Summary
dismissing a plaintiff's claim for municipal liability for employment retaliation based on speech when the plaintiffs "failed to allege that [the school district] ha[d] an official policy or custom of retaliating against employees who exercise their First Amendment rights"
Summary of this case from Goudeau v. E. Baton Rouge Parish Sch. Bd.Opinion
Civil Action No. 3:97-CV-2820-L.
May 11, 2000.
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion for Judgment on the Pleadings, filed August 6, 1998. Plaintiff did not file a response to the motion. After careful consideration of the motion, Plaintiff's First Amended Complaint, filed May 5, 1998, and the applicable law, the court finds, for the reasons that follow, that Defendant's motion should be granted in part and denied in part. The court also has before it Plaintiff's Counsel's Motion to Withdraw as Counsel, filed January 6, 2000. For the reasons stated herein, the motion is denied without prejudice.
The court extended the time for Plaintiff to respond to Defendants' Motion for Judgment on the Pleadings to November 23, 1998; however, a response to the motion was never filed by Plaintiff. See Court's Order, filed November 10, 1998.
I. Factual Background
Plaintiff Juanita Wallace ("Plaintiff" or "Wallace") brought this action on November 18, 1997 against the Dallas Independent School District ("DISD") and six present or former employees of DISD in their individual capacities. The other Defendants are Yvonne Gonzalez, Frederick Todd, Leon Hayes, Robert Payton, Graciela Escobedo, and Robby Collins, and will be referred to as "Individual Defendants." Wallace, a teacher and vice-principal employed by DISD since 1985, claims that Defendants wrongfully suspended her in May of 1997 because of her attendance and protests at school board meetings, and that the alleged wrongful suspension prevented her from being considered for promotion to school principal positions which were made during her suspension. She also claims retaliatory reassignment and contests the propriety of Defendants' refusal to promote her to principal, even though allegedly she is more qualified and senior than many of the candidates who were so promoted, and contends Defendants' actions were due to her race and her pro-active African American community activity.
The court will use the word "Defendants" to refer to DISD and the Individual Defendants collectively, unless otherwise indicated.
According to Wallace, "[t]he conduct of representatives and/or agents of Dallas Independent School District in suspending, transferring, and failing to promote [her] was in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq." Wallace also "asserts a cause of action for violation of 42 U.S.C. § 1981 in that [she] has been suspended, retaliated against, and her career stymied by the DISD school board and its administrators because of her race, African American." Wallace further contends that she "asserts a cause of action for violation of 42 U.S.C. § 1983 for violation of [her] United States Constitutional First Amendment right to freedom of speech and freedom of association." Finally, according to Wallace, she "asserts a cause of action against Yvonne Gonzalez, Robby Collins, Robert Peyton (sic) [and] Leon Hays (sic) for the state law claim of defamation of character." Plaintiff's First Amended Complaint, ¶¶ 49, 50, 51, and 52.
II. Defendants' Motion for Judgment on the Pleadings
Defendants have filed a motion for judgment on the pleadings. Defendants contend that, for various reasons, all of Plaintiff's claims should be dismissed. Specifically, Defendants contend that the 42 U.S.C. § 1983 claims should be dismissed because (1) Plaintiff has failed to state a claim for violation of her First Amendment rights pursuant to § 1983, (2) Plaintiff has failed to allege that DISD has an official policy or custom of retaliating against employees who exercise their First Amendment rights, and (3) the Individual Defendants are entitled to qualified immunity.
Defendants also contend that the 42 U.S.C. § 1981 claims should be dismissed because Plaintiff has failed to plead the contractual basis for such claims and that § 1983 is the exclusive remedy for impairment of rights secured by § 1981. Additionally, Defendants contend that DISD cannot beheld liable for a § 1981 violation under the theory of respondeat superior. Defendants also urge dismissal of this claim because Plaintiff fails to allege that the Individual Defendants were involved in intentional racial discrimination.
With respect to Wallace's Title VII claims, Defendants contend that they should be dismissed against DISD because the complaint does not allege a prima facie case of race discrimination, and against the Individual Defendants because Plaintiff cannot recover against them in their individual capacities.
Finally, Defendants request the court to dismiss Plaintiff's state law claim of defamation. Defendants contend that (1) Wallace has failed to state a claim for defamation, and (2) they are entitled immunity under the Texas Education Code.
