Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 1 of 15 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION JOSE V. CAMPOS, MARTHA OROZCO, FRANCISCO A CUELLAR, ARTURO CASTILLO, SR., JAVIER GARZA AND LINDA GARZA Plaintiffs, VS. CIVIL ACTION NO. 7:15-CV-070 DONNA INDEPENDENT SCHOOL DISTRICT, ALBERT SANDOVAL, TOMASA RAMOS NICK CASTILLO, ELOY INFANTE AND ELPIDIO YANEZ INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE BOARD OF TRUSTEES, Defendants. JURY REQUESTED PLAINTIFFS SECOND AMENDED ORIGINAL COMPLAINT COME NOW, JOSE V. CAMPOS, MARTHA OROZCO, FRANCISCO A. CUELLAR, ARTURO CASTILLO, SR., JAVIER GARZA and LINDA GARZA, Plaintiffs, complaining of DONNA INDEPENDENT SCHOOL DISTRICT and ALBERT SANDOVAL, TOMASA RAMOS, NICK CASTILLO, ELOY INFANTE and ELPIDIO YANEZ, individually and in their official capacity as members of the Donna ISD board of trustees, and in support thereof would show the following: I. NATURE OF ACTION 1.1 This is an action under the United States Constitution for violation of Plaintiffs rights under the First and Fourteenth Amendments. Additionally, this action is brought under 1
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 2 of 15 Title VII of the Civil Action Rights of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended (ADEA) and the Fair Labor Standards Act. 1.2 Specifically, while acting under color of law, Defendants took adverse employment actions against Plaintiffs employment in violation of their due process rights and their protected first amendment rights. Additionally, Defendants demoted Plaintiff, Jose Campos, because of his age in violation of federal law and unlawfully withheld the wages of 4 employees in violation of the Fair Labor Standards Act. II. JURISDICTION AND VENUE 2.1 Jurisdiction of this Court is invoked pursuant to 28 USC Sections 451, 1331, 1337, 1443, 1345, 1441 and 42 USC 1983. In addition, this Court has supplemented jurisdiction under 28 USC 1367 over Plaintiff s factually identical claims arising under State law. This action is likewise based on the provisions of Title VII, 42 USC 2000 et. seq., 42 USC 2000e-2 et. seq., 630 (b) of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. 621 et seq., as amended and 29 U.S.C. et seq. and Sec. 216(b) of the Fair Labor Standards Act. 2.2 The employment practices to be alleged and unlawful were and are currently being committed within the Jurisdiction of the United States District Court for the Southern District of Texas, McAllen Division. III. PARTIES 3.1 Plaintiff, JOSE V. CAMPOS is a resident of Hidalgo County Texas. 3.2 Plaintiff, MARTHA OROZCO, is a resident of Hidalgo County Texas. 3.3 Plaintiff, FRANCISCO A. CUELLAR, is a resident of Hidalgo County Texas. 2
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 3 of 15 3.4 Plaintiff, ARTURO CASTILLO, SR., is a resident of Hidalgo County Texas. 3.5 Plaintiff, JAVIER GARZA, is a resident of Hidalgo County Texas. 3.6 Plaintiff, LINDA GARZA, is a resident of Hidalgo County Texas. 3.7 Defendant, DONNA INDPENDENT SCHOOL DISTRICT, has answered and appeared. 3.8 Defendant, ALBERT SANDOVAL, has answered and appeared. 3.9 Defendant, TOMASA RAMOS, has answered and appeared. 3.10 Defendant, NICK CASTILLO, has answered and appeared. 3.11 Defendant, ELOY INFANTE, is being sued in individual and official capacity as a member of the Donna ISD board of trustees and may be served with process at: 521 N. 13 th Street, Donna, Texas 78537. 3.12 Defendant, ELPIDIO YANEZ, is being sued in individual and official capacity as a member of the Donna ISD board of trustees and may be served with process at: 1011 Justin Circle, Donna, Texas 78537. IV. FACTUAL ALLEGATIONS 4.1 Jose V. Campos has been an employee with Donna ISD for over 41 years, Martha Orozco has been an employee with Donna ISD for 28 years, Francisco Cuellar has been employed by Donna ISD for over 3 years, Linda Garza has worked for DISD for over 11 years, Arturo Castillo has been employed at the district for 13 years and Javier Garza for 14 years. The Plaintiffs collectively have provided Donna ISD with over 110 years of service to Donna ISD. 4.2 Throughout their employment, the Plaintiffs have each performed their employment duties with dedication, loyalty and hard work. 3 Plaintiffs have all received performance
