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holding that where a plaintiff filed suit against a school district and its employees for the same claims, § 101.106(e) mandated dismissal of the claims against the employees in their individual capacities
Summary of this case from Flores v. SanchezOpinion
Civil Action No. 3:04-CV-2028-BH (B).
March 29, 2005
MEMORANDUM OPINION AND ORDER
Before the Court are the following pleadings:
(1) Defendants' Motion to Dismiss in Part ("Def. Mot."), filed December 20, 2004;
(2) Defendants' Brief in Support of Motion to Dismiss in Part ("Def. Br."), filed December 20, 2004;
(3) Individual Defendants' Schultea Motion and Brief in Support ("Ind. Def. Mot."), filed December 20, 2004;
(4) Defendants' Motion to Consolidate and Brief in Support ("Def. Mot. Cons."), filed December 31, 2004;
(5) Plaintiff's Response to Defendants' Motion to Dismiss in Part and Brief in Support ("Pl. Resp."), filed January 10, 2005;
(6) Plaintiff's Response to Defendants' Motion to Consolidate and Brief in Support, filed January 10, 2005;
(7) Defendants' Reply in Support of Motion to Dismiss in Part ("Def. Reply"), filed January 26, 2005; and
(8) Duncanville Independent School District's Reply in Support of Motion to Consolidate, filed January 26, 2005.
Based on the filings and the applicable law, the Court is of the opinion that the motion to dismiss in part should be GRANTED, the Schultea motion should be GRANTED, and the motion to consolidate should be DENIED.
I. BACKGROUND
During the 2002-2003 school year, Plaintiff Gilberto Hernandez ("Hernandez") was a first year teacher of bilingual first graders at Acton Elementary School in the Duncanville Independent School District ("DISD"). (Def. Ans. at 2-3.) On March 28, 2003, Acton Principal Robbie Irene Blacknall ("Blacknall") informed Hernandez that she planned to recommend to the DISD Board of Trustees that his probationary contract not be renewed. Id.; see also Compl. at 3. The DISD Board of Trustees voted on March 31, 2003 to terminate Hernandez' probationary contract at the end of the contract year. (Def. Ans. at 3.)On February 6, 2004, Hernandez, proceeding pro se, filed suit (" Hernandez I") against DISD, Blacknall, and DISD Superintendent Dr. Jerry Cook ("Cook"). On August 20, 2004, the United States District Court for the Northern District of Texas, William Sanderson, Jr., Magistrate Judge, granted Defendants' Rule 12(b)(5) motion to dismiss for failure to effect service, and dismissed all of Hernandez' claims without prejudice. The only claim remaining in Hernandez I was DISD's counterclaim for attorneys' fees and costs incurred in defending the suit.
Hernandez filed the instant action on September 17, 2004 (" Hernandez II"), asserting claims identical to those asserted in Hernandez I. Specifically, he alleges that Defendants discriminated and retaliated against him in violation of Title VII and the 14th Amendment. (Compl. at 1-2.) Hernandez also asserts claims of wrongful termination, slander, libel, defamation of character, fraud and conspiracy, and appears to assert a claim for intentional infliction of emotional distress. (Compl. at 2-4.) Furthermore, Hernandez asserts that Defendants violated his rights under § 21.351 of the Texas Education Code and § 89.1201 of the Texas Administrative Code. Id. He also claims that he "was deprived of his property interest in his employment contract provided under the Term Contract Nonrenewal Act." Id. at 3. By this action, he seeks compensatory and punitive damages. Id. at 4.
Hernandez has sued Blacknall and Cook in both their individual and official capacities. (Compl. at 1.)
On December 20, 2004, Defendants moved to dismiss all claims except those brought under § 1983, pursuant to FED. R. CIV. P. 12(c) and FED. R. CIV. P. 12(b)(1). (Def. Mot. at 1.) Defendants assert that Hernandez' Title VII claims are barred because he failed to timely file suit, and that his state law tort claims fail because Defendants are immune from liability for such claims. (Def. Br. at 1.) Defendants also assert that the Court lacks subject matter jurisdiction over Hernandez' claims under the Texas Education Code because he failed to exhaust his administrative remedies. Id. at 1-2. Hernandez responds that the filing of Hernandez I tolled the statute of limitations as to his Title VII claims. (Pl. Resp. at 2.) He also responds that principals and superintendents "can be named as defendants and required to answer for their actions and inactions" and that they "lost their rights to claim governmental and official immunity." Id. at 4. He does not specifically respond to the Defendants' assertions regarding his failure to exhaust administrative remedies under the Texas Education Code.