III. Analysis
A. Standard for Judgment on the Pleadings
Any party may move for judgment on the pleadings after the pleadings are closed and when it would not delay the trial. Fed.R.Civ.P. 12(c). A motion brought pursuant to Rule 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." Hebert Abstract Co., Inc. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990). If, however, matters outside the pleadings are also presented to the court for consideration, a Rule 12(c) motion must be treated as one for summary judgment. See Fed.R.Civ.P. 12(c); Darlak v. Bobear, 814 F.2d 1055, 1064 (5th Cir. 1987). "Like a motion for summary judgment, a 12(c) motion should be granted only if there is no issue of material fact and if the pleadings show that the moving parties are entitled to judgment as a matter of law." Perez v. Brown Williamson Tobacco Corp., 967 F. Supp. 920, 924 (S.D. Tex. 1997). A ruling on a motion for judgment on the pleadings pursuant to Rule 12(c) is reviewed under the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. GATX Leasing Corp. v. Nat'l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995). See also St. Paul Ins. Co. of Bellaire, Tex. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991).
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir 1997). A district 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 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). 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. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id. The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff, and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
B. Plaintiff's Claims Under 42 U.S.C. § 1983
1. Sufficiency of Allegations
Defendants contend that Plaintiff's First Amendment claims of free speech and freedom of association must fail because Plaintiff has not alleged the specific elements to "satisfy" a three-part test. The court disagrees with Defendant's interpretation of the applicable authority regarding this aspect of the First Amendment issue.
Defendants cite Wallace v. Texas Tech Univ., 80 F.3d 1042, 1050 (5th Cir. 1996), for the proposition that Plaintiff must allege that her speech involved a matter of "public concern," that her interest in commenting on the matters of "public concern" outweighed the public employer's (DISD's) interest in promoting efficiency, and that her (Wallace's) speech motivated the adverse employment action against her. Defendants' reliance on Wallace is misplaced. Wallace was a summary judgment case, and the court speaks in terms of the three-part test that must be met to determine whether speech by a public employee is protected, not in terms of what must be alleged in a complaint. In the summary judgment context, one must produce evidence that the speech meets this three-part test or evidence that raises a genuine issue of material fact whether the speech meets this three-part test. The appropriate method by which to raise the issue of Plaintiff not satisfying the three-part test is through a motion for summary judgment, not a motion for judgment on the pleadings. A motion for judgment on the pleadings tests the adequacy of the complaint, not whether a party will ultimately prevail on the merits of the actual litigation. Defendants cite no cases which hold that a judgment on the pleadings would be proper for failure to specifically allege the specific elements of a First Amendment retaliation claim, and the court in its research has found none. The court has reviewed Plaintiff's First Amended Complaint ("Complaint"), and, although not a model of pellucid draftsmanship, the court is unable to say beyond doubt that Plaintiff can prove no set of facts in support of her First Amendment claim. Accordingly, Plaintiff's claim should not be dismissed for failure to state a First Amendment violation simply on the basis that she did not specifically allege the elements to satisfy the three-part test.
2. Plaintiff's Policy or Custom Allegations
DISD contends that it cannot be liable to Plaintiff because she has not identified the particular policy or custom, or alleged that a particular policy or custom was the actual cause of any injuries she allegedly suffered. Plaintiff, on the other hand, contends that she has alleged sufficient facts to state a claim against DISD based upon a policy, custom, or practice. The court agrees with DISD that Plaintiff has failed to state a claim upon which relief can be granted regarding a policy or custom of DISD, and Plaintiff will be required to replead this claim.
To resolve the issue presented by this motion, the court first cites the relevant authority which serves as a backdrop under which a local government can be held liable pursuant to 42 U.S.C. § 1983. A governmental entity can be sued and subjected to monetary damages and injunctive relief under 42 U.S.C. § 1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A governmental entity cannot be liable for civil rights violations under a theory of respondeat superior or vicarious liability. Id. See also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979). Official policy is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [school district] lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of [school district] officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents [school district] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [school district] or to an official to whom that body had delegated policy-making authority.Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). A plaintiff must establish that the governmental entity through its deliberate conduct was the moving force behind the injury or harm suffered and must establish a direct causal link between the governmental entity's action and the deprivation of a federally protected right. Bryan County v. Brown, 520 U.S. at 403-04 (1997).