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 4 of 15 appraisals with very high ratings on a yearly basis. Prior to the Defendants gaining control of the Board of Trustees, none of the Plaintiffs had ever had any adverse employment action taken against them nor have they ever been written up for job related improper conduct. 4.3 In November of 2014, Donna ISD conducted school board elections which resulted in the seating of a new school board political majority. During the election campaign, the members who were elected and those current board members with whom they are aligned made numerous statements regarding their intent to terminate, demote and reassign employees, specifically naming the Plaintiffs. 4.4 Upon being sworn in, the new political majority, hereinafter referred to as the Sandoval faction, comprised of Defendants Albert Sandoval, Tomasa Ramos, Nick Castillo, Eloy Infante and Elpidio Yanez, set about on a campaign to reward those employees who were related to the new board majority and those who had openly supported their faction. They also set about retaliating against those employees who had not supported their faction. Therefore, each of the individual defendants were personally involved in the retaliation against the plaintiffs by virtue of their association with each other in the Sandoval faction. 4.5 As part of the retaliation by the Sandoval faction, in order to make room for the political patronage that was necessary to reward their relatives and campaign workers, the Board members directed the superintendent, Jesus Rene Reyna, to reassign and demote employees such as Plaintiffs who, during the campaign, were in open opposition to the Sandoval faction. Specifically, in early December 2014, Defendants, Albert Sandoval, Nick Castillo and Eloy Infante, met with the Superintendent in his office and presented the Superintendent with a list of individuals that they wanted promoted, demoted and transferred. The list set forth what the salaries should be as well. Defendant, Nick Castillo, at that meeting kept insisting that Plaintiff, 4
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 5 of 15 Linda Garza, needed to be removed immediately. Defendant, Eloy Infante, stated to the Superintendent at this meeting and several other times on later occasions that they (the Sandoval faction) were getting a lot of heat from their supporters and therefore they wanted the Superintendent to take action against the Plaintiffs as soon as possible. In a later meeting, in addition to the list given to the Superintendent regarding who needed to be promoted, demoted and transferred, the Superintendent was given a memo from the Defendants advising him of who to replace the Plaintiffs with. 4.6 On or about December 16, 2014, two days before the Christmas break, each of the Plaintiffs received a letter from the Superintendent notifying them of their demotion and a cut in their pay that would be forthcoming effective July 1, 2015. 4.7 The notices gave no reasons for their demotions and pay-cuts nor were the Plaintiffs given any meaningful opportunity to be heard prior to the adverse employment action taken against them. None of the new positions to which Plaintiffs were reassigned and demoted to were advertised in accordance with Donna ISD board policy. In addition to the list given to the Superintendent regarding who needed to be promoted, demoted and transferred, the Superintendent was given a memo from the Defendants advising him of who to replace the Plaintiffs with. 4.8 Jose Campos was employed under a certified administrator s contract and had worked for the district for 41 years. He openly did not support the new political majority. He attended numerous functions in support of the opponents of the new political majority and had political signs in support of the opposition in front of his house. He was demoted from the district-wide position of Director of Safety and Risk Management, a position he had held for 20 years, to an assistant principal at a middle school. His salary was decreased by $16,948.68 per 5
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 6 of 15 year and his number of employment days was reduced from 226 to 207 days. Further, Mr. Campos, on information and belief, has been discriminated against on the basis of his age. Mr. Campos was replaced by an employee named Angelica De Los Rios aged 37 who was the sister of one of the candidates who ran on the Sandoval slate. Because of this demotion, Mr. Campos was forced to retire. Had this adverse employment action not been taken against him, he would still be working for the district and would have continued to do so as long as his health would allow. 4.9 Martha Orozco, who did not support the new political majority, was demoted from Secretary for Child Nutrition Department at the time earning $17.91 per hour to a clerk position paying only $15.17/ hour. She was also informed that the number of her working days per year would be reduced from 226 to 207 days. She sponsored several political events at her house and during the election period, she assisted individuals in getting to the polls and openly made her views known regarding her opposition to the Sandoval faction. 4.10 Francisco Frank Cuellar is an ex-member of the DISD board of trustees who openly opposed the new majority during the November 2014 campaign. He attended numerous campaign rallies and functions in support of the opposition to the current majority. He also held campaign functions at his house. After the new majority assumed control, he was notified while he was on Texas Workers Compensation Disability that he was being demoted from Maintenance Coordinator/Project Manager to simply Project Manager. His pay was cut $8,000.00 per year. He confronted the Superintendent, Rene Reyna, for an explanation for the adverse employment action. Mr. Reyna informed him that the new board majority, the Sandoval faction, had directed him to take the adverse action against him. 6
