Washington v. Isd

BENNIE P. WASHINGTON v. PLANO ISD, STEVE NEIL, ATPE-LAW FIRM, JEFFERSON BRIMM, RICHARD ARNETT

Civil Action No. 4:16-CV-799

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

March 27, 2018

(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING IN PART AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Came on for consideration the amended report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On February 7, 2018, the amended report of the Magistrate Judge (Dkt. #89) was entered containing proposed findings of fact and recommendations that Defendants' Motions to Dismiss (Dkt. #39; Dkt. #40; Dkt. #41; Dkt. #62; Dkt. #66; Dkt. #68) be granted in part and denied in part. Having received the report and recommendation of the Magistrate Judge, having considered Plaintiff's objections (Dkt. #97), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts in part the Magistrate Judge's amended report (Dkt. #89) as the findings and conclusions of the Court.

RELEVANT BACKGROUND

Plaintