Hawkins v. Desoto Independent School District et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MATTHEW HAWKINS,
Plaintiff,
v.
DESOTO INDEPENDENT
SCHOOL DISTRICT, et al.,
Defendants.
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Case No. 3:25-cv-00652-D-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are separate Motions to Dismiss filed by Defendant Desoto
Independent School District (ECF No. 27) and Defendants Dr. Usamah Rodgers,
Jasen Campbell, Jocelyn Starling, Kristi Primus, Dr. Leon Darden, Gene Morrow,
Jorge Medina, Christopher Polk, Alicia Bailey, and Alma Murphy-Goss (ECF No.
26). The District Judge referred these Motions to the undersigned for a
recommendation under 28 U.S.C. § 636(b)(1)(B). See Order of Reference (ECF No.
28). As explained below, the District Judge should GRANT Defendants’ Motions
to Dismiss.
Background
As alleged in the live pleading, Plaintiff Matthew Hawkins, is a Black, male
educator currently employed by DeSoto ISD, where he has taught high school
mathematics since 2016. Am. Compl. 2–3, ¶ 4 (ECF No. 13). From 2021–2023,
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Plaintiff taught Algebra II at DeSoto High School, where the student body is “over
75 % Black and 100 % Title I [i.e., economically disadvantaged].” Id. at 2. Plaintiff
has a reputation for “rigorous instruction, integrity-based grading, and consistent
enforcement of District Rules.” Id. ¶ 7. And during the 2022–2023 school year,
“his Texas Teacher Evaluation and Support (T-TESS) scores were “among the
highest in the district,” he was nominated for “Teacher of the Year,” and he was
recognized as a “High-Flying Eagle” for his “stellar performance” and “unwavering
commitment to academic integrity.” Id. ¶ 10. In 2023, however, Plaintiff
experienced a conflict with then-Assistant Principal Jocelyn Starling after Plaintiff
reported Starling’s “non-enforcement” of discipline referrals to the then-Principal.
See id. ¶ 13.
At the end of the school year, Plaintiff was transferred to the Early College
High School (ECHS) to teach math. Id. ¶ 14. According to Plaintiff, “ECHS is not a
mere ‘program’ inside [DeSoto High School]” but is “operationally and
administratively separate,” with its own leadership, “specialized professional
development, and TEAMS/HR.” See id. ¶ 98. And the then-Principal of ECHS
believed Plaintiff was the ideal teacher for ECHS students who allegedly “struggled
with discipline and accountability” because of “[Plaintiff’s] reputation for
enforcing strict policies (dress code, IDs, attendance) and maintaining high
instructional rigor.” Id. ¶ 9.
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Around that same time, Starling was promoted to a “direct supervisory role
over [Plaintiff],” and Plaintiff’s “two strongest administrative advocates” left
DeSoto ISD. Id. ¶¶ 14, 15.
No sooner than he arrived at ECHS, Starling began subjecting Plaintiff to
“heightened scrutiny” and “retaliatory treatment” based on their past “friction.”
See id. ¶ 15. First, Starling questioned Plaintiff’s practice of limiting calculator use
in his class, criticizing it as “an unnecessary hardship.” Id. ¶¶ 23–24. Then, Plaintiff
and Starling clashed over attendance policies, id. ¶¶ 26–27, 29–30, and lesson
planning requirements, id. ¶ 34. Plaintiff refused to submit “PowerPoint driven
lesson plans” because his lesson plans followed “the District’s template,” and
because he believed Starling’s preferred format violated the Texas Education Code.
See id. ¶¶ 34–35, 41. Plaintiff met with Starling and Assistant Principal Kristi
Primus about the dispute, and on November 28, 2023, Starling issued a “Formal
Letter of Concern,” “accusing [Plaintiff] of failing to comply with the ‘official
directive’ mandating submission of lesson plans.” See id. ¶ 38, Ex. 11, Formal Letter
Concern (ECF No. 13-11). Plaintiff refused to sign the Letter, asserting that he was
being “singled out,” and that “other teachers who never submitted such slides
apparently faced no similar discipline.” Id. ¶ 39.
In early 2024, Plaintiff objected to the use of “NSolve,” an automated solving
function in student issued calculators. Id. ¶ 43. Although Plaintiff was told that
“the district verified NSolve would be allowed,” Plaintiff continued to disable
NSolve on calculators in his classroom and refused to allow students to use the
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feature. See id. ¶¶ 43–44. Plaintiff alleges that this led students in his class to
“openly resent [him] for demanding ‘harder’ math practice.” Id. ¶ 45 (cleaned up).
Additionally, in February 2024, Defendant Alicia Bailey, a DeSoto ISD
instructional coach, entered Plaintiff’s classroom “mid-lesson,” insisting that he
teach with calculators which “undermined him in front of students.” Id. 4, ¶ 46.
And a few days later, Bailey accused Plaintiff of “hurting” his students and raised
her voice at him during a staff meeting. Id. ¶ 46.
On February 27, 2024, ECHS administrators assigned a different teacher to
take over “instruction” for Plaintiff’s 1st, 2nd, and 4th period Algebra I classes
while Plaintiff remained responsible for “aggressive monitoring, group and
individualized instruction, and all other tasks (attendance, grades, maintaining
classroom discipline etc[.]).” id. at Ex. 12, Instructional Plan Email (ECF No. 13-
12); see also id. ¶ 49. Plaintiff continued to teach his Algebra II classes. See id. at
Ex. 12, Instructional Plan Email.
On March 6, 2024, Principal Jasen Campbell placed Plaintiff on a 4-week
“Teacher in Need of Assistance (‘TINA’) plan” based on Campbell’s observation
that Plaintiff was not implementing “the elements of the lesson cycle” in his
instruction. See id. ¶ 60; id. Ex. 13, TINA email (ECF No. 13-13); id. at Ex. 14, TINA
plan (ECF No. 13-14). Plaintiff alleges that he received no notice of “alleged
instructional issues” and suggests the TINA plan was retaliation for his prior
objections. Id. ¶ 60. Two days later, Plaintiff filed a “Level I grievance,”
“challenging: (i) the lesson-plan requirements; (ii) the Formal Letter of Concern;
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(iii) assignment of another teacher to instruct Plaintiff’s Algebra I class; and (iv)
the TINA plan.” Id. ¶ 71. The same day, Plaintiff was told to “resume teaching” his
Algebra I classes. Id. ¶ 53. And, on March 26, 2024, Plaintiff’s TINA plan was
“discontinue[d].” See id. ¶ 68; id. at Ex. 13, TINA Email (ECF No. 13-13).
On March 28, 2024, Plaintiff had his Level I grievance hearing with Principal
Campbell, Am. Compl. ¶ 72 (ECF No. 13), and on April 8, 2024, Campbell issued
his written decision, removing the “Letter of Concern” from Plaintiff’s file and
deciding that the instructional reassignment of Plaintiff’s Algebra I classes “should
not have occurred.” Id. ¶ 74; id. at Ex. 17, Level I Decision (ECF No. 13-17). Despite
the decision, Plaintiff asserts that Defendant’s conduct had “artificially depressed
[Plaintiff’s]” T-TESS Scores, Student Growth, and Student Experience Surveys for
that year. See id. ¶¶ 80–81. As a result, Plaintiff alleges that he lost his eligibility
for Texas Teacher Incentive Allotments (TIA), a state-funded financial incentive
program for high-performing teachers. See id. ¶ 81.
For the 2024–2025 school year, Plaintiff was reassigned from Algebra I to
Geometry at ECHS, “categorically barr[ing]” him from TIA eligibility—allegedly
because Geometry, as a non-STAAR subject, is not eligible for TIA. See id. ¶¶ 89–
91. Shortly after the school year started, Plaintiff assigned zeroes to “students
caught cheating on the Chapter 1 Test.” See id. ¶ 97. And the next day, on August
30, 2024, Plaintiff was removed from ECHS and reassigned to “regular Algebra II
at the main DeSoto High School” following “an overwhelming number of
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complaints.” Id. ¶ 98. Plaintiff asserts that he “received no formal notice of the
alleged complaints and was never allowed to rebut them.” Id. ¶ 99.
On September 9, 2024, Plaintiff filed a Level I grievance challenging his
reassignment “from ECHS Honors Algebra II/Geometry.” Id. ¶ 110; id. Ex. 23 at
Page ID 643–645, Level I Grievance, Sep. 9, 2024 (ECF No. 13-23). On September
20, 2024, Defendant Dr. Leon Darden, director of ECHS, presided over a hearing
on Plaintiff’s grievance, See Am. Compl. ¶ 111 (ECF No. 13), and following the
hearing, denied Plaintiff’s grievance “in its entirety.” See id. Ex. 23 at Page ID 640–
641, Level I Grievance Decision, Oct. 14, 2024 (ECF No. 13-23).
Plaintiff appealed that decision through a Level II grievance. See
Am. Compl. ¶ 121. Defendant Gene Morrow Jr., the Level II hearing officer, upheld
Dr. Darden’s determination. See id. ¶ 123; id. Ex. 23 at PageID 636–637
(ECF No. 13-23).
Following the Level II denial, Plaintiff filed a Level III Grievance to the
DeSoto ISD Board of Trustees, and, on February 24, 2025, a Level III hearing was
held. See Am. Compl. ¶ 224. The Board reached a “tie” vote, “effectively upholding
the Level II denial.” Id. ¶ 264. Plaintiff alleges, however, that the Level III hearing
was unfair and that the rationale for his reassignment was unsupported by the
record. Id. ¶¶ 225–235.
Meanwhile, on December 12, 2024, Plaintiff “filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (‘EEOC’)
and the Texas Workforce Commission Civil Rights Division.” Id. ¶ 258. Plaintiff
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asserts that the “EEOC issued a Notice of Right to Sue” on February 26, 2025.
Id. ¶ 259.
Plaintiff, proceeding pro se, paid the filing fee and filed this lawsuit on March
18, 2025, asserting numerous federal and state constitutional and statutory claims
and state-law contract and tort claims against DeSoto ISD and various individual
defendants. See generally Original Compl. (ECF No. 3). When DeSoto ISD and the
individual defendants moved to dismiss, see Mots. (ECF Nos. 10, 11), Plaintiff filed
his First Amended Complaint (ECF No. 13), which is the live pleading.
Plaintiff’s Amended Complaint—which spans 126 pages, comprised of 681
separately numbered paragraphs (most of which contain multiple, unnumbered
sub-parts), and includes 55 separate exhibits (which span another 228 pages)—
asserts 21 Counts against DeSoto ISD and ten DeSoto employees: (1) Dr. Usamah
Rogers, (2) Jasen Campbell, (3) Jocelyn Starling, (4) Kristi Primus, (5) Dr. Leon
Darden, (6) Gene Morrow, (7) Jorge Medina, (8) Christopher Polk, (9) Alicia Bailey
and (10) Alma Murphey-Goss in their official and individual capacities. See
generally, Am. Compl.1
1 The record is immense, and the parties’ briefs (collectively, over 100 pages) often
offer no record citations, bury citations within footnotes, or cite entire documents
rather than specific pages. While the Court need not scour the record searching for
allegations or facts that support the parties’ arguments, see, e.g., Magee v. Varsity
Brands Holding Co., Inc., No. 3:24-CV-833-E-BK, 2024 WL 5345090, at *1 (N.D.
Tex. Dec. 26, 2024) (Toliver, J.), rec. adopted, 2025 WL 256983 (N.D. Tex. Jan.
21, 2025) (Brown, J.) (citing United States v. del Carpio Frescas, 932 F.3d 324,
331 (5th Cir. 2019), it has still endeavored to consider the full record to ensure a
thorough analysis.
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DeSoto ISD moves to dismiss Plaintiff’s claims under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). See generally DeSoto Mot. Dismiss (ECF No. 27).
The individual defendants move to dismiss Plaintiff’s claims for failure to state a
claim under Rule 12(b)(6) and based on qualified and governmental immunity. See
Indiv. Mot. Dismiss (ECF No. 26).
The Motions to Dismiss have been fully briefed and are ripe for
determination.
Legal Standards
Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and must have statutory or
constitutional power to adjudicate a claim. See Home Builders Ass'n of Mississippi,
Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). Absent
jurisdiction conferred by statute or the Constitution, they lack the power to
adjudicate claims and must dismiss an action if subject matter jurisdiction is
lacking. Id.; Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998)
(citing Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). “[S]ubject-
matter jurisdiction cannot be created by waiver or consent.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). The Court “must presume that a suit
lies outside [its] limited jurisdiction, and the burden of establishing federal
jurisdiction rests on the party seeking the federal forum.” Id.
Lack of subject matter jurisdiction may be found by looking at “(1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced
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in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001). The party seeking a federal forum “constantly bears the burden of
proof that jurisdiction does in fact exist.” Id.
To establish standing, “a plaintiff must show (1) [he] has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). “The party
invoking federal jurisdiction bears the burden of establishing these elements.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
“A controversy, to be justiciable, must be such that it can presently be
litigated and decided and not hypothetical, conjectural, conditional or based upon
the possibility of a factual situation that may never develop.” Brown & Root, Inc.
v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967). Thus, there must be an “actual
controversy” between the parties that is ripe. Orix Credit All., Inc. v. Wolfe, 212
F.3d 891, 895 (5th Cir. 2000). When determining whether a controversy is ripe,
“key considerations are the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.” New Orleans Pub.
Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987). If
further factual development is required, a case is not ripe. Id. at 587.
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When dismissal under both 12(b)(1) and 12(b)(6) grounds apply, the Court
should dismiss only on the jurisdictional ground under 12(b)(1), without reaching
the merits of the claim under 12(b)(6). See Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir. 1977).
Rule 12(b)(6)
To defeat a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12(b)(6);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc.
v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. Am. Pub. Life Ins. Co., 512
F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility standard “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). While a complaint need not contain
detailed factual allegations, it must set forth “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citation omitted). The “[f]actual allegations of [a
complaint] must be enough to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. (quotation marks, citations, and footnote omitted). When the
allegations of the pleading do not allow the court to infer more than the mere
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possibility of wrongdoing, they fall short of showing that the pleader is entitled to
relief. Iqbal, 556 U.S. at 679.
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded
facts in the complaint as true and view them in the light most favorable to the
plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir.
2007); Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such
a motion, the court cannot look beyond the pleadings. Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any
documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498–99 (5th Cir. 2000).
The ultimate question on a Rule 12(b)(6) motion is whether the complaint
states a valid claim when it is viewed in the light most favorable to the plaintiff.
Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th
Cir. 2002). While well-pleaded facts of a complaint are accepted as true, legal
conclusions are not “entitled to the assumption of truth.” Iqbal, 556 U.S. at 679
(citation omitted). Further, a court is not to strain to find inferences favorable to
the plaintiff and is not to accept conclusory allegations, unwarranted deductions,
or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005)
(citations omitted). The court does not evaluate the plaintiff’s likelihood of success;
instead, it only determines whether the plaintiff has pleaded a legally cognizable
claim. U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.
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2004). Stated another way, when a court considers a Rule 12(b)(6) motion, its task
is to test the sufficiency of the allegations in the pleadings to determine whether
they are enough to state a claim upon which relief can be granted. Mann v. Adams
Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep. Sch. Dist.,
81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th Cir.
1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on
whether a plaintiff ultimately establishes the necessary proof to prevail on a claim
that withstands a 12(b)(6) challenge. Mann v. Adams Realty Co., 556 F.2d 288,
293 (5th Cir. 1977).
“Pro se complaints receive a ‘liberal construction.’ Even so, ‘mere conclusory
allegations on a critical issue are insufficient.’” Brown v. Tarrant Cnty., Texas, 985
F.3d 489, 494 (5th Cir. 2021) (quoting Carlucci v. Chapa, 884 F.3d 534, 538 (5th
Cir. 2018); United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)). And
“liberal construction does not require that the Court ... create causes of action
where there are none.” Smith v. CVS Caremark Corp., No. 3:12-CV-2465-B, 2013
WL 2291886, at *8 (N.D. Tex. May 23, 2013).
A plaintiff may not amend his allegations through a response to a motion to
dismiss, Fed. R. Civ. P. 8(a), but leave to amend must be granted freely “when
justice so requires,” Fed. R. Civ. P. 15(a)(2). One reason to deny amendment is
futility: “If the complaint, as amended, would be subject to dismissal, then
amendment is futile and the district court [is] within its discretion to deny leave to
amend.” Martinez v. Nueces Cnty., Texas, 71 F.4th 385, 391 (5th Cir. 2023)
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(quoting Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans, 29 F.4th 226, 229
(5th Cir. 2022)).
Qualified Immunity
The individual defendants raise qualified immunity as an affirmative
defense to Plaintiff’s § 1983 claims. White v. Taylor, 959 F.2d 539, 544 (5th Cir.
1992) (A governmental employee sued under § 1983 may assert the affirmative
defense of qualified immunity). “Qualified immunity protects government officials
performing discretionary functions from suit and liability for civil damages to the
extent their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Blakely v. Andrade, 360
F. Supp. 3d 453, 477 (N.D. Tex. 2019) (citing Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). In other words, qualified immunity protects government officials
when their actions “could reasonably have been believed to be legal.” Anderson v.
Valdez, 845 F.3d 580, 599 (5th Cir. 2016) (quoting Morgan v. Swanson, 659 F.3d
359, 370 (5th Cir. 2011)). And “this immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Id. (quoting Morgan, 659
F.3d at 371).
“When a defendant invokes qualified immunity, the burden is on the
plaintiff to demonstrate the inapplicability of the defense.” Ramirez v.
Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021). See also King v. Handorf, 821 F.3d
650, 653 (5th Cir. 2016) (“[O]nce properly raised by the defendant, the ‘plaintiff
has the burden to negate the assertion of qualified immunity.’”) (citing Collier v.
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Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)); Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012) (“[A] plaintiff seeking to overcome qualified immunity must
plead specific facts that both allow the court to draw the reasonable inference that
the defendant is liable for the harm he has alleged and that defeat a qualified
immunity defense with equal specificity.”).
“‘State employment is generally sufficient to render the defendant a state
actor,’” and a defendant necessarily “acts under color of state law when he abuses
the position given to him by the State.” West v. Atkins, 487 U.S. 42, 49–50 (1988)
(quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n.18 (1982)). School
district officials like the individual defendants “enjoy qualified immunity ‘unless
Plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.’” Brown, 985 F.3d at 494 (citing Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011)). Further, courts “have discretion to decide which of the two
prongs of qualified-immunity analysis to tackle first.” Id.
Monell Liability
Under Monell, a local government entity can be held liable for (1)
constitutional violations (2) for which the “moving force” was (3) an official policy
or “governmental custom.” See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–
91 (1978). DeSoto ISD, like other school districts, is a local government unit or
municipality subject to liability under § 1983. Moore v. Willis Indep. Sch. Dist.,
233 F.3d 871, 874 (5th Cir. 2000). “In Texas, the final policymaker for a school
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district is the Board of Trustees.” Sims v. Dallas Indep. Sch. Dist., 2024 WL
495259, at *2 (N.D. Tex. Feb. 7, 2024), aff’d, No. 24-10189, 2025 WL 2602362 (5th
Cir. Sept. 9, 2025) (per curiam) (citing Tex. Educ. Code § 11.051 and Mohamed for
A.M. v. Irving Indep. Sch. Dist., 252 F. Supp. 3d 602, 617 n.6 (N.D. Tex. 2017)
(Lindsay J.)). When a Monell claim fails as to one prong, the Court “need not
consider whether [the] claim also fails the other two Monell prongs.” Brown, 985
F.3d at 497 & n.11. And “[i]t is well settled that ‘without a predicate constitutional
violation, there can be no Monell liability.’” See Pipkins v. Stewart, 105 F.4th 358,
360 (5th Cir. 2024) (per curiam) (quoting Loftin v. City of Prentiss, Mississippi,
33 F.4th 774, 783 (5th Cir. 2022)).
Preliminary Observations
I. Plaintiff is not pursuing claims against the DeSoto ISD School
Board.
While Plaintiff’s Original Complaint named and asserted claims against the
Desoto ISD School Board, see generally Original Compl. (ECF No. 3), Plaintiff’s
Amended Complaint removed the Board as a Defendant and does not assert any
claims against the Board, see generally Am. Compl. (ECF No. 13). DeSoto ISD
noted this development in its motion to dismiss, see DeSoto Mot. Dismiss 1 at n. 1
(ECF No. 27), and Plaintiff does not dispute that he is no longer asserting claims
against the Board. The docket should reflect that the DeSoto ISD School Board is
no longer a party to this action.
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II. Defendants are not entitled to dismissal of any claim based solely
on Plaintiff’s alleged failure to respond to Defendants’
arguments.
DeSoto ISD argues that Plaintiff has abandoned four claims by not
defending them in his Response: “Counts XIII (Violation of Texas Education Code
§ 28.0214 and Board Policy EIA (Local)), XV (Conspiracy to Violate § 1983), XIX
(Violation of the Texas Constitution), and XX (Violation of Texas Education Code
§ 26.003(a)(2)).” See DeSoto Reply at 1 (ECF No. 33). Indeed, the Fifth Circuit’s
“well-settled precedent instructs that a party abandons a claim by failing to defend
it in response to motions to dismiss.” See McClelland v. Katy Indep. Sch. Dist., 63
F.4th 996, 1010 (5th Cir. 2023). And a review of Plaintiff’s Response reveals that
he does not specifically address Defendants’ arguments directed at his claims
under the Texas Constitution. See DeSoto Mot. Dismiss 16 at n. 12; Indiv. Mot.
Dismiss 12 at no. 5 (arguing that Plaintiff’s claims under the Texas Constitution
“should be dismissed for the same reasons as their federal analogues”). But
Plaintiff states that he “does not concede any of the legal or factual claims asserted
in the Amended Complaint,” see Resp. 4 (ECF No. 31), and he attempts to address
Defendants’ arguments directed to his federal Constitutional claims, see, e.g.,
Resp. at 14–17 (ECF No. 31). Also, Plaintiff did not fail to address Defendants’
arguments on the other claims identified by DeSoto ISD. See Resp. at 4, 16, 17, 18,
23, 24 (ECF No. 31).
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Because Defendants are not entitled to dismissal of any claim based solely
on Plaintiff’s alleged failure to respond to Defendants’ arguments, the Court
proceeds with the analysis below.
Analysis
I. Defendants are entitled to dismissal of Plaintiff’s procedural due
process claims (Counts I and II).
Plaintiff sues DeSoto ISD and Defendants Campbell, Darden, Starling,
Rogers, and Morrow under 42 U.S.C. § 1983 for violating his Fourteenth
Amendment procedural due process rights.2 See Am. Compl. ¶¶ 266–314 (ECF No.
13). Plaintiff also asserts a “Due Course of Law” claim under the Texas Constitution
against DeSoto ISD and all individual defendants. See id. ¶¶ 632, 649–55.
Plaintiff is entitled to the protections of the Fourteenth Amendment only if
he can show deprivation of, or intrusion upon, “a property or liberty interest.”
Thomas v. Smith, 897 F.2d 154 (5th Cir. 1989) (per curiam). Plaintiff alleges that
he had protected interests in: (i) assignment to the ECHS program and (ii)
exercising “grading authority,” under Tex. Educ. Code § 28.0214. See Am. Compl.
2 But Plaintiff’s claims against the individual defendants, who are employees,
representatives, or officials of DeSoto ISD, in their official capacities are effectively
claims asserted against DeSoto ISD. See Jefferson as Next Friend of C.J. v.
Waxahachie ISD Bd. of Trustees, No. 3:24-CV-01904-E, 2025 WL 2775154, at *7
(N.D. Tex. Sept. 3, 2025) (Rutherford, J.), rec. adopted, 2025 WL 2773805 (N.D.
Tex. Sept. 26, 2025) (Brown, J.); see also Monell, 436 U.S. at 690 n.55 (official-
capacity suits “generally represent only another way of pleading an action against
an entity of which an officer is an agent”). Thus, to the extent that Plaintiff’s claims
against DeSoto ISD fail, they also fail against the individual defendants if Plaintiff
asserts those claims against the individual defendants in their official capacities.
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¶¶ 271, 290. Plaintiff is wrong. The Amended Complaint does not plausibly allege
a deprivation of a protected interest, and thus Defendants are entitled to dismissal
of Plaintiff’s § 1983 procedural due process claims.
A. Plaintiff had no protected interest in his teaching assignment.
To state a claim under the Due Process Clause of the Fourteenth
Amendment, Plaintiff “must first identify a life, liberty, or property interest
protected by the Fourteenth Amendment and then identify a state action that
resulted in deprivation of that interest.” Blackburn v. City of Marshall, 42 F.3d
925, 935 (5th Cir. 1995) (citing San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697,
700 (5th Cir. 1991)).
“The Due Process Clause . . . does not create a property interest in
government employment.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,
577 (1972). And a public-school teacher does not have a property interest in their
assigned position or duties, “absent a specific contractual provision to that effect.”
Dooley v. Fort Worth Indep. Sch. Dist., 686 F. Supp. 1194, 1199 (N.D. Tex. 1987),
aff’d, 866 F.2d 1418 (5th Cir. 1989), cert. denied, 490 U.S. 1107 (1989).
Plaintiff alleges that his “written employment contract” assigned him to the
ECHS program and permitted reassignment “only in the best interest of the
District.” See Am. Compl. ¶ 271 (citing Ex. 40, Employment Contract (ECF No. 13-
40)). But Plaintiff’s Employment Contract does not mention any particular
teaching assignment, ECHS, or the “best interest of the District.” See id., Ex. 40,
Employment Contract (ECF No. 13-40). Rather, the Employment Contract
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provides that Plaintiff “shall be subject to assignment and reassignment of
positions or duties, additional duties, changes in responsibilities, or work,
transfers, or reclassification at any time during the contract term.” Id. ¶ 4
(emphasis added). The Employment Contract further provides that it “combines
and supersedes all prior agreements and representations concerning
employment.” Id. ¶ 17. Thus, Plaintiff’s Employment Contract, on its face, contains
no provision limiting the school district’s right to modify his assigned duties.
Accordingly, Plaintiff had no property interest in his teaching assignment at ECHS.
See Dooley, 686 F. Supp. at 1199.
Plaintiff also alleges that his property interest in the teaching assignment at
ECHS is “rooted in” “Board Policy DK (Local) and DGBA(Local)” and “[a]pplicable
provisions of the Texas Education Code, including § 21.204.” See Am. Compl. 271.
But, as explained above, no property right exists absent “a specific contract
provision to that effect.” See Dooley, 686 F. Supp. at 1199.
Plaintiff’s Complaint fails to cite any specific “Board Policy” that creates a
property right in his teaching position. See Am. Compl. ¶ 271. And although his
Response asserts that such policies “provide[] that reassignment must serve ‘the
best interest of the district’” and “require[] documentation and objective rational,”
Plaintiff fails to explain how these policies provide him with a constitutionally
protected property right. See Resp. at 14 (ECF No. 31) (citing ECF No. 13-18).
Instead, Plaintiff cites Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755 (5th Cir.
1986), and argues that “Texas educators with rights under Board Policy may
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possess a protected property interest.” See id. But Jett does not stand for such a
proposition. In Jett, the due process issue was whether an oral contract prohibiting
removal “except for good cause” created a property interest when the parties’
written agreement contained no such provision. Id. (emphasis added). The Jett
court held that it did not. See id.
To be sure, the Fifth Circuit in Jett references its decision Winkler v. County
of DeKalb, where a public employee who was transferred to a new position with
“greatly reduced responsibilities” suffered a deprivation of a property interest. See
id. (citing Winkler v. DeKalb Cnty., 648 F.2d 411 (5th Cir. 1981)). But central to
the holding in Winkler was that the “[DeKalb] County Code and the conduct of the
parties” “indicate[d] to employees that transfers will be to a position whose duties
are of the kind or quality encompassed by their [current job],” and “established a
reasonable expectation that an employee will not be demoted to a position of vastly
diminished responsibilities without cause.” See id.
The Jett court also cited to Kelleher—decided a few years after Winkler—
where the court “rejected a public employee’s claim of entitlement” to teach
specific courses or to specific teaching duties because there was no “guarantee,
contract, or statute” creating such entitlement and because her “new duties ‘were
well within the bounds’ of duties generally assigned to those in her position.” See
id. (citing Kelleher v. Flawn, 761 F.2d 1079 (5th Cir. 1985)).
Here, Plaintiff does not allege that “local policy or conduct of the parties”
indicates that transfers will be to positions “that are the kind or quality”
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encompassed by their current job. Nothing in the Employment Contract or in the
Board Policy cited by Plaintiff supports such a finding. And even so, Plaintiff’s
reassignment from one math class to another resulted in “new duties” that were
“well within the bounds of duties generally assigned” to high school math teachers
like Plaintiff. See id.
Further, Texas Education Code § 21.204 does not create a property interest
in Plaintiff’s position. Section 21.204 provides that “[a] term contract must be in
writing,” “include the terms of employment,” and that “[e]ach contract . . . is
subject to approval by the board.” Tex. Educ. Code § 21.204. The only mention of
“property interest” in § 21.204 states “a teacher does not have a property interest
in a contract beyond its term.” See id. Accordingly, Plaintiff fails to plausibly allege
any property interest in his teaching assignment at ECHS.
Nor does Plaintiff show a deprivation or intrusion upon any liberty interest
resulting from his re-assignment. To establish deprivation of a liberty interest,
Plaintiff must show “that he was stigmatized in connection with denial of a right or
status recognized by state law.” See Thomas v. Smith, 897 F.2d 154, 156 (5th Cir.
1989) (per curiam). “Typically, reassignment alone is insufficient to trigger such a
liberty interest.” Id. As the Fifth Circuit noted in Moore v. Otero:
When an employee retains his position even after being defamed by a
public official, the only claim of stigma he has derives from the injury
to his reputation, an interest that Paul [v. Davis, 424 U.S. 693, 96
S.Ct. 1155, 47 L.Ed.2d 405 (1976),] reveals does not rise to the level of
a liberty interest. The internal transfer of an employee, unless it
constitutes such a change of status as to be regarded essentially as a
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loss of employment, does not provide the additional loss of a tangible
interest necessary to give rise to a liberty interest meriting protection
under the due process clause of the fourteenth amendment.
Moore v. Otero, 557 F.2d 435, 438 (5th Cir. 1977) (alterations in original). But the
mere reassignment to teaching a different high school math class “does not
constitute such a change of status as to be regarded as essentially a loss of
employment.” See id.; see also Thomas, 897 F.2d at 156. Plaintiff has thus failed to
plausibly allege a liberty interest in his teaching assignment at ECHS.
B. Plaintiff had no protected interest in “exercising grading authority.”
Plaintiff also does not have a liberty or property interest in “exercising grading
authority” under Texas Education Code § 28.0214 or Board Policy. See Am.
Compl. ¶ 289, 291 (ECF No. 13). To have a protected property interest, Plaintiff
must show a “legitimate entitlement” to a benefit which he was denied. See Bd. of
Regents, 408 U.S. at 577. A “property interest” is not “created by the Constitution,”
but stems from “an independent source such as state law.” See, e.g., Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (quoting Roth, 408 U.S. at 577).
But while an “underlying property interest may be created by state law, ‘federal
constitutional law determines whether that interest rises to the level’ of a
constitutionally protected interest.” Klingler v. Univ. of S. Mississippi, USM, 612
F. App'x 222, 227 (5th Cir. 2015) (emphasis in original) (quoting Town of Castle
Rock, Colorado v. Gonzales, 545 U.S. 748, 756–57 (2005)).
Texas Education Code § 28.0214 provides:
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(a) An examination or course grade issued by a classroom teacher is
final and may not be changed unless the grade is arbitrary, erroneous,
or not consistent with the school district grading policy applicable to
the grade, as determined by the board of trustees of the school district
in which the teacher is employed.
(b) A determination by a school district board of trustees under
Subsection (a) is not subject to appeal. This subsection does not
prohibit an appeal related to a student’s eligibility to participate in
extracurricular activities under Section 33.081.
Tex. Educ. Code § 28.0214. Although this statute purportedly gives Plaintiff the
authority to determine his students’ grades, Section 28.0214 does not provide
Plaintiff a constitutionally protected property interest in issuing any particular
grades.
Chapter 28 of the Texas Education Code—the broader statutory framework
of § 28.0214—concerns courses of study and advancement for Texas public school
students. See generally Tex. Educ. Code Ch. 28. Read in context, Section 28.0214
contemplates a student’s ability to challenge his grades, providing that they may
appeal those grades to the school board, or to the Commissioner related to their
eligibility to participate in extracurricular activities. See id. Plaintiff does not
explain how he has a legitimate entitlement to grading authority under a statute
that gives the school board, rather than the teacher, final authority to determine
whether a grade should be changed. See id.; cf. Town of Castle Rock, 545 U.S. at
756 (recognizing that a benefit is not protected “if government officials may grant
or deny it in their discretion”). In fact, Plaintiff alleges that a teacher’s grades may
be changed “by the board of trustees.” See Am. Compl. ¶ 290 (ECF No. 13). Plaintiff
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has failed to plausibly allege that his “grading authority” is “a right or status
recognized by state law,” and thus he has no liberty interest in such authority.
Further, to allege a deprivation or intrusion on a liberty interest, Plaintiff
must show “that he was stigmatized in connection with denial of a right or status
recognized by state law.” See Thomas, 897 F.2d at 156. Plaintiff alleges that the
deprivation of grading authority caused “reputational harm,” “loss of instructional
authority,” “respect[],” and “reduced TIA eligibility and negative impact on
performance metrics.” See Am. Compl. ¶ 311. But reputational harm—and the
resulting loss of authority and respect—“does not rise to the level of a liberty
interest” where, as here, an employee retains their position. See Otero, 557 F.2d at
438. And Plaintiff’s allegations that grade increases “reduced his TIA eligibility and
[had] a negative impact on performance metrics tied to student achievement” are
not plausible. See Am. Compl. ¶ 311. Indeed, Plaintiff alleges administrators
increased the grades he assigned to students, and, elsewhere in the Amended
Complaint, alleges that higher grades and better student performance improve TIA
eligibility and benefits. Plaintiff has thus failed to plausibly allege that he was
“stigmatized in connection with [the] denial” of that right. See id.
Plaintiff cites Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1310 (S.D.
Tex. 1996), for the proposition that “grading interference may implicate
constitutional rights where tied to law or policy.” See Resp. 15 (ECF No. 31). But
the page citation provided by Plaintiff does not support that proposition, and
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Wagner does not discuss grades or “grading interference” at all.3 See Wagner, 939
F. Supp. at 1310. Plaintiff does not cite case law or legal authority—from any
jurisdiction—providing that a teacher has a property or liberty interest in his
“grading authority.” And Plaintiff cites no “Board Policy” creating such an interest.
C. Even if Plaintiff had a protectable interest, he was afforded meaningful
due process.
Finally, even if Plaintiff had any protectable interest, “the deprivation by
state action of a protected interest . . . is not itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of law.”
Castille v. Port Arthur ISD, No. 24-40644, 2026 WL 507783, at *6 (5th Cir. Feb.
24, 2026) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (emphasis
added). The “due process” required depends “on the importance of the interests
involved and the nature of the subsequent proceedings,” but “the essential
requirements of due process . . . are notice and an opportunity to respond.” See id.
(quoting Cleveland Bd. of Educ., 470 U.S. at 542, 545–546). Plaintiff alleges that
3 The Court is troubled by the inaccuracies in Plaintiff’s Response. As Defendants
correctly identify, several citations in Plaintiff’s Response fail to support the
propositions for which they are cited, and at least two referenced cases do not
exist. See Defs.’ Replies (ECF Nos. 32, 33). These errors are typical of unverified,
AI-generated filings, which have become an increasing concern for courts in recent
years. While no federal or local rule explicitly prohibits the use of artificial
intelligence in litigation, all parties—including those proceeding pro se—must
fulfill their obligations under Federal Rule of Civil Procedure 11(b), which requires
lawyers and unrepresented parties alike to certify that, after a reasonable inquiry,
their legal contentions are warranted by existing law. Consequently, this duty
necessitates a careful review of AI-generated statements and citations to ensure
accuracy. The Court also notes that Local Rule 7.2(f)—adopted after the relevant
pleadings were filed—requires parties to disclose the use of generative AI.
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he proceeded through the school district’s formal grievance procedure and
participated in multiple hearings, where he had an opportunity to raise the issues
of his reassignment and grading authority with various administrators. Am.
Compl. ¶¶ 261–264. Plaintiff’s allegations and documents attached to the
Amended Complaint reveal that Plaintiff received “meaningful due process.” See
generally id.
Plaintiff has failed to plausibly allege any protected property or liberty
interest, or that he was denied due process. Thus, Plaintiff has failed to state a
claim for a violation of his procedural due process rights. Accordingly, because
Plaintiff failed to allege a constitutional violation, DeSoto ISD cannot be liable
under Monell, and the individual defendants are entitled to qualified immunity.
Pipkins F.4th at 360 (no Monell liability without a predicate constitutional
violation); Johnson, 507 F. App’x at 372 (“In the absence of a constitutional
violation, qualified immunity protects [the defendant] from liability.”).
II. Defendants are entitled to dismissal of Plaintiff’s substantive due
process claims (Counts III and XXI).
Plaintiff also sues DeSoto ISD and Defendants Campbell, Darden, Starling,
Rogers, and Morrow under 42 U.S.C. § 1983 for violating his substantive due
process rights and liberty interests. In addition to procedural protections, the
Fourteenth Amendment provides a substantive due process protection against
government conduct that “shocks the conscience,” “regardless of the fairness of the
procedures used to implement them.” See Cohly v. Miss. Insts. of Higher
Learning, 23-50232, 2024 WL 65432 (5th Cir. Jan. 5, 2024) (per curiam) (quoting
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Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630 (5th Cir.
2011)). “To succeed with a claim based on substantive due process in the public
employment context, the plaintiff must show two things: (1) that he had a property
interest/right in his employment, and (2) that the public employer’s termination
of that interest was arbitrary or capricious.” Id. (quoting Moulton v. City of
Beaumont, 991 F.2d 227, 230 (5th Cir. 1993).
Plaintiff alleges that he had “constitutionally protected interests in: (i) [h]is
continued assignment at [ECHS] . . . (ii) his professional integrity and autonomy
as a licensed educator . . . [and] (iii) his reputation and standing in the educational
community.” See Am. Compl. ¶ 321 (ECF No. 13). But, as discussed above, Plaintiff
has no property interest in his teaching assignment at ECHS. See Dooley, 686 F.
Supp. at 1199. And as to Plaintiff’s claimed interests in “professional integrity” and
“reputation” in the “educational community,” Plaintiff points to no state law or
contractual provision demonstrating that these are protectable “property
interests.” Thus, such interests are protected, if at all, as “liberty interests.”
A public employee’s liberty interest may be implicated when an employer, in
refusing to rehire an employee, makes a charge against him that might “seriously
damage his standing in the community or otherwise imposes a stigma on the
employee that forecloses his freedom to take advantage of other employment
opportunities.” Wells v. Doland, 711 F.2d 670, 676 (5th Cir. 1983) “To establish a
liberty interest sufficient to implicate the fourteenth amendment’s safeguards, the
employee must show not only that he has been stigmatized, but that he was
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stigmatized in or as a result of the discharge process; that the charges were made
public; and that he was denied a meaningful hearing to clear his name.” See id.
(citing Dennis v. S & S Consol. Rural High Sch. Dist., 577 F.2d 338, 341 (5th Cir.
1978) and Ortwein v. Mackey, 511 F.2d 696, 699 (5th Cir. 1975)).
Plaintiff has failed to plausibly allege a liberty interest. First, the Supreme
Court has held that an interest in “reputation” is “neither ‘liberty’ nor ‘property’”
protected by the Constitution. See Paul v. Davis, 424 U.S. 693, 712 (1976). Second,
Plaintiff does not allege that he was discharged from his teaching job, only that he
was reassigned to another teaching position. See Am. Compl. ¶ 675. Third,
although Plaintiff alleges that “[p]arents were told or led to believe that” Plaintiff
was reassigned due to “misconduct or excessive complaints,” these allegations are
conclusory. See id. Fourth, Plaintiff has failed to allege any facts showing that any
comments “foreclose[d] his freedom to take advantage of other employment
opportunities.” Wells, 711 F.2d at 676. And finally, although Plaintiff alleges that
he was not “provided a hearing to clear his name,” that allegation is contradicted
by Plaintiff’s allegations that he participated multiple grievance hearings. See Am.
Compl. ¶¶ 126, 675 (ECF No. 13); but see, e.g., Am. Compl. ¶¶ 261–264.
But even assuming Plaintiff had a constitutionally protected liberty interest
in his teaching assignment at ECHS, Plaintiff has failed to plausibly allege that
DeSoto ISD’s termination of that interest was “arbitrary and capricious.” To show
termination of an interest was “arbitrary or capricious,” Plaintiff must
“demonstrate that the abuse of power by the state official shocks the conscience.”
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See Lewis, 665 F.3d at 631 (quoting Marco Outdoor Advert., Inc. v. Reg'l Transit
Auth., 489 F.3d 669, 673 n.3 (5th Cir. 2007)). This requires Plaintiff to show “that
a public employer’s decision ‘so lacked a basis in fact’ that it could be said to have
been made ‘without professional judgment.’” Jones v. La. Bd. Of Supervisors of
Univ. of La. Sys., 809 F.3d 231, 240 (5th Cir. 2015) (quoting Texas v. Walker, 142
F.3d 813, 819 (5th Cir. 1998)). “The bar is high because ‘a federal court is generally
not the appropriate forum in which to review the multitude of personnel decisions
that are made daily by public agencies.’” Id. (quoting Honore v. Douglas, 833 F.2d
565, 569 (5th Cir. 1987)).
Plaintiff argues that Defendants’ arbitrary conduct included “(i) removing
[Plaintiff] from his ECHS position based on undocumented, unsubstantiated
parent complaints, (ii) changing student grades . . . to placate parents and
undermine [Plaintiff’s] authority, (iii) fabricating or exaggerating performance
concerns to justify placing Plaintiff on a [TINA plan], (iv) suppressing evidence
and denying access to grievance records and complaints . . . denying [Plaintiff] any
fair review process, and (v) ratifying these acts at the highest levels of district
governance, including at Levels I, II, and III of the grievance process.” See Am.
Compl. ¶ 323. These allegations fall short of “shocking the conscience.” Plaintiff
presented his side of the story in three separate grievance proceedings, and the
school administrators rejected it. See Am. Compl. Ex. 23, Plaintiff’s Grievance
Record (ECF No. 13-23), Ex. 39 Level III Grievance Transcript (ECF No. 13-39);
see also Cohly, 2024 WL 65432, at *4. Plaintiff’s allegations do not show
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Defendants’ decisions “so lack a basis in fact as to have been made without
professional judgment.” Cohly, 2024 WL 65432, at *4 (citation modified). In fact,
the allegations and documents attached to the Amended Complaint reveal that
Defendants had a rational basis for their actions—Plaintiff received several student
and parent complaints and acted in a manner that administrators, students, and
fellow teachers found objectionable. Plaintiff has thus failed to plausibly allege a
violation of his substantive due process rights. See Am. Compl. ¶¶ 23–24, 26–27,
34, 45, 46, 60, 97, 98 (ECF No. 13); see also Am. Compl. at Ex. 23, Plaintiff’s
Grievance Record (ECF No. 13-23), Ex. 39 Level III Grievance Transcript (ECF No.
13-39)
Plaintiff also asserts a standalone claim for “violation of liberty interest”
against the individual defendants only. See Am. Compl. ¶¶ 668–681. In this claim,
Plaintiff again alleges that he has a liberty interest in his “professional reputation”
and the “ability to pursue [his] chosen occupation.” Id. ¶ 672. But, for the reasons
explained above, his standalone claim fails. Plaintiff does not have a
constitutionally protected liberty interest in his reputation. And he fails to allege
facts showing that any decision was arbitrary or capricious. Id. ¶ 675
(acknowledging that his removal followed “administrative complaints” and
“administering zeros” to students.”). Furthermore, his allegations related to this
claim are conclusory and lack factual support.
Accordingly, because Plaintiff failed to allege a constitutional violation,
DeSoto ISD cannot be held liable under Monell, and the individual Defendants are
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entitled to qualified immunity. Pipkins F.4th at 360 (no Monell liability without a
predicate constitutional violation); Johnson, 507 F. App'x at 372 (“In the absence
of a constitutional violation, qualified immunity protects [the defendant] from
liability.”).
III. Defendants are entitled to dismissal of Plaintiff’s First
Amendment retaliation claim (Count IV).
DeSoto ISD and Defendants Campbell, Darden, Starling, Rogers, and
Morrow move to dismiss Plaintiff’s § 1983 claim for First Amendment retaliation
under Rule 12(b)(6). See Resp. 14 (ECF No. 31). To state a § 1983 claim for
“employment retaliation related to speech, a plaintiff–employee must show: (1)
[the plaintiff] suffered an adverse employment action; (2) [the plaintiff] spoke as
a [private] citizen on a matter of public concern; (3) [the plaintiff’s] interest in the
speech outweighs the government’s interest in the efficient provision of public
services; and (4) the speech precipitated the adverse employment action.”
Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016) (quoting Nixon v. City of
Houston, 511 F.3d 494, 497 (5th Cir. 2007)). Defendants argue that Plaintiff has
failed to state a claim with respect to the first and second elements. See Mot.
Dismiss. 21–23 (ECF No. 26).
The second element involves two related questions of law to be resolved by
the Court: (1) “[w]hether a statement is made as an employee or as a citizen” and
(2) “whether a statement addresses a matter of public concern.” Graziosi v. City of
Greenville Miss., 775 F.3d 731, 736 (5th Cir. 2015); see also Rodriguez v. City of
Corpus Christi, 687 F. App’x 386, 389 (5th Cir. 2017). “[T]here is no First
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Amendment protection for the speech at all when public employees make
statements as part of their official duties.” Culbertson v. Lykos, 790 F.3d 608, 617–
18 (5th Cir. 2015). “Such ‘[j]ob-required speech is not protected,’ even when it
irrefutably addresses a matter of public concern.” Anderson, 845 F.3d at 592
(quoting Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692–93 (5th Cir.
2007)).
When determining whether a public employee’s speech was part of his or her
official duties, “[t]he proper inquiry is a practical one.” Garcetti v. Ceballos, 547
U.S. 410, 424 (2006). The Court must “focus[ ] solely on whether the speech at
issue is ordinarily within the scope of the employee’s professional duties.” Howell
v. Town of Ball, 827 F.3d 515, 523–24 (5th Cir. 2016) (citing Lane v. Franks, 573
U.S. 228 (2014) and Garcetti, 547 U.S. at 424–25); see Anderson, 845 F.3d at 593–
99 (explaining how to determine the character of the plaintiff–speaker after
Garcetti and Lane ); Hardesty v. Cochran, 621 F. App’x 771, 776–77 (5th Cir. 2015)
(per curiam) (explaining various factors “for determining whether and when a
public employee is speaking as a citizen”).
In explaining the necessary “practical inquiry” the district court must make,
the Fifth Circuit emphasized that no protection exists “with regard to speech made
pursuant to a public employee’s official duties.” Anderson, 845 F.3d at 593. Speech
made while at work or about work is not necessarily made pursuant to an
employee’s official duties and thus may still be protected, so long as the speech has
“an analogue to speech by citizens who are not public employees.” Id. at 593–594.
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Expanding on this distinction, the Fifth Circuit reasoned that speech “made
pursuant” to an employee’s official duties is speech “made ‘in the course of
performing [the employee’s] job.’” Id. at 595 (quoting Williams, 480 F.3d at 694).
The Fifth Circuit then turned to the Restatement (Third) of Agency to illustrate
whether an employee’s speech is made in the course of performing his or her job.