Plaintiff did not number the pages of his response. For ease of reference, the Court refers to them in numerical order.
In a Schultea motion filed on December 20, 2004, Blacknall and Cook moved the Court to order a Rule 7(a) reply in regard to his § 1983 claims against them, and requested an abatement of discovery. (Ind. Def. Mot. at 1.) Plaintiff did not respond to this motion.
On December 31, 2004, Defendants moved for consolidation of Hernandez I and Hernandez II. Hernandez filed a response on January 10, 2005, expressing his opposition to Defendants' motion for consolidation.
II. MOTION TO DISMISS
A. Legal Standard
Defendants move for dismissal of Hernandez' Title VII and tort claims pursuant to FED. R. CIV. P. 12(c). A motion to dismiss under Rule 12(c) of the Federal Rules of Civil Procedure challenges a complaint on the basis that it fails to state a valid claim for relief. See Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002) (quoting Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)). "'A motion brought pursuant to FED. R. CIV. P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.'" Great Plains Trust Co., 313 F.3d at 312 (quoting Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per curiam)). "'Pleadings should be construed liberally, and judgment on the pleadings is appropriate only if there are no disputed issues of fact and only questions of law remain.'" Great Plains Trust Co., 313 F.3d at 312 (quoting Hughes, 278 F.3d at 420)). "'[T]he court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.'" Great Plains Trust Co., 313 F.3d at 313 (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)).
"Rule 12(b)(6) decisions appropriately guide the application of Rule 12(c) because the standards for deciding motions under both rules are the same." Great Plains Trust Co., 313 F.3d at 313, n. 8 (citing 5A WRIGHT MILLER, supra, § 1368 at 591 (Supp. 2002)). A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges a complaint on the basis that it fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) motions to dismiss are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). To avoid dismissal, the plaintiff's pleadings must show specific, well-pleaded facts, not mere conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The court focuses on whether the plaintiff has a right to offer evidence to support his claims, rather than on whether he will succeed on those claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
B. Title VII Claims
Defendants assert that Hernandez' Title VII claims are barred by the statue of limitations, due to his failure to file suit within 90 days after he received his right to sue notice from the EEOC. (Pl. Br. at 2.)
Title VII complainants must file suit within 90 days of receiving a right-to-sue notice from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The 90-day filing requirement is akin to a statute of limitations, and is subject to equitable doctrines such as waiver and tolling. Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir. 1985) (citations omitted). Accordingly, failure to file suit within the 90-day period after receiving the right-to-sue notice precludes the plaintiff from recovering for any alleged discrimination which was the subject of the EEOC complaint, "barring some equitable basis to extend the time period." Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988) (citations omitted).
In his Complaint, Hernandez asserts that he filed an EEOC charge alleging charges of discrimination, wrongful discharge, and retaliation on the basis of his national origin and his sex on June 2, 2003, and that he received his Notice of Right to Sue on November 12, 2003. (Compl. at 2.) Hernandez filed Hernandez I on February 6, 2004, within 90 days of his alleged receipt of the EEOC's Notice of Right to Sue. After the dismissal of Hernandez I, Hernandez filed Hernandez II, the instant suit, on September 17, 2004. Because he filed Hernandez II nearly ten months after he received his Notice of Right to Sue from the EEOC, his Title VII claims are barred, unless there is "some equitable basis to extend the time period." Way, 840 F.2d at 306.
Hernandez appears to argue that doctrine of equitable tolling applies to the filing of the instant action based on his timely-filed suit on the Title VII charges in Hernandez I:
[t]hat suit was dismissed on the grounds of insufficient service of process, and not because it had no merits [sic]. Since the dismissal was without prejudice, the law entitled Plaintiff to re-file his Original Petition as he originally had . . . since the Title VII causes of action have never been tried before a Jury or a Judge, they are still alive under a Grandfather clause.
(Def. Resp. at 2.) The proposition that the timely filing of an earlier suit on Title VII claims tolls the statute of limitations on a later suit, if the earlier suit is dismissed without prejudice, fails as a matter of law, however. "If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period." Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992) (citing Price v. Digital Equipment Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (finding that where plaintiff's Title VII suit had been dismissed without prejudice, ninety-day limitations period had not been tolled by timely filing of first Title VII suit; thus the second Title VII suit on the same complaint was time-barred)). The dismissal of Hernandez I without prejudice thus does not merit equitable tolling of the statute of limitations.
Hernandez has not presented any other basis for applying equitable tolling principles. Accordingly, his Title VII claims are time-barred, and Defendants' motion to dismiss under Rule 12(c) should be granted with prejudice as to his Title VII claims. See Berry, 975 F.2d at 1191 (finding that dismissal with prejudice is appropriate where further litigation on Title VII claim is time-barred).
Because the Court finds that the motion to dismiss is proper as to Hernandez' Title VII claims for failure to timely file suit, the Court need not address Defendants' argument, in the alternative, that the Title VII claims should be dismissed against Blacknall and Cook because no individual liability exists under Title VII. (Pl. Br. at 3-4.)
C. Tort Claims
Defendants assert that Hernandez' state law tort claims, including defamation, libel, slander, wrongful discharge, fraud, conspiracy, and retaliation, as well as any other torts Hernandez' complaint is read to allege, should be dismissed because they are immune from liability for such claims. (Def. Br. at 4, 5, n. 2.)
1. Tort Claims Against DISD
Defendants assert that the tort claims against DISD should be dismissed because Texas law grants school districts immunity from all tort claims, except those involving the use or operation of motor vehicles. (Def. Br. at 4.) An independent school district enjoys sovereign immunity from suit unless it has expressly given its consent to be sued. McCall v. Dallas Ind. Sch. Dist., 169 F. Supp. 2d 627, 639 (N.D. Tex. 2001) (citation omitted); Livingston v. Desoto Ind. Sch. Dist., 2004 WL 2964977, at *2 (N.D. Tex. Dec. 15, 2004). The Texas Tort Claims Act carves out one exception to this general rule of immunity for independent school district, and waives sovereign immunity for tort claims involving the use or operation of motor vehicles. TEX. CIV. PRAC. REM. CODE § 101.051 § 101.057(2) (Vernon 1997 and Supp. 2003) ; Jones v. Houston Ind. Sch. Dist., 979 F.2d 1004, 1007 (5th Cir. 1992). None of Hernandez' tort claims involve the use or operation of motor vehicles. Thus none of his tort claims against DISD fall within the exception to the rule of immunity, and they should be dismissed. See Hill v. Fort Bend Ind. Sch. Dist., 275 F.3d 42 (5th Cir. 2001) (per curiam) (dismissing teacher's state law tort claims of slander and defamation as outside the motor vehicle waiver of immunity); Brown v. Houston Ind. Sch. Dist., 763 F.Supp. 905, 908 (S.D. Tex. 1991) (dismissing teacher's state law tort claims of intentional infliction of emotion distress, wrongful discharge, and defamation as outside the exceptions to immunity in the Texas Tort Claims Act).
"[A]n independent school district is more like a city or county than it is like an arm of the State of Texas . . ." San Antonio Ind. Sch. Dist. v. McKinney, 936 S.W.2d 279, 284 (Tex. 1996). Thus, the Court does not apply an Eleventh Amendment framework in analyzing an independent school district's immunity from suit in federal court.
2. Tort Claims Against Cook and Blacknall in Their Official Capacities
Defendants also assert that Cook and Blacknall, to the extent they are sued in their official capacities, enjoy the same immunity to which the district is entitled. (Def. Br. at 4.) A suit brought against an individual in his or her official capacity is a suit against the government entity the official works for. Jackson v. Dallas Ind. Sch. Dist., 1998 WL 386158, at *4 (N.D. Tex. July 2, 1998) (citation omitted). DISD's immunity thus extends to Cook and Blacknall in their official capacities, and Hernandez' state law tort claims against them in their official capacities should be dismissed. See id. (dismissing state law tort claims against school officials in their official capacity because the school district's immunity extends to them).
