Anderson v. Pasadena ISD ( 1999 )


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  •                   UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 97-20980
    LEWIS ANDERSON,
    Plaintiff-Appellant,
    VERSUS
    PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
    MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
    JR., FRED ROBERTS and FREDRICK SCHNEIDER,
    Defendants-Appellees.
    consolidated with
    No. 98-20384
    LEWIS ANDERSON,
    Plaintiff-Appellee,
    VERSUS
    PASADENA INDEPENDENT SCHOOL DISTRICT, NELDA SULLIVAN,, VICKIE
    MORGAN, TED SULLIVAN, CARMEN OROZCO, BOB BLAIR, MARSHALL KENDRICK,
    JR., FRED ROBERTS and FREDRICK SCHNEIDER,
    Defendants-Appellants.
    Appeal from the United States District Court
    for the Southern District of Texas
    August 5, 1999
    Before DAVIS, STEWART and PARKER, Circuit Judges.
    ROBERT M. PARKER, Circuit Judge:
    Lewis Anderson (“Anderson”), appeals the dismissal of his
    federal claims   against    defendants   Pasadena    Independent   School
    1
    District (“PISD”), PISD Superintendent Frederick Schneider and PISD
    School Board members Nelda Sullivan, Vickie Morgan, Ted Sullivan,
    Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., and Fred Roberts.
    We affirm in part, reverse in part and remand this case to the
    district court.      In a consolidated appeal, defendants appeal a
    monetary sanction related to an order for remand to state court.
    We dismiss the appeal of sanctions for lack of jurisdiction.
    I. PROCEEDINGS
    On November 6, 1995, Anderson filed suit pursuant to 42 U.S.C.
    § 1983 alleging that the defendants took adverse employment action
    against him because he opposed a school bond election and an
    administrative reorganization.         He claimed violation of his free
    speech rights, and asserted state law claims as well.1
    The individual defendants moved to dismiss the suit, pursuant
    to Federal Rule of Civil Procedure 12(b)(6), on the basis of
    qualified immunity and requested the district court to prohibit
    discovery until the qualified immunity claim was resolved.             On May
    17, 1996, after a hearing, the district court ordered Anderson to
    replead    his   claims    with   particularity   in   order   to   overcome
    defendants’ assertions of qualified immunity.            Anderson filed his
    Second Amended Complaint on June 21, 1996, adding claims that
    defendants violated his rights to freedom of association and due
    process.    The individual defendants again filed for Rule 12(b)(6)
    dismissal   claiming      qualified   immunity.    The    magistrate   judge
    1
    The procedural history of Anderson’s claims related to age
    discrimination are not detailed here because those claims are not
    the subject of this appeal.
    2
    entered a memorandum and recommendation, Anderson filed objections,
    and the magistrate judge issued a clarification. On April 2, 1997,
    the district court granted the individual defendants’ motion to
    dismiss, adopting the magistrate judge’s conclusions that 1) in
    suits against public officials, the defense of qualified immunity
    mandates a heightened pleading standard which Anderson’s pleadings
    did not meet, 2) the speech in question did involve a matter of
    public concern, and 3) Anderson failed to establish that his
    interest in free speech outweighed the school district’s interest
    in the smooth and efficient operation of the district.                  The
    district court based its dismissal on the outcome of the First
    Amendment balancing test and never directly ruled on the individual
    defendants’ claims of qualified immunity.
    PISD   subsequently   filed   a   motion   to   dismiss,   which   the
    magistrate judge recommended granting on essentially the same basis
    as the earlier order of dismissal. The district court adopted that
    recommendation, dismissed Anderson’s federal claims with prejudice
    and Anderson’s pendant state law claims without prejudice.
    Anderson refiled his state law claims in Texas state court.
    Defendants removed the action2 and Anderson moved to remand.            The
    district court remanded the case to state court and ordered the
    defendants to pay $2000 in court costs, expenses and attorneys fees
    for the improper removal of the case, which the district court
    2
    The original 1995 case was assigned to the Honorable Sim
    Lake. Upon removal in 1998, the case was assigned to the Honorable
    Kenneth Hoyt. We refer in this opinion to actions taken by the
    “district court” without attempting to designate which judge signed
    any particular order.
