Opinion
NO. 09-15-00227-CV
04-20-2017
CYNTHIA JACKSON, Appellant v. PORT ARTHUR INDEPENDENT SCHOOL DISTRICT AND JOHNNY E. BROWN, Appellees
On Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-194 ,159
MEMORANDUM OPINION
Cynthia Jackson appeals the trial court's order granting a plea to the jurisdiction filed by the Port Arthur Independent School District (the District), and a plea to the jurisdiction filed by the District's superintendent, Johnny E. Brown. In one appellate issue, Jackson argues the trial court erred in granting the pleas because a plea to the jurisdiction is not the proper procedural vehicle to challenge whether Jackson's pleadings contain sufficient facts to allege facially valid claims. Jackson argues that her pleadings are sufficient to allege facially valid constitutional claims, and that the trial court improperly declined to exercise jurisdiction over her claims that Brown and the District violated her constitutional rights. We conclude the trial court properly granted the defendants' pleas, and we affirm the trial court's ruling dismissing Jackson's claims for lack of jurisdiction.
Background
In her suit, Jackson complains that Brown and the District violated her rights to free speech and interfered with her property rights by reassigning her from her position as the principal at Booker T. Washington Elementary School to a job as an assistant principal at Memorial High School. When Brown reassigned Jackson to Memorial High School, she was working for the District based on a contract through which the District agreed to employ Jackson for the 2012-2013 and 2013-2014 school years. In the first portion of the periods covered by the contract, Brown assigned Jackson to Booker T. Washington Elementary School.
In March 2013, Brown reassigned Jackson to Memorial High School, and he reclassified her to be the high school's assistant principal. Shortly after Brown moved Jackson to her new position, Jackson sued Brown and the District, and she asked that the court reinstate her to her former position.
Brown and the District responded to the suit by filing pleas to the jurisdiction. Approximately two years after they first appeared in the suit, Brown and the District supplemented their pleas. The supplemental pleadings that Brown and the District filed provided the trial court with more detail regarding their claims that their rights to official and governmental immunity prevented the court from exercising subject-matter jurisdiction over Jackson's claims. In their supplemental pleadings, Brown and the District argued that Jackson had failed to allege sufficient facts in her pleadings to demonstrate that she had any facially valid constitutional claims against them. Additionally, Brown and the District argued that Jackson's allegations about being reassigned were insufficient to demonstrate that the trial court possessed jurisdiction over Jackson's claims given Jackson's contract with the District, which allowed Jackson to be transferred to other jobs in the District.
In Jackson's First Amended Original Petition, her live pleading for the purposes of the hearing the trial court conducted on the defendants' pleas, Jackson alleges that Brown demoted her based on criticisms that she made known to Brown and other administrators in the District about the matters at the elementary school involving issues of staffing, scheduling, learning plans, and services that were available to students enrolled in Booker T. Washington Elementary School. Jackson's amended petition also asserts several constitutional claims against Brown and the District, but all of her claims are based on her transfer to a new position at Memorial High School. For example, Jackson claims that Brown and the District retaliated against her for speaking out about matters involving the elementary school where she worked in violation of her rights to free speech, that Brown and the District deprived her of a property interest in her position at Booker T. Washington Elementary School in violation of article I, section 19 of the Texas Constitution, and that Brown and the District failed to provide Jackson with any procedural or substantive rights to due process before deciding to demote her. Jackson alleged that receiving a demotion for speaking out about issues at the school where she was the principal violated her rights under the First and Fourteenth Amendments, and that Brown's and the District's conduct was actionable under title 42, section 1983 of the United States Code. See 42 U.S.C.S. § 1983 (LEXIS through Pub. L. No. 115-18) (providing that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress").
In her brief, Jackson indicates that her salary did not change after she was reassigned to Memorial High School, but she argues that the reassignment should still be considered as having been a demotion. However, her pleadings indicated that she was seeking damages as a result of the demotion. The jurisdictional evidence that Brown and the District filed failed to address whether Jackson was paid less after she was reassigned to Memorial High School, and also failed to address whether the District considered her transfer to a job as an assistant principal at a high school to be a demotion, as she had alleged in her petition.