Hernandez argues that "[a]ll three Defendants lost their rights to claim governmental and official immunity when they knew of the abuses of the Hispanic children, and turned their faces and did nothing." (Def. Resp. at 4.) However, Hernandez brought suit on behalf of himself; he did not, and could not, assert claims on behalf of the students he taught. See McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000) ("A pro se litigant . . . is not empowered to proceed on behalf of anyone other than himself.") (citing 28 U.S.C. § 1654; Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). As to his own claims against Defendants, Hernandez has neither asserted nor demonstrated any basis to hold that immunity does not apply to DISD and to Cook and Blacknall in their official capacities.
Accordingly, Hernandez' state law tort claims, as alleged against DISD and against Blacknall and Cook in their official capacities, should be dismissed with prejudice.
See Davenport v. Rodriguez, 147 F. Supp. 2d 630, 641 (S.D. Tex. 2000) (dismissing state law tort claims pursuant to Rule 12(b)(6) with prejudice); Nebout v. City of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999) (dismissing intentional tort claims pursuant to Rule 12(b)(6) with prejudice).
3. Tort Claims Against Cook and Blacknall in Their Individual Capacities
Cook and Blacknall contend that the tort claims brought against them in their individual capacities should be dismissed pursuant to the Election of Remedies provision of the Texas Tort Claims Act ("the Act"). (Def. Br. at 5.) The Act provides in relevant part that "[i]f a suit is filed under [the Act] against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit." TEX. CIV. PRAC. REM. CODE ANN. § 101.106(e) (Vernon Supp. 2004-2005). The Act defines a "governmental unit" as "a political subdivision of this state, including any . . . school district." Id. at § 101.001(3)(B). Hernandez has asserted tort claims against DISD, which, as a school district, is a governmental unit. He has also asserted those same claims against Blacknall and Cook, employees of DISD. The TTCA thus mandates the dismissal of Hernandez' state law tort claims against Blacknall and Cook in their individual capacities. See Livingston v. DeSoto Ind. Sch. Dist., 2004 WL 2964977, at *2 (N.D. Tex. Dec. 15, 2004) (dismissing state law tort claims against school district employees, where plaintiffs had also named district as a defendant, pursuant to § 101.106(e)).
Hernandez, citing Ingraham v. Wright, 430 U.S. 654 (1977), argues that "[p]rincipals . . . and [s]uperintendents can be named as defendants and required to answer for their actions and inactions in regards to students in the school system, besides the operation or use of motor vehicles." (Def. Resp. at 4.) In Ingraham, the Supreme Court held that corporal punishment inflicting "appreciable physical pain" implicated a Fourteenth Amendment liberty interest, and that students were entitled to procedural safeguards sufficient to protect them from excessive corporal punishment. The Court finds, with all due respect, that Hernandez' reliance on Ingraham is misplaced. Ingraham is concerned with students' rights to bring claims based on the United States Constitution. Immunity from liability for state law tort claims is a separate issue from liability for claims based on the United States Constitution. The Court's determination that Blacknall and Cook are immune from liability under the Texas Tort Claims Act for state law tort claims does not affect Hernandez' right to bring claims against them based on the United States Constitution. Thus Ingraham has no bearing on whether dismissal of the state law tort claims against Blacknall and Cook as individuals is proper pursuant to the Texas Tort Claims Act.
As noted previously, Hernandez brought suit on behalf of himself; he did not, and could not, assert claims on behalf of the students he taught. The Court thus construes Hernandez' argument as one asserting that principals and superintendents can be named as defendants in actions brought by former teachers, rather than students.
Accordingly, Hernandez' state law tort claims against Blacknall and Cook in their individual capacities should be dismissed with prejudice.
These claims are properly dismissed with prejudice. See Doe v. Richardson Ind. Sch. Dist., 1998 WL 75877, at *6 (N.D. Tex. Feb. 10, 1998) (dismissing state law claims with prejudice pursuant to § 101.106); see also § 101.106(a) ("[t]he filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.")