Id. at 596–97 (citing Restatement (Third) of Agency § 7.07 (2006)). Under the
Restatement, speech subject to an employer’s control, “even if the employer has
not actually directed [the employee] to speak, not to speak, or how to speak,” may
still be speech made in the course of performing the employee’s job and thus
unprotected. Id. at 596. “[S]peech that owes its existence to a public employee’s
professional responsibilities” is unprotected speech made as an employee rather
than as a citizen. Id. at 597 (quoting Garcetti, 547 U.S. at 421–22); see also
Hardesty, 621 F. App'x at 776–777 (listing out “several factors” that guide the
“practical and fact-intensive” inquiry about whether a public employee speaks as a
citizen or employee).
Relevant here, “when an employee merely voices a grievance up the chain of
command at his workplace, it is particularly likely that the employee is speaking
pursuant to his official duties.” Hardesty, 621 F. App’x at 776–77; Davis v.
McKinney, 518 F.3d 304, 313 (5th Cir. 2008). Where, by contrast, “a public
employee takes his job concerns to persons outside the work place, . . . then those
external communications are ordinarily not made as an employee, but as a citizen.”
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Hardesty, 621 F. App’x at 776–777. That said, whether the employee directs the
speech internally or externally is not dispositive. Id. Additionally,
the fact that an employee gives a statement in an unauthorized
manner, or in contravention of the wishes of his superiors does not
convert his statement into protected citizen speech. Notably, it is not
the content of the speech that matters, but the role the speaker
occupied when he said it. Therefore, the critical question is whether
the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.
Consequently, the First Amendment protects speech even when it
concerns information related to or learned through public
employment.
Id. (cleaned up).
In this case, Plaintiff alleges that he “engaged in protected speech” when he
(1) “objected to mandatory lesson plan formatting”; (2) “opposed grading floors
and unexcused absence forgiveness policies”; (3) “objected to the District’s
improper use of NSolve calculator functions during STAAR-aligned testing”; and
(4) “reported that teachers who enforced accountability (like himself) were being
pushed out while those who participated in the scheme were rewarded.” Am.
Compl. ¶ 350 (ECF No. 13). Plaintiff asserts that he “filed grievances and internal
objections raising these concerns” to “administrators.” Id. ¶¶ 350, 354.
In response to Defendants’ Motion to Dismiss, Plaintiff further argues that
his speech was not mere “internal employee grievances” but relates to “systemic
misconduct, instructional fraud, and policy violations with direct implications for
public education integrity and taxpayer accountability,” and he cites Anderson v.
Valdez, 845 F.3d 580, 590 (5th Cir. 2016) in support. Resp. 9 (ECF No. 31).
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Plaintiff further asserts that he “made these objections through emails, formal
grievances, and direct reports to supervisors, not as part of his teaching duties.” Id.
But Plaintiff has failed to establish that he engaged in protected speech.
Plaintiff’s speech was made in the course of performing his job as a teacher.
McKinney, 518 F.3d at 312–13. First, Plaintiff’s speech consisted of reporting
information he gained “because of” his employment as a DeSoto ISD teacher. See
Tucker v. Par., 582 F. App'x 363, 365 (5th Cir. 2014) (citing Williams, 480 F.3d at
694 (“Simply because Williams wrote memoranda, which were not demanded of
him, does not mean he was not acting within the course of performing his job.”).
Second, Plaintiff’s speech relates to his teaching job and how the actions of other
students, teachers, and administrators affected his teaching responsibilities. Third,
Plaintiff’s allegations reveal that he raised these concerns internally, “up the chain
of command,” to school “administrators.” See McKinney, 518 F.3d at 313
(recognizing that internal statements “up the chain of command,” while not
dispositive, often suggest that speech is undertaken in the course of performing a
job); Am. Compl. ¶ 354 (ECF No. 13); see also Resp. at 9 (ECF No. 31)
(acknowledging that his “objections” were raised through “emails, formal
grievances, and direct reports to supervisors”). Plaintiff does not allege or argue
that he took “his job concerns to persons outside the workplace.” See id. Finally, it
is ordinarily within a math teacher’s duties to discuss lesson planning, grading and
absence policies and enforcement, and the use of calculators on a test. Based on
these allegations, Plaintiff occupied the role of a teacher rather than a private
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citizen when making these statements to administrators. Thus, Plaintiff has failed
to plausibly allege he was acting as a private citizen, and he cannot state a claim for
a violation of his First Amendment rights.
Because Plaintiff failed to allege a constitutional violation, DeSoto ISD
cannot be held liable under Monell, and the individual Defendants are entitled to
qualified immunity. Pipkins F.4th at 360 (no Monell liability without a predicate
constitutional violation); Johnson, 507 F. App’x 370, 372 (5th Cir. 2013) (per
curiam) (“In the absence of a constitutional violation, qualified immunity protects
[the defendant] from liability.”).
IV. Defendants are entitled to dismissal of Plaintiff’s Texas
Constitutional Claims (Count XIX).
Plaintiff also asserts “Due Course of Law” and “Freedom of Speech” claims
under the Texas Constitution against DeSoto ISD and all individual defendants.
See id. ¶¶ 632, 649–55. As Defendants point out, “Texas applies federal
interpretations of due process to Texas due course of law claims.” See Am.
Precision Ammunition, L.L.C. v. City of Mineral Wells, 90 F.4th 820, 828 (5th Cir.
2024); Mosley v. Texas Health & Hum. Servs. Comm'n, 593 S.W.3d 250, 264 (Tex.
2019) (“While the Texas Constitution is textually different in that it refers to ‘due
course’ rather than ‘due process,’ we regard these terms as without meaningful
distinction and thus have traditionally followed contemporary federal due process
interpretations of procedural due process issues.”); see TitleMax of Texas, Inc v.
City of Dallas, 142 F.4th 322, 331 (5th Cir. 2025) (the Texas Constitution’s Due
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Course of Law guarantee encompasses both procedural and substantive due
process).
Plaintiff’s free speech retaliation claims, too, are governed by the federal
First Amendment precedents discussed above.4 see Jackson v. Port Arthur Indep.
Sch. Dist., No. 09–15–00227–CV, 2017 WL 1425589, at *4 (Tex. App.—Beaumont
Apr. 20, 2017, no pet.) (“Generally, with the exception of cases that involve actions
amounting to prior restraints of speech, the Texas Supreme Court has refused to
hold that the Texas Constitution's free-speech clause affords a plaintiff greater
rights than does the First Amendment”) (citing Texas Dep't of Transp. v. Barber,
111 S.W.3d 86, 106 (Tex. 2003) and Operation Rescue-Nat'l v. Planned
4 Plaintiff does not cite any cases construing article I, section 8 of the Texas
Constitution more broadly than the cases interpreting the protection to speech
available under the First Amendment of the federal constitution. He merely alleges
that the free-speech protection under the Texas Constitution is “at least as broad
as the First Amendment.” See Am. Compl. ¶ 639. Thus, following the lead of Texas
state courts and the Fifth Circuit, the Court applies the federal standards to
Plaintiff’s retaliatory speech claims under the Texas Constitution. See Jackson,
2017 WL 1425589, at *4 n.3 (“Because [plaintiff] has not cited any cases construing
article I, section 8 of the Texas Constitution more broadly than the cases
interpreting the protection to speech available to Texas citizens under the First
Amendment of the Federal Constitution, we apply federal cases when analyzing
both Jackson's state retaliatory-speech claims and her section 1983 claims.”);
Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (“Where, as here, the parties
have not argued that differences in state and federal constitutional guarantees are
material to the case, and none is apparent, we limit our analysis to the First
Amendment and simply assume that its concerns are congruent with those of
article I, section 8.”); Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 565 (5th
Cir. 2003) (analyzing free speech claims under the U.S. Constitution rather than
under the broader scope of the Texas Constitution, where teacher did not include
in her brief any argument concerning how the broader scope of the Texas
Constitution affected her claims).
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Parenthood of Houston & Se. Texas, Inc., 975 S.W.2d 546, 557–560 (Tex. 1998)).
Defendants argue that Plaintiff’s claims under the Texas Constitution should be
dismissed for the same reason as their federal analogues. See Indiv. Mot. Dismiss
12 n.5; DeSoto Mot. Dismiss 16 n.12.
A. Plaintiff fails to plausibly allege a due course of law claim.
As with his federal due process claims, Plaintiff is entitled to the protections
of the Texas Constitution only if he can show deprivation of, or intrusion upon, “a
property or liberty interest.” Thomas v. Smith, 897 F.2d 154 (5th Cir. 1989) (per
curiam). Plaintiff alleges that he had protected interests in (i) his “professional
reputation,” (ii) his “assignment to a specialized instructional program,” (iii) his
“rights under the District’s grievance process,” and (iv) his “contractual rights to
grading authority and due process.” Am. Compl. ¶ 650. Plaintiff is, again, wrong.
The Amended Complaint does not plausibly allege a deprivation of a protected
interest, and thus Defendants are entitled to dismissal of Plaintiff’s due course of
law claim.
First, a public-school teacher does not have a property interest in their
assigned position or duties, “absent a specific contractual provision to that effect.”
Dooley, 686 F. Supp. at 1199. Plaintiff’s Employment Contract, ECF No. 13-40,
provides that Plaintiff may be reassigned “at any time during the contract term.”
See ECF No. 13-40 at ¶ 4. Thus, Plaintiff does not plausibly allege a property
interest in an assignment to a “specialized instruction program.” Second, Plaintiff’s
Contract does not mention “due process rights” or “grading authority,” see ECF
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No. 13-40, and Plaintiff does not explain how these purported interests arise out
of “contractual rights.” Third, Plaintiff’s “professional reputation” is “neither
‘liberty’ or ‘property’” protected by the US Constitution. See Paul, 424 U.S. at 712.
And finally, Plaintiff fails to cite to any specific “rights under the District’s
grievance process” or explain how such rights created a constitutionally protected
interest. But even if Plaintiff had a protectable interest in the “grievance process,”
he has not plausibly alleged a deprivation of that interest “without due process of
law.” Castille, 2026 WL 507783, at *6 (emphasis added) (“the deprivation by state
action of a protected interest . . . is not itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process of
law.”). Here, Plaintiff alleges that he proceeded through the school district’s formal
grievance procedure, participating in multiple hearings where he had an
opportunity to raise any issues with various administrators. See, e.g., Am. Compl.
¶¶ 523, 663; Am. Compl. at Ex. 39, Level III Grievance Hr’g Tr. (ECF No. 13-39).
Plaintiff’s allegations and the documents attached to Plaintiff’s Amended
Complaint reveal that he received “meaningful due process.” See generally, Am.
Compl.; see also id. Am. Compl. at Ex. 39, Level III Grievance Hr’g Tr. (ECF No.
13-39). Accordingly, Plaintiff’s due course of law claim should be dismissed.
B. Plaintiff fails to plausibly allege a free speech claim under the Texas
Constitution.
As discussed, the Court analyzes Plaintiff’s free-speech retaliation claim
under the federal standards. Jackson, 2017 WL 1425589, at *4. To state a
retaliation claim for “employment retaliation related to speech, a plaintiff–
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employee must show: (1) [the plaintiff] suffered an adverse employment action;
(2) [the plaintiff] spoke as a [private] citizen on a matter of public concern; (3) [the
plaintiff’s] interest in the speech outweighs the government’s interest in the
efficient provision of public services; and (4) the speech precipitated the adverse
employment action.” Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016)
(quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)). As with
Plaintiff’s federal claim, Plaintiff again fails to plausibly allege that he spoke as a
private citizen.
Here, Plaintiff alleges that he “engaged in protected speech” when he: (i)
“objected to grading policies,” (ii) opposed “discipline practices,” (iii) reported
“violations of attendance documentation and lesson plan mandates,” and (iv) “filed
formal grievances raising matters of public concern including misuse of
educational policy and funding tied to performance and ADA reporting.” See Am.
Compl. ¶ 644 (ECF No. 13).
But these allegations establish that Plaintiff was speaking as an “employee”
rather than as a “citizen.” See Graziosi v. City of Greenville Miss., 775 F.3d 731,
736 (5th Cir. 2015). And “[s]uch ‘[j]ob-required speech is not protected,’ even when
it irrefutably addresses a matter of public concern.” Anderson, 845 F.3d at 592
(quoting Williams, 480 F.3d at 692–93).
Indeed, the alleged speech consists of information he gained “because of” his
employment as a DeSoto ISD teacher, Tucker, 582 F. App'x at 365, and relates
entirely to his teaching job. Anderson, 845 F.3d at 597 (“[S]peech that owes its
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existence to a public employee’s professional responsibilities” is unprotected
speech made as an employee rather than as a citizen.). Second, although Plaintiff
does not specify who he raised these concerns to, the allegations throughout the
Amended Complaint indicate that these concerns were communicated internally,
“up the chain of command.” See McKinney, 518 F.3d at 313; see generally Am.
Compl. Plaintiff does not allege or argue that he took “his job concerns to persons
outside the workplace.” See id. Finally, it is ordinarily within a teacher’s duties to
discuss grading policies, discipline, attendance, lesson planning, and educational
policies. Based on these allegations, Plaintiff occupied the role of a teacher rather
than a private citizen in making these statements. Thus, Plaintiff has failed to
plausibly allege he was acting as a private citizen, and he cannot state a claim for a
violation of the Texas Constitution. Accordingly, this claim should be dismissed.
V. Defendants are entitled to dismissal of Plaintiff’s equal
protection claim (Count V).
Defendants DeSoto ISD, Campbell, Starling, Primus, Darden, Morrow,
Bailey, Polk, and Goss move to dismiss Plaintiff’s claim under the Equal Protection
Clause, arguing that Plaintiff’s allegations are “conclusory” and that his allegations
of “disparate treatment are deficient” and “fail to reflect actions by the Individual
Defendants.” See DeSoto Mot. Dismiss 21–22 (ECF No. 27); Indiv. Mot. Dismiss
18–20 (ECF No. 26).
The Equal Protection Clause of the Fourteenth Amendment provides that
“no state shall . . . deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. Amend. XIV § 1. The Equal Protection Clause directs that
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similarly situated people should be treated alike. Plyler v. Doe, 457 U.S. 202, 216
(1982).
To state a claim of race or sex discrimination under the Equal Protection
Clause and § 1983, a plaintiff must allege that (1) he received treatment different
from that received by similarly situated individuals, and (2) the unequal treatment
stemmed from a discriminatory intent. See, e.g., Fennell v. Marion Indep. Sch.
Dist., 804 F.3d 398, 412 (5th Cir. 2015) (citing Priester v. Lowndes Cnty., 354 F.3d
414, 424 (5th Cir. 2004)). To demonstrate discriminatory intent, a plaintiff must
establish “that the decision maker singled out a particular group for disparate
treatment and selected his course of action at least in part for the purpose of
causing its adverse effect on an identifiable group.” Id. (citing Priester, 354 F.3d at
424) (internal quotations omitted). “Allegations of discriminatory intent that are
merely conclusory, without reference to specific facts, will not suffice.” Id. (quoting
Priester, 354 F.3d at 420). “[D]isparate impact alone cannot suffice to state an
Equal Protection violation.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir.
1997) (citing Washington v. Davis, 426 U.S. 229, 246-50 (1976)).
Equal protection jurisprudence typically concerns governmental
classifications that affect some groups of citizens differently than others. Engquist
v. Oregon Dept. of Agr., 553 U.S. 591, 601 (2008). Plaintiffs in such cases generally
allege that they have been arbitrarily classified as members of an identifiable
group. Id. An equal protection claim can also be made when a plaintiff, rather than
alleging class-based discrimination, alleges that he has been singled out as a so-
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called “class of one.” Id. (citing Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000)).
A plaintiff makes a “class of one” claim when he alleges that he has been
intentionally treated differently from others similarly situated without a rational
basis for the difference in treatment. Id. (citing Olech, 528 U.S. at 564). “So long
as ‘there is a conceivable rational basis for the official action, it is immaterial that
it was not the or a primary factor in reaching a decision that it was not actually
relied upon by the decision-makers or that some other nonsuspect irrational
factors may have been considered.” Stein v. Dallas Cnty., No. 3:22-CV-1255-D,
2023 WL 2700720, at *2 (N.D. Tex. Mar. 29, 2023) (Fitzwater, J.) (quoting Reid
v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988) (emphasis in
original)). “The burden is on the challenging party to negative ‘any reasonably
conceivable state of facts that could provide a rational basis.’” Id. (quoting Bd. of
Trs. Of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001)).
