.W.3d at 372 (citing
HoffmannLa Roche at 44748 (upholding the trial courts finding of summary judgement for
defendant where [n]one of the alleged extreme and outrageous conduct [wa]s independent of
the conduct that form[ed] the basis of the other torts asserted in the petition . . . [on the grounds
that] there [were] no unrelated facts to support an independent claim for intentional infliction of
emotional distress . . . .)). Plaintiffs have not, as Texas law requires to bring an IIED claim,
establish[ed] that there are no alternative causes of action that would provide a remedy for the
. . . emotional distress caused by [Defendants] conduct. Priebe, 2011 WL 1330808, at *5.
Plaintiffs have, rather, done the opposite: they have sought to ground their IIED claim in the
vague Defendant[] actions, which may or may not include the allegations of sexual solicitation
or accusations of criminal emailing that form the basis of their defamation claim, yet for which
they have not even attempted, per the requirements of Texas law, to disclaim all other available
causes of action.
Accordingly, Plaintiffs claim for IIED is hereby dismissed as to all Defendants for
failure to state a claim under Rule 12(b)(6)Plaintiffs claim for IIED based on the solicitation
53
of sexual favors allegations and criminal email conduct accusations (taking these as the
unspecified Defendant[] actions Plaintiffs intended as the source of their emotional distress) is
hereby dismissed as to all Defendants because, as discussed above, the allegations give rise to a
defamation cause of action, thereby foreclosing an IIED cause of action based on them. Any
other purported claims are pleaded so inadequately that Iqbal and Twombly require this Court to
dismiss them.
v. Civil Conspiracy Claim
Under Texas law, civil conspiracy is defined as a combination by two or more persons to
accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. See
Great Nat'l Life Ins. Co. v. Chapa, 377 S.W. 2d 632, 635 (Tex. 1964); Central Sav. & Loan
Ass'n v. Stemmons Northwest Bank, N.A., 848 S.W. 2d 232, 241 (Tex. App.Dallas 1992, no
writ). The elements of a civil conspiracy are as follows: (1) two or more persons, (2) an object to
be accomplished, (3) a meeting of minds on the object or course of action, (4) one or more
unlawful, overt acts, and (5) damages as a proximate result. Massey v. Armco Steel Co., 652
S.W. 2d 932, 934 (Tex. 1983); Central Sav. and Loan Ass'n, 848 S.W. 2d at 241.31 Because
liability depends on participation in some underlying tort, conspiracy is considered a derivative
tort. See Tilton v. Marshall, 925 S.W. 2d 672, 681 (Tex. 1996). Therefore, to prevail on a civil
conspiracy claim, the plaintiff must show the defendant was liable for some underlying tort. See
Trammell Crow Co. No. 60 v. Harkinson, 944 S.W. 2d 631, 635 (Tex. 1997).
31
The meeting of the minds element requires proof of intent to participate in the purpose of the conspiracy. Times
Herald Printing Co. v. A.H. Belo Corp., 820 S.W. 2d 206, 216 (Tex. App.Houston [14th Dist.] 1991, no writ); see
Roberts v. Harvey, 663 S.W. 2d 525, 527 (Tex. App.El Paso 1983, no writ). A civil conspiracy need not be
shown by direct evidence and is ordinarily established by circumstantial evidence. Kirby v. Cruce, 688 S.W. 2d
161, 164 (Tex. App.Dallas 1985, writ ref'd n.r.e.). Vital facts may not be proved, however, by unreasonable
inferences or by piling inference upon inference. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp.,
435 S.W. 2d 854, 858 (Tex. 1968).
54
With respect to Plaintiffs allegations that Defendants conspired to violate their
constitutional rights, the Court first notes that, other than Plaintiffs own speculation, there are no
facts in their allegations demonstrating that an agreement existed amongst any of the Defendants.
Moreover, most of Plaintiffs allegations concerning a conspiracy involve alleged conspiracies to
do certain acts that are not tortious. [See, e.g., Doc. No. 33 at 17 (claiming that BISD conspired
to hire an attorney to do its dirty work); 18 (asserting that defendants were conspiring on
upcoming issues); 24 (claiming that Defendants conspired together to only allow Plaintiffs
agenda items to be held in closed session); 26 (claiming that Escobedo conspired with Salazar to
revise Board policies)]. Rather, the bulk of Plaintiffs claims were that the Defendants conspired