D. Texas Education Code Claims
Defendants move to dismiss Hernandez' claims based on the Texas Education Code pursuant to Rule 12(b)(1). (Def. Br. at 2.) Defendants contend that Hernandez failed to exhaust his administrative remedies by first bringing those claims before the Texas Commissioner of Education, and that the Court thus lacks subject matter jurisdiction over those claims. Id. at 6.
1. Failure to Exhaust
Although Defendants move for dismissal pursuant to Rule 12(b)(1), "Rule 12(b)(6) forms a proper basis for dismissal for failure to exhaust administrative remedies." Martin K. Eby Construction Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467, n. 4 (5th Cir. 2004) (citing Taylor v. United States Treasury Dep't., 127 F.3d 470, 476-78 n. 8 (5th Cir. 1997)). Accordingly, Defendants' motion will be analyzed under the more deferential 12(b)(6) standard. See Gates v. City of Dallas, 1997 WL 405144, at *1 (N.D. Tex. July 15, 1997) (analyzing 12(b)(1) motion for failure to exhaust as a 12(b)(6) motion).
As quoted previously, "12(b)(6) decisions appropriately guide the application of Rule 12(c) because the standards for deciding motions under both rules are the same." Great Plains Trust Co., 313 F.3d at 313, n. 8 (citations omitted).
Section 7.057 of the Texas Education Code provides that "a person may appeal in writing to the commissioner if the person is aggrieved by . . . the school laws of this state[.]" TEX. EDUC. CODE ANN. § 7.057 (Vernon 1996 Supp. 2004-2005). Although the statute states that parties may pursue administrative appeal, courts have found that such language is mandatory, not permissive. See Rogan v. Lewis, 975 F. Supp. 956, 962 n. 7 (S.D. Tex. 1997) (citing Barrientos v. Ysleta Indep. Sch. Dist., 881 S.W.2d 159, 160 (Tex.App.-El Paso 1994, no writ)) Thus, "'[s]ubject to certain exceptions, Texas law requires a party whose claim concerns the administration of school laws and involves disputed fact issues to exhaust the statutorily provided administrative remedies with the Commissioner of Education before turning to the courts for relief.'" Hoskins v. Kaufman Ind. Sch. Dist., 2003 WL 22364356, at *2 (N.D. Tex. Aug. 25, 2003) (quoting Godley Ind. Sch. Dist. v. Woods, 21 S.W.2d 656, 659 (Tex.App.-Waco 2000, pet. denied) (citing other cases)). The Texas Education Code defines "school laws of this state" as Title I and Title II of the Education Code as well as "rules adopted under those titles." TEX. EDUC. CODE ANN. § 7.057(f)(2) (Vernon 1996 Supp. 2004-2005).
a. Hernandez' Claims Under § 21.351 of the Texas Education Code
Defendants contend that Hernandez failed to exhaust his administrative remedies in regard to his claim that his rights under § 21.351 of the Texas Education Code were violated. (Def. Br. at 6.) Section 21.351 is found in Title II of the Texas Education Code. TEX. EDUC. CODE ANN. § 21.351 (Vernon 1996). Because § 21.351 falls under Title II of the Texas Education Code, the exhaustion requirement of § 7.057 applies to this claim. Hernandez has not alleged that he appealed in writing to the Commissioner of Education as to this claim, and it should therefore be dismissed without prejudice for failure to exhaust administrative remedies. See Hoskins, 2003 WL 22364356, at *2-3 (dismissing breach of contract claim brought under statute found in Title II of the Texas Education Code for failure to exhaust administrative remedies).
