# Maxwell v. Mesquite Independent School District

> District Court, N.D. Texas · September 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10450647

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JONATHAN MAXWELL §
§
v. §
§ CIVIL ACTION NO. 3:20-CV-3581-S
MESQUITE INDEPENDENT SCHOOL §
DISTRICT §
MEMORANDUM OPINION AND ORDER
This Order addresses Defendant’s Motion to Dismiss Plaintiff’ s First Amended Complaint
and Brief (“Motion”) [ECF No. 13]. For the reasons that follow, the Court GRANTS the Motion.
I. BACKGROUND
Plaintiff Jonathan Maxwell (“Plaintiff’) was an “ISS Instructional Aide,” an at-will
employee, of Defendant Mesquite Independent School District (“Defendant” or “School District”)
from February 1, 2019 until he was terminated on August 4, 2020. Am. Compl. | 5 [ECF No. 12].
Plaintiff alleges that after he made three social media posts, the School District’s Assistant
Superintendent for Personnel Services, Mary Randall (“Assistant Superintendent Randall”),
informed him that he had been reported for sharing “racist and bigoted posts.” Jd. {7 8, 10.
Plaintiff denied that his posts were racist or bigoted, and told Assistant Superintendent Randall
that he had a First Amendment right to make political posts. Jd. § 10. According to Plaintiff, none
of his posts can be described as racist, bigoted, or obscene. Jd. J 8. Rather, he asserts, they were
“political posts” that “dealt with race.”! Am. Compl. 4] 8, 10. Plaintiff claims that his posts
“centered on racial tensions” and “matters of public concern,” and were made during an

' The actual posts are not part of the record. Plaintiff has not described or included the contents of the posts in his
Amended Complaint or Plaintiff's Response in Opposition to Defendant’s Motion to Dismiss for Failure to State
Claims [ECF No. 19] (“Resp.”).

“extraordinary” time when “[s]Jocial and racial unrest in the United States during the summer of
2020 triggered protests and riots across the country.” /d. J] 8, 18.
Plaintiff claims he met with Assistant Superintendent Randall and Kellie Haddock
(“Haddock”)—whose official title or authority has not been indicated—on August 4, 2020
regarding his posts. Jd. { 11. During the meeting, he “was advised that he was being terminated
for ‘policy violation: social media use.”” /d. Later that day, Plaintiff received a letter notifying
him that he was “officially terminated . . . due to insubordination/policy violation.” Jd. J 12.
Plaintiff does not specify who authored or signed the termination letter. See id. He alleges that
Defendant’s Board of Trustees (“Board”) adopted policies for employee termination in their
Employee Handbook, which was distributed to employees by Superintendent of Schools David
Vroonland (“Superintendent Vroonland”). Jd. 7 13. Plaintiff further claims that the Board
“delegated the authority of employee termination to [Assistant Superintendent] Randall and
[Superintendent] Vroonland” and that the Board “ratified the policy to terminate Plaintiff in
violation of Plaintiff's protected nghts.” Jd.
Based on the foregoing allegations, Plaintiff asserts a single cause of action under 42
U.S.C. § 1983 (Section 1983”), claiming he was terminated because of his social media posts and
retaliated against as a public employee for exercising his right to free speech. Jd. 4 16-17.
Plaintiff filed his Original Petition in the 191st Judicial District of Dallas County, Texas,
on October 20, 2020. See ECF No. 1 Ex. 2. The suit was then removed to the United States
District Court for the Northern District of Texas under 28 U.S.C. § 1331 on December 7, 2020.
See ECF No. 1. On December 16, 2020, Defendant moved to dismiss Plaintiffs Original Petition,
and Plaintiff filed his First Amended Complaint on January 20, 2021. See ECF No. 4; ECF No.
12, Defendant now moves to dismiss Plaintiff's First Amended Complaint for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 13. In his Response to
Defendant’s Motion, Plaintiff requests that the Court grant him leave to file a second amended
complaint if the Court determines that Plaintiff has failed to state a claim. Resp. 15.
i. LEGAL STANDARD
To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6)
(“Rule 12(b)(6)”), a plaintiff must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 742 (5th Cir. 2008). To meet this “facial plausibility” standard, a plaintiff
must “plead[] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility does not require probability, but a plaintiff must establish “more than a sheer
possibility that a defendant has acted unlawfully.” /d. The court must accept well-pleaded facts
as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto.
Ins., 509 F.3d 673, 675 (5th Cir. 2007). However, the court does not accept as true “conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Ferrer y. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007) (citation omitted). A plaintiff must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 7wombly,
550 U.S. at 555 (internal citations omitted). “Factual allegations must be enough to raise a right
to relief above the speculative level . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” /d. (internal citations omitted).
In ruling on a Rule 12(b)(6) motion, the court limits its review to the face of the pleadings.
See Spivey v. Robertson, 197 F.3d 772, 774 (Sth Cir. 1999). The pleadings include the complaint
and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99
(5th Cir, 2000), However, the court may also consider documents outside of the pleadings if they