Plaintiff does not allege class-based discrimination, and thus the Court
liberally construes Plaintiff’s Amended Complaint as asserting a “class-of-one”
equal protection claim. But Plaintiff fails to plausibly allege a violation of the Equal
Protection Clause.
First, Plaintiff’s Amended Complaint fails to allege any “discriminatory
intent.” In his Response, Plaintiff argues that some parents had “racially coded
objections to [Plaintiff’s] policies,” and that these objections were “known to
administrators.” See Resp. 20. Plaintiff argues that these facts “plausibly support
an inference of discriminatory motive.” But Plaintiff’s pleading contains no such
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allegation. He alleges only that these parents’ comments are “referenced in
multiple exhibits,” to which he provides no specific citation. See id. Even so,
Plaintiff does not explain how the alleged “racially charged parent complaints” are
in any way attributable to Defendants. Plaintiff cites Staub v. Proctor Hosp. to
argue that DeSoto ISD is liable for the unnamed parents’ actions based on the “cat’s
paw” theory. Plaintiff asserts that Defendants “relied on” and “ratified” the parents’
racially coded complaints when he was disciplined and reassigned. See id (citing
Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011)). But Staub is not on point. In
Staub, the question was whether the “discriminatory motive of one of the
employer’s agents can impose liability on the employer.” Plaintiff does not allege,
nor is it plausible to assume, that parents of DeSoto High School students were
acting as agents for DeSoto ISD.
Second, Plaintiff alleges that “administrative response to racially biased
complaints constitutes intentional discrimination,” that “[t]he Board of Trustees
ratified discriminatory actions,” and that there was “District-wide endorsement of
racial leniency.” But these allegations are conclusory and lack specific factual
support. See Am. Compl. ¶¶ 371, 373 (ECF No. 13).
Finally, because Plaintiff is asserting “class of one” discrimination, he must
show that no reasonably conceivable state of facts could provide a rational basis
for Defendants’ actions. But the facts alleged by Plaintiff, and the documents
attached to his Complaint, reveal that a rational basis for the Defendants’ actions
existed—Defendants received several complaints from parents and students about
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Plaintiff, and Plaintiff engaged in conduct that administrators found objectionable.
See Am. Compl. ¶¶ 23–24, 26–27, 34, 45, 46, 60, 97, 98 (ECF No. 13); see also Am.
Compl. at Ex. 23, Plaintiff’s Grievance Record (ECF No. 13-23), Ex. 39 Level III
Grievance Transcript (ECF No. 13-39).
Accordingly, because Plaintiff failed to allege a constitutional violation,
DeSoto ISD cannot be held liable under Monell, and the individual Defendants are
entitled to qualified immunity. Pipkins F.4th at 360 (no Monell liability without a
predicate constitutional violation); Johnson, 507 F. App’x at 372 (“In the absence
of a constitutional violation, qualified immunity protects [the defendant] from
liability.”).
VI. Defendants are entitled to dismissal of Plaintiff’s § 1981
retaliation claim (Count VI).
Plaintiff asserts that DeSoto ISD, Campbell, Starling, Primus, Darden,
Morrow, Bailey, Medina, Polk, and Goss violated 42 U.S.C. § 1981. DeSoto ISD
moves to dismiss this claim under Rule 12(b)(6), and the individual defendants
move for dismissal because there is no individual liability under § 1981 and
because they are entitled to qualified immunity. See DeSoto Mot. Dismiss 28–29
(ECF No. 27); Indiv. Mot. Dismiss 26–27 (ECF No. 26).
A. The individual defendants are entitled to qualified immunity.
The individual defendants argue that they are entitled to qualified immunity
because “it is not clearly established in the Fifth Circuit that a § 1981 retaliation
claim can be brought against a government official in their individual capacity. See
Indiv. Mot. Dismiss at 26–27. Indeed, dismissal based on qualified immunity is
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appropriate when the law is ambiguous as to liability. See Culbertson, 790 F.3d at
627. And the burden is on the plaintiff to demonstrate the inapplicability of the
qualified immunity defense, once raised. Kelson v. Clark, 1 F.4th 411, 416 (5th Cir.
2021). When attempting to show that a right was clearly established at the time of
the challenged conduct, “[i]t is the plaintiff’s burden to find a case in his favor that
does not define the law at a high level of generality. Vann v. City of Southaven,
Mississippi, 884 F.3d 307, 310 (5th Cir. 2018)
Courts in this Circuit have recognized that the Fifth Circuit is “undecided as
to whether Section 1981 claims were cognizable against government officials in
their individual capacities.” See, e.g., Sullivan v. City of Dallas, Tex., No. 3:21-CV-
915-S-BN, 2022 WL 3648625, at *6 (N.D. Tex. July 29, 2022) (Horan, J.), rec.
adopted, 2022 WL 3650743 (N.D. Tex. Aug. 24, 2022) (Scholer, J.) (collecting
cases); see Blue Mint Pharmco, LLC v. Texas State Bd. of Pharmacy, 667 F. Supp.
3d 473, 489 (S.D. Tex. 2023); Russ v. N. Pike Sch. Dist., No. 518CV145DCBMTP,
2020 WL 13682829, at *4 (S.D. Miss. Feb. 6, 2020) (“The lack of clarity here
means that individual liability for an alleged violation of Section 1981 was not
clearly established . . . and thus qualified immunity bars any such claim.”); see also
Jones v. City of Houston, 756 F. App’x 341, 347 n.6 (5th Cir. 2018) (citing Foley v.
Univ. of Houston Sys., 355 F.3d 333, 338 (5th Cir. 2003) (recognizing tension in
Fifth Circuit case law regarding the liability of individual defendants who are not
parties to the employment contract)); Escamilla v. Elliott, No. 21-50931, 2022 WL
2387354, at *2 n.2 (5th Cir. July 1, 2022) (“Because we affirm the district court’s
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conclusion that Escamilla failed to show pretext under McDonnell Douglas, we do
not reach Elliott’s argument that Escamilla cannot prevail on
her Section 1981 claims against Elliott in her individual capacity.”); Johnson v.
Halstead, 916 F.3d 410, 419 n.3 (5th Cir. 2019) (declining to address an argument
“that it is not clearly established that a § 1981 retaliation claim can be brought
against a municipal official as opposed to the municipality itself” and noting that
the defendant’s “failure to raise the ‘individual defendant’ question also means
that this opinion is not precedent on that issue”).
In his Response, Plaintiff cites no precedent from the Fifth Circuit regarding
individual liability for § 1981 claims. See Resp. 21–22 (ECF No. 31) (citing Byers v.
Dallas Morning News, Inc., 209 F.3d 419, 423 (5th Cir. 2000) which does not
discuss individual liability under § 1981 or involve any individual defendants); see
also Vann, 884 F.3d at 310 (“Plaintiff ... cited nary a pre-existing or precedential
case. That alone dooms his case here.”). And, “since the law is unsettled as to
whether individuals are otherwise subject to Section 1981 liability,” the individual
defendants are entitled to qualified immunity. See Sullivan, 2022 WL 3648625,
at * 5–6. Further, although Plaintiff asserts that § 1981 prohibits “race-based
retaliation in the making, performance, and enforcement of contracts,” See Am.
Compl. ¶ 382 (ECF No. 13), Plaintiff does not allege that the individual defendants
were parties to his employment contract. Accordingly, Plaintiff’s § 1981 claims
against Campbell, Starling, Primus, Darden, Morrow, Bailey, Medina, Polk, and
Goss should be dismissed.
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B. Plaintiff has failed to plausibly allege DeSoto ISD is liable under Monell.
The “inquiry into intentional discrimination is essentially the same for
individual actions brought under sections 1981 and 1983, and Title VII.” See Fisher
v. Dallas Cnty., No. 3:12-CV-3604-D, 2014 WL 4797006, at *3 (N.D. Tex. Sept. 26,
2014) (Fitzwater, J.) (quoting Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047
(5th Cir. 1996)). Claims for intentional discrimination include race retaliation
claims under 42 U.S.C. § 1981. See Raggs v. Mississippi Power & Light Co., 278
F.3d 463 (5th Cir. 2002). Thus, in analyzing Plaintiff’s § 1981 race retaliation claim,
the Court “can rely on decisions that address claims brought under Title VII, §
1981, and § 1983. See Fisher, 2014 WL 4797006, at *3.
To plausibly allege that DeSoto ISD violated § 1981, Plaintiff must meet the
requirements of Monell. Under Monell, a school district cannot be liable unless the
“unconstitutional conduct is directly attributable to the school district through
some sort of official action or imprimatur; isolated unconstitutional actions by
municipal employees will almost never trigger liability.” See Fennell v. Marion
Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015).
With respect to his § 1981 claim and Monell, Plaintiff alleges:
• DeSoto ISD’s Board of Trustees ratified the retaliatory actions by
denying grievances at Level III without investigating or addressing
race-related claims.
• Principal Campbell, as delegated policymaker under DK(Local),
orchestrated and executed the adverse actions.
• The District’s culture and grievance responses reflect a custom of
retaliating against educators who resist race-based policy
distortions.
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Am. Compl. ¶ 391 (ECF No. 13). These allegations are mere legal conclusions that
are not entitled to a presumption of truth. Even liberally construed, Plaintiff does
not identify facts from which the Court can infer that DeSoto ISD had any official
policy or custom, delegated policy-making authority, or ratified the conduct of any
non-policymaker. Accordingly, Plaintiff has failed to state a § 1981 claim against
DeSoto ISD.
VII. Defendants are entitled to dismissal of Plaintiff’s Title VII and
TCHRA Claims (Counts VII & XI).
Title VII makes it “an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment because of such individual’s race . . . [or]
sex.” 42 U.S.C. § 2000e-2(a)(1). The Texas Commission on Human Rights Act
(TCHRA) similarly prohibits race and sex discrimination by an employer. Tex. Lab.
Code § 21.051. Employment discrimination claims brought under Title VII and the
TCHRA are evaluated under the same analytical framework. See, e.g., Horvath v.
City of Leander, 946 F.3d 787, 791 n.3 (5th Cir. 2020); see also Ross v. Judson
Indep. Sch. Dist., 993 F.3d 315, 321 (5th Cir. 2021) (“The Supreme Court of Texas
has instructed Texas courts to follow the approach of the United States Supreme
Court in interpreting Title VII when reviewing TCHRA claims”).
Plaintiff’s Amended Complaint alleges that DeSoto ISD violated Title VII
and the TCHRA by discriminating and retaliating against him because of his race,
sex, and engagement in “protected activities,” and by creating a “hostile work
environment.” Am. Compl. ¶¶ 395–413 (Title VII), ¶¶ 476–491 (TCHRA) (ECF No.
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13). DeSoto ISD moves to dismiss Plaintiff’s claims based on failure to timely
exhaust his administrative remedies and failure to state a claim. See DeSoto Mot.
Dismiss (ECF No. 27)
A. Exhaustion of administrative remedies
Exhausting administrative remedies is a prerequisite to filing suit under
both Title VII and the TCHRA. See Jones v. Beacon Health Options, Inc., No. 3:22-
CV-1566-S, 2023 WL 3772806, at *3 (N.D. Tex. May 22, 2023); Cruce v.
Brazosport Indep. Sch. Dist., 703 F.2d 862, 863 (5th Cir. 1983) (explaining that
exhaustion, while not jurisdictional, is “a precondition to filing suit in district
court”). When the pleadings do not show exhaustion, the Court must assume the
claims were not exhausted. See Cruce, 703 F.2d at 863.
To exhaust administrative remedies, a Texas plaintiff must file a “timely
charge” with either the EEOC or the Texas Workforce Commission (TWC). Id.; see,
e.g., Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000) (filing a charge with
the TWC satisfies both state and federal exhaustion requirements). Under Title
VII, a charge must be filed with the EEOC within 180 days of the “alleged unlawful
employment practice.” 42 U.S.C.§ 2000e-5(e)(1). The TCHRA imposes the same
180-day deadline for race and sex discrimination claims. Tex. Lab. Code
§21.202(a). But, when a claimant “initially instituted proceedings” with a state or
local agency—such as by dual-filing with the TWC—the Title VII deadline extends
to 300 days. See 42 U.S.C. § 2000e-5(e)(1). This extension applies here because
Plaintiff alleges that he dual-filed his charge. See Lopez v. AT&T Mobility Servs.
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LLC, 767 F. Supp. 3d 406, 422 (W.D. Tex. 2025) (citing Griffin v. City of Dallas,
26F.3d 610, 612–13 (5th Cir. 1994)). The TCHRA’s 180-day deadline, however,
does not change. Id. (citing Griffin, 26 F.3d at 612–13).
Plaintiff alleges that he filed a charge of discrimination “with the [TWC] and
the EEOC on December 12, 2024.” Am. Compl. ¶¶ 258, 489 (ECF No. 13). This
allegation sufficiently establishes dual-filing, and thus the 300-day deadline
applies to his Title VII claims. See Lopez, 767 F. Supp. 3d at 422. After a charge is
timely-filed, the plaintiff must then file suit within the period allowed after
receiving a right-to-sue notice. See Nedd v. Dallas Indep. Sch. Dist., 3:22-cv-
02322-K-BT, 2024 WL 945865, at *6 (N.D. Tex. Feb. 13, 2024) (Rutherford, J.),
rec. adopted, 2024 WL 947440 (N.D. Tex. Mar. 5, 2024) (Kinkeade, J.) (citing
Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002)).
Plaintiff does not attach his administrative charge to the Complaint, nor
does he appear to allege facts describing the scope of either agency’s charge or
investigation. He merely asserts that he filed his charge on December 12, 2024. See
Am. Compl. ¶¶ 258, 410. He does, however, attach a TWC right-to-sue letter. See
ECF No. 13-1. Liberally construed, Plaintiff’s allegations and the attached letter
allow the Court to assess timeliness.
The TWC letter, dated February 25, 2025, recites that Plaintiff alleges he was
“subjected to Terms/Conditions and Discipline based on [his] Color, National
Origin, Race and Retaliation.” See ECF No. 13‑1. It further advises that the TWC
was unable to complete an investigation before the 181st day and thus will issue
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notice of the right to sue. Id. The letter instructs Plaintiff that he has 60 days from
his receipt of the letter to file suit. Id. Plaintiff filed this lawsuit on March 18,
2025—within the 60‑day window. But this does not resolve whether the
discriminatory acts alleged in the Amended Complaint were timely exhausted. To
be timely, Plaintiff must have filed his charge within 180 days of any TCHRA
violation, or within 300 days of any Title VII violation. See Lopez, 767 F. Supp. 3d
at 422 (citing Griffin, 26 F.3d at 612–13).
Plaintiff alleges he filed his charge on December 12, 2024. See Am. Compl.
¶ 223. DeSoto ISD argues that any claim based on the “Letter of Concern” was filed
too late. See DeSoto Mot. Dismiss at 2–3 (ECF No. 27). DeSoto ISD also contends
that any TCHRA claim based on the March 4, 2024 TINA plan is untimely. Id.
To determine timeliness, the Court must “identify precisely the unlawful
employment action of which Plaintiff complains.” See Delaware State Coll. v.
Ricks, 449 U.S. 250, 257 (1980); see also Specialty Retailers, Inc. v. DeMoranville,
933 S.W.2d 490, 492 (Tex. 1996). Assuming the Letter of Concern and TINA plan
qualify as adverse actions, the limitations period begins when the employee is
informed of the decision—not when its effects are felt. See Specialty Retailers, Inc.,
933 S.W.2d at 493.
Plaintiff was informed of the Letter of Concern on November 28, 2023, over
300 days before he filed his charge. Any Title VII or TCHRA claim based on that
letter is therefore untimely. See Lopez, 767 F. Supp. 3d at 422 (citing Griffin, 26
F.3d at 612–13). Plaintiff learned of the TINA plan on March 4, 2024—over 180
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days before filing his charge. Any TCHRA claim based on the TINA plan is likewise
untimely.
Plaintiff asserts, without elaboration or citation, that the “continuing
violations doctrine” applies. See Resp. 7–8 (ECF No. 31). That doctrine may toll
the filing period when an unlawful employment practice “manifests itself over
time, rather than as a series of discrete acts.” See Noack v. YMCA of Greater
Houston Area, 418 F. App'x 347 (5th Cir. 2011) (citing Pegram v. Honeywell, Inc.,
361 F.3d 272, 279 (5th Cir. 2004), abrogated on other grounds). But Plaintiff’s
conclusory assertion is insufficient to invoke the doctrine, and he identifies no
allegations supporting its application.
B. Discrimination
With respect to any timely exhausted claim, including Plaintiff’s Title VII
race discrimination claim based on the TINA plan, Plaintiff must allege (1) “an
adverse employment action, (2) taken against a plaintiff because of [his] protected
status.”5 See Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 430 (5th Cir. 2023).
“To plead an adverse employment action, a plaintiff need only allege facts
plausibly showing discrimination in hiring, firing, compensation, or in the ‘terms,
conditions, or privileges’ of his or her employment.” Harrison, 82 F.4th at 430
5 DeSoto ISD does not specifically argue that Plaintiff failed to exhaust any
discrimination claim based on sex, but the TWC letter does not recite that Plaintiff
alleged he was subjected to discrimination on that basis. ECF No. 13‑1 (reciting
that Plaintiff alleges only that he was “subjected to Terms/Conditions and
Discipline based on [his] Color, National Origin, Race and Retaliation”)
(emphasis added).
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(quoting Hamilton v. Dallas Cnty., 79 F.4th 494, 497 (5th Cir. 2023)). “The phrase
‘terms, conditions, or privileges’ should be broadly construed.” See id. (quoting
Hamilton, 79 F.4th at 502–504. For example, the phrase is not limited to
‘economically adverse employment actions’” Id. (quoting Hamilton, 79 F.4th at
504). Title VII “does not permit liability for de minimis workplace trifles,” but the
Fifth Circuit has declined to address “the precise level of minimum workplace
harm” necessary to sustain a discrimination claim. See Yates v. Spring Indep. Sch.
Dist., 115 F.4th 414, 420 (5th Cir. 2024). And with respect to transfers, a plaintiff
“must show some harm” –not “significant” harm—“respecting an identifiable term
or condition of employment.” See Muldrow v. City of St. Louis, Mo., 601 U.S. 346,
350 (2024) (disapproving of lower court’s rejection of adverse employment action
claims based on transfers that did not cause a “significant” employment
disadvantage because “although an employee must show some harm from a forced
transfer to prevail . . . she need not show that the injury satisfies a significance
test.”). Additionally, the harm borne of any adverse employment action must be
material. See Moye v. Tregre, No. 22-30341, 2024 WL 65424 (5th Cir. Jan. 5,
2024) (per curiam). “While the Fifth Circuit has not definitively addressed the
precise level of minimum workplace harm necessary to establish an adverse action,
besides stating that something more than de minimis harm is required, being
placed in a disadvantageous situation likely suffices.” Harris v. Amazon.com Inc.,
No. 3:22-CV-2279-K-BN, 2024 WL 4958265, at *5 (N.D. Tex. Nov. 14, 2024)
(Horan, J.), rec. adopted, 2024 WL 4960009 (N.D. Tex. Dec. 3, 2024) (Kinkeade,
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J.) (citation modified) (quoting Liao v. Univ. of Texas at San Antonio, No. SA-22-
CV-01359-XR, 2024 WL 4564278, at *9 (W.D. Tex. Oct. 23, 2024)).
Plaintiff alleges that his reassignments affected his eligibility for TIA
benefits. See, e.g., Am. Compl. ¶¶ 10, 79, 83, 88–93, 253–256 (ECF No. 13).
Specifically, Plaintiff asserts that his initial reassignment from ECHS Algebra I to
regular Algebra I “sabotaged” his TIA eligibility for the school year; and although
he returned to ECHS the next year, he was “assigned to teach Geometry,” a “non-
STAAR-tested” subject, which is not eligible for TIA incentives. See id. ¶¶ 90, 253–
256. DeSoto ISD disputes that Plaintiff’s TIA eligibility was impacted by his
reassignment and argues that TIA eligibility is tied to other factors beyond teaching
assignment. See DeSoto Mot. Dismiss at 5–6 (ECF No. 27). DeSoto ISD also argues
that, beyond the reassignment, Plaintiff’s other allegations “are not adverse
employment actions,” but are “corrective and remedial measures” or “challenges
in his work environment.” See DeSoto Mot. Dismiss 7. But even liberally
construing these allegations as identifying an adverse employment action, Plaintiff
fails to allege facts to plausibly show that Defendants took such action “because of”
a protected characteristic.
Rather, Plaintiff expressly pleads that Defendants punished him because he
insisted on academic integrity and strictly enforced rules related to attendance and
dress codes. Am. Compl. ¶ 368 (alleging that Plaintiff “was reassigned and
penalized for insisting on legal compliance and uniform enforcement”); See also
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Resp. at 18 (arguing Plaintiff “was removed from his advanced ECHS classes based
solely on ‘overwhelming [parent and student] complaints’”).
One way discrimination can be shown is by alleging that others similarly
situated outside the plaintiff’s protected class were treated more favorably in
nearly identical circumstances. Cicalese v. Univ. of Texas Med. Branch, 924 F.3d
762, 767 (5th Cir. 2019). “Nearly identical circumstances exist ‘when the employees
being compared held the same job or responsibilities, shared the same supervisor
or had their employment status determined by the same person, and have
essentially comparable violation histories.’” Davis v. Highland Park Indep. Sch.
Dist., No. 3:25-CV-3463-D, 2026 WL 508306, at *2 (N.D. Tex. Feb. 24, 2026)
(Fitzwater, J.) (citations omitted). Additionally, “the plaintiff's conduct that drew
the adverse employment decision must have been ‘nearly identical’ to that of the
proffered comparator who allegedly drew dissimilar employment decisions.” Id.
And here, Plaintiff alleges:
• A Black female Biology teacher at ECHS admitted she does not
enforce dress code or ID policy but was never disciplined and
received an “Exemplary” TIA designation.
• A White male Pre-Calculus teacher allowed unsupervised students
in class, leading to altercations, yet faced no reassignment or
formal discipline.
• Female teachers who submitted no PowerPoint lesson plans or
ignored the 50-grade floor policy were not written up, placed on
growth plans, or reassigned.
Am. Compl. ¶ 368. But he does not assert that his comparators—the Black female
Biology teacher, the White male Pre-Calculus teacher, or the unnamed “female
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teachers”—had similar experience, qualifications, or held the same job or
responsibilities. Plaintiff’s allegations lack factual detail and are insufficient to
enable the court to draw the reasonable inference that other non-Black, female
teachers were treated more favorably under nearly identical circumstances.
Furthermore, with respect to the Black female Biology teacher and the White male
Pre-Calculus teacher, Plaintiff’s allegations demonstrate that any different
treatment Plaintiff received compared to these other teachers was due to his strict
enforcement of student codes of conduct, not his race, national origin, color, or
sex.
Plaintiff’s Amended Complaint contains no plausible allegations that
Plaintiff was treated differently than any similarly situated non-Black or female
teacher under nearly identical circumstances. See Davis, 2026 WL 508306, at *2.
Accordingly, Plaintiff has failed to plead sufficient facts to state a discrimination
claim that survives dismissal.
C. Retaliation
DeSoto ISD also argues that Plaintiff fails to state a claim for retaliation
because he fails to “allege he engaged in protected activity under Title VII o[r] the
TCHRA that resulted in an adverse employment action.” See DeSoto Mot. Dismiss
12–13. To plead a retaliation claim, Plaintiff must allege that he (1) engaged in
activity protected by Title VII or the TCHRA; (2) Defendants took adverse
employment action against him; and (3) a causal connection exists between the
protected activity and the adverse employment action. See, e.g., Brazoria Cnty.,
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Tex. v. E.E.O.C., 391 F.3d 685, 692 (5th Cir. 2004); Gorman v. Verizon Wireless
Texas, L.L.C., 753 F.3d 165, 170 (5th Cir. 2014). Internal complaints may constitute
a protected activity when they refer to unlawful discrimination. See Rodriquez v.
Wal-Mart Stores, Inc., 540 F. App'x 322, 328 (5th Cir. 2013) (per curiam); see also
Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (per
curiam) (“Magic words are not required, but protected opposition must at least
alert an employer to the employee’s reasonable belief that unlawful discrimination
is at issue.” (collecting cases)). And, with respect to a “retaliatory adverse
employment action,” a plaintiff must show that the challenged action “might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination. See Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826–27
(5th Cir. 2019), abrogated on other grounds.
Plaintiff fails to plausibly allege that his internal complaints constituted
protected activities. See Rodriquez, 540 F. App'x at 328. As the documents
attached to the Amended Complaint demonstrate, Plaintiff filed written internal
grievances on March 8, 2024, and September 9, 2024, complaining of
disagreements with school administrators related to his reassignment from ECHS,
lesson planning policy, grading floors, the TINA plan, and the Letter of Concern.
See generally Am. Compl. (ECF No. 13); Am. Compl. Ex. 16, Employee Complaint
Form, Mar. 8, 2024 (ECF Nos. 13-16); Am. Compl. Ex. 23, Employee Complaint
Form 8–10, Sep. 9, 2024 (ECF Nos. 13-23); Resp. 7 (ECF No. 31). Plaintiff’s first
internal grievance, filed March 8, 2024, does not mention discrimination or
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unlawful practices based on race or sex. See Am. Compl., Ex. 16, Employee
Complaint Form (ECF Nos. 13-16). And although the March 8 grievance mentions
retaliation, see id. at 4, Plaintiff does not assert that the retaliation was “because
of” race, sex, or any protected activity. See id. Instead, Plaintiff asserts that the
purported retaliation resulted from his “previous disagreements with [school
administrators].” Id. Plaintiff’s September 9 grievance, too, does not mention
discrimination, retaliation, or suggest that any action was taken because of
Plaintiff’s race, sex, or other protected activity. See Am. Compl., Ex. 23, Employee
Complaint Form 8–10 (ECF Nos. 13-23). Because Plaintiff’s “internal complaints”
do not refer—explicitly or implicitly—to “unlawful discrimination,” he has failed to
plausibly allege that his filing of internal grievances were protected activities. See
Rodriquez, 540 F. App'x at 328.
Plaintiff argues that he engaged in protected activity by “objecting to
unlawful grading floors” and “[c]hallenging lesson plan mandates” that allegedly
violated the Texas Education Code. See Resp. 7 (ECF No. 31). To the extent that his
“objection” and “challenge” were distinct from the internal grievances discussed
above, Plaintiff has failed to show that his “objection” and “challenge” refer to any
“unlawful discrimination.” See Resp. 7 (citing Exs. 10 (ECF No. 13-10) and 49
(ECF No. 13-49), which do not refer to any unlawful discrimination). Accordingly,
these activities are not protected. See Rodriguez, 540 F. App’x at 328.
Finally, Plaintiff’s “[r]eporting NSolve calculator use that conflicted with
STAAR protocol,” was not a protected activity. See Resp. 7 (citing Ex. 49). Although
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Plaintiff argues in his response that this “reporting” was a protected activity, the
exhibit cited by Plaintiff does not refer to any “unlawful discrimination”—it is an
email chain among DeSoto High School Math teachers discussing calculator
maintenance for Algebra I students. See Am. Compl., Ex. 49 (ECF No. 13-49). To
be sure, Plaintiff also alleges that on May 19, 2025, he made an “External Report”
to the TEA regarding DeSoto ISD’s allowance of “prohibited calculator apps” for
STAAR testing. See Am. Compl. ¶¶ 460–462 (ECF No. 13). But Plaintiff admits that
“this report was submitted after” any alleged adverse employment actions
occurred. See id. ¶ 462.
Plaintiff has also failed to plausibly allege a “causal connection” between the
filing of an EEOC charge—a protected activity—and any adverse employment
action. See DeSoto Mot. Dismiss 13 (ECF No. 27). Plaintiff alleges that Defendants’
withdrawal of a student from his class following an altercation between the student
and Plaintiff constituted “post-filing retaliation.” See Am. Compl. ¶¶ 236–246. But
Plaintiff does not explain or plausibly allege that such conduct affected a “term,
privilege, or condition of his employment.” See id. Accordingly, Plaintiff fails to
plead a retaliation claim under Title VII or the TCHRA.
D. Hostile Work Environment
To state a hostile work environment claim, a plaintiff must plead facts
sufficient to show that (1) he belongs to a protected group; (2) he was subjected to
unwelcome harassment; (3) the harassment complained of was based on the
protected characteristic; (4) the harassment complained of affected a term,
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condition, or privilege of employment; and (5) the employer knew or should have
known of the harassment in question and failed to take prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Critically, in order to
affect a term, condition, or privilege of employment, the conduct must be
“sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” Id.
Plaintiff alleges that “the totality of the circumstances created a racially and
sexually hostile work environment.” See Am. Compl. ¶ 407. This allegation is
conclusory. Plaintiff also points to the following allegations as support for his
claim:
• Students and parents were encouraged to file biased complaints
that portrayed [Plaintiff] as overly rigid or authoritarian for
enforcing policy;
• Defendants ignored racially charged parent statements and
administrative gossip undermining [Plaintiff’s] authority;
• District personnel (e.g., Starling, Bailey, Medina, Polk) routinely
undercut [Plaintiff] in front of students, fostered noncompliance,
and reassigned students to weaker instructional settings;
• [Plaintiff] was repeatedly singled out for complying with law and
policy when others were not;
• Administrative comments and conduct conveyed that men, and
especially Black men, were viewed as problematic or incompatible
with DeSoto’s preferred “equity model”
Am. Compl. ¶ 407. Only two of these allegations even mention Plaintiff’s race or
sex. And although actions of non-employees may create a hostile work
environment, Plaintiff’s allegation that “Defendants ignored racially charged
parent statements” is vague, conclusory, and does not contain any facts from which
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the Court can infer that the racial animus is attributable to DeSoto ISD. The same
is true of Plaintiff’s assertion regarding “administrative comments” about “black
men.”
Similarly, Plaintiff’s allegation that the above “actions were pervasive,
discriminatory in impact, and allowed to persist despite ongoing grievances and
complaints,” is conclusory. Finally, Plaintiff does not plead that the misconduct
alleged altered the conditions of his employment or created an abusive working
environment. Accordingly, Plaintiff’s complaint fails to state a claim under Title
VII or the TCHRA for a hostile work environment.
VIII. Defendants are entitled to dismissal of Plaintiff’s retaliation and
discrimination claims under Title VI of the Civil Rights Act of
1964 (Counts VIII & IX).
DeSoto ISD argues that Plaintiff lacks standing to pursue a Title VI claim on
behalf of “Black or Title I” students in the District. Mot. Dismiss 15 (ECF No. 27).
Title VI of the Civil Rights Act of 1964 states that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
Plaintiff alleges that DeSoto ISD and the ECHS receive federal funding under “Title
I” of the “Every Student Succeeds Act.”6 See Am. Compl. ¶¶ 3, 443, 444 (ECF No.
13).
6 Based on Plaintiff’s allegations, it is clear he is referring to Title I of the
Elementary and Secondary Education Act (ESEA), as amended by the Every
Student Succeeds Act, 20 U.S.C. § 6301 et seq.
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But a plaintiff must be an intended beneficiary of, an applicant for, or a
participant in a federally funded program in order to state a claim under Title VI.
See Gonzalez v. Northside Indep. Sch. Dist., No. SA-20-CV-00926-XR, 2020 WL
4677305, at *4 (W.D. Tex. Aug. 12, 2020) (citing Jackson v. Katy Indep. Sch. Dist.,
951 F. Supp. 1293, 1298 (S.D. Tex. 1996)). And “[s]chool children are the only
intended beneficiaries of a federally funded school program.” See Wade v. Travis
Middle Sch., No. 3:11-CV-0276-G BK, 2011 WL 3880481, at *3 (N.D. Tex. Aug. 9,
2011) (Tolliver, J.), rec. adopted, 2011 WL 3897855 (N.D. Tex. Sept. 1, 2011) (Fish,
J.); See also Jackson, 951 F. Supp. at 1298 (“The intended beneficiaries of a
federally funded public school program are school children, not their
parents.”). Plaintiff, as a schoolteacher, lacks standing to assert a Title VI claim in
his own right. See Wade, 2011 WL 3880481, at *3. And since he is not asserting
claims on behalf of any school children, his claims for discrimination under Title
VI should be dismissed for lack of standing.
IX. Defendants are entitled to dismissal of Plaintiff’s claim under the
Texas Whistleblower Act (Count X).
DeSoto ISD moves under Rule 12(b)(1) to dismiss Plaintiff’s Texas
Whistleblower Act (TWA) claim, arguing Plaintiff does not plausibly allege the
elements of a TWA claim. See DeSoto Mot. Dismiss 29–32 (ECF No. 27).
Alternatively, DeSoto ISD moves to dismiss Plaintiff’s claim under Rule 12(b)(6).
See id. The Court considers the jurisdictional attack before addressing any attack
on the merits.
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The TWA mandates that “[a] state or local governmental entity may not
suspend or terminate the employment of, or take other adverse personnel action
against, a public employee who in good faith reports a violation of law by the
employing governmental entity or another public employee to an appropriate law
enforcement authority.” Tex. Gov’t Code § 554.002.
Under the Act’s provision on waiver of immunity, only a public employee
who alleges a violation of the Act may sue the employing state or local
governmental entity. See Sherman v. Dallas ISD, No. 3:10-CV-1146-B-BH, 2011
WL 477500, at *1 (N.D. Tex. Jan. 24, 2011) (Ramirez, J.), rec adopted, No. 3:10-
CV-1146-B-BH, 2011 WL 477465 (N.D. Tex. Feb. 8, 2011) (Boyle, J.) (citing Tex.
Gov’t Code § 554.0035 and State v. Lueck, 290 S.W.3d 876, 881–82 (Tex. 2009)).
This requirement is jurisdictional in nature and requires a plaintiff to actually
allege a violation of the Act and not merely reference it. See Lueck, 290 S.W.3d at
882. In other words, the elements of a TWA claim “must be included within the
pleadings so that the court can determine whether they sufficiently allege a
violation under the Act and fall within” the waiver of immunity from suit provided
in § 554.0035. See id. at 884. A “significant inquiry into the substance of the
claims” is not required, however. Id.
Plaintiff has included the elements of a TWA claim within his pleading. See
Am. Compl. ¶¶ 450–475 (ECF No. 13). Thus, this Court has jurisdiction to
determine whether Plaintiff has failed to state a claim under Rule 12(b)(6). But
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Plaintiff does not plausibly allege that he reported any violation of law “to an
appropriate law enforcement authority.” See Tex. Gov’t Code § 554.002.
First, Plaintiff does not sufficiently allege that he reported a violation of
“law” within the meaning of the TWA. The TWA defines “law” to include only “(A)
a state or federal statute; (B) an ordinance of a local governmental entity; or (C) a
rule adopted under a statute or ordinance.” Tex. Gov’t Code § 554.001(1); see also
Nedd, 2024 WL 945865, at *9. “Other complaints and grievances, including
alleged violations of an agency’s internal procedures and policies, will not support
a claim.” Nedd, 2024 WL 945865, at *9 (emphasis added) (quoting Mullins v.
Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188 (Tex. App.—Dallas 2012, pet.
denied). Plaintiff pleads no facts supporting that the school or board policies at
issue were adopted under statute, rule, or ordinance. See Nedd, 2024 WL 945865,
at *9; Am. Compl. ¶¶ 450–475. Thus, Plaintiff fails to plead a claim under the TWA.
Id. (citing Coll. of the Mainland v. Meneke, 420 S.W.3d 865, 871 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (when plaintiff does not suggest policies were
adopted under a statute, “reliance on internal administrative policies cannot serve
as the basis for a viable whistleblower claim”)).
Further, Plaintiff does not plausibly allege that he reported a violation of law
to “an appropriate law enforcement authority.” Plaintiff alleges that he made
internal reports to “administrators” within DeSoto ISD, whom he alleges “he
reasonably believed . . . were appropriate law enforcement authorities for purposes
of the [TWA].” Am. Compl. ¶¶ 458–459. “An appropriate law enforcement
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authority” within the meaning of the TWA means one that is “a part of a state or
local governmental entity or of the federal government that the employee in good
faith believes is authorized to: (1) regulate under or enforce the law alleged to be
violated in the report; or (2) investigate or prosecute a violation of criminal
law.” Tex. Gov’t Code § 554.002(b).
The Texas Supreme Court has explained what constitutes an appropriate law
enforcement authority:
[P]urely internal reports untethered to the [Texas Whistleblower]
Act’s undeniable focus on law enforcement—those who either make
the law or pursue those who break the law—fall short .... “[F]or an
entity to constitute an appropriate law-enforcement authority under
the [Whistleblower] Act, it must have authority to enforce,
investigate, or prosecute violations of law against third parties
outside of the entity itself, or it must have authority to promulgate
regulations governing the conduct of such third parties. Authority of
the entity to enforce legal requirements or regulate conduct within the
entity itself is insufficient to confer law-enforcement authority status.”
Accordingly, [the Plaintiff] was required to have an objective good
faith belief that he was reporting violations of law ... to an entity that
could have enforced, investigated, or prosecuted similar violations
against third parties—not just an entity that can internally discipline
its own employees for an alleged violation.
Univ. of Hous. v. Barth, 403 S.W.3d 851, 857 (Tex. 2013) (quoting Univ. of Tex.
Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 682 (Tex. 2013)) (citations
omitted) (emphasis added).
Plaintiff does not allege that any of the supervisors to whom he submitted
internal reports have authority to enforce, investigate, or prosecute violations of
the Texas Education Code against third parties outside of DeSoto ISD. Thus, he
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has failed to plausibly plead that he made a report to a law enforcement authority
within the meaning of the TWA. See Canutillo Indep. Sch. Dist. v. Farran, 409
S.W.3d 653, 655 (Tex. 2013) (in suit against school district, “complaints to the
school board, superintendents, and internal auditor were not good-faith
complaints of a violation of law to a ‘law enforcement authority’ under the
Whistleblower Act[,] . . . [since] [t]here is no evidence that these officials had
authority to enforce the allegedly violated laws outside of the institution itself,
against third parties generally.”).
Plaintiff also alleges that on May 19, 2025, he made an “External Report” to
the Texas Education Agency (TEA) regarding DeSoto ISD’s allowance of
“prohibited calculator apps” for STAAR testing. See Am. Compl. ¶¶ 460–462. But
assuming the TEA is an appropriate law enforcement authority, Plaintiff admits
that “this report was submitted after” the alleged adverse employment actions
occurred. See id. ¶ 462. To plausibly allege a TWA claim, a plaintiff must plead that
he suffered “retaliation” as a result of making a report to law enforcement
authority. See City of Fort Worth v. Pridgen, 653 S.W.3d 176, 182 (Tex. 2022)
(Plaintiff must show that “the adverse action would not have occurred when it did
if the employee had not reported the illegal conduct.”). Plaintiff therefore fails to
plausibly allege a TWA violation with respect to his report to the TEA.
Plaintiff fails to state a TWA claim, and this claim should be dismissed under
Rule 12(b)(6).
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X. Defendants are entitled to dismissal of Plaintiff’s breach of
contract claim (Count XII)
DeSoto ISD moves to dismiss Plaintiff’s breach of contract claim under Rule
12(b)(1) for failure to exhaust administrative remedies and, alternatively, under
Rule 12(b)(6) for failure to state a claim. See DeSoto Mot. Dismiss at 32, 33 (ECF
No. 27). Again, the Court must consider the jurisdictional attack before addressing
any attack on the merits.
Generally, if an agency has exclusive jurisdiction, a party must exhaust all
administrative remedies before seeking judicial review of the agency’s action.
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.
2002) (citing Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)). Until
then, the trial court lacks subject matter jurisdiction and must dismiss the claims
within the agency’s exclusive jurisdiction. Id. “Requiring exhaustion of
administrative remedies is not meant to deprive an aggrieved party of any legal
rights. It is meant, rather, to provide an orderly procedure by which aggrieved
parties may enforce those rights.” Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d
792, 795 (Tex. App.-El Paso 2005, pet. denied). Through Section 7.057(a) of the
Texas Education Code, the Texas Legislature has granted the Commissioner of
Education “exclusive authority to resolve certain disputes.” See McIntyre v. El
Paso Indep. Sch. Dist., 499 S.W.3d 820, 823 (Tex. 2016). “Where the Legislature
grants the Commissioner authority to resolve a dispute,” parties must first seek
relief through an administrative appeal to the Commissioner before resorting to
the courts. Id.
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Section 7.057(a) provides:
a person may appeal in writing to the Commissioner if the person is
aggrieved by:
(1) the school laws of this state; or
(2) actions or decisions of any school district board of trustees that
violate:
(A) the school laws of this state; or
(B) a provision of a written employment contract between
the school district and a school district employee, if a
violation causes or would cause monetary harm to the
employee.
Tex. Educ. Code § 7.057(a). According to the Supreme Court of Texas, the
Commissioner’s jurisdiction under Texas Education Code § 7.057 “is
straightforward.” Davis v. Morath, 624 S.W.3d 215, 222 (Tex. 2021) (citing Tex.
Educ. Code § 7.057(a)). And although section 7.057(a) provides that a person “may
appeal” to the Commissioner, the statute “require[s] a person who chooses to
appeal to first seek relief through the administrative process.” See Cedar Hill
Indep. Sch. Dist. v. Gore, No. 05-16-00460-CV, 2017 WL 2981970, at *3 (Tex.
App.—Dallas July 13, 2017, pet. denied) (citing Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 545 (Tex. 2016)). In other words, the term “may appeal” provides
that the decision to appeal is optional, “but the place of trial is jurisdictional.” See
id.
Here, Plaintiff claims that DeSoto ISD violated one or more provisions of his
written employment contract and that such breach causes or would cause
monetary harm. See Am. Compl. ¶ 504 (ECF No. 13). Specifically, Plaintiff alleges
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that he was reassigned from his teaching position at ECHS, and that such
reassignment deprived him of his TIA eligibility. See id. ¶ 511, 513 (alleging
monetary damages as a result of the breach). Despite Plaintiff’s conclusory
assertion that “this claim does not seek to interpret or enforce ‘school law’ under
[§7.057(a)]” he alleges—in the same sentence—that the purpose of the claim is to
“enforce written contractual terms,” thus invoking §7.057(a)(2)(A)-(B). See Am.
Compl. ¶ 507. The damages and relief sought by Plaintiff confirm this. See id. ¶¶
511, 513 (alleging that “as a result of these breaches,” Plaintiff suffered “loss of TIA
eligibility” and seeking “back pay,” “lost wages,” and “compensatory damages”).
Plaintiff’s allegations, therefore, sufficiently establish that the Commissioner had
exclusive jurisdiction over Plaintiff’s breach of contract action. Tex Educ. Code §
7.057(a); cf. Tex. Educ. Code § 11.151 (school district can act only by and through
its board of trustees); See also Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W.3d
118, 128 (Tex. App.–Houston [14th Dist.] 2009, pet. denied) (citing Gutierrez v.
Laredo Indep. Sch. Dist., 139 S.W.3d 363, 366 (Tex. App.–San Antonio 2004, no
pet.)) (noting that a breach of a school district employee’s contract itself “involves
the ‘school laws of the state’”). But Plaintiff has not presented this breach of
contract claim to the Commissioner. Instead, he asserts only that he completed the
“local grievance process” through “Level I, II, and III hearings.” Am. Compl. ¶ 508.
Plaintiff also alleges that he “[c]ompleted the full local grievance process as
required under TEC § 7.057(d),” and that he has “[f]iled grievances on March 8,
2024, and September 9, 2024.” See id. With respect to the grievances Plaintiff
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purportedly filed “[o]n March 8, 2024 [] and September 9, 2024,” Plaintiff does
not allege who these grievances were presented to, or what the statuses of those
grievances are. See id. But based on Plaintiff’s other allegations, and his Response
to the Motions to Dismiss, it is clear these grievances refer to the Level I grievances
he filed on March 8, 2024, and September 9, 2024. See Am. Compl.¶¶ 467, 523,
663 (noting that Level I grievances were filed March 8, 2024, and September 9,
2024); Am. Compl., Ex. 16, Level I Grievances (ECF No. 13-16), Ex. 23, Grievance
Record at 8–10 (ECF No. 13-23); Resp. 8 (ECF No. 31). Accordingly, Plaintiff has
not plausibly alleged that he appealed to the Commissioner. Further, § 7.057(d) is
inapplicable, and Plaintiff’s allegation that he complied with this section is a legal
conclusion and contradicted by the record. See Tex. Educ. Code § 7.057(d). Section
7.057(d) provides that, after appealing to the Commissioner, a person is entitled
to appeal “to a district court in Travis County.” See id. (emphasis added). Plaintiff
has not plausibly alleged that he appealed to the Commissioner, let alone to a
“district court in Travis County.” See Am. Compl. ¶ 508.
Thus, Plaintiff’s breach of contract claim is unexhausted, and therefore this
Court lacks jurisdiction over that claim. Cf. Carter v. Gibson, No. 4:10-CV-825-Y,
2011 WL 1515049, at *6 (N.D. Tex. Apr. 20, 2011) (“Under Texas law, Carter was
required to exhaust his administrative remedies before seeking relief from the
employment contract. Carter has not alleged that he did so; thus, this claim must
be dismissed for lack of jurisdiction.”) (citing Tex. Educ. Code Ann. §
7.057(a)(2)(B) and N.E. Indep. Sch. Dist. v. Kelley, 277 S.W.3d 442, 444-45 (Tex.
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App.—San Antonio 2008, no pet.)). Accordingly, Plaintiff’s breach of contract
claim should be dismissed. See id.
XI. Defendants are entitled to dismissal of Plaintiff’s claims for
violations of the Texas Education Code and Board Policy (Counts
XIII, XX)
DeSoto ISD moves to dismiss Plaintiff’s claims under Texas Education Code
§ 26.003 (Claim XX) and § 28.0214 (Claim XIII) because Plaintiff failed to exhaust
his administrative remedies. See DeSoto Mot. Dismiss 34 n. 20. The Court should
dismiss Plaintiff’s claims under the Texas Education Code because these claims are
“school laws of the state” under § 7.057(a), and Plaintiff has failed to appeal to the
Commissioner. As discussed, the Commissioner has exclusive jurisdiction over
appeals where a “person is aggrieved by . . . actions or decisions of any school
district board of trustees that violate . . . the school laws of this state.” Morath, 624
S.W.3d at 221–222 (citing Tex. Educ. Code § 7.057(a)). The “school laws of this
state” include Titles I and II of the Texas Education Code and the administrative
rules adopted under them. See Tex. Educ. Code § 7.057(f)(2). Plaintiff’s claims
assert violations of §§ 26.003 and 28.0214, which are included under Title II of the
Texas Education Code and are therefore “school laws of this state.” See id. But
Plaintiff does not allege that he presented these claims to the Commissioner.
Instead, for both Counts, he alleges that he “exhausted the grievance process”
through his Level III grievance appeal to the DeSoto Board of Trustees. See Am.
Compl. ¶¶ 224, 523, 663. Thus, Plaintiff has not exhausted his administrative
remedies, and these claims should be dismissed.
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XII. Plaintiff’s defamation claim fails (Count XIV).
Plaintiff’s Amended Complaint asserts a defamation claim against “One or
More Unknown Individual Defendants,” who are employees of DeSoto ISD. See
Am. Compl. ¶ 527 (ECF No. 13). Defendants argue that this claim should be
dismissed under Rule 12(b)(6) and the Texas Tort Claims Act (TTCA), Tex. Civ.
Prac & Rem. Code § 101.106(e), (f). See Indiv. Mot. Dismiss 28 (ECF No. 26).
