Case 3:07-cv Document 4 Filed 03/12/2007 Page 1 of 20

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1 Case 3:07-cv Document 4 Filed 03/12/2007 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SHERRI BROKAW, Plaintiff v. DALLAS INDEPENDENT SCHOOL DISTRICT; MICHAEL HINOJOSA, SUPERINTENDENT, DISD; CELSO MARTINEZ; DAVID RASTELLINI; TROY L. COLEMAN; and RONALD PEACE, Defendants. Civil Action No. 3:07-CV-15-K DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Respectfully Submitted, FISH & RICHARDSON P.C. Stephen E. Fox Texas Bar No Elizabeth M. Bedell Texas Bar No Main Street, Suite 5000 Dallas, Texas Telephone: Telecopy: Counsel for Defendants, Dallas Independent School District, Michael Hinojosa, Celso Martinez, David Rastellini, Troy L. Coleman, and Ronald Peace.

2 Case 3:07-cv Document 4 Filed 03/12/2007 Page 2 of 20 Table of Contents I. SUMMARY OF MOTION...1 II. ARGUMENTS AND LEGAL AUTHORITIES...3 A. Legal Standard for Dismissal...3 B. This Court Should Dismiss Plaintiff Brokaw s 1983 Claims Because Brokaw Cannot Establish That She Has Been Deprived of a Protected Due Process Right Plaintiff Brokaw s First 1983 Claim Fails Because the Alleged Damage to Her Reputation, Standing Alone, Does Not Give Rise to a Due Process Claim Plaintiff Brokaw s Second and Third 1983 Claims Fail Because She Cannot Establish that She Has Been Deprived of a Right That Entitles Her To Notice of the Allegations Against Her and To a Name-Clearing Hearing Plaintiff Brokaw s Final Due Process Claim Also Fails Because Defendants Alleged Conduct Does Not Constitute a Violation of Her Substantive Rights...9 C. This Court Should Dismiss Plaintiff Brokaw s Defamation Claim Because Sovereign Immunity Protects Martinez From Suit and Even If It Did Not, This Court Will Lack Jurisdiction Over Brokaw s State Law Claim Upon Dismissal of Her Federal Claims III. CONCLUSION i -

3 Case 3:07-cv Document 4 Filed 03/12/2007 Page 3 of 20 Federal Cases Table of Authorities Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972)... 7, 9 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995)... 4, 5 Bledsoe v. City of Horn Lake, 449 F.3d 650 (5th Cir. 2006)... 6 Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524 (7th Cir. 2000)... 6, 8 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994) Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)... 7 Conley v. Gibson, 355 U.S. 41 (1957)... 3 Drs. Betha, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399 (5th Cir. 2004)... 3 Edwards v. Cal. Univ. of Penn., 156 F.3d 488 (3d Cir. 1998)... 8 Eggers v. Moore, No , 2006 WL , at *5 (E.D. Mich. Aug. 15, 2006)... 8 Evans v. City of Irving, No. 3:05-cv-2149, 2006 WL , at *6 (N.D. Tex. Aug. 25, 2006) Fernand-Montes v. Allied Pilots Ass n, 987 F.2d 278 (5th Cir. 1993)... 3 Findeisen v. North East Indep. Sch. Dist., 749 F.2d 234 (5th Cir.1984)... 4 Ghaly v. U.S. Dep t of Agriculture, 228 F. Supp. 2d 283 (S.D.N.Y. 2002)... 8 Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993)... 6, 11 Hazelton v. City of Grand Prairie, 8 F. Supp. 2d 570 (N.D. Tex. 1998)... 13, 14 Hinds v. Dallas Indep. Sch. Dist., 188 F. Supp. 2d 664 (N.D. Tex. 2002) Jackson v. Dallas Ind. Sch. Dist., No. 3:89-cv-1079-D, 1999 WL at *5 (N.D. Tex. Feb 1, 1999) Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359 (5th Cir. 2000) Lovelace v. Software Spectrum Inc., 78 F.3d 1015 (5th Cir. 1996) ii -

4 Case 3:07-cv Document 4 Filed 03/12/2007 Page 4 of 20 Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580 (5th Cir. 1992) Paul v. Davis, 424 U.S. 693 (1976)... 4 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) Pitts v. Bd. of Educ. of U.S.D. 305, Salina, Kan., 869 F.2d 555 (10th Cir.1989)... 8 R2 Investments LDC v. Phillips, 401 F.3d 638 (5th Cir. 2005) Ramming v. United States, 281 F.3d 158 (5th Cir. 2001)... 3 Richards v. City of Weatherford, 145 F. Supp. 2d 786 (N.D. Tex. 2001)... 6, 7 Rosenstein v. City of Dallas, 876 F.2d 392 (5th Cir. 1989)... 4, 5, 6 San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697 (5th Cir. 1991)... 5 Schul v. Sherard, 102 F. Supp. 2d 877 (S.D. Ohio 2000)... 9 Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990) Senegal v. Jefferson County, 785 F. Supp. 86 (E.D. Tex. 1992), aff d 1 F.3d 1238 (5th Cir. 1993)... 8 Sieger v. Gilley, 500 U.S. 226 (1991) Thomas v. City of Desoto, No. 3:02-cv-0480-N, 2002 WL , at *2 n.4 (N.D. Tex. Sept. 9, 2002)... 7 Thompson v. Scheid, 977 F.2d 1017 (6th Cir. 1992)... 9 Tran v. Kaiser Found. Health Plan of Tex., No. 3:00-cv-1559-P, 2001 WL , at *7 (N.D. Tex. 2001) Wagner v. Tex. A&M Univ., 939 F. Supp (S.D. Tex. 1996) Welch v. Thompson, 20 F.3d 636 (5 th Cir. 1994) White v. Thomas, 660 F.2d 680 (5 th Cir. 1981)... 4 Wong v. Stripling, 881 F.2d 200 (5th Cir. 1989) State Cases City of Dallas v. Moreau, 718 S.W.2d 776 (Tex. App.-Corpus Christi 1986, writ ref d n.r.e.) Williams v. Conroe Ind. Sch. Dist., 809 S.W.2d 954 (Tex. App.-Beaumont 1991, no pet.) iii -

5 Case 3:07-cv Document 4 Filed 03/12/2007 Page 5 of 20 Federal Statutes 28 U.S.C. 1367(c)(3)... 1, 2 State Statutes Tex. Civ. Prac. & Rem. Code Ann (2) Tex. Civ. Prac. & Rem. Code Ann Tex. Civ. Prac. & Rem. Code. Ann Federal Rules Fed. R. Evid iv -

6 Case 3:07-cv Document 4 Filed 03/12/2007 Page 6 of 20 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and, alternatively 28 U.S.C. 1367(c)(3), Defendants Dallas Independent School District ( DISD ), Michael Hinojosa, Celso Martinez, David Rastellini, Troy L. Coleman, and Ronald Peace (collectively, Defendants ) file this Motion to Dismiss and Brief in Support as follows: I. SUMMARY OF MOTION Plaintiff Sherri Brokaw ( Brokaw or Plaintiff ) is current DISD employee who began working for DISD in or about February Compl. at 1, 12. Brokaw s job duties include oversight of DISD s Pcard program, which allowed DISD employees to make purchases on credit cards rather than using the formal requisition approval process. Id. at 16. In July 2006, the Pcard program came under intense scrutiny, and as a result of serious allegations of criminal and policy misconduct, DISD suspended the program and hired outside investigators to review the allegations. Id. at Due to the nature of the allegations, on or about July 18, 2006, DISD placed Brokaw, among others, on paid administrative leave pending the outcome of the investigation. Id. at 20. During the course of the investigation, DISD officials repeatedly asked Brokaw to appear for an interview about the Pcard program. Id. at 26. Rather than cooperate with DISD s investigation, however, Brokaw filed suit on January 4, 2007, asserting 1983 claims and a defamation claim. See Compl. at Brokaw claims that Defendants deprived her procedural due process rights (i) to be free from stigmatizing remarks, (ii) to be apprised of the allegations of misconduct made against her, and (iii) to convene a name-clearing hearing in light of those allegations. Id. at Brokaw also claims her substantive due process rights were violated because Defendants (i) refused to afford her a name-clearing hearing and (ii) attempted to silence her free speech rights. Id. at 33. Finally, Brokaw claims that DISD s Associate Superintendent of Communications and Community Relations, Mr. Martinez, DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 1

7 Case 3:07-cv Document 4 Filed 03/12/2007 Page 7 of 20 defamed her by making false statements to the DALLAS MORNING NEWS about her role in the Pcard program. Id. at 7, 34. None of these claims is cognizable given the facts of this case. All of Plaintiff Brokaw s procedural due process claims fail as a matter of law because Brokaw cannot establish that she was deprived of a constitutionally-protected liberty or property interest without due process. Brokaw s first claim fails because it is well-established that one s reputation is not a Constitutionally-protected interest and, therefore, stigmatizing remarks alone do not entitle a public employee to procedural due process. Brokaw s remaining procedural due process claims also fail because Brokaw had no due process rights to notice and a hearing before being placed on paid administrative leave. Rather, these procedural rights are triggered only if an employee is terminated. Mr. Martinez s alleged false statements to the press also did not entitle Brokaw to notice or to a name-clearing hearing because stigmatizing statements do not trigger procedural due process requirements unless they are made in connection with an employee s termination. It is undisputed that Brokaw has not been terminated; therefore, her procedural due process claims are not ripe and must be dismissed. Similarly, Plaintiff Brokaw s substantive due process claims fail as a matter of law because the right to a name-clearing hearing is one of procedural, not substantive, due process and because Brokaw cannot establish that Defendants deprived her of the right to freedom of speech. Accepting Brokaw s own allegations as true, Defendants merely attempted to impede Brokaw s right to free speech, but they did not succeed. Indeed, the undisputed facts clearly show that despite Defendants alleged efforts, Brokaw nonetheless has spoken with reporters about her involvement in the Pcard program at least twice since the investigation began. Finally, Brokaw s pendent state law claim for defamation against Mr. Martinez fails as a matter of law because the doctrine of sovereign immunity protects Mr. Martinez from intentional tort claims arising from his conduct during the course of performing his job duties DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 2

8 Case 3:07-cv Document 4 Filed 03/12/2007 Page 8 of 20 for DISD. Even if Mr. Martinez were not shielded by sovereign immunity, however, this Court still should dismiss Brokaw s state claim because, upon dismissal of her 1983 claims, the Court no longer retains supplemental jurisdiction over Brokaw s defamation claim. II. ARGUMENTS AND LEGAL AUTHORITIES A. Legal Standard for Dismissal. Rule 12(b)(6) allows a defendant to move to dismiss a complaint for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); Drs. Betha, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 403 (5th Cir. 2004). A complaint should be dismissed under Rule 12(b)(6) for failure to state a claim when it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, (1957); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Although the court must accept the plaintiff s well-pleaded factual allegations as true, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernand-Montes v. Allied Pilots Ass n, 987 F.2d 278, 284 (5th Cir. 1993). A statement of facts that merely create a suspicion that the pleader might have a right of action is insufficient. Id. The court is not required to conjure up unpled allegations or construe elaborately arcane scripts to save a complaint. Id. (internal citations omitted). None of Plaintiff Brokaw s purported 1983 claims meet even this base line burden established by Rule 12(b)(6). Therefore, this Court should dismiss Brokaw's 1983 claims in their entirety. B. This Court Should Dismiss Plaintiff Brokaw s 1983 Claims Because Brokaw Cannot Establish That She Has Been Deprived of a Protected Due Process Right. Even assuming arguendo that the conduct alleged in Plaintiff Brokaw s Complaint were true, Brokaw cannot establish the most fundamental element of her 1983 due process claims: that she was deprived of a Constitutionally-protected interest. DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 3

9 Case 3:07-cv Document 4 Filed 03/12/2007 Page 9 of 20 Whether a plaintiff has alleged a cognizable violation of her Fourteenth Amendment right to due process involves a dual inquiry : (1) Was she deprived of a protected liberty or property interest, and if so, (2) Was the deprivation accomplished without adherence to due process? Findeisen v. North East Indep. Sch. Dist., 749 F.2d 234, (5th Cir.1984). Thus, to assert a claim based on a due process violation, a plaintiff must first identify a life, liberty, or property interest protected by the Fourteenth Amendment and then identify a state action that resulted in a deprivation of that interest. Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995). Plaintiff Brokaw attempts to meet this threshold burden by pointing to four different alleged deprivations that she attributes to Defendants: (1) her right to be free of false, stigmatizing remarks by state officials (Compl. at 30); (2) her right to be apprised of allegations of misconduct affecting her employment (Id. at 31); (3) her right to a name-clearing hearing (Id. at 32); and (4) her substantive right to a name-clearing hearing and freedom of speech (Id. at 33). Yet, none of the conduct set forth in Plaintiff s Complaint, even if it accepted as true, gives rise to a deprivation of any of these alleged rights. Therefore, Plaintiff s 1983 claims fail as a matter of law and should be dismissed. 1. Plaintiff Brokaw s First 1983 Claim Fails Because the Alleged Damage to Her Reputation, Standing Alone, Does Not Give Rise to a Due Process Claim. It is now beyond any doubt that [r]eputation alone is not a constitutionally protected interest. Rosenstein v. City of Dallas, 876 F.2d 392, 396 n.1 (5th Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 701 (1976); White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981), cert. denied, 455 U.S (1982)). Although the Supreme Court has recognized the drastic effect of the stigma which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either liberty or property itself sufficient to invoke DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 4

10 Case 3:07-cv Document 4 Filed 03/12/2007 Page 10 of 20 procedural due process. Paul, 424 U.S. at 701. In reaching this conclusion, the Paul Court explained that there simply cannot be a constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause. Id. at 702. Instead, a plaintiff asserting a 1983 claim based on stigmatizing statements made by officers of the state must show stigma plus the infringement of some other interest. Blackburn, 42 F.3d ; San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991). As a result, the Fifth Circuit has admonished that a public employee s [r]eputation must be impugned in connection with the termination of employment to be actionable under Rosenstein, 876 F.2d at 396 n.1 (citing Paul, 424 U.S. at 710). Despite this well-established authority, Plaintiff Brokaw attempts to base her first 1983 due process claim on this very non-existent right. Specifically, Brokaw argues that Defendants conduct has deprived her of the alleged right to be free of false, stigmatizing charges by state officials which damage her reputation. Compl. at 30. Because no fundamental right to an untarnished reputation exists, to state a claim, Brokaw must plead and ultimately prove that Defendants made stigmatizing statements about her in connection with depriving her of some other liberty or property interest. See Paul, 424 U.S. at 702; Rosenstein, 876 F.2d at 396. Tellingly, Brokaw does not plead any other protected interest in support of her first 1983 claim because no such deprivation exists. See Compl. at 30. It is undisputed that Brokaw has not been terminated from employment with DISD; rather, Brokaw was placed on paid administrative leave pending the outcome of DISD s investigation into allegations of abuse in its Pcard program. Id. at Defendants decision to place Brokaw on administrative leave with pay does not give rise to an independent deprivation of a property interest actionable under the due process clause. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 5

11 Case 3:07-cv Document 4 Filed 03/12/2007 Page 11 of 20 F.3d 524, 530 (7th Cir. 2000) (holding that to recover for a deprivation of a property interest, [plaintiff] must show some economic loss from [defendant s] actions ); Richards v. City of Weatherford, 145 F. Supp. 2d 786, (N.D. Tex. 2001) (noting that there are a plethora of decisions in the courts of the Fifth Circuit holding that a property interest does not arise from a public employee s suspension, reassignment, placement on leave, or the mere duties or responsibilities of a position of employment ). See also discussion, infra, at 6-9. Therefore, Brokaw s first 1983 claim fails as a matter of law and must be dismissed. 2. Plaintiff Brokaw s Second and Third 1983 Claims Fail Because She Cannot Establish that She Has Been Deprived of a Right That Entitles Her To Notice of the Allegations Against Her and To a Name-Clearing Hearing. A public employee s right to notice and an opportunity to clear her name through a hearing arises only when the employee is discharged. Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006) (emphasis added) ( Neither damage to reputation alone nor the stigma resulting from the discharge itself trigger the protections of due process. ). Thus, to state a cognizable 1983 claim for the denial of notice and a name-clearing hearing, a public employee must prove the following: (1) that she was discharged; (2) that defamatory statements were made against her in connection with her discharge; (3) that the statements were false; (4) that the statements were public; (5) that no public hearing was conduct before her discharge; (6) that she requested a public hearing; and (6) that the request was denied. See Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993); Rosenstein, 876 F.2d at Plaintiff Brokaw cannot establish even the first element of her claim because she has not been discharged from employment with DISD. See Compl. at 20. Rather, DISD placed Brokaw on administrative leave with pay pending the outcome of its investigation of the Pcard program. Id. at This distinction between a public employee s termination as opposed to paid DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 6

12 Case 3:07-cv Document 4 Filed 03/12/2007 Page 12 of 20 administrative leave is far more than mere semantics; it is a necessary component of the very purpose of the Fourteenth Amendment s due process protection. [T]he range interests protected by procedural due process is not infinite, but, instead, denotes those interests of a most fundamental nature, such as the right to contract, to marry, to acquire useful knowledge, to worship God, and the like Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, (1972). However, there are a plethora of cases holding that a property interest does not arise from a public employee s suspension with pay. Thomas v. City of Desoto, No. 3:02-cv-0480-N, 2002 WL , at *2 n.4 (N.D. Tex. Sept. 9, 2002); Richards, 145 F. Supp. 2d at Indeed, the Supreme Court has unequivocally recognized that a paid suspension or administrative leave does not give rise to the due process requirements associated with the deprivation of a property or liberty interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, (1985). The Loudermill Court explained that a government employer who wishes to remove an employee immediately may suspend that employee with pay until the procedures associated with the employer s investigation or termination process can be completed. Id. This process permits public employers to respond to allegations of misconduct immediately, but investigate the charges before making any adverse employment decisions to ensure that its decisions are based on facts rather than mere allegations and supposition. The very scenario contemplated by the Supreme Court is precisely what happened here: Recognizing a need to investigate serious allegations of criminal misconduct as well as policy violations, DISD placed Brokaw on administrative leave with pay pending the outcome of that investigation. Compl. at 21. Numerous courts faced with similar facts have held that paid leave can be imposed without triggering the Constitutional demands for a name-clearing hearing and, accordingly, have dismissed due process suits, like Brokaw s, where the plaintiff was merely placed on paid suspension or leave. See, e.g., Bordelon v. Chicago Sch. Reform Bd. of DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 7

13 Case 3:07-cv Document 4 Filed 03/12/2007 Page 13 of 20 Trustees, 233 F.3d 524, 530 (7th Cir. 2000) (finding no deprivation of property interest where employee was discharged two years and four months before contract expired but was paid full salary for duration); Edwards v. Cal. Univ. of Penn., 156 F.3d 488, 492 (3d Cir. 1998) (finding placement of tenured professor on paid leave did not implicate due process concerns because professor could not establish he was deprived of a property interest deserving due process guarantees ); Pitts v. Board of Educ. of U.S.D. 305, Salina, Kan., 869 F.2d 555, 556 (10th Cir.1989) (upholding dismissal of plaintiff s 1983 because plaintiff s suspension with pay did not deprive [him] of any measurable property interest ); Eggers v. Moore, No , 2006 WL , at *5 (E.D. Mich. Aug. 15, 2006) (dismissing plaintiff s 1983 claim because no due process violation committed when school placed plaintiff on paid administrative leave during investigation concerning allegations of misconduct); Ghaly v. U.S. Dep t of Agriculture, 228 F. Supp. 2d 283, 291 (S.D.N.Y. 2002) (finding no due process rights implicated and dismissing due process claim under Rule 12(b)(6) where plaintiff was placed on administrative leave and continued to receive ordinary salary during employer s investigation of misconduct); Senegal v. Jefferson County, 785 F. Supp. 86, 88 (E.D. Tex. 1992), aff d 1 F.3d 1238 (5th Cir. 1993) (dismissing property interest claims of deputy sheriffs who were suspended with pay). In light of this overwhelming authority, it is clear that Defendants were permitted to place Brokaw on paid administrative leave while conducting an investigation without the due process requirements of giving Brokaw notice of the allegations or a public name-clearing hearing. Brokaw s Complaint implies that certain statements reported by the DALLAS MORNING NEWS during the course of the investigation somehow entitled her to a name-clearing hearing, but this simply is not the case. See Compl. at 32. As previously discussed, allegedly stigmatizing statements alone, without an accompanying violation of a protected property or liberty interest, do not give rise to a due process claim. See discussion, supra, at 5-6. Accord Roth, DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 8