to retaliate against Plaintiffs for exercising their free speech rights. [See, e.g., id. at 10, 11, 22].
To the extent that Plaintiffs allege that a conspiracy existed with regard to the defamation claim
(the only surviving claim) they fail to allege that any conspiracy existed in connection with
Salazar specifically making the alleged defamatory statement regarding sex solicitation.
Likewise, Plaintiffs fail to allege that any conspiracy existed in connection with Salazar, Pena,
and Lopezs making the allegedly defamatory accusations of criminal email conduct, the mere
fact of three participants here not sufficing.32 Thus, given the Courts dismissal of Plaintiffs
First Amendment claim and that the Plaintiffs conspiracy allegations largely revolve around
non-tortious conduct and the alleged First Amendment violations, their conspiracy claim must
also be dismissed.
32
The Court acknowledges that Plaintiffs do allege that a conspiracy existed for actions taken subsequent to
Salazars comment when the Board allegedly voted to censure Garcia. [Doc. No. 33 at 19]. (As stated above the
action in and of itself is protected by legislative immunity.) That allegation of conspiracy, however, focused on the
Boards alleged campaign of harassment against Plaintiffs, and it is not alleged that anyone conspired with Salazar
to accuse Garcia of soliciting sex from him or that Salazar, Pena, and Lopez conspired together to accuse Garcia of
criminal email conduct.
55
vi. TOMA Claim
Plaintiffs claim in numerous places throughout the Complaint that Defendants violated
the Texas Open Meetings Act (TOMA) and seek a declaratory judgment that the Boards censure
of Plaintiffs is null and void. [Doc. No. 33]. Defendants correctly argue that members of a
government body may not be held liable in their individual capacities for TOMA violations.
Wilson v. Marshall Indep. Sch. Dist., 2011 WL 1431410 (E.D. Tex. Feb. 11, 2011), approved
and adapted, 2011 WL 1431460 (E.D. Tex. Apr. 14, 2011) (citing Forney Messenger, Inc. v.
Tennon, 959 F. Supp. 389 (N.D. Tex. 1997)).33 Thus, the defendant board members, in their
individual capacities, are not appropriate parties to the [Plaintiffs] TOMA claims and
consequently, those claims [are] dismissed. Id.
Furthermore, Plaintiffs have conceded in their response to Defendants Motion to
Dismiss that their TOMA claim is a non-viable cause of action. [Doc. No. 52 at 35]. This
Court hereby dismisses Plaintiffs TOMA claims.
E. Conclusion
For the above-stated reasons, this Court hereby grants the motions to dismiss filed by all
Defendants except to the extent that those motions seek dismissal of Plaintiff Catalina Presas
Garcias defamation causes of action against Defendants Baltazar Salazar, Cesar Lopez, and
33
The Wilson court reasoned as follows:
Section 551.141 of the Texas Government Code . . . provides that an action taken by a
governmental body in violation of ... [TOMA] ... is voidable. The definition of governmental
body under the Code includes a county board of education, but the definition does not
incorporate the individual members of the county board. See TEX. EDUC. CODE ANN
551.001(3)(F) (West 2004). Furthermore, in Forney Messenger, Inc. v. Tennon, 959 F.Supp. 389
(N.D. Tex. 1997), the [court] concluded that the individual members of a governmental body
could not be sued in their individual capacity under Section 551.141 of the Code. Id. at 392393.
The Forney court concluded that although the plaintiffs might have a viable TOMA cause of
action against the accused governmental body, the plaintiffs failed to state a TOMA cause of
action against the defendants in their individual capacity. Id. at 393.
Id. at *5.
56
Minerva Pena in their individual capacities for the statements allegedly made during Board
meetings by those three defendants on July 23, 2013 and October 1, 2013. Accordingly, the
motions to dismiss the defamation claim against Defendants Salazar, Lopez, and Pena are denied
without prejudice. All motions not specifically granted or denied herein are also denied without
prejudice.
Signed this 22nd day of September, 2015.
______________________________
Andrew S. Hanen
United States District Judge
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Case 1:14-cv-00010 Document 64 Filed in TXSD on 09/22/15 Page 1 of 57