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 7 of 15 4.11 Arturo Castillo, an ex-donna ISD board member, was employed under a noncertified professional employee contract. He openly opposed the current majority during the elections. He attended numerous functions in support of the unsuccessful slate, he had yard signs and he stood at the polling site with the unsuccessful slate to show his support for them. Because of his exercise of his protected First Amendment rights, he was reassigned and demoted from Director of Transportation, a position he had held for 8 years to the position of Accounting Supervisor at Child Nutrition. His loss of salary was $5,666.00 per year. Plaintiff Castillo confronted the Superintendent regarding the adverse action against him and the Superintendent informed him that the Defendants had directed him to do so. 4.12 Javier Garza, the current City of Donna Municipal Judge, was employed under a non-certified professional contract. He openly opposed the new board majority. He attended numerous political functions in support of the opposition slate to the Sandoval faction. He had political signs on his yard and he held functions at his house. During the elections, he stood with the candidates at the polls and he assisted voters in getting to the polls. Because of his political activities, he was demoted from Director of Warehouse and Fixed Assets to Supervisor. The reduction in pay is $8.000.00 per year. After he received the demotion letter, Plaintiff Garza confronted the Superintendent regarding the adverse action against him and the Superintendent informed him that the Defendants had directed him to do so. 4.13 Linda Garza is employed under a certified administrator s contract. She openly opposed the current political majority. She attended numerous political functions in support of the faction which opposed the current political majority and she openly campaigned for the opponents of the current majority. She was demoted from the district-wide position of Staff 7
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 8 of 15 Development Coordinator to the campus position of Strategist at the 3-D Academy. She has worked for Donna ISD for 10 years and her pay was cut $1,928.45 per year. 4.14 On January 26, 2015, in order to further punish the Plaintiffs for not supporting the new board majority, all the Plaintiffs, except Jose Campos and Linda Garza, were notified by letter from the superintendent, that pursuant to School Board action, their salaries would be decreased retro-actively to January 5, 2015. The notice specifically stated that the retro-active taking of wages was done pursuant to specific board directive. 4.15 The timing of the first letter notifying Plaintiffs of their demotions and cuts in pay 2 days before the Christmas break was intended to inflict the maximum amount of pain and mental anguish right before the Holidays since the first letter said that the cuts in pay would not occur until July of 2015, 6 ½ months later. The letters were meant not only to punish the Plaintiffs but to send a message to the entire Donna community of the consequences of failing to support the Sandoval faction. 4.16 The January 26, 2015 letter notifying various Plaintiffs that the cuts in pay would be retroactive to January 5, 2015 was an unbridled attempt to immediately make life unbearable for the Plaintiffs (who all need their previous monthly pay) and create a situation where the Plaintiffs would be compelled to seek employment elsewhere and thereby create immediate job vacancies which could be filled by the Sandoval faction s political allies. 4.17 All the adverse retaliatory employment actions taken by the superintendent, Jesus Rene Reyna, against the plaintiffs were at the direction of the Sandoval faction. Again, each of the individual defendants were personally involved in the retaliation against the plaintiffs by virtue of their association with each other in the Sandoval faction. 8