The trial court conducted two hearings on the defendants' pleas to the jurisdiction. Following the second hearing, the trial court granted the pleas. In its order, the trial court found that Jackson did not have a constitutionally protected property right in her contract to be the principal of Booker T. Washington Elementary School, and that Jackson had "failed to plead a facially valid constitutional claim under the Texas Constitution or the Federal Constitution." Jackson filed a timely notice of appeal from the order dismissing her claims.
Standard of Review
By filing a plea to the jurisdiction, the District and Brown challenged the trial court's power to exercise subject-matter jurisdiction over the claims in Jackson's pleadings. A plea to the jurisdiction is a dilatory plea, and it is typically used in an effort to defeat a plaintiff's cause of action without regard to whether the plaintiff's claims have any merit. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court possesses subject-matter jurisdiction over a claim is a question of law that is reviewed on appeal using a de novo standard. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When, as is the case here, a plea to the jurisdiction presents a challenge to the sufficiency of the plaintiff's pleadings, we are required to determine whether the plaintiff's pleadings allege "facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id. To do so, we construe the pleadings in the plaintiff's favor and look to the plaintiff's intent. Id. If the court determines that the plaintiff's pleadings are deficient but also determines that the deficiency in the pleadings can be cured, the plaintiff "deserves 'a reasonable opportunity to amend' unless the pleadings affirmatively negate the existence of jurisdiction." Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (quoting Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004)); Miranda, 133 S.W.3d at 226-27; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings affirmatively negate the existence of jurisdiction, a trial court may grant a plea to the jurisdiction without allowing a plaintiff an opportunity to amend. See Brown, 80 S.W.3d at 555.
It is also possible to challenge the existence of jurisdictional facts through the procedure involving the filing of a plea to the jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In this case, the supplemental pleas filed by Brown and the District asserted that Jackson's contract with the District provided that she could be assigned and reassigned at the District's discretion. The defendants attached an authenticated copy of Jackson's employment contract with the District for the 2012-2014 school years as an exhibit to their pleas. While Jackson's contract is relevant to the merits of the parties' dispute, the trial court was entitled to consider the terms of Jackson's contract with the District in resolving whether Jackson's pleadings alleged sufficient facts to show that it had jurisdiction over her claims that Brown and the District had deprived her of constitutionally protected rights. See id.; Miranda, 133 S.W.3d at 226. Jackson's contract shows that under her contract with the District, she was subject both to being reassigned to other schools in the District and to being reclassified into other positions with the District.
Once a defendant provides the trial court with evidence that shows the court does not possess subject-matter jurisdiction over the plaintiff's claims, the burden shifts to the plaintiff to show that disputed material facts remain to be resolved regarding the jurisdictional issue. See Garcia, 372 S.W.3d at 635. Jackson provided the trial court with no evidence to support her claim that, under her contract with the District, she was not subject to being reclassified or reassigned. A trial court may rule on the plea to the jurisdiction as a matter of law if the relevant evidence is undisputed or if the plaintiff fails to file a response raising a material fact issue regarding the jurisdictional issue. Id. Therefore, based on the record the parties created in the trial court, we must decide whether Jackson's pleadings allege any facially valid constitutional claims in light of the undisputed fact that Jackson's contract allowed the District to reassign her within the District and to reclassify her from her former job into another position. See Miranda, 133 S.W.3d at 226.
Beyond Jackson's rather conclusory pleadings alleging that she was demoted in retaliation for speaking to Brown and other District employees about issues at Booker T. Washington Elementary School, Jackson's pleadings contain very few facts to support her claim that she was deprived of any constitutionally protected rights. While a plea to the jurisdiction "'does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction,'" a plaintiff must do more than merely name a cause of action against a government official and assert the existence of a constitutional violation. Id. at 223 (quoting Blue, 34 S.W.3d at 554); see also Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering merits of equal-protection claim against Secretary of State in reviewing ruling on plea to jurisdiction and explaining that Secretary retained immunity from suit unless plaintiffs pleaded a "viable claim"); City of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.— Texarkana 2011, pet. denied) (noting that the city's employee remains immune from suit absent the plaintiff pleading a viable claim). To plead sufficient facts to establish a waiver of immunity, the plaintiff is required to plead a facially valid constitutional claim. See Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)); Andrade, 345 S.W.3d at 11; City of Houston v. Johnson, 353 S.W.3d 499, 504 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Therefore, given Jackson's contract, we must evaluate Jackson's pleadings to determine whether she pled any viable claims against Brown or the District for reassigning her to another job at another school in the District.