Liability must rest on official policy, meaning the governmental entity's policy, and not the policy of an individual official. Bennett, 728 F.2d at 769. The official complained of must possess
[f]inal authority to establish [school district] policy with respect to the action ordered. . . .The official must also be responsible for establishing final government policy respecting such activity before the [school district] can be held liable. . . . [W]hether an official had final policymaking authority is a question of state law.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986). Under Texas law, the final policymaking authority in an independent school district rests with the district's trustees. Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). An employee, agency, or board of a governmental entity is not a policymaker unless the governmental entity, through its lawmakers, has delegated exclusive policymaking authority to that employee agency or board and cannot review the action or decision of the employee, agency or board. See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989).
In light of Fed.R.Civ.P. 8(a)(2) and Leatherman v. Tarrant County Intelligence Coordination Unit, 507 U.S. 163, 168 (1993), Plaintiff must provide in her pleadings "a short and plain statement that the pleader is entitled to relief" The "short and plain statement" must contain facts "that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." Leatherman, 507 U.S. at 168 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While it is not necessary for a plaintiff to prove or establish at this stage that she was injured as a result of a specific policy or custom of DISD, requiring her to identify the specific policy or custom and allege that the policy or custom adopted by DISD or a policymaking official was the "moving force" behind the alleged constitutional violation is in no way inconsistent with notice pleading or the mandate of Leatherman. Such requirement actually complements Rule 8 in that it puts a defendant on notice of the grounds on which a plaintiffs claim rests. In other words, the allegations of a complaint must not be conclusory; otherwise, a defendant is not placed on notice of the grounds for the claim. Conclusory allegations cannot survive a motion to dismiss. See Guidry, 954 F.2d at 281.
The court believes that language from two Fifth Circuit cases decided after Leatherman is illustrative and controlling: Spiller v. City of Texas City, Police Dep't, 130 F.3d 162 (5th Cir. 1997), and Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521 (5th Cir. 1996). In Spiller, the court stated:
In order to hold a municipality or a local government unit liable under Section 1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official policy or custom "was a cause in fact of the deprivation of rights inflicted.' Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). To satisfy the cause in fact requirement, a plaintiff must allege that "the custom or policy served as the moving force behind the [constitutional] violation' at issue, Meadowbriar Home for Children Inc. v. Gunn, 81 F.3d 521, 533 (5th Cir. 1996), or that her injuries resulted from the execution of the official policy or custom, Fraire v. Arlington, 957 F.2d 1268, 1277 (5th Cir. 1992). The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts.Spiller, 130 F.3d at 1278. Embodying this same principle and requirement with respect to pleading a cause of action regarding municipal policy or custom, but stated somewhat differently, the court in Meadowbriar stated:
To support a claim based upon the existence of an official custom or policy, the Plaintiff must plead facts which show that: 1) a policy or custom existed; 2) the governmental policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as the moving force behind the violation. (citation omitted)Meadowbriar, 81 F.3d at 532-33.
The court has reviewed Plaintiffs First Amended Complaint in detail and finds that it does not contain the basic and fundamental allegations to put DISD on notice as to the bases for Wallace's claims regarding school district policy or custom. Although Plaintiff contends in her response to Defendants' Motion to Dismiss that she has pleaded sufficient facts, the court finds she has not done so. See Plaintiff's Response to Defendants' Motion to Dismiss at pp. 2-3. Plaintiff's allegations are conclusory and merely state that the DISD Board "approved all transfers and promotions recommended by the [DISD] superintendent" and that Yvonne Gonzales "with the approval and involvement of some school board members target African-American employees for transfers, demotions, and terminations which were approved by the school board." Plaintiffs Response at pp. 2-3. Plaintiff's Complaint does not meet the basic requirements for pleading school district liability under § 1983 as set forth in Spiller and Meadowbriar. The court concludes that the allegations in Plaintiff's Complaint are conclusory and inadequate with respect to a policy or custom of DISD, and as such fail to state a claim upon which relief can be granted. Plaintiff must replead to survive dismissal of this claim.