    3
    found was done for the purpose of delay.          Defendants filed a motion
    to reconsider remand.      The district court denied the motion to
    reconsider and ordered defendants to pay $2000 “as reasonable
    attorney’s fees and expenses incurred in filing the motion to
    reconsider motion to remand.”
    Anderson appeals the dismissal of his federal claims.           In a
    consolidated appeal, defendants appeal the sanctions imposed for
    improper removal.
    II. FACTS
    Anderson’s Second Amended complaint alleges the following
    facts.
    Anderson was first hired by PISD in 1962 as a teacher.             He
    received    promotions     through       the   years,    holding     various
    administrative positions in PISD’s special education program.             In
    1990, Anderson was promoted to Area Superintendent.              During the
    first 33 years of employment with PISD, Anderson never received a
    negative evaluation.
    In 1994 and 1995, Anderson voiced criticism of an upcoming
    bond   election   which   the   School    Board   and   the   Superintendent
    favored.    Anderson also supported a candidate who was running
    against an incumbent board member who was up for re-election.
    Thereafter, defendants began efforts to oust Anderson from his
    position.
    In April 1995, Superintendent Schneider advised Anderson that
    his assistant Michael Fowler was being demoted and that a new
    Deputy Superintendent position was being created.             Anderson would
    4
    report to the new Deputy instead of directly to Superintendent
    Schneider, as he had in the past.       Anderson was not eligible to
    apply for the newly created position because it required prior
    experience as a school principal, which Anderson did not have. The
    new position was filled without adhering to the PISD policy of
    advertising job openings.
    During the summer of 1995, the board hired a private detective
    who conducted surveillance of Anderson, a non-incumbent school
    board candidate who Anderson supported and some of Anderson’s other
    associates.   In August of 1995, Schneider called Anderson to his
    office and proposed that Anderson agree to resign (relinquishing
    his contract right to two additional years of employment at more
    that $70,000 per year) and to “publicly and privately support the
    proposed   election   to   issue   bonds”   in   exchange    for   $30,000.
    Anderson was told that if he did not agree, he would be reassigned
    to transportation, food services or maintenance -- all low-level,
    dead end jobs.     Anderson refused to sign the agreement, stating
    that he felt that it was illegal.
    A few days after his refusal, Anderson was reassigned to the
    newly created position of Associate Superintendent for Project
    Management and given responsibilities which had previously been
    handled, for the most part, by a secretary.         Again, the position
    was not advertised in accordance with PISD policy.          Anderson’s pay
    was not changed.
    On October 30, 1995, Anderson received his first negative
    evaluation in thirty-three years with PISD, in which Superintendent
    5
    Schneider directly reprimanded Anderson for speaking out on the
    bond election and PISD’s reorganization.          Schneider made it clear
    that Anderson was free to speak out on these issues “outside of
    work” but that “such comments at work are inappropriate, disruptive
    and will not be tolerated.”          During the same time period, the
    administration spoke out in support of the bond election during
    mandatory faculty meetings and other district functions, making
    PISD work-time a public forum for considering the bond election
    issues.
    Anderson contends that the allegedly unconstitutional actions
    were taken by the defendants, individually and acting as a body,
    but   that   he   cannot   know,   prior   to   discovery,   precisely   who
    instigated or authorized the actions because the actions originated
    in closed board meetings.
    III. RULE 12(b)(6) ORDERS OF DISMISSAL
    A. Standard of review
    A Rule 12(b)(6) order of dismissal for failure to state a
    claim on which relief can be granted is reviewed de novo, and “will
    not be affirmed unless it appears beyond doubt that the plaintiff
    can prove no set of facts in support of his claim which would
    entitle him to relief.”       Blackburn v. City of Marshall, 
    42 F.3d 925
    , 931 (5th Cir. 1995).
    In reviewing defendants’ claim of qualified immunity, we must
    first ascertain whether Anderson has sufficiently asserted the
    violation of a constitutional right.        See Rankin v. Klevenhagen, 
    5 F.3d 103
    , 105 (5th Cir. 1993).        Second, we must determine whether
    6
    defendants’ conduct was objectively reasonable in light of law
    clearly established at the time of the incident.            See Salas v.