14 Case 3:07-cv Document 4 Filed 03/12/2007 Page 14 of U.S. at 573 (holding that a government employee s liberty interest are implicated only if he is dismissed based on charges that imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities ). In sum, because neither Brokaw s placement on paid administrative leave nor Mr. Martinez s alleged statements to the DALLAS MORNING NEWS triggered the procedural due process requirements of notice and a name-clearing hearing, Brokaw s second and third 1983 claims should be dismissed. See Compl. at Plaintiff Brokaw s Final Due Process Claim Also Fails Because Defendants Alleged Conduct Does Not Constitute a Violation of Her Substantive Rights. Brokaw s Complaint appears to advance two bases for her substantive due process claim: (i) her right to name-clearing hearing 1 and (ii) her right to freedom of speech. Comp. at 33. Regardless of the bases, however, Brokaw s substantive due process claim fails as a matter of law because, even accepting Brokaw s allegations as true, she cannot establish that Defendants violated her substantive due process rights. The first basis for Brokaw s claim is fundamentally flawed because there is no substantive due process right to a name-clearing hearing. Substantive due process protects fundamental interests, not state-created contract rights. Thompson v. Scheid, 977 F.2d 1017, 1020 (6th Cir. 1992). Consequently, even assuming Brokaw was entitled to a name-clearing hearing, her failure to receive one would constitute a denial a procedural due process, not substantive due process. Schul v. Sherard, 102 F. Supp. 2d 877, 890 (S.D. Ohio 2000) (granting summary judgment for employer on plaintiff s procedural and substantive due process claims where plaintiff claimed his rights were violated because he was placed on administrative leave without a name-clearing hearing because no such right existed). DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 9

15 Case 3:07-cv Document 4 Filed 03/12/2007 Page 15 of 20 The second purported basis of Brokaw s claim is equally flawed because Brokaw has not pleaded and ultimately cannot establish that Defendants impeded her First Amendment right to freedom of speech. At the outset of evaluating Brokaw s 1983 substantive due process claim, the Court must determine whether the plaintiff has asserted the violation of a constitutional right at all. Sieger v. Gilley, 500 U.S. 226, 232 (1991). If she has not, her claims must be dismissed. See id. (upholding dismissal of plaintiff s claims because injury to one s reputation alone does not constitute the deprivation of a Constitutional right). For example, in Hinds v. Dallas Independent School District, 188 F. Supp. 2d 664, 673 (N.D. Tex. 2002), the plaintiff generically alleged a violation of his right of access to courts, but did not allege that his ability to file suit was in any way delayed or blocked altogether. Because the plaintiff failed to allege facts that would establish a violation of his rights and had in fact filed suit in federal court, Judge Lindsay granted judgment for the defendant as a matter of law. Id. Similarly, Brokaw s Complaint does not even allege that Defendants prevented her from exercising her right to free speech, but, instead, claims that Defendants were attempting to silence [her] free speech rights. Compl. at 33 (emphasis added). Indeed, it is beyond dispute that Brokaw has, in fact, spoken with the press about her involvement in the Pcard program on two separate occasions without any subsequent change in her employment status with DISD. Brokaw first spoke with the press in the Spring of 2006 when the DALLAS MORNING NEWS began investigating the allegations of misuse of DISD s Pcard program. See Compl. at 18. Brokaw also spoke with the press, again emphasizing her view that she was not responsible for the alleged Pcard misuse, in January See Kent Fischer, DISD official says she was scapegoat, DALLAS MORNING NEWS, Jan. 5, 2007, available at 1 To the extent that Paragraph 33 of Plaintiff s Complaint re-asserts Brokaw s purported procedural due process claim based on the denial of a name-clearing hearing, Defendants renew their arguments that this claim should be dismissed for the reasons set forth herein. See discussion, supra, at 6-9. DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 10