Defendants contend that Gonzalez is not a policymaker. Gonzalez could be a policymaker if DISD delegated exclusive policymaking authority to her. The record is unclear on this matter. The court, however, need not address this issue because the court's ruling is based on the deficiency in Plaintiff's pleadings regarding policy and custom as previously stated by the court, not as to whom is a policymaker for DISD.
3. Qualified Immunity
The Individual Defendants contend that they are entitled to qualified immunity because they did not violate clearly established law of which a reasonable person would have known, and because Plaintiff has failed to plead facts with particularity which, if proved to be true, would defeat their entitlement to qualified immunity. Plaintiff, on the other hand, contends that she had pleaded the violation of a clearly established right and has pleaded the violation of such right with the requisite specificity. The court, for the reasons that follow, finds that Plaintiff's pleadings are deficient.
When a public official defendant in a § 1983 action has raised the defense of qualified immunity, the plaintiff must plead facts with particularity before she may subject the public official to trial. Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985); see also Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986). This specificity of facts necessary in cases when qualified immunity has been asserted is referred to as the "heightened pleading" requirement, which requires a plaintiff to plead allegations of fact which focus specifically on the conduct of the individual who caused the plaintiffs injury. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (citing Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995)). The Fifth Circuit recently addressed the heightened pleading requirement and the district court's responsibility in such instances by stating:
First, the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity. 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.Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995)( en banc). The task of the court is to determine whether Plaintiff's Complaint alleges with the requisite specificity the acts, conduct, or omissions by the Individual Defendants that would make them liable to Plaintiff.
In this particular case, the Individual Defendants asserted the qualified immunity defense in their original answer and motion to dismiss. Wallace filed Plaintiff's First Amended Complaint to address the alleged pleading deficiencies and also asserted in Plaintiff's Response to Defendants' Motion to Dismiss that Plaintiff's First Amended Complaint adequately pleaded facts to overcome the defense of qualified immunity. Perhaps, the court could treat, in this instance, Plaintiff's response as a reply under Schultea. Defendants' Motion to Dismiss, however, was withdrawn at Defendants' request. See Court's Order, filed May 12, 1998. The court is thus uncertain as to the status of Plaintiff's Response. Because of this uncertainty, the court will resolve this matter in Plaintiff's favor and permit the filing of a reply under Schultea.
The court has reviewed Plaintiff's Complaint and finds that it is lacking in specificity and particularity as to the conduct, acts, or omissions of each Individual Defendant. The Complaint must allege what each Individual Defendant did to cause Plaintiff to be deprived of a constitutionally protected right and therefore be liable to Plaintiff personally. In other words, Plaintiff must state specifically how each Individual Defendant took action against her or refused to take action to deprive her of a constitutionally or statutorily protected right. This is really not that difficult of a task if the facts for a cause of action exist. If the facts exist, all Plaintiff has to do is allege the elements of a First Amendment free speech or association claim, state facts which would establish those elements, and state the specific conduct of each Individual Defendant that caused her to be subjected to such deprivation. As stated before, the allegations in the qualified immunity context must be specific, not conclusory or vague. While she has made the necessary legal conclusions and used the correct legal and technical buzzwords, Plaintiff's First Amended Complaint simply does not set forth the requisite specific facts to defeat each Individual Defendant's claim of qualified immunity. The court has read Plaintiff's Complaint in detail several times and is not certain of the specific conduct each Individual Defendant engaged in or action each Individual Defendant failed to take that constitutes constitutional violations. The court can guess or speculate what the factual bases are, but under existing precedent, Defendants are entitled to more than guesswork or speculation. To hold that Plaintiffs Complaint sufficiently sets forth the requisite specificity as to each Individual Defendant's conduct would effectively nullify the heightened pleadings requirement and doctrine of qualified immunity in cases involving public officials.
C. Plaintiff's Claims Under Title VII of the Civil Rights Act of 1964
1. Sufficiency of Allegations
Plaintiff claims that Defendants' conduct in suspending, transferring and failing to promote her was in violation of Title VII of the Civil Rights Act of 1964. Although Wallace's Complaint regarding her Title VII claim does not specifically state that the alleged violation was because of her race, based upon her factual allegations and a fair reading of the Complaint, race certainly appears to be the basis of her claim.