    Carpenter, 
    980 F.2d 299
    , 310 (5th Cir. 1992).
    B.   Heightened Pleading Requirement – Individual Board Members
    The magistrate judge’s Memorandum and Recommendation, adopted
    by the district court, states that “Anderson has not satisfied the
    heightened pleading standard in order to overcome the defense of
    qualified immunity. Accordingly, it is RECOMMENDED that Anderson’s
    claims against the individual board members be DISMISSED.”             The
    magistrate judge then goes on to recommend dismissal of these
    defendants based on an independent, alternative ground. On appeal,
    Anderson challenges the district court’s ruling regarding the
    “heightened pleading standard,” contending that his Second Amended
    Complaint was sufficient to state a cause of action and to overcome
    the defendants’ claims of qualified immunity.
    The Supreme Court abrogated the Fifth Circuit heightened
    pleading requirement for actions against municipalities, but did
    not consider whether qualified immunity jurisprudence would require
    heightened   pleading   in   cases       against   individual   government
    officials. See Leatherman v. Tarrant County Narcotics Intelligence
    and Coordination Unit, 
    507 U.S. 163
    , 166-67 (1993).             This court
    thereafter declined to abandon the requirement, articulated in
    Elliott v. Perez 
    751 F.2d 1472
    (5th Cir. 1985), that plaintiffs
    suing governmental officials in their individual capacities must
    allege specific conduct giving rise to a constitutional violation.
    See Schultea v. Wood, 
    47 F.3d 1427
    , 1434 (5th Cir. 1995).         However,
    7
    no heightened pleading is required in actions against individual
    defendants in their official capacities, because “official-capacity
    lawsuits are typically an alternative means of pleading an action
    against the governmental entity involved[.]”               Baker v. Putnal, 
    75 F.3d 190
    , 195 (5th Cir. 1996).         Anderson sued the board members and
    the superintendent in their individual capacities only.                 In order
    to survive, those actions “must be pleaded with ‘factual detail and
    particularity,’ not mere conclusionary allegations.”                  Jackson v.
    Widnall, 
    99 F.3d 710
    , 715-16 (5th Cir. 1996)(quoting 
    Schultea, 47 F.3d at 1430
    ).
    In order to state a cause of action under § 1983, Anderson
    must identify defendants who were either personally involved in the
    constitutional violation or whose acts are causally connected to
    the constitutional violation alleged.             See Woods v. Edwards, 
    51 F.3d 577
    , 583 (5th Cir. 1995).              It is not enough to allege that
    government officials with no direct contact with a plaintiff are
    responsible for acts of their subordinates.                See 
    id. Anderson’s Second
    Amended complaint alleges that the board members and the
    superintendent      made   specifically         enumerated    decisions      that
    adversely    impacted      his   employment        in   violation       of   his
    constitutional      rights.      Anderson       candidly     admits   that   the
    defendants   made    decisions    in    closed     meetings    that    precluded
    Anderson from knowing, prior to discovery, whether each defendant
    voted for or dissented from those decisions.                 However, Anderson
    makes no attempt to hold the individual defendants liable for
    actions or decision of their subordinates with which they had no
    8
    involvement,       but    rather     seeks       to   establish       each      defendant’s
    responsibility for his or her own actions.                      We find that Anderson
    pleaded with sufficient particularity facts establishing a causal
    connection      between      defendants’         actions      and   decisions         and   the
    alleged constitutional violations.                        We therefore hold that the
    district court’s conclusion that Anderson’s complaint lacked the
    factual specificity required to overcome the defense of qualified
    immunity was error.
    C. First Amendment Claims
    It   is   well     established      that        a    state    may   not    discharge,
    discipline, or otherwise retaliate against a public employee for
    exercising his First Amendment right to free speech. See Rankin v.