Analysis
In one issue, Jackson argues the trial court erred in granting Brown's and the District's pleas to the jurisdiction. According to Jackson, the trial court possessed subject-matter jurisdiction over her state constitutional claims seeking injunctive and declaratory relief because the District and Brown demoted and reassigned her without due process in retaliation for exercising her rights to free speech, deprived her of a property interest in continuing to work as a principal without following a constitutionally required process, and because Brown, by reassigning and reclassifying her to another job, tortuously interfered with the rights she had under the contract she had with the District.
Jackson did not complain about the trial court's dismissal of her tortuous interference claim against Brown in her appeal.
Jackson's federal and state constitutional claims required that Jackson present the trial court with sufficient pleadings and evidence to demonstrate that the District and Brown violated one or more of Jackson's constitutional rights. For example, Jackson's claim that the District failed to provide her with due process regarding her reassignment and reclassification required that she prove that her contract gave her a vested property interest in being the principal at Booker T. Washington Elementary School. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972). Jackson did not provide the trial court with any evidence to rebut the fact that her contract allowed her to be reassigned and to be reclassified, and instead, she relied solely on her pleadings even though the contract shows that Jackson could be transferred or reclassified to other jobs "at any time during the contract term." Jackson failed to either plead or prove that any state statutes gave her a vested property interest in a particular job. Generally, an individual has no protected property right to a job that is created by a governmental unit. See Roth, 408 U.S. at 564.
Jackson also alleged that she did not receive any rights to due process before she was reassigned to another job. However, before any substantive or procedural due process rights attach, a plaintiff must show that they have either a liberty interest or a property interest that is entitled to constitutional protection. Klumb, 458 S.W.3d at 15 (citing Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)) (holding that the plaintiffs' due-course-of-law claims were facially invalid where they had no vested property rights under the provisions of the contracts that were at issue). Jackson failed to allege any facts or provide the trial court with any evidence that she had a constitutionally protected interest in maintaining her job as the principal of the Booker T. Washington Elementary School. Therefore, we conclude the trial court properly found that Jackson was not deprived of a constitutionally protected interest in her contract with the District and that it properly dismissed her claim that she was deprived of a constitutionally protected interest in her assignment as a principal in one of the District's elementary schools.
Jackson also argues that the defendants' claims of governmental and official immunity did not bar the trial court from giving her relief based on the claims she made against Brown and the District under the Texas Constitution. According to Jackson, the rights to official and governmental immunity do not immunize governmental entities and their employees from claims based on title 42 U.S.C.S. section 1983. Generally, to state a valid 42 U.S.C.S. § 1983 claim for violating a plaintiff's federal constitutional rights, a plaintiff must "(1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854-55 (5th Cir. 2012). With regard to Jackson's free speech claim, Jackson was required to allege facts showing that: (1) her speech involved a matter of public concern; (2) her interest in commenting on matters of public concern was greater than the District's and Brown's interest in efficiently managing the schools in the district; and (3) her speech motivated the District and Brown to take an adverse employment action against Jackson. Thompson v. City of Starkville, Miss., 901 F.2d 456, 460 (5th Cir. 1990) (citing Frazier v. King, 873 F.2d 820, 825 (5th Cir. 1989)). In our opinion, Jackson failed to plead sufficient facts to show that her speech was protected under either article I, section 8 of the Texas Constitution or under the freedom of speech clause in the First Amendment. U.S. CONST. amend. I; Tex. Const. art. I, § 8.