Section 21.351 requires the Commissioner of Education to "adopt a recommended appraisal process and criteria on which to appraise the performance of teacher" and outlines the requirements of such an appraisal process.
b. Hernandez' Claims Under § 89.1201 of the Texas Administrative Code
Defendants also contend that Hernandez failed to exhaust his administrative remedies in regard to his claim that his rights under § 89.1201 of the Texas Administrative Code were violated. (Def. Br. at 6.) Section 89.1201 of the Texas Administrative Code sets forth the policies reflected in Subchapter BB, entitled the Commissioner's Rules Concerning State Plan for Educating Limited English Proficient Students ("LEP Plan"). 19 TEX. ADMIN. CODE § 89.1201 (Texas Education Agency, Policy). The provisions of Subchapter BB were established "as required in the Texas Education Code, Chapter 29, Subchapter B." Id. at § 89.1201(a). Chapter 29 falls under Title II of the Texas Education Code. As noted above, the exhaustion requirement of TEX. EDUC. CODE § 7.057 applies to rules adopted under Title I and Title II of the Texas Education Code. TEX. EDUC. CODE ANN. § 7.057(f)(2) (Vernon 1996). Thus, because TEX. ADMIN. CODE § 89.1201 is a school law adopted under Title II of the Texas Education Code, Hernandez was required to bring his grievance before the Commissioner of Education prior to filing suit. Hernandez has not alleged that he appealed in writing to the Commissioner of Education as to this claim, and it should therefore be dismissed without prejudice for failure to exhaust administrative remedies.
Section 89.1201 states: "It is the policy of the state that every student in the state who has a home language other than English and who is identified as limited English proficient shall be provided a full opportunity to participate in a bilingual education or English as a second language program, as required by the Texas Education Code . . ." 19 Tex. Admin. Code. § 89.1201. This chapter thus relates to the rights of students to participate in a bilingual education program, not to the right of a particular individual to teach a particular group of students. It is therefore not clear that Hernandez has any rights under § 89.1201 for the Defendants to violate.
Accordingly, Hernandez' claims under TEX. EDUC. CODE § 21.351 and TEX. ADMIN. CODE § 89.1201 should be dismissed without prejudice under Rule 12(b)(6) for failure to exhaust administrative remedies.
Dismissal for failure to state a claim due to failure to exhaust administrative remedies should be without prejudice to the claimant's right to return to court after exhausting administrative remedies. Martin K. Eby Construction Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d at 467, n. 5 (citations omitted).
2. Hernandez' Claim Under the Term Contract Nonrenewal Act.
Defendants also contend that dismissal of Hernandez' claim under the Term Contract Nonrenewal Act ("TCNA") is appropriate due to his failure to exhaust administrative remedies by first bringing the claim before the Commissioner of Education. (Def. Br. at 8.) Alternatively, Defendants argue that Hernandez was employed under a probationary contract, not a term contract, and that under the Texas Education Code he has no right to challenge his termination. (Def. Br. at 9, n. 3). Hernandez does not state whether he was employed under a term or probationary contract.
Hernandez does not dispute Defendants' contention that he was hired under a probationary contract.
The TCNA is codified in Subchapter E, §§ 21.201-21.213 of the Texas Education Code and governs the legal rights and responsibilities of teachers employed under term contracts. Gilder v. Meno, 926 S.W.2d 357, 358 (Tex.App.-Austin 1996, writ denied). Because §§ 21.201-21.213 fall under Title II of the Texas Education Code, the exhaustion requirement of § 7.057 applies to claims under the TCNA. Hernandez has not alleged that he appealed in writing to the Commissioner of Education as to his claim under the TCNA. Thus, to the extent that he was employed under a term contract, Hernandez' TCNA claim should be dismissed without prejudice for failure to exhaust administrative remedies. See Hoskins, 2003 WL 22364356, at *2-3 (dismissing breach of contract claim brought under statute found in Title II of the Texas Education Code for failure to exhaust administrative remedies); Rogan v. Lewis, 975 F. Supp. at 962 (finding that teacher was barred from pursuing claims under Texas Education Code related to her termination after failing to exhaust administrative remedies).
Dismissal for failure to state a claim due to failure to exhaust administrative remedies should be without prejudice to the claimant's right to return to court after exhausting administrative remedies. Martin K. Eby Construction Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d at 467, n. 5 (citations omitted).