IN THE UNITED STATES DISTRICT COURT

LUCILA B. LONGORIA, et al.,

MEMORANDUM OPINION AND ORDER

Plaintiffs Lucila B. Longoria (hereinafter Longoria) and Catalina Presas Garcia

in their individual capacities (hereinafter collectively referred to as the Trustee-Defendants);

intentional infliction of emotional distress (IIED), defamation (including common law

First, Fifth, and Fourteenth Amendments, as well as pursuant to 42 U.S.C. 1983.2

construction companies, politicized hiring of unqualified or incompetent individuals, and giving

inappropriate pay increases to certain favored BISD employees.

campaign of harassment, suppression of speech, defamation, [and] ridicule. [Doc. No. 33 at

ventures undertaken by the then-president of the Board, Enrique Escobedo.3 According to

Plaintiffs, the Trustee-Defendants ratified Escobedos alleged unlawful conduct by failing to

II. Standard on Motions to Dismiss

qualified immunity, absolute legislative immunity, Texas Education Code Professional

12(b)(6). [Doc. No. 40-41]. Salazar asserts absolute prosecutorial or quasi-prosecutorial

fact). Id. (quoting Twombly, 550 U.S. at 589).

A. Plaintiffs Claims Against Superintendent Montoya Are Dismissed

unlawful conduct by the other Defendants:

Twombly, 550 U.S. at 589.

B. Absolute Legislative Immunity

legislative activity. Bogan, 523 U.S. at 53.

determine if a particular activity is legislative and therefore protected by absolute immunity:

*4 (citing Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997)).

In Bryan, the mayor-defendant asserted he was protected by absolute legislative

F.2d 1188 (5th Cir. 1981)).

nature because they involved a rezoning provision. Id.

court summarized the Fourth Circuits opinion as follows:

consider individual motive or subjective intent in classifying an activity as legislative or not.

Wilson, 2011 WL 1431410, at *4-5 (citing Whitener, 112 F.3d at 744).

C. Federal Law Causes of Action

i. First Amendment Claims: Retaliation, Prior Restraint, and

Violations of Rights to Speech and Association

Amendment. According to Plaintiffs, Defendants continuously silenced and prohibited them

alleged constitutional violations.

employees right, in certain circumstances, to speak as a citizen on matters of public concern.

pursuant to an employees official duties. See Garcetti, 547 U.S. at 421-22.

of public concern outweighed the government-employers interest in the efficient provision of

fulfilling their duties as Trustees by engaging in the speech activity at issue.11

(a) First Amendment Protection of Elected Officials

limitations as Garcetti set out for public employees.

qualified immunity on Plaintiffs First Amendment claims. As explained immediately below,

the time of the alleged violations.

(b) Qualified Immunity

Under Supreme Court precedent, a two-step analysis governs whether an official is

clearly established, and, thus, it begins with the second prong.

(quoting alKidd, 131 S. Ct. at 2083) (emphasis added).

(c) It was not Clearly Established That an Elected Officials Speech is

Entitled to Full Protection Under the First Amendment

citizens or public employees.

In Garcetti, a non-elected public employeea deputy district attorneybrought a First

about possible government misconductspecifically, inaccuracies in an affidavit supporting a

position, transferred to another courthouse, and denied a promotion. Id. at 415.

certain circumstances, to speak as a citizen addressing matters of public concern . . . . So long as

Id. at 417, 419.

Dist., 608 F.3d 540, 545 (9th Cir. 2010)).

In Werkheiser, an elected official who served on a townships board of supervisors

fellow official by denying him reappointment to a non-elected position because of comments he

made in his capacity as an elected official. Id. at 174.

official was thus not afforded First Amendment protection.15)

(citing Zimmerlink and Carson).

Garcetti. A panel of the Fifth Circuit disagreed:

supervision or discipline. Id. at 523 n.23.