Jackson raised claims alleging a violation of her right to free speech under the federal and state constitutions. However, Jackson has not cited any cases showing that the elements she was required to plead to properly allege a free-speech claim under the Texas Constitution differ from the elements that a plaintiff must plead when the plaintiff bases her claim solely on the First Amendment. While Jackson suggests that we should apply the statutory definition the Legislature gave the term "[e]xercise of the right of free speech" in Chapter 27 of the Texas Civil Practice and Remedies Code in evaluating whether Jackson was engaging in constitutionally protected speech, the Texas Supreme Court implicitly recognized that the rights protected under the Texas Citizens Participation Act, which is found in Chapter 27 of the Texas Civil Practice and Remedies Code, are broader than the rights of speech that are protected by the Texas Constitution. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curium) (recognizing that the Citizens Participation Act extends beyond public communications); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3) (West 2015). Although Jackson filed an amended petition after Brown and the District filed their pleas, Jackson never filed any claims against Brown or the District under the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). Because Jackson 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. See 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."); Tex. A & M Univ. v. Starks, 500 S.W.3d 560, 573 n.2 (Tex. App.—Waco 2016, 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. See generally Tex. Dep't of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003); Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 557-560 (Tex. 1998). And, for constitutional purposes, a person does not engage in constitutionally protected speech when speaking with other individuals in the organization that employs her about matters concerning the duties of her employment. Bd. of Cty. Comm'rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668 (1996) (citing Connick v. Myers, 461 U.S. 138 (1983)).
Jackson's pleadings allege that she spoke about matters concerning her duties and the organization that employed her to Brown and other District employees. As a result, her pleadings do not allege sufficient facts to show that she had engaged in any constitutionally protected speech. See id. For example, Jackson's allegations asserting that she criticized Brown and the District for matters involving staffing at the elementary schools where she worked as the principal are all matters falling within her duties as the elementary school's principal. Jackson argues that she engaged in protected speech when she wrote to Brown informing him that her students were being denied services and complaining about the assignment of an individual to work at Booker T. Washington Elementary School, which were matters that she alleged was "neither needed nor requested." Jackson also argues that she told one of the District's reading specialists that the students at Booker T. Washington Elementary School could not read, and she contends that her criticism about the school's reading program also qualifies as constitutionally protected speech. However, Jackson made the comments to a coworker. As the principal of an elementary school, providing Brown and her coworkers with her views about the strengths or weaknesses of the school's programs and staff were matters that were encompassed within her duties as the school's principal. Moreover, Jackson failed to allege that she ever discussed these matters outside the circle of the District and its employees.
Whether a person's speech involves a matter of public concern is a question of law that is determined by "the content, form, and context of [the] statement[s], as revealed by the whole record." See Connick, 461 U.S. at 147-48 & n.7. In determining whether a person's speech involves a matter of public concern, courts consider whether the speech was made pursuant to the speaker's official job duties. See Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). If the employee's comments were made pursuant to their official job duties, the comments are not considered to be constitutionally protected. See id.
Jackson's pleadings reflect that all of the comments she relies upon in her suit involved matters that related to her management of the elementary school where she worked as the principal. As a result, we conclude that Jackson's pleadings failed to allege that she had engaged in any constitutionally protected speech. As the United States Supreme Court explained, "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006); see also Davis, 518 F.3d at 315 (determining that employee's speech in a letter to her supervisor concerning the supervisor's response to the employee's concern was speech relating to an employee's duties and was not protected). Jackson failed to allege that she ever raised any of her complaints about Brown or the District in any public forums, such as at a school board meeting or in correspondence addressed to any state agencies. See Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 249 (5th Cir. 1984) (determining that a teacher/program director's speech concerning a literacy program at the school board meeting involved speech on matters of public concern). When Jackson failed to file amended pleadings alleging facts showing that she had engaged in any constitutionally protected speech, the trial court ruled properly and granted the defendants' pleas. Id.
In her appeal, Jackson has not explained how, if given the opportunity, she could amend her pleadings to allege facts proving that Brown and the District retaliated against her for speaking out about issues at the school or concerning Brown's leadership of the District in a public forum. Based on the jurisdictional evidence and the pleadings that were before the court, we hold that Jackson's pleadings fail to contain sufficient facts to show that Jackson has any valid free-speech retaliation claims or due process claims against Brown or the District that are actionable under either federal or state law. Id.