Defendant DISD contends that Plaintiff's claim under Title VII should fail and be dismissed with prejudice because Plaintiff fails to allege the elements of a prima facie case of race discrimination in her Complaint. Once again, the court disagrees with DISD's interpretation of the law on this issue.
DISD cites Steele v. SGS-Thomson Microelectronics, Inc., 962 F. Supp. 972, 976 (N.D. Tex. 1997), for the proposition that Wallace must allege the following to establish a prima facie case of racial discrimination: (1) that she is the member of a class of persons protected by Title VII, (2) that she applied and was qualified for a job for which the employer was seeking applicants, (3) that she was not hired or was discharged or suffered some other adverse employment decision, and (4) that she was replaced with someone who is not a member of her protected class. This is an incorrect reading of Steele. Defendants correctly state the elements of a prima facie case for race discrimination. See La Pierre v. Benson Mission, Inc., 86 F.3d 444, 448; Grimes v. Texas Dep't of Mental Health and Mental Retardation, 102 F, 3d 137, 140 (5th Cir. 1996). Steele did not hold that a plaintiff must allege the elements of a prima facie case. The case merely holds that one alleging discrimination must establish a prima facie case. Steele was a summary judgment case, and the issue in any summary judgment case is whether the party has submitted sufficient evidence to establish or prove the necessary elements of a claim or defense, or whether the party has submitted sufficient evidence to raise a genuine issue of material fact regarding the claim or defense. If Plaintiff cannot establish or prove a prima facie case, DISD should raise the matter through a summary judgment motion. DISD is not entitled to dismissal of the Title VII claim based on Plaintiff's failure to allege a prima facie case of race discrimination. Plaintiff has sufficiently alleged facts, if proved to be true, from which one could find that she was discriminated against because of her race.
The elements of a plaintiff's prima facie case may vary depending on the facts of the case and the nature of the claim, La Pierre, 86 F.3d at 448 n. 3 (citing McDonnell Douglas v. Green, 441 U.S. 792, 802 n. 13).
2. Individual Capacity Liability
The Individual Defendants contend that Wallace's Title VII claim should be dismissed against them in their individual capacities. The court agrees that the Individual Defendants cannot be liable to Plaintiff in their personal or individual capacities.
Title VII liability extends only to employers and defendants in their official capacities. Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998); Caro v. City of Dallas, 17 F. Supp. 618, 624 (N.D. Tex. 1998). "A supervisor is considered an 'employer' under [T]itle VII if he wields the employer's traditional rights, such as hiring and firing." Huckabay v. Moore, 142 F.3d. at 241. An employment relationship is a prerequisite to a Title VII claim. Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir. 1994). Plaintiff fails to allege that the Individual Defendants in this case qualify as employers by wielding such powers, although she has had two opportunities to do so. Additionally, that power by a supervisor is necessarily exercised by a person who acts as an agent of the municipal body he represents, and because the wrongful acts are performed in his official capacity, any recovery against him must be against him in that capacity, not individually. Id. Accordingly, the Individual Defendants are entitled to dismissal of Plaintiffs Title VII claims in their individual capacities.
1. 42 U.S.C. § 1983-the Exclusive Remedy
Plaintiff attempts to assert a cause of action for violation of 42 U.S.C. § 1981 because, according to her, she has been suspended, retaliated against, and had her career stymied because of her African American race. This statute provides as follows: "All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981 (a).