Plaintiff, however, argues that “because the District cannot be sued for defamation,
§ 101.106(f) does not apply to bar” his defamation claim against these unknown
individual employees.
While Plaintiff is correct that the TTCA does not waive immunity against
DeSoto ISD for defamation claims, the provisions of the Act still apply. See Franka
v. Velasquez, 332 S.W.3d 367, 375, 381 (Tex. 2011) (“[A]ny tort claim against the
government is brought ‘under’ the Act for purposes of section 101.106, even if the
[TTCA] does not waive immunity” and a claim “could have been brought under the
[TTCA]” when the “claim is in tort and not under another statute that
independently waives immunity.”); see also Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (“Because the [TTCA] is the only, albeit
limited, avenue for common-law recovery against the government, all tort theories
alleged against a governmental unit, whether it is sued alone or together with its
employees, are assumed to be ‘under the [TTCA]’ for purposes of section
101.106.”).
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Section 101.106(f) of the TTCA affords public employees governmental
immunity, and provides:
(f) If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee’s employment
and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee
in the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the
date the motion is filed.
Tex. Civ. Prac. & Rem. Code § 101.106(f). When § 101.106(f) applies, it “mandates []
plaintiffs pursue lawsuits against governmental units rather their employees ,”
Texas Adjutant Gen.'s Off. v. Ngakoue, 408 S.W.3d 350, 352 (Tex. 2013), and
entitles the employee “to dismissal” of the relevant tort claim, Laverie v. Wetherbe,
517 S.W.3d 748, 752 (Tex. 2017).
Although Plaintiff does not identify the individuals against whom he asserts
this claim, Plaintiff’s claim against these individuals nevertheless meets both
elements of governmental immunity for employees: (1) their conduct was “within
the general scope of [their] employment” with a governmental unit, and (2)
Plaintiff’s defamation claim “could have been brought” against DeSoto ISD. See
Tex. Civ. Prac. & Rem. Code § 101.106(f).
First, these unknown defendants acted within the general scope of their
employment when they communicated to parents and staff regarding Plaintiff’s
reassignment. The TTCA defines “[s]cope of employment” as “the performance for
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a governmental unit of the duties of an employee’s office or employment,” which
includes “being in or about the performance of a task lawfully assigned to an
employee by competent authority.” Tex. Civ. Prac. & Rem. Code § 101.001(5). And
Texas caselaw provides that “[t]he employee’s acts must be of the same general
nature as the conduct authorized or incidental to the conduct authorized to be
within the scope of employment.” Laverie, 517 S.W.3d at 753 (emphasis added)
(quoting Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)).
The Court “must ask, ‘Is there a connection between the employee’s job duties and
the alleged tortious conduct?’” Wilkerson v. Univ. of N. Texas By & Through Bd.
of Regents, 878 F.3d 147, 160 (5th Cir. 2017) (quoting Laverie, 517 S.W.3d at 753).
“The answer, the Texas Courts advise, ‘may be yes even if the employee performs
negligently or is motivated by ulterior motives or personal animus.’” Id. (citing
Laverie, 517 S.W.3d at 753). Although Plaintiff does not identify any specific
individuals or their exact positions in DeSoto ISD, he does allege that such persons
were “administrators” who either communicated Plaintiff’s reassignment or
“[a]pproved or authorized” such communication. See Am. Compl. ¶ 563 (ECF No.
13). These allegations are sufficient to establish that the employees’ conduct was
within the scope of their employment or, at least, of the same general nature as the
conduct authorized to be within the scope of their employment. See Laverie, 517
S.W.3d at 753. A school district may require its administrators to communicate a
teacher’s reassignment to parents and staff or to have such administrators approve
or authorize such a communication. See Am. Compl. ¶ 563. Further, there is a clear
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connection between the communication and approval and the alleged tortious
conduct. See Wilkerson, 878 F.3d at 160. And even assuming that the
communication or approval was improper, wrong, negligent, or motivated by
ulterior motives or personal animus, the conclusion remains the same. See id. 160–
161 (also noting that it does not matter whether the employee may have neglected
some procedures or exceeded the scope of their authority—the question is only
whether the employee was “discharging duties generally assigned to [her]); see
also Koerselman v. Rhynard, 875 S.W.2d 347 (Tex. App.—Corpus Christi 1994, no
writ).
Plaintiff fails to address this issue or Defendant’s argument in his Response.
See Resp. (ECF No. 31). Even so, this case differs from those where Texas courts
found that government employees acted outside the scope of employment. In those
cases, the misconduct alleged was not in any way connected with the employees’
duties. See, e.g., Kelemen v. Elliott, 260 S.W.3d 518, 524 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (on-duty police officer acted outside scope of employment
when he kissed a fellow officer without consent); Terrell ex rel. Est. of Terrell v.
Sisk, 111 S.W.3d 274, 278 (Tex. App.—Texarkana 2003, no pet.) (county judge’s
secretary acted outside her scope of employment when she caused a fatal accident
while driving in her private car to a personal doctor’s appointment).
The next question is whether Plaintiff’s defamation claim “could have been
brought” against DeSoto ISD. See Tex. Civ. Prac. & Rem. Code. § 101.106(f). As
discussed above, the answer is yes. See, e.g., Franka, 332 S.W.3d at 375, 381 (a
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claim “could have been brought under the [TTCA]” when the “claim is in tort and
not under another statute that independently waives immunity”); see also Garcia,
253 S.W.3d at 659. Plaintiff is correct that the TTCA does not waive sovereign
immunity for defamation claims. See Am. Compl. ¶ 540. But § 101.106(f) asks “not
whether [Plaintiff] can succeed on the merits, but whether his claim sounds in
tort.” Wilkerson, 878 F.3d at 162 (citing Franka, 332 S.W.3d at 381). Because
defamation is a tort, see WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998), Plaintiff’s claims against these unnamed Defendants are “foreclosed,” and
can be pursued only against DeSoto ISD. Accordingly, because the unnamed
defendants are entitled to immunity, the District Judge should dismiss Plaintiff’s
defamation claim.
XIII. Defendants are entitled to dismissal of Plaintiff’s conspiracy
claims (Count XV, XVI).
Plaintiff asserts conspiracy claims under 42 U.S.C. §§ 1983 and 1985(3)
against all the individual defendants, See Am. Compl. ¶¶ 543–590 (ECF No. 13),
and the defendants move to dismiss these claims under Rule 12(b)(6). See Indiv.
Mot. Dismiss at 25–26 (ECF No. 26).
To plead a § 1983 conspiracy claim, Plaintiff must allege “both an agreement
among the defendants to commit an illegal act and an actual deprivation of
constitutional rights.” Young v. City of Irving, No. 3:23-CV-1423-D, 2025 WL
888430, at *10 (N.D. Tex. Mar. 21, 2025) (Young II) (Fitzwater, J.) (citing Cinel v.
Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). Similarly, a plaintiff asserting a
§ 1985(3) conspiracy claim must plausibly allege (1) a conspiracy involving two or
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more persons (2) for the purpose of depriving a person of the equal protection of
the laws, and (3) an act in furtherance of the conspiracy, (4) which causes injury to
a person or a deprivation of any right or privilege of a citizen of the United States.
Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994). Importantly, § 1983 and
§ 1985(3) conspiracy claims are not actionable without an underlying
constitutional violation. See Young II, 2025 WL 888430 (citing Pfannstiel v. City
of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990) (§ 1983); Young v. City of Irving,
No. 3:23-CV-1423-D, 2024 WL 4193936, at *11 (N.D. Tex. Sept. 12, 2024)
(Fitzwater, J) (Young I) (citing Calhoun v. Villa, 2017 WL 3701971, at *4 (S.D. Tex.
Aug. 7, 2017) (recognizing that § 1985 conspiracy claims require, as a predicate, a
violation of federal constitutional right.) rec. adopted, 2017 WL 3670028 (S.D.
Tex. Aug. 24, 2017), aff’d, 761 Fed. Appx. 297 (5th Cir. 2019) (per curiam).
As discussed above, the individual defendants are entitled to qualified
immunity with respect to each constitutional violation. Plaintiff’s failure to
overcome the individual defendants’ qualified immunity as to the underlying
constitutional claims is fatal to his conspiracy claims based on those constitutional
violations. See Young I, 2024 WL 4193936 (citing Cervantez v. Love, 2024 W:
2967336, at *17 (N.D. Tex. June 12, 2024) (Hendrix, J.)). Accordingly, Plaintiff’s
§ 1983 and § 1985(3) conspiracy claims should be dismissed. See id.
Additionally, as the individual defendants argue, public employees, such as
themselves, cannot conspire among themselves for purposes of a § 1983 or
§1985(3) conspiracy claim. Id.; see also Young II, 2025 WL 888430, at *11
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(collecting cases). Plaintiff argues that the doctrine does not apply when
“employees act outside the bound of official policy and with a shared retaliatory
motive.” See Resp. 24. But Plaintiff cites no authority for this proposition and
points to nothing in the record establishing that the individual defendants acted
“outside the bounds of official policy and with a shared retaliatory motive.”
Accordingly, even if the Court finds that Plaintiff has overcome qualified immunity
or sufficiently pleaded a constitutional violation, he has failed to plausibly allege
any conspiracy under § 1983 or § 1985(3).
XIV. Defendants are entitled to dismissal of Plaintiff’s failure-to-train
or supervise claim (Count XVII).
DeSoto ISD moves to dismiss Plaintiff’s supervisory liability claim under
Rule 12(b)(6). As discussed, DeSoto ISD is a local government unit or municipality
subject to liability under § 1983. Moore v. Willis Indep. Sch. Dist., 233 F.3d 871,
874 (5th Cir. 2000).
“A municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” See Waters v. City of Hearne, Tex., 629
F. App’x 606, 610 (5th Cir. 2015) (unpublished) (quoting Connick v. Thompson,
563 U.S. 51 (2011)). “For liability to attach based on an ‘inadequate training’ claim,
a plaintiff must allege with specificity how a particular training program is
defective.” Id. (quoting Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir.
2005). “In a failure to train or failure to supervise case, the plaintiff must also show
that: ‘(1) the supervisor either failed to supervise or train the subordinate official;
(2) a causal link exists between the failure to train or supervise and the violation of
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plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate
indifference.” Id. (quoting Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir.
2009).
Plaintiff asserts that DeSoto ISD has “failed to adequately train or supervise
its [employees]” in several areas. See Am. Compl. ¶ 598. But Plaintiff has failed to
“allege with specificity” how DeSoto ISD’s “training program is defective.” See
Waters, 629 F. App’x at 610. Additionally, his allegations related to the three
Goodman prongs are conclusory and devoid of factual support. Plaintiff has
therefore failed to plausibly allege DeSoto’s culpability for a failure to train or
supervise. Because Plaintiff failed to allege a constitutional violation, DeSoto ISD
cannot be liable under Monell. Pipkins F.4th at 360 (no Monell liability without a
predicate constitutional violation).
XV. Defendants are entitled to dismissal of Plaintiff’s failure-to-
intervene claim (Count XVIII).
Plaintiff alleges that “a government official may be held liable under § 1983
for failing to intervene in the constitutional violations of others.” Am. Compl. ¶ 612,
613 (ECF No. 13). More specifically, Plaintiff alleges that Defendants Rogers,
Campbell, Darden, Morrow, Bailey, Murphy-Goss, Medina, and Polk, are liable
under § 1983 for failing to intervene in the unlawful treatment of Plaintiff.
Defendants move to dismiss this claim, arguing that bystander liability under
§ 1983 applies only in the law enforcement context, and, even then, in only very
narrow circumstances. See Indiv. Mot. Dismiss 23–24 (ECF No. 26).
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Plaintiff cites two Fifth Circuit cases, Hale v. Townley, 45 F.3d 914, 919 (5th
Cir. 1995) and Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013), in support of his
position that school officials may be liable for failing to intervene. But Whitley and
Hale hold that a police officer may have a duty to intervene when a person’s
constitutional rights are being violated by another police officer. See Hale, 45 F.3d
at 919; Whitley, 726 F.3d 631. And, as recently as last year, the Fifth Circuit
recognized that bystander liability (and its related failure-to-intervene theory) “has
not been extended beyond the law enforcement context.” Pearson v. Shriners
Hosps. for Child., Inc., 133 F.4th 433, 447 (5th Cir.), cert. denied, 146 S. Ct. 329
(2025) (citing Diaz v. Cantu, 123 F.4th 736, 750 (5th Cir. 2024)). Plaintiff identifies
no authority suggesting that school officials may be liable as bystanders or that the
individual defendants had a duty to intervene. See id. Because Plaintiff has not
established that his bystander liability claims are based on a “clearly established
law,” the individual defendants are entitled to qualified immunity. See Pearson v.
Callahan, 555 U.S. 223, 231 (2009).
XVI. Leave to Amend
In his Response to Defendants’ Motions, Plaintiff requests “leave to amend
under Rule 15(a)” for “any claim” the Court determines “is insufficiently pleaded.”
See Resp. 34 (ECF No. 31). Although a formal motion is not always required, a
party seeking leave to amend must provide “some specificity” as to the substance
of the proposed amendment. See Thomas v. Chevron U.S.A., Inc., 832 F.3d 586,
590–91 (5th Cir. 2016). Here, Plaintiff provides no information regarding the
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nature of the proposed amendment, allegations he would add, or changes to be
made. See Resp. 34 (ECF No. 31). Plaintiff merely “tack[s] on a generative curative
amendment request” in response to the Defendants’ Motions to Dismiss, which is
insufficient. See id.; see Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir.
2003).
While the general rule is that Courts should provide a pro se plaintiff leave
to amend his complaint before dismissal, Brewster v. Dretke, 587 F.3d 764, 767–
68 (5th Cir. 2009) (per curiam), leave to amend is not required where claims are
dismissed without prejudice. See Bazrowx v. Scott, 136 F.3d 1053, 1054–55 (5th
Cir. 1998) (per curiam); see also Evans v. Dillard Univ., No. CV 15-6841, 2016 WL
4208548, at *2 n. 3 (E.D. La. Aug. 10, 2016), aff’d on other grounds, 672 Fed.
Appx. 505 (5th Cir. 2017). And even where claims are dismissed with prejudice,
leave may be denied “if the plaintiff has already pleaded his best case,” Brewster,
587 F.3d at 767–68, or if such amendment would be “futile.” See Mandujano v.
City of Pharr, Texas, 786 F. App’x 434, 438 (5th Cir. 2019); Bernegger v. Dep’t of
Revenue, 785 F. App’x 209, 211 n.1 (5th Cir. 2019).
Here, any amendment would be futile with respect to claims barred by
qualified immunity. See Winegarner v. City of Irving Tex., No. 3:24-CV-02171-K-
BT, 2025 WL 2608241, at *12 (N.D. Tex. Aug. 20, 2025) (Rutherford, J.), rec.
adopted, No. 3:24-CV-02171-K-BT, 2025 WL 2606991 (N.D. Tex. Sept. 8, 2025)
(Kinkeade, J.) (citing Malloy v. Municipality of City of Com., Tex., 2023 WL
10352172, at *6 (E.D. Tex. July 14, 2023) (finding leave to amend futile when
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plaintiff did not meet his burden to overcome defendants’ assertion of qualified
immunity), rec. adopted, 2024 WL 1020565 (E.D. Tex. Mar. 8, 2024)). And
Plaintiff is not entitled to leave to amend claims subject to dismissal without
prejudice. See Bazrowx, 136 F.3d at 1054–55.
Furthermore, the District Judge should deny leave to amend because
Plaintiff has already pleaded his best case. Plaintiff previously amended his
complaint in response to Defendants’ first Motions to Dismiss. See ECF Nos. 10,
11, 13. And the Amended Complaint consists of 354 pages of allegations and
exhibits, containing roughly double the number of allegations asserted in the
original pleading. Compare Original Compl. (ECF No. 3); with Am. Compl. (ECF
No. 13). There is no reason to believe that additional facts would salvage any of
Plaintiff’s claims.
RECOMMENDATION
The District Judge should GRANT Defendants’ Motions to Dismiss (ECF
Nos. 26, 27).
SO RECOMMENDED.
March 11, 2026.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Services Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds, 28
U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).
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