16 Case 3:07-cv Document 4 Filed 03/12/2007 Page 16 of 20 /dws/news/localnews/stories/dn-pcardsuit_05met.art.north.edition1.3dfc75d.html (Def. App. at 1-2). 2 Because these facts clearly establish that Defendants did not deprive Brokaw of her right to free speech, Brokaw s substantive due process claim must be dismissed. It also bears mention, however, that even if Defendants had somehow deprived Brokaw of her freedom of speech, Brokaw has not alleged a requisite element of her First Amendment claim: that the speech from which she was allegedly preventing in engaging involved a matter of public concern. See Scott v. Flowers, 910 F.2d 201, 210 (5th Cir. 1990) (When evaluating claims of First Amendment violations brought by public employees, the court must first determine whether [the speech] addresses a matter of legitimate public concern. If it does not, the inquiry ends. ) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). The focus [of this inquiry is] on the hat worn by the employee when speaking rather than upon the importance of the issue. Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993). Thus, an employee s speech is not protected if she is speaking not as a citizen upon matters of public concern, but instead as an employee upon matters only of private interest. Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000). Here, according to Brokaw herself, she wanted to speak out (and did) in an effort to clear her name from the perceived misconduct affecting her employment with DISD, not to advise or alert the public about matters of concern to the community. See Compl. at Because the speech in question was merely personal, even if Brokaw had alleged and could 2 Because the fact that Brokaw spoke with the DALLAS MORNING NEWS in January 5, 2007 is a matter of public record, as reflected in the public document attached hereto, Defendants respectfully request that the Court take judicial notice of this fact. FED. R. EVID. 201 ( A court shall take judicial notice if requested by a party and supplied with the necessary information. ); see also R2 Investments LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005) (noting that a court may take judicial notice of documents in the public record when determining a Rule 12(b)(6) motion to dismiss). This article is not offered for the truth of any of the statements made by Brokaw therein, but only as evidence that Brokaw did, in fact, participate in an interview with the DALLAS MORNING NEWS. See Lovelace v. Software Spectrum Inc., 78 F.3d 1015, (5th Cir. 1996) (holding that documents that courts consider for judicial notice should be considered only for their content and not for the truth of the statements contained therein). DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 11

17 Case 3:07-cv Document 4 Filed 03/12/2007 Page 17 of 20 establish that Defendants deprived her of the right to speak out, she cannot demonstrate that the speech at issue was protected by the First Amendment, and her claim should be dismissed. C. This Court Should Dismiss Plaintiff Brokaw s Defamation Claim Because Sovereign Immunity Protects Martinez From Suit and Even If It Did Not, This Court Will Lack Jurisdiction Over Brokaw s State Law Claim Upon Dismissal of Her Federal Claims. Plaintiff Brokaw cannot assert a defamation claim against Defendant Martinez based on his actions as an administrative officer of DISD because sovereign immunity bars her claim. Under Texas law, [a]n independent school district is an agency of the state and, while exercising its government functions, is not answerable in a suit sounding in tort. Williams v. Conroe Ind. Sch. Dist., 809 S.W.2d 954, 957 (Tex. App. Beaumont 1991, no pet.) (citing Barr v. Bernhard, 562 S.W.2d 844 (Tex. 1978)). Officials acting in their official capacity enjoy the same immunity as the state itself. Wagner v. Tex. A&M Univ., 939 F. Supp. 1297, 1327 (S.D. Tex. 1996). The Texas Tort Claims Act waives governmental immunity only in three limited areas: use of publicly owned vehicles, premises defects, and injuries arising from conditions or use of property. Id. (citing Tex. Civ. Prac. & Rem. Code Ann ). The waiver of governmental immunity in the case of school districts is even further restricted only to causes of action arising from the use of motor vehicles. TEX. CIV. PRAC. & REM. CODE. ANN Indeed, the Texas Tort Claims Act expressly provides that this waiver does not extend to intentional torts. TEX. CIV. PRAC. & REM. CODE ANN (2). Therefore, [d]efamatory statements, even when they are reduced to tangible property in the form of documents, do not escape sovereign immunity from suit. Wagner, 939 F. Supp. at 1327 (citing Dallas County v. Harper, 913 S.W.2d 207, (Tex. 1995)). In this case, it is undisputed that Mr. Martinez s official government duties for DISD require him to communicate with the public about issues concerning the school district. Compl. at 7 (recognizing Mr. Martinez s position as Associate Superintendent of Communications DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 12