    McPherson, 
    483 U.S. 378
    , 383 (1987).                  However, a public employee’s
    right to free speech is limited when it conflicts with his role as
    a public employee.           See Kinsey v. Salado Indep. School Dist., 
    950 F.2d 988
    , 992 (5th Cir. 1992).              In order for speech to be entitled
    to   protection,       the    plaintiff      must         establish    that     his    speech
    addressed a matter of public concern.                      See Click v. Copeland, 
    970 F.2d 106
    , 111 (1992)(citing Connick v. Myers, 
    461 U.S. 138
    , 146-47
    (1983)).    If the plaintiff’s speech does not relate to a matter of
    public concern, the court’s inquiry ends.                       See 
    id. If, however,
    the court concludes that the speech at issue meets the threshold
    inquiry,    then    the      court   must    balance         “the     interests       of    the
    [employee], as a citizen, in commenting upon matters of public
    concern [against] the interest of the State, as an employer, in
    promoting the efficiency of the public services it performs through
    9
    its employees.’” 
    Id. (quoting Pickering
    v. Board of Educ. Of Tp.
    High School Dist., 
    391 U.S. 563
    , 568 (1968).
    When a plaintiff’s claims arise under both freedom of speech
    and freedom of association, as in the case at bar, the freedom of
    association claims are analyzed under the same Pickering balancing
    test used to determine the success of the freedom of speech claims.
    See O’Hare Truck Serv., Inc. v. City of Northlake, 
    518 U.S. 712
    (1996).      We therefore balance Anderson’s First Amendment rights
    of   free   speech    and    free   association     against     the   defendants’
    interests in efficiently providing public education to the students
    of PISD.
    We begin by noting that whether Anderson’s speech addressed a
    matter of public concern is a question of law.                  See Tompkins v.
    Vickers, 
    26 F.3d 603
    , 606 (5th Cir. 1994).                   The district court
    concluded,    and     the    parties   do    not   dispute    on    appeal,     that
    Anderson’s speech regarding the district bond election and the job
    performance of the individual defendants involved matters of public
    concern.    We agree.
    We move then to the focus of this appeal, the Pickering
    balance struck by the district court, remaining mindful that we
    must   “‘tailor      the    analysis   to    the   particular      facts   of   each
    case[.]’”    Nieto v. San Perlita Indep. School Dist., 
    894 F.2d 174
    ,
    180 (5th Cir. 1990)(quoting Matherne v. Wilson, 
    851 F.2d 752
    , 760
    n.48 (5th Cir. 1988)).
    Central to the district court’s decision is its reliance on
    Kinsey v. Salado Indep. School Dist., 
    950 F.2d 988
    (5th Cir. 1992),
    10
    which it found factually analogous to the case at bar.                  In Kinsey,
    a suspended public school superintendent brought a § 1983 action
    against the school board alleging violation of his First and
    Fourteenth Amendment rights to speak out concerning the performance
    of elected school board members.              See 
    id. at 991.
         The district
    court    granted       summary   judgment     for    defendants    on    Kinsey’s
    Fourteenth Amendment claims and, after trial, granted a judgment
    notwithstanding the verdict on his First Amendment claims. See 
    id. at 991-92.
         The Fifth Circuit en banc court affirmed.               See 
    id. at 997.
    Like the district court, we conclude that Kinsey provides
    guidance    by    setting    out   the    legal     framework     for    analyzing
    Anderson’s First Amendment claims.            However, we find it impossible
    to dispose of Anderson’s claims at this stage of the proceedings on
    the basis of a Kinsey analysis because we do not have the benefit
    of facts sufficient to flesh out the framework.
    Kinsey instructs us to consider whether a close working
    relationship between Anderson and the individual defendants is
    essential.       See 
    id. at 995.
            Because Texas law provides for a
    school board and a superintendent for each public school district,
    we examined the applicable statutory language to discern the
    parameters of the relationship between Kinsey and the board member
    defendants. See 
    id. There is
    no provision in Texas law setting out
    the    duties    and    responsibilities      of    “Area   Superintendent”      or
    “Associate      Superintendent     for   Project     Management”    to    give   us
    guidance in this case.             Further, the trial record in Kinsey
    11
    established that “[o]ne of Kinsey’s primary duties was to advise
    the Board,” and to attend executive board sessions and offer
    opinions and recommendations to guide its decisions.                         See 
    id. Kinsey also
       handled      the    School      District    finances     and    made
    recommendations on hiring teachers and principals. See 
    id. at 996.