fall within certain limited categories. First, the court can “rely on ‘documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.’” Dorsey v.
Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting Tellabs, Inc. v. Makor Issues
& Rights, Lid., 551 U.S. 308, 322 (2007)). Second, the “court may consider documents attached
to a motion to dismiss that ‘are referred to in the plaintiff's complaint and are central to the
plaintiff's claim.” Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010) (quoting
Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (Sth Cir. 2003)). Third, “[i]n deciding a [Rule]
12(b)(6) motion to dismiss, a court may permissibly refer to matters of public record.” Cinel v.
Connick, 15 F.3d 1338, 1343 n.6 (Sth Cir. 1994) (internal citations omitted).
The ultimate question is whether the complaint states a valid claim when viewed in the
light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312 (Sth Cir. 2002). At the motion to dismiss stage, the court does not evaluate the
plaintiff's likelihood of success. It only determines whether the plaintiff has stated a claim upon
which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977).
Ii. ANALYSIS
Plaintiff brings his sole claim against Defendant under § 1983, alleging Defendant violated
his constitutional rights under the First Amendment. Section 1983 “provides a federal cause of
action for the deprivation, under color of law, of a citizen’s ‘rights, privileges, or immunities
secured by the Constitution and laws’ of the United States.” Livadas v. Bradshaw, 512 U.S. 107,
132 (1994). It “afford[s] redress for violations of federal statutes, as well as of constitutional
norms.” /d. To state a claim under § 1983, a plaintiff must allege facts showing (1) he has been
deprived of a right secured by the Constitution and the laws of the United States; and (2) the
deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155
(1978); Cornish y. Corr. Servs. Corp., 402 F.3d 545, 549 (Sth Cir, 2005).

Defendant moves to dismiss Plaintiff's § 1983 claim, arguing that Plaintiff has failed (1)
to adequately allege an official policy or custom that resulted in a deprivation of his constitutional
rights; and (2) to sufficiently plead a substantive element of a First Amendment retaliation claim.
The Court concludes Plaintiff has failed to adequately allege that Defendant’s actions, through its
duly enacted policies or customs promulgated by its policymakers, were the motivating force
behind any alleged constitutional violations. Alternatively, Plaintiff fails to sufficiently plead that
his social media posts were on a matter of public concern, a substantive element of a First
Amendment retaliation claim.
A, Municipal Liability Under § 1983
A municipal entity, such as an independent school district, cannot be held vicariously liable
under § 1983 for the individual acts ofits employees. 42 U.S.C. § 1983; see Bd. of Cnty. Comm'rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); Doe on Behalf of Doe v. Dallas Indep. Sch.
Dist., 153 F.3d 211, 215 (5th Cir. 1998). “It is only when the ‘execution of the government’s
policy or custom . . . inflicts the injury’ that the municipality may be held liable.” City of Canton
v. Harris, 489 U.S. 378, 385 (1989) (citations omitted). Therefore, to impose § 1983 liability on
the School District, Plaintiff must sufficiently allege “a policymaker; an official policy [or a
custom]; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Piotrowski v. City of Houston, 237 F.3d 567, 578 (Sth Cir. 2001) (quoting Monell v. Dep't of Soc.
Servs. of City of N.Y., 436 U.S. 658, 694 (1978)).
(1) Policymaker
“Under Texas law, the final policy-making authority in an independent school district rests
with the district’s board of trustees.” Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th
Cir. 1995) (citing Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (Sth Cir. 1993)). Plaintiff
alleges that Assistant Superintendent Randall and Superintendent Vroondland were also

Defendant’s policymakers because the Board “delegated the authority of employee termination to”
them. Am. Compl. 7 13. But the Board’s Employment Practices Policy only delegates the final
authority to employ and dismiss at-will employees to the “Superintendent.” ECF No. 20 Ex. A2
Therefore, the Board and Superintendent Vroonland—not Assistant Superintendent Randall—
were the only policymakers capable of promulgating an official policy of Defendant for purposes
of the Court’s § 1983 analysis.
(2) Official Policy
Plaintiff only sued Defendant, an independent school district. Therefore, he must establish
a basis for municipal liability pursuant to § 1983. Section 1983 liability must rest on official
policy, not the policy of an individual officer. Bennett v. City of Slidell, 728 F.2d 762, 769 (Sth
Cir. 1984). For purposes of municipal liability, the Fifth Circuit defines “official policy” as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or
2, A persistent, widespread practice of city 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 municipal policy.
Webster v. City of Houston, 735 F 2d 838, 841 (5th Cir. 1984) (en banc). Plaintiff does not allege
any widespread unconstitutional custom or practice within the School District of depriving
employees of their First Amendment rights. Nor does he allege that any other employees were
deprived of their constitutional rights. Therefore, the Court will determine wether there are factual
allegations that support the first definition of official policy.