Defendants cite several reasons for dismissal of Plaintiff's claims under § 1981, First, DISD contends, citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701(1989), that Plaintiff's § 1981 claims against it should be dismissed because 42 U.S.C. § 1983 provides the exclusive remedy for the impairment of rights secured by 42 U.S.C. § 1981. The court agrees with DISD. In Jackson v. Dallas Indep. Sch. Dist., No. Civ. A. 399-CV-1079-D, 1999 WL 58846 (N.D. Tex. Feb. 1, 1999), the court stated and held the following regarding 42 U.S.C. § 1981:
The language of the statute enumerates only federal rights for individuals and does not create an express cause of action against those who violate these rights. See Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1210 (9th Cir. 1996). In 1989 the Supreme Court declined to imply a cause of action under § 1981 against state actors, holding that when Congress originally enacted §§ 1981 and 1983, it "thought that the declaration of rights in § 1981 would be enforced against state actors [only] through the remedial provisions of § 1983.' Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-36 (1989). Congress later amended § 1981 to add a section providing that '[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.' 42 U.S.C. § 1981(c). This language does not grant an individual an express cause of action against a state official. Tabor v. City of Chicago, 10 F. Supp.2d 988, 992 (N.D. Ill. 1998). Absent clear evidence from Congress to the contrary, the court declines to hold that the addition of § 1981(c) overruled the holding of Jett. See, e.g., Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir. 1995); Tabor, 10 F. Supp.2d at 992; Reynolds v. Glynn County Bd. of Educ., 968 F. Supp. 696, 706-07 (S.D. Ga. 1996), aff'd, 119 F.3d 11 (11th Cir. 1997) (table); Ebrahimi v. City of Huntsville Bd. of Educ., 905 F. Supp. 993, 995 n. 2 (N.D. Ala. 1995); Johnson v. City of Ft. Lauderdale, Fla., 903 F. Supp. 1520, 1522-23 (S.D. Fla. 1995), aff'd, 114 F.3d 1089 (11th Cir. 1997); Philippeaux v. North Cent. Bronx Hosp., 871 F. Supp. 640, 654-56 (S.D. N.Y. 1994), aff'd, 104 F.3d 353 (2d Cir. 1996), cert. denied,___ U.S.___, 117 S.Ct. 1110 (1997).Id. at *2. The court agrees with the well-reasoned holding in Jackson and finds that § 1983 provides the exclusive remedy for a violation by a state actor of a person's rights under § 1981. Accordingly, no independent or stand alone cause of action may be brought under § 1981. A claim for a violation of§ 1981 must be brought under § 1983.
2. Respondeat Superior regarding Plaintiff's § 1981 Claim
DISD contends that it cannot be held liable for a violation of 42 U.S.C. § 1981 under a theory of respondeat superior, citing Jett, 491 U.S. at 738. There is a question whether the Civil Rights Act of 1991 affected Jett's holding that respondeat superior liability does not apply to § 1981 claims. Section 101 of the Act amended § 1981 by adding § 1981(c). This provision provides: "The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of state law." 42 U.S.C. § 1981 (c). Two circuit cases, Federation of African-American Contractors v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) and Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir, 1995), hold that respondeat superior does not apply in § 1981 cases and that the policy or custom requirement must be met in suits against state actors. The court agrees with these cases and holds that a claim alleging a violation of § 1981 is subject to the same pleading requirements for an action under § 1983. In other words, Plaintiff will be required to replead matters of policy or custom with respect to her alleged § 1981 violation.
3. Contractual Basis for Plaintiff's Claims under § 1981
Defendants contend that Plaintiff has not alleged the contractual basis for her § 1981 claim. The court agrees that a contract is necessary. The term "make and enforce contracts" is defined to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). "In order to bring a section 1981 claim there must at least be a contract." Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1034 (7th Cir. 1980). Although Plaintiff has failed to make a specific allegation of a contractual relationship in her Complaint, this does not defeat her § 1981 claim. Given the liberal pleading requirements of Fed.R.Civ.P. 8(a), Plaintiff has pleaded specific facts in her Complaint to establish the existence of a contract with DISD. Wallace's Complaint specifically states that she "began her employment with the Dallas Independent School District in August 1985 as a classroom teacher at John B. Hood Middle School." Plaintiff's First Amended Complaint, ¶ 11. The Complaint also lists promotions Plaintiff received in 1991, 1993 and 1995. Plaintiffs First Amended Complaint, ¶ 13. These allegations are sufficient to establish that an employment contract exists between Wallace and DISD. See Byers v. The Dallas Morning News, No. 99-10554, slip. op. 2866, 2872 (5th Cir. April 24, 2000). Accordingly, the court declines to dismiss Wallace's § 1981 claim based on her failure to specifically plead the existence of a contract.
4. Allegation of Intentional Discrimination regarding Plaintiffs § 1981 Claim
The Individual Defendants contend that Wallace's § 1981 claim against them should be dismissed because she failed to allege that they intentionally discriminated against her because of her race, and cites McCray v. DPC Indus., Inc., 942 F. Supp. 288, 296 (E.D. 1996) in support of this proposition. Once again, Defendants misread the law. McCray involved a summary judgment motion, and the court stated that McCray "failed to produce evidence sufficient to create a fact issue about whether DPC's proffered reasons were a pretext for race discrimination." Id. The court cannot conclude that Plaintiff can prove no set of facts in this regard that would entitle her to relief on her § 1981 claim. This is a matter that should be raised by a motion for summary judgment, not by a motion that tests the sufficiency of allegations in a complaint. Accordingly, the court cannot dismiss Plaintiff's § 1981 claim against the Individual Defendants.