    Kinsey was custodian of the School District’s confidential records
    including personnel files, sealed bids, working papers on proposed
    rules and policies, and student records, and was called on to
    advise the Board concerning these and other confidential matters.
    See 
    id. Relying on
    the well developed, fact intensive trial
    record, we concluded that it was essential for Kinsey to have a
    close working relationship with the defendant board members and
    that    their    relationship        had   been   disrupted    to    the    point    of
    precluding effective performance by Kinsey.                  See 
    id. In contrast,
    the district court in the case at bar considered
    Anderson’s statement in his Second Amended Complaint that he
    “supervised       half    of     the       district     campuses,”         Anderson’s
    characterization of his position as “high profile” and “second-in-
    command,” and his participation in the superintendent’s “informal
    cabinet” to conclude that Anderson would not be able to effectively
    carry    out    his   duties    while      opposing    the    bond     election     and
    supporting a non-incumbent candidate for the board. As illustrated
    by the analysis in Kinsey, Anderson’s ability to effectively carry
    out his duties is a fact-intensive inquiry that requires, at a
    minimum, evidence or stipulations concerning what those duties
    were. Without benefit of summary judgment evidence, trial, or even
    12
    rudimentary discovery, the record in this case is not sufficient to
    perform a Pickering balancing test.          In addition, Anderson’s
    complaint can be read to allege that he previously supported some
    of the present board members when they were “non-incumbent” and
    continued to successfully fulfill his responsibilities to the
    school district.        We must therefore reverse the trial court’s
    dismissal of Anderson’s First Amendment claims.
    D. Due Process Claims
    Anderson alleges that his rights to due process were abridged
    when he was demoted from Area Superintendent, which required a
    certification, to Associate Superintendent, which did not, because
    positions lacking a certification requirement do not carry the
    benefits of a written employment contract which he enjoyed as Area
    Superintendent.    The district court rejected this argument holding
    that Anderson did not plead a constitutionally protected property
    interest in any non-economic benefit and that, because his salary
    was not reduced when he was reassigned, he had alleged no due
    process violation.
    On appeal, Anderson makes a conclusory statement that he has
    pleaded a due process right associated with school employment
    contracts, citing to a page in Kinsey that does not exist, and to
    the “fact,” which does not appear in the record before us, that he
    has subsequently been forced into early retirement.          In Kinsey, we
    rejected a due process property interest claim to the non-economic
    benefit   of   duties    and   responsibilities   of   the   position   of
    superintendent.    See 
    Kinsey, 950 F.2d at 996-97
    .            There is no
    13
    mention in Kinsey of Anderson’s theory of due process rights
    growing out of school employment contracts.                   We see no basis in
    Anderson’s Second Amended Complaint, in the briefs or in pertinent
    authority       for    reversing    the   district        court’s   Rule      12(b)(6)
    dismissal of Anderson’s due process claims.
    IV. SANCTIONS
    After the district court dismissed Anderson’s state claims
    without prejudice, he refiled those claims in Texas court and the
    defendants removed them to federal court.                  The defendants appeal
    the sanctions imposed by the district court in its order remanding
    that    action    to    state    court.        Anderson    urges    us   to   dismiss
    defendants’      appeal    of    the   orders     for   sanctions    for      lack   of
    jurisdiction.          Finding merit in that argument, we dismiss the
    appeal in case number 98–20384.
    The district court entered two orders regarding sanctions.