Defendant also claims, and Hernandez does not dispute, that Hernandez was employed under a probationary contract with DISD. Section 21.213 of the TCNA states "[t]his subchapter does not apply to a probationary contract . . ." TEX. EDUC. CODE ANN. § 21.213 (Vernon 1996). Thus, to the extent that Hernandez was employed under a probationary contract, he cannot state a cognizable claim under the TCNA because it does not apply to probationary contracts. See Houston v. Nelson, 147 S.W.3d 589, 592-593 (Tex.App.-Corpus Christi 2004, no pet. history) (finding that plaintiff employed under probationary contract is not entitled to any protections of the TCNA); Bormaster v. Lake Travis Independent School District, 668 S.W.2d 491, 494 (Tex.App.-Austin 1984, no writ) (finding that a probationary employee is not entitled to relief under the TCNA).
The Court notes that if employed under a probationary contract, Hernandez may not bring an appeal before the Texas Commissioner of Education regarding the board's decision to terminate his probationary contract at the end of the contract period. Section 21.103 of the Texas Education Code provides that "[t]he board of trustees of a school district may terminate the employment of a teacher employed under a probationary contract at the end of the contract period if in the board's judgment the best interests of the district will be served by terminating the employment . . . The board's decision is final and may not be appealed." TEX. EDUC. CODE ANN. § 21.103 (Vernon 1996 Supp. 2004-2005).
Accordingly, the Court finds that, whether he was employed by DISD under a term or probationary contract, Hernandez can prove no set of facts in support of his claim under the TCNA and his claim should be dismissed without prejudice.16
III. SCHULTEA MOTION
Blacknall and Cook, in their individual capacities, move the Court to require Hernandez to file a Rule 7(a) reply that engages their asserted defense of qualified immunity to his § 1983 claims. (Ind. Def. Mot. at 1.) They contend that Hernandez has failed to present specific factual allegations relating to each individually, and has failed to specifically identify how each individually violated his constitutional or statutory rights. Id. at 1-2. They further assert that, to the extent that Hernandez alleges that they acted out of unlawful motives, he has not provided conclusory factual allegations establishing such motives. Id. at 2. Blacknall and Cook also move the Court to order an abatement of discovery until Hernandez files a sufficient Rule 7(a) reply. Id. at 1. Hernandez did not file a response to Blacknall and Cook's motion.A. Rule 7(a) Reply
A public official performing a discretionary function enjoys qualified immunity in a civil action, provided the conduct alleged did not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is not merely a defense to liability but an immunity from suit. Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995). In addressing a claim of qualified immunity, a court must first determine whether the plaintiff has alleged a violation of a clearly established constitutional right, which is a purely legal question. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Kipps v. Caller, 205 F.3d 203, 204 (5th Cir. 2000). Then, the court proceeds to determine whether the right allegedly violated was clearly established at the time, such that a reasonable official would have understood that the conduct engaged in violated that right. Conn v. Gabbert, 526 U.S. 286, 290 (1999); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).
Although a plaintiff need not anticipate a claim of qualified immunity in his origninal pleading, he may be required to "engage the affirmative defense of qualified immunity when invoked." Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995) (en banc). This is done through a Rule 7(a) reply. See FED. R. CIV. P. 7(a). Such a reply "must be tailored to the assertion of qualified immunity and fairly engage its allegations." Schultea, 47 F.3d at 1433. "Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist." Id. at 1433.
In the instant case, a review of Hernandez' complaint reveals that it is lacking in specificity and particularity as to the conduct of each individual defendant. The Court therefore determines that a Rule 7(a) reply is warranted. See Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). Hernandez' Rule 7(a) reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. Hernandez must "support his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." Schultea, 47 F.3d at 1434. Stated differently, Hernandez must state specifically how Cook and Blacknall took actions that deprived Hernandez of a constitutionally or statutorily protected right, and state specifically how the conduct of each caused his injury. Furthermore, Hernandez' failure to file a Rule 7(a) reply will result in dismissal of his claims against Blacknall and Cook. See Bryant v. Lubbock Ind. Sch. Dist., 2004 WL 884471, at *6 (N.D. Tex. Apr. 26, 2004) (citing Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999)).