18 Case 3:07-cv Document 4 Filed 03/12/2007 Page 18 of 20 and Community Relations). Therefore, even assuming that Brokaw s allegations concerning Mr. Martinez s statements to the DALLAS MORNING NEWS are true, Mr. Martinez s statements were clearly made within the scope of his governmental functions and, as a result, he is immune from suit. Accord Jackson v. Dallas Ind. Sch. Dist., No. 3:89-cv-1079-D, 1999 WL 58846, at*5 (N.D. Texas Feb. 1, 1999) (Fitzwater, J.) (granting judgment on the pleadings for DISD officials because sovereign immunity protected individuals from plaintiff s defamation and intentional infliction of emotional distress claims); City of Dallas v. Moreau, 718 S.W.2d 776, (Tex. App. Corpus Christi 1986, writ ref d n.r.e.) (holding that defamation of police officer by city officials in connection with employment decisions is protected under sovereign immunity and not actionable against either city or individual officers). Alternatively, even if Mr. Martinez were not protected by sovereign immunity, this Court should dismiss Brokaw s defamation claim because federal court jurisdiction over this state law claim will cease upon dismissal of Brokaw s federal claims. It is generally agreed that the trial court enjoys broad discretion in decided whether to remand/dismiss pendent state claims to state court or to retain them for trial. Hazelton v. City of Grand Prairie, 8 F. Supp. 2d 570, 582 (N.D. Tex. 1998) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, (1988); Welch v. Thompson, 20 F.3d 636, 644 (5th Cir. 1994)). In deciding whether to retain jurisdiction over pendent state law claims, a district court should consider judicial economy, convenience, fairness to litigants, and comity. Cinel v. Connick, 15 F.3d 1338, 1344 (5th Cir. 1994). Thus, the Fifth Circuit has repeatedly reiterated that state law claims should normally be remanded or dismissed when the federal claims to which they are pendent are dismissed before trial. Id. (citing Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992); Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 13

19 Case 3:07-cv Document 4 Filed 03/12/2007 Page 19 of 20 Brokaw s 1983 claims are the only basis to support federal court jurisdiction in this matter. See Compl. at 2. As previously discussed, however, the overwhelming weight of authority clearly supports the dismissal of Plaintiff Brokaw s 1983 procedural and substantive due process claims. See discussion, supra, at Upon dismissal of these claims, the only claim left in this matter will be Brokaw s state claim for defamation against Mr. Martinez. Therefore, consistent with its prior practice, even if this Court determines that Mr. Martinez is not protected by sovereign immunity, the Court still should dismiss Brokaw s defamation claim without prejudice to re-file in the proper state court forum. Accord Evans v. City of Irving, No. 3:05-cv-2149, 2006 WL , at *6 (N.D. Tex. Aug. 25, 2006) (Kinkeade, J.) (adopting Magistrate Judge Stickney s recommendation to dismiss pendent state law claims upon dismissal of all plaintiff s 1983 claims); Tran v. Kaiser Found. Health Plan of Tex., No. 3:00-cv P, 2001 WL , at *7 (N.D. Tex. 2001) (remanding medical malpractice claims to state court after dismissing all of plaintiff s federal claims); Hazelton, 8 F. Supp. 2d at 582 (dismissing plaintiff s state cause of action against city under Texas Tort Claims Act without prejudice after having dismissed all of the federal claims to which they were pendent). III. CONCLUSION Accordingly, for the reason stated herein, Defendants ask that the Court: (i) dismiss Plaintiff s 1983 claims in their entirety for failure to state a claim upon which relief may be granted; and (ii) dismiss Plaintiff s defamation claim on the basis of sovereign immunity, or, alternatively, for lack of jurisdiction upon the dismissal of Plaintiff s 1983 claims. DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 14

20 Case 3:07-cv Document 4 Filed 03/12/2007 Page 20 of 20 Dated: March 12, 2007 Respectfully submitted, FISH & RICHARDSON P.C. By: /s/ Elizabeth M. Bedell Stephen E. Fox Texas Bar No Elizabeth M. Bedell Texas Bar No Main Street, Suite 5000 Dallas, Texas Telephone: Telecopy: Counsel for Defendants, Dallas Independent School District, Michael Hinojosa, Celso Martinez, David Rastellini, Troy L. Coleman, and Ronald Peace. CERTIFICATE OF SERVICE I hereby certify that on this 12 th day of March, 2007, I electronically submitted the foregoing document with the clerk of the court for the U.S. District Court, Northern District of Texas, using the electronic case files system of the court. The electronic case files system sends a Notice of Electronic Filing to Plaintiffs counsel of record James M. Murphy, who has consented in writing to accept this Notice as service of this document by electronic means. /s/ Elizabeth M. Bedell Counsel for Defendants doc; LL1 DEFENDANTS MOTION TO DISMISS AND BRIEF IN SUPPORT Page 15