* The Court relies on Defendant’s Employment Practices Policy, attached as Exhibit A to the Appendix in Support
of Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss for Failure to State Claims [ECF No. 20],
because that document was incorporated into the Amended Complaint by reference. See Dorsey, 540 F.3d at 338:
see also Am, Compl, { 13.

Plaintiff identifies two possible official policies: a “social media policy” and “the policy to
terminate” him. Am. Compl. §§ 11, 13.
First, Plaintiff alleges he was informed at the August 4, 2020 meeting that he was being
terminated for violating a “social media policy.” /d. 411. But he does not describe the policy or
its relationship to the constitutional violation of which he complains. See Spiller v. City of Texas
City, Police Dep’t, 130 F.3d 162, 167 (Sth Cir. 1997) (“The description of a policy or custom and
its relationship to the underlying constitutional violation... cannot be conclusory; it must contain
specific facts.” (citation omitted)); Piotrowski, 237 F.3d at 580 (“specification of the policies
[being] challenge[d] [cannot be] vague”). Moreover, Plaintiff fails to allege any facts indicating
that the social media policy was Defendant’s official policy. See Bennett, 728 F.2d at 769
(“Liability must rest on official policy, meaning the [municipality]’s policy and not the policy of
an individual official.”). Indeed, Plaintiff admits in his First Amended Complaint that he is unsure
of what the policy actually is. See Am. Compl. { 12 (“Defendant never elaborated . . . what policy
Plaintiff violated.”). Thus, Plaintiff has failed to adequately identify a specific official policy of
Defendant with respect to social media.
Second, Plaintiff claims that “the policy to terminate” him was an official policy of
Defendant that “violat[ed]” his “protected rights” under the First Amendment. /d J 13. A
decision to terminate Plaintiff, if it is officially adopted and promulgated by Defendant’s
policymaker—the Board or Superintendent Vroonland, see supra Section II.A.(1)}—qualifies as
an official policy of Defendant. See Webster, 735 F.2d at 841.
Plaintiff has not pleaded facts identifying who promulgated the decision to terminate him.
Plaintiff merely indicates he “was advised” that he was being terminated at the August 4, 2020
meeting. Am. Compl. § 11. Because Assistant Superintendent Randall and Haddock were the

only other individuals present at the termination meeting, the Court understands Plaintiff’s
allegation to mean that either Assistant Superintendent Randall or Haddock made the termination
decision at the meeting. This understanding is further bolstered by Plaintiff's allegation that the
Board delegated the authority of employee termination to Assistant Superintendent Randall. See
id. § 13. But this allegation still fails to identify an official policy of Defendant. The Board clearly
delegated at-will employee termination authority only to Superintendent Vroonland. See ECF No.
20 Ex. A. Moreover, Plaintiffhas not pleaded facts identifying the author of his termination letter.
See Am. Compl. 11. Plaintiff has failed to allege that either the Board or Superintendent
Vroonland promulgated the decision to terminate Plaintiff. Conclusory allegations that Plaintiff
was “provided a letter” or “was advised” of termination, without more, do not rise above the
speculative level. Therefore, Plaintiff has failed to sufficiently plead facts indicating that the
decision to terminate him was an official policy of Defendant.
Even if the decision to terminate Plaintiff was made by Assistant Superintendent Randall,
as alleged by Plaintiff, Defendant nevertheless could be held liable under a theory of ratification.
Ratification occurs when a policymaker “confirms, adopts, or fails to repudiate the acts” of a non-
policymaking employee. Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 653 (5th Cir. 1994)
(“[Ratification] means the adoption, confirmation or failure to repudiate prior unlawful acts which
were not legally binding at a time when the [defendant] had the right and knowledge of facts
necessary to repudiate such conduct; but which, by ratification or failure to repudiate, become the
acts of the defendant.” (citation omitted)).
Plaintiff alleges that the Boad “ratified the policy to terminate” him. /d. 7 13. But here
too, Plaintiff does not plead facts indicating that Defendant’s policymakers had any role in the
termination decision. Plaintiff does not allege that the Board or Superintendent Vroonland even