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 9 of 15 4.18 None of the employees who are Plaintiffs in this lawsuit are employees who have direct dealings with the Board of Trustees or might fall into the category of an employee who, because of their relationship to the Board would not have First Amendment Rights as defined by the 5 th Circuit Court of Appeals in Kinsey v. Salado ISD, 950 F2d 988 (5th Cir.1992). Additionally, the Plaintiffs exercise of their right to freedom of speech and association in this case did not conflict with their roles as employees. V. 42 U.S.C SECTION 1983 5.1 Section 1983 of Title 42 of U.S.C. provides that an individual may seek redress, by way of damages, against any person or persons who, under color of any law, statute, ordinance, regulation, or custom, knowingly subject such individual to the deprivation of any rights, privileges, or immunities, secured or protected by the U.S. Constitution or laws of the United States. Each of the Plaintiffs have been subjected to the deprivation of their Constitutional rights as set forth below. VI. DENIAL OF DUE PROCESS 6.1 Paragraphs 4.1 through 4.18 are incorporated herein by reference. Plaintiffs, Jose Campos, Arturo Castillo, Javier Garza and Linda Garza each had constitutionally protected property interests by virtue of their employment contracts with the district at the time that adverse action was taken against them. The demotion of Plaintiffs, coupled with the reductions in salary, without being given any prior notice or reasons and an opportunity to be heard, is a violation of Plaintiffs right to due process and due course of law. Additionally, they were deprived of their liberty and property interests without adequate procedural and substantive 9
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 10 of 15 protection prior to the unlawful taking (i.e. demotion and cut in pay) of their employment. The demotion of the Plaintiffs is in violation of the liberty and the property interests of the Plaintiffs which are guaranteed under the Constitution of the State of Texas and the Fourteenth Amendment of the United States Constitution as protected under 42 U.S.C. Section 1983. This denial of due process has caused current and future financial loss job security, past and future loss of reputation, and severe emotional distress to Plaintiffs which continues and is ongoing. 6.2 Paragraphs 4.1 to 4.18 are incorporated herein by reference. All the Plaintiffs have a protected liberty interest under the 14 th Amendment to not be demoted and have their salaries reduced for unconstitutional reasons. And therefore, on this basis, the Plaintiffs my seek redress pursuant to 42 U.S.C. 1983. VII. VIOLATION OF FIRST AMENDMENT RIGHTS 7.1 Paragraphs 4.1 through 4.18 are incorporated herein by reference. As stated above, all the Plaintiffs engaged in speech on matters of public concern and participated in political activities away from the job setting which are directly related to their right to freedom of association. Defendants denied Plaintiffs rights of freedom of speech and association under the First and Fourteenth Amendment to the United States Constitution by retaliating against them for exercise of their protection speech and political association. Because the actions causing harm to Plaintiffs were taken by the direction and approval of the Donna Board of Trustees, such acts of retaliation against the Plaintiffs for their exercise of their First Amendment Rights formed an official policy of the Donna Independent School District, rendering the school district liable to Plaintiffs for their actual damages under 42 U.S.C. Section 1983. 10
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 11 of 15 VIII. PATTERN AND PRACTICE OF DISCRIMINATORY CONDUCT 8.1 Plaintiffs further assert and intend to prove that the treatment received by Plaintiffs was part of a pattern and practice engaged in by the Defendants, both in their official and individual capacities, and its supervisors toward several individuals similarly situated. This unwritten plan or scheme was to discriminate against, retaliate against, discharge or take some adverse employment action against individuals who were older than 40 years of age. IX. AGE DISCRIMINATION 9.1 Plaintiff incorporates Paragraphs 4.1 through 4.18 by reference. Defendants have discriminated against Plaintiff, Jose Campos, on the basis of his age in violation of the age employment act in 1967 (ADEA), 29 USC Sections 621 through 634 as amended. Plaintiff Campos seeks damages set forth in the statute. Additionally, Plaintiff, Campos, has satisfied the procedural requirements necessary to bring suit and he has been issued a Right to Sue letter by the Equal Employment Opportunity Commission. See Attached Exhibit. X. FAIR LABOR STANDARNDS ACT VIOLATIONS 10.1 Plaintiffs incorporate Paragraphs 4.1 through 4.18 by reference. 10.2 29 U.S.C. Sec. 216(b) allows individual employees the right to bring suit for unpaid wages. 10.3 Plaintiffs, Martha Orozco, Francisco Cuellar, Arturo Castillo and Javier Garza, had their wages cut retroactively. After they had worked for 3 weeks under their current salary, 11