    The    first,    entered    on     February     20,   1998,   ordered      “that     the
    defendants shall pay a reasonable and necessary fee of $2000.00 in
    court costs, expenses and attorney fees for the improper removal of
    this case[.]”          Defendants filed a motion for reconsideration of
    that order on March 2, 1998.           The district court denied the motion
    on April 17, 1998, ordering “that defendants shall pay the counsel
    for plaintiff . . . the sum of $2000.00 as reasonable attorney’s
    fees and expenses incurred in filing the motion to reconsider
    motion to remand.”          Defendants filed their notice of appeal on
    April 27, 1998, appealing
    from the Order entered in this action on April 17, 1998,
    denying reconsideration of the Court’s award of
    14
    “$2,000.00 in court costs, expenses and attorney’s fees
    for . . . improper removal, which the Court [found] was
    done for purposes of delay,” as set forth in its Order
    for Remand of February 20, 1998, from which appeal is
    also taken to that extent.
    Federal Rule of Appellate Procedure 4(a)(1)(A) provides that,
    in a civil case, the notice of appeal must be filed with the
    district clerk within thirty days after entry of the judgment or
    order appealed from.      The Notice of Appeal was filed 66 days after
    the February 20, 1998 Order of Remand, but within the thirty day
    appeal window after the April 17, 1998 order.
    Defendants    contend    that    their      Motion     for   Reconsideration
    extended the time within which they could appeal the April 17, 1998
    Order of    Remand.      Under    Federal         Rule   of   Appellate   Procedure
    4(a)(4), the timely filing of certain post-decision motions defers
    the start of the appeal period until disposition of the motion.
    The motions that will extend or toll the thirty-day time limit
    under    Rule    4    include:     1)        a     motion     under    Civil    Rule
    50(b)(insufficient evidence for judgment); 2) a motion under Civil
    Rule 52(b)(to amend judgment or make additional findings of fact);
    3) a motion under Civil Rule 60 (for relief from a judgment); 4) a
    motion for attorney’s fees by the prevailing party under Civil Rule
    54; 5) a motion for new trial under Civil Rule 59(a); and 6) a
    motion to amend or alter judgment under Civil Rule 59.                    Defendants
    argue that we should treat their motion for reconsideration as a
    Rule    59(e)   motion   to    alter    or       amend   judgment.      We   cannot.
    Defendants’ motion for reconsideration sought only to have the
    monetary sanctions vacated and “such other and further relief to
    15
    which Defendant may show themselves justly entitled.”           Because the
    question   of    sanctions    raised       in   defendants’     motion   for
    reconsideration is collateral to the determination of the merits of
    the motion to remand, it does not amount to a Rule 59(e) motion
    triggering Rule 4(a)(4). See Campbell v. Bowlin, 
    724 F.2d 484
    , 488
    (5th Cir. 1984)(overruled on other grounds by United States v.
    Clark, 
    51 F.3d 42
    (5th Cir. 1995)).             Therefore, the notice of
    appeal   filed   66   days   later   did    not   vest   this   court    with
    jurisdiction to review the sanction order imposed by the February
    20, 1998 order of remand.     Further, the notice of appeal is limited
    by its terms to the $2000.00 sanction order contained in the
    February 20, 1998 order, and so is not effective in appealing the
    $2000.00 sanction imposed by the April 17, 1998 order.3                   We
    conclude that we have no jurisdiction to review the propriety of
    either sanction order and consequently must dismiss the appeal.
    V. CONCLUSION
    The judgment appealed in case number 97-20980 is AFFIRMED in
    part, REVERSED in part and REMANDED to the district court for
    3
    Approximately six weeks after filing their notice of appeal,
    defendants filed a motion for leave to file Amended Notice of
    Appeal.    While maintaining that the second sanction order
    reaffirmed the first $2000 sanction, rather than imposing an
    additional $2000 sanction, the defendants sought, “in an abundance
    of caution” to “also appeal any additional sanction that may have
    been assessed by the Court in its April 17, 1998 Order.”        On
    September 23, 1998, the district court denied the motion stating
    that an amended notice of appeal was unnecessary because only one
    sanction was assessed. However, we are constrained by the plain
    language of the two sanction orders and cannot base our
    jurisdiction on language by the district court interpreting those
    orders five months after the notice of appeal was filed and after
    the district court lost jurisdiction to clarify or modify the
    sanctions.
    16
    further proceedings consistent with this opinion.
    AFFIRMED in part, REVERSED in part and REMANDED.
    The appeal in case number 98-20384 is DISMISSED.
    DISMISSED.
    17