§

knew of the termination decision. See Prunty, 16 F.3d at 654 (“[I]t is evident that before one can
ratify an act so that it becomes his own, he must know of the act with which he is charged.”), For
example, Plaintiff does not indicate whether he chose to appeal his termination through the School
District’s three-level grievance process, which culminates with review by the Board. See Def.’s
Reply [ECF No. 21] Ex. B. Had he appealed his termination through all three levels, the Board
would have to make a decision on Plaintiff's termination. See id But Plaintiff does not even
allege that he initiated the appeal process. Thus, Plaintiff has failed to sufficiently plead facts
indicating that Defendant’s policymakers ratified the alleged termination decision of Assistant
Superintendent Randall.
For the foregoing reasons, the Court finds Plaintiff has failed to adequately allege that
Defendant’s actions, through its duly enacted policies or customs promulgated by its policymakers,
were the motivating force behind any alleged constitutional violations.
B. Violation of Constitutional Rights
To state a § 1983 claim against Defendant, Plaintiff must not only establish a basis for
municipal liability, but also the substantive elements of a First Amendment retaliation claim. See
Flagg Bros., Inc., 436 U.S. at 155; Cornish, 402 F.3d at 549. Even if Plaintiff had successfully
established a basis for municipal liability, the Court finds that he has not established a First
Amendment retaliation claim.
“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-
employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a
matter of public concern; (3) his interest in the speech outweighs the government’s interest in the
efficient provision of public services, and (4) the speech precipitated the adverse employment
action.” Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016) (quoting Nixon v. City of Houston,

511 F.3d 494, 497 (Sth Cir. 2007)). Defendant challenges the First Amended Complaint only as to
the second element.
Speech involves a matter of public concern if it can be “fairly considered as relating to any
matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138,
146 (1983); see also Lane v. Franks, 573 U.S. 228, 241 (2014); Branton v. City of Dallas, 272 F.3d
730, 739 (Sth Cir. 2001). A matter of public concern is something that is a subject of legitimate
news interest. Oscar Renda Contracting, Inc. v. City of Lubbock, 463 F.3d 378, 382 (5th Cir. 2006).
Speech relates to a matter of public concern if it contributes to an informed dialogue in a democratic
society or informed opinions on important public issues. Shatkin v. Univ. of Texas at Arlington,
No. 4:06-cv-882-Y, 2009 WL 614788, at *4 (N.D. Tex. Mar. 10, 2009) (citing City of San Diego
v. Roe, 543 U.S. 77, 82-83 (2004)). The Court must consider the “content, form, and context of a
given statement, as revealed by the whole record.” Teague v. City of Flower Mound, 179 F.3d 377,
380 (5th Cir. 1999).
Plaintiff asserts that his three social media posts were “political posts” that “dealt with
race.” Am. Compl. { 8. He claims that these posts “centered on racial tensions” and “matters of
public concern,” and were made during an “extraordinary” time when “[s]ocial and racial unrest in
the United States during the summer of 2020 triggered protests and riots across the country.” /d.
498, 18.
While the Court must accept well-pleaded facts as true, Sonnier, 509 F.3d at 675, the Court
does not accept as true “conclusory allegations, unwarranted factual inferences, or legal
conclusions,” Ferrer, 484 F.3d at 780 (citation omitted). The Court does not accept Plaintiff’s
conclusion that the social media posts were on matters of public concern, because whether a
statement addresses a matter of public concern is a question of law that must be resolved by the

10

Court. See Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005). Moreover, because
Plaintiff has not alleged the content of his social media posts, he offers no specific factual
allegations beyond mere “labels and conclusions.” Zwombly, 550 U.S. at 555 (internal citations
omitted). Notably, while Plaintiff's entire claim revolves around these posts, he has failed to
describe or include their contents in the record—even after having an opportunity to amend his
complaint—beyond mere conclusory statements.
While the Fifth Circuit has found that the topic of racial discrimination may be a matter of
public concern, see Charles v. Grief, 522 F.3d 508, 514 (Sth Cir. 2008); Vietor v. McElveen, 150
F.3d 451, 456 (Sth Cir. 1998), there are no facts here that, if accepted as true, would determine
whether Plaintiff's speech concerned racial discrimination. Mere assertions that speech “dealt with
race” or “centered on racial tensions” are insufficient. The Court finds Plaintiff’s allegations that
his social media posts related to a matter of public concern do not rise above the speculative level.
He has thereore failed to sufficiently plead a substantive element of a First Amendment retaliation
claim.

1]

IV. CONCLUSION
Accepting well-pleaded facts as true and viewing them in the light most favorable to
Plaintiff, the Court GRANTS Defendant’s Motion to Dismiss Plaintiffs First Amended
Complaint and Brief. Despite having an opportunity to amend his complaint once, the Court
GRANTS Plaintiff leave to file a second amended complaint by October 11, 2021. If an amended
complaint is not filed within such time, this action will be dismissed with prejudice.
SO ORDERED.
SIGNED September 19, 2021.

KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10450647. Public record. Not legal advice.