In her brief, Jackson also complains that the plea to the jurisdiction procedure is not the proper way to attack the validity of the claims contained in the plaintiff's pleadings. According to Jackson, the District should have challenged the validity of her pleadings by filing a Rule 91a motion to dismiss and asserted that her claims were baseless. See Tex. R. Civ. P. 91a. Jackson is correct that the defendants could have attacked the validity of her pleadings under Rule 91a, but Rule 91a is not the exclusive means that a defendant may use to test the validity of a plaintiff's pleadings. Tex. R. Civ. P. 91a.1. For instance, Texas courts have recognized that a governmental unit may use a plea to the jurisdiction to challenge the validity of the plaintiff's claims. See Miranda, 133 S.W.3d at 227 ("If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend."); City of Dallas v. Saucedo-Falls, 268 S.W.3d 653, 657-58 (Tex. App.—Dallas 2008, pet. denied) (rejecting the argument that the validity of the plaintiff's claims was required to be tested through a summary judgment procedure and allowing the validity of the claims to be tested based on the City's plea to the jurisdiction). When the validity of the claims in the plaintiff's pleadings have been challenged and supported with evidence that support dismissing the plaintiff's claims, the burden shifts to the plaintiff to raise a material fact issue regarding jurisdiction to survive the plea. Miranda, 133 S.W.3d at 228. In Jackson's case, after Brown and the District presented Jackson's contract that expressly allowed her to be reclassified and to be reassigned, the burden shifted to Jackson to present evidence raising a material fact issue to show that the trial court could exercise subject-matter jurisdiction over her claims. See id. Because a plea to the jurisdiction is a proper way to test the facial validity of a plaintiff's constitutional claims, we conclude that Jackson's argument asserting the District could only use Rule 91a to test her pleadings has no merit.
Finally, Jackson argues that because the pleas filed by the District and Brown did not challenge the validity of her 42 U.S.C.S. section 1983 claims, the trial court erred by dismissing those claims. However, Jackson's federal claims, which she added by amending her petition, simply mirror her state constitutional claims as all of Jackson's claims concern her reclassification and reassignment from being the principal of one school to being the assistant principal of another. When the trial court heard the defendants' pleas, Jackson did not object when Brown and the District asked the trial court to analyze her federal claims for facial validity by using the same approach that it asked the court to use in evaluating Jackson's state claims. See Than, 901 S.W.2d at 929; Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002).
Jackson's attorney did not attend the hearing the trial court conducted at her request on the defendants' pleas. However, following the hearing, Jackson filed a motion for new trial. And, in her motion, Jackson never complained about the fact that the trial court reached her federal claims on the basis that those claims were not specifically addressed by the defendants' pleas. Additionally, in her motion for new trial, Jackson addressed her argument that she had meritorious federal claims. In response to Jackson's motion for new trial, Brown and the District argued that the trial court properly dismissed Jackson's federal claims because they mirrored her state free speech, due course of law, and contract rights claims. It appears that the parties considered Jackson's claims to be before the court in the plea proceedings, and that after considering Jackson's arguments that her pleadings alleged sufficient facts regarding both her federal and state claims, the trial court disagreed.
Rule 33.1 of the Texas Rules of Appellate Procedure require that before an appeals court may consider a complaint that is made in an appeal, the record must show that the party complaining about a matter raised her complaint with the trial court by a timely request, objection or motion. Tex. R. App. P 33.1(a). During the hearing on the defendants' pleas, for her objection to have been timely, Jackson was required to object when the defendants' attorney asked the trial court to address whether Jackson's pleadings contained any facially valid federal claims. Id. We hold that by waiting until the appeal, Jackson waived her complaint about the trial court's decision to rule on whether her pleadings contained any facially valid federal claims. Alternatively, we hold that on this record, Jackson has not shown that the alleged error the trial court made in reaching Jackson's federal claims is an error that caused the trial court to render an improper judgment or prevented Jackson from properly presenting her case on appeal. Tex. R. App. P. 44.1.
Having considered Jackson's arguments, we overrule her sole issue. Jackson has also not shown that she did not have a sufficient opportunity to amend her pleadings and allege sufficient facts to show that she had any facially valid state or federal constitutional claims. See Sykes, 136 S.W.3d at 639 (requiring that an order granting a plea to the jurisdiction dismiss the government entity with prejudice if the plaintiff had a reasonable opportunity to amend its pleadings after the filing of the plea to the jurisdiction). Therefore, we affirm the trial court's order, which dismissed Jackson's case, with prejudice.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on April 25, 2016
Opinion Delivered April 20, 2017 Before Kreger, Horton, and Johnson, JJ.