E. Plaintiffs Defamation Claim
Plaintiff makes claims of defamation under state law against four of the Individual Defendants — Gonzalez, Collins, Payton and Hayes. These Defendants contend that the defamation claims should be dismissed because they have immunity pursuant to Tex. Educ. Code Ann. § 22.051 (West 1996), which provides:
(a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
(b) This section does not apply to the operation, use, or maintenance of any motor vehicle.
(c) In this section, 'professional employee' includes:
(1) a superintendent, principal, teacher, supervisor, social worker, counselor, nurse, and teacher's aide;
(2) a student in an education preparation program participating in a field experience or internship;
(3) a school bus driver certified in accordance with standards and qualifications adopted by the Department of Public Safety; and
(4) any other person whose employment requires certification and the exercise of discretion.
These Individual Defendants contend that they are professional employees who exercised judgment or discretion within the meaning of this Act. The court, however, cannot make such a determination based on Plaintiff's First Amended Complaint. The court, therefore, cannot dismiss the defamation claims on grounds of state immunity. Defendants are free to raise this defense in the context of a summary judgment motion at the appropriate time.
These four Individual Defendants also contend that Wallace has not stated a claim for defamation because her allegations are conclusory. The court agrees. Plaintiff has stated no facts to inform Defendants of the grounds for her claim, and, even under the liberal notice pleading allowed under Fed.R.Civ.P. 8(a), Plaintiff's Complaint in this regard is woefully inadequate. Plaintiffs sole allegation regarding this claim is that she "asserts a cause of action against Yvonne Gonzalez, Robby Collins, Robert Peyton (sic) [and] Leon Hays (sic) for the state law claim of defamation of character." Plaintiffs First Amended Complaint, ¶ 51. At a minimum, Plaintiff needs to identify the alleged defamatory statements, the maker of the statements, the date the statements were made, and the recipient of the statements.
IV. Plaintiff's Counsel's Motion to Withdraw as Counsel
Plaintiff's counsel has filed a motion to withdraw. Defendants are opposed to the motion, although they have filed no response or otherwise stated to the court the basis for their opposition. Plaintiffs counsel states that she is "absolutely unable at this time to fulfill [her] obligations in the instant case as attorney for the Plaintiff." Motion to Withdraw at p. 1. Plaintiffs counsel has specified the reasons requiring withdrawal. She, however, has not provided the name of the succeeding attorney, if known, or, alternatively, the name, address, telephone number, and signature of her client approving the withdrawal. See L.R. 83.12. Accordingly, at this time, the court denies without prejudice the motion to withdraw and will grant the motion once counsel complies with L.R. 83.12 or states why she is unable to so comply, provided she does so within seven days of the date of this order.
V. Conclusion
For the reasons stated herein, Defendants' Motion for Judgment on the Pleadings is granted in part and denied in part. Wallace's § 1981 claim against DISD is dismissed with prejudice insofar as Plaintiff's attempts to use § 1981 as the basis for an independent or stand alone cause of action. Any alleged violation of § 1981 must be brought as a claim under § 1983. Wallace's Title VII claim against the Individual Defendants in their individual capacities are hereby dismissed with prejudice. Plaintiff must replead her § 1983 claims against DISD, her § 1983 claims against the Individual Defendants to address their defense of qualified immunity, and her state claim of defamation. Wallace must replead her claims in accordance with the standards set forth in this opinion. Normally, the court allows 30 days to replead; however, the court hereby allows Plaintiff to replead within 60 days from the date of this order because of the additional time she may need in the event her attorney ultimately withdraws. The court also orders Plaintiff to file a Rue 7 reply to address the Individual Defendants' qualified immunity defense. Such reply must be filed within 60 days from the date of this order. The failure of Plaintiff to comply with this order will subject her case to dismissal. Plaintiff's Counsel's Motion to Withdraw as Counsel is denied without prejudice at this time.