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 12 of 15 they were informed by letter dated January 26, 2015, that the Board of Trustees had directed the Superintendent to cut their pay retroactive to January 5, 2015. 10.4 This retroactive cut in pay, in addition to being an act of political retaliation, was a violation of the Fair Labor Standards Act. 29 U.S.C. 215(a)(3) states that any employer who violates provision of section 215(a)(3) shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3), including without limitation, employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. XI. INDIVIDUAL LIABILITY 11.1. Paragraphs 4.1 through 4.18 are incorporated by reference. Defendants Albert Sandoval, Tomasa Ramos, Nick Castillo, Eloy Infante and Elpidio Yanez have acted outside the proper course and scope of their official duties as members of the board of trustees, in that their individual actions were wholly outside board policy, state regulations, and state and federal laws. The individual defendants Board Members conspired to demote and retaliate against Plaintiffs. They have specifically directed the Superintendent to take the adverse actions against the Plaintiffs. XII. ACTUAL DAMAGES 12.1. By reason of the above actions alleged in paragraphs 5.1 through 9.1, Plaintiffs have been damaged in an amount beyond the minimum jurisdictional level of this court, for which Defendants are jointly and severally liable. 12
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 13 of 15 XIII. COMPENSATORY DAMAGES 13.1 Pursuant to the federal statutes cited above, the Plaintiffs are entitled to compensatory damages. XIV. EXEMPLARY DAMAGES 14.1 Defendant, Donna ISD, by and through its elected board members, has a history of violating the 1 st and 14 th Amendment rights of their employees. After every election, employees cower in fear for their livelihoods because they exercised their 1 st Amendment right to support the candidate of their choice or because they did not openly support the correct candidates or they are simply demoted and reassigned to make room for the political patronage of the new faction s campaign supporters or relatives. The cycle of retaliation and political patronage needs to cease. Accordingly, Plaintiffs are entitled to recover from Defendant, Donna ISD and the individual defendants, in addition to compensatory damages, an award of exemplary damages in the amount of $5,000.000.00, such amount being necessary to deter the Defendant, Donna ISD, from repeating such wrongful acts in the future. 14.2 The foregoing acts of the Defendants, Albert Sandoval, Tomasa Ramos,Nick Castillo, Eloy Infante and Elpidio Yanez, each sued individually were willful, humiliating and insulting to Plaintiffs and showed a conscious disregard for the rights of the Plaintiffs. Mr. Sandoval and Mr. Infante, their families, their associates and their allies are well known to the Donna community and have ravaged Donna ISD employees for years. Their conduct in particular is typical of the culture which pervades the Donna community. Plaintiffs are accordingly entitled to recover from each of the individual Defendants, in addition to 13
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 14 of 15 compensatory damages, an award of exemplary damages in the amount of $1,000,000.00 from each individual Defendant, such amount being necessary to deter the Defendants from repeating such wrongful acts in the future. XV. ATTORNEYS FEES 15.1 Pursuant to the federal statutes under which Plaintiffs sue, Plaintiffs have been forced to retain the undersigned attorneys to prosecute this claim on their behalf, and they are entitled to recover necessary and reasonable attorney s fees, costs of litigation, together with such additional attorney s fees as may be awarded by the Court and, in the event of an appeal, to the Fifth Circuit Court of Appeals and the United States Supreme Court, and costs of Court. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear and answer herein, and for a trial by jury. Upon trial, Plaintiffs pray for an award against Defendants for actual damages in excess of the minimum jurisdictional limits of this Court, together with exemplary damages, reasonable attorneys fees, costs of court, pre-judgment and post-judgment interest, and entry of declaratory relief and an injunction barring Defendants from interfering with Plaintiffs job security and such other and further relief to which Plaintiffs may be entitled. Respectfully Submitted, GUSTAVO L. ACEVEDO, JR. 814 Del Oro Lane Pharr, Texas 78577 (956) 787-4441 (Telephone) (956) 787-4499 (Facsimile) Federal Court ID No. 10810 Texas State Bar No. 00829805 14 Email: GLAcevedo@aol.com
Case 7:15-cv-00070 Document 16 Filed in TXSD on 08/26/15 Page 15 of 15 JUAN S. PALACIOS 2720 W. Canton, Suite B Edinburg, Texas (956) 378-9680 (Telephone) (956) 378-9683 (Facsimile) Federal Court ID No. 35162 Texas State Bar No. 24039100 Email: JSPalaciospllc@yahoo.com CERTIFICATE OF SERVICE I certify that on August 26, 2015, pursuant to the Federal Rules of Civil Procedure, a true and correct copy of the above and foregoing document was served on each party to this action by Plaintiff s submission of this document to the U.S. District Court electronically to the DCECF system: Eduardo G. Garza Email: eddie@esparzagarza.com Attorney for Defendants /s/ Gustavo L. Acevedo, Jr. Gustavo L. Acevedo, Jr. 15
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