B. Abatement of Discovery
Blacknall and Cook move for an abatement of discovery until Hernandez files a sufficient Rule 7(a) reply. (Ind. Def. Mot. at 1.) Once a Rule 7(a) reply has been ordered, the court may bar discovery entirely or limit discovery to the defense of qualified immunity. Schultea, 47 F.3d at 1434. The court "need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." Id.
"Public officials acting within the scope of their official duties are shielded from civil liability by the qualified immunity doctrine." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). "[S]ubjecting officials to trial, traditional discovery, or both concerning acts for which they are likely immune undercuts the protection from governmental disruption which official immunity is purposed to afford." Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985). Thus, "allowing any but perhaps the most preliminary proceedings on the immunity-barred claim runs squarely counter to the doctrine's basic protective purpose: that officials be free to exercise their duties and functions without fear of having their attentions distracted by the subsequent claims of unhappy or unsuccessful litigants." Id.
"[Q]ualified immunity does not shield government officials from all discovery but only from discovery which is either avoidable or overly broad." Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987); see also Wicks v. Miss. State Employment Servs., 41 F.3d 991, 994 (5th Cir. 1995). If the defendants' immunity defense does in fact turn on a factual issue requiring discovery, "the district court may then proceed . . . to allow the discovery necessary to clarify those facts upon which the immunity defense turns." Wicks Id. at 995. Thus, once a Rule 7(a) reply has been ordered, the court may bar discovery entirely or limit discovery to the defense of qualified immunity. Schultea, 47 F.3d at 1434. The court "need not allow any discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." Id.
In the present case, allowing even limited discovery on Blacknall and Cook's entitlement to qualified immunity would be premature at this time. Such limited discovery should only take place in the event that this Court finds both that Hernandez' pleadings have met the heightened pleading standard and that Blacknall and Cook's immunity defense turns on a factual issue requiring discovery. Moreover, Hernandez, who did not file a response to Defendants' Schultea motion, has not provided any reasons as to why discovery is necessary to resolve the issue of Defendants' entitlement to immunity. After Hernandez files a Rule 7(a) reply, and once the parties have fully briefed the issue of qualified immunity, the Court will be in a better position to determine if it is "unable to rule on the immunity defense without further clarification of the facts[,]" and how a discovery order can be "narrowly tailored to uncover only those facts needed to rule on the immunity claim" to ensure that the discovery is "neither avoidable nor overly broad." Lion Buolos, 834 F.2d at 507-08.
Accordingly, discovery addressed to Blacknall and Cook in their individual capacity should be stayed pending further order of the Court. See Bryant, 2004 WL 884471, at *6 (N.D. Tex. Apr. 26, 2004) (ordering Rule 7(a) reply and staying discovery until further order of the court).
IV. MOTION FOR CONSOLIDATION
Defendants move the court to consolidate its remaining claim in Civil Action No. 3:04-CV-255-AH (D) into the instant proceedings, Civil Action No. 3:04-CV-2028-BH. (Def. Mot. Cons. at 1.) During the pendency of this motion, a final judgment was issued in Civil Action No. 3:04-CV-255-AH (D), disposing of Defendants' remaining counterclaim. See Order, filed March 18, 2005, in Hernandez v. Duncanville ISD, et. al., 3:04-CV-255-AH, Docket Entry No. 54. Defendants' motion to consolidate should therefore be denied as moot.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss in Part is GRANTED. Hernandez' state law tort claims and Title VII claims are DISMISSED with prejudice for failure to state a claim. His claims under TEX. EDUC. CODE § 21.351 and TEX. ADMIN. CODE § 89.1201 are DISMISSED without prejudice for failure to exhaust administrative remedies. His Term Contract Nonrenewal Act claim is dismissed DISMISSED without prejudice for failure to exhaust administrative remedies, or in the alternative, for failure to state a claim.
In addition, Individual Defendants' Schultea Motion is GRANTED, and Hernandez is ORDERED to file a Rule 7(a) reply to address Blacknall and Cook's qualified immunity defense by April 15, 2005. Furthermore, the Court orders that discovery addressed to Blacknall and Cook in their individual capacity is stayed pending resolution of their entitlement to qualified immunity.
Defendants' Motion to Consolidate is DENIED as moot.
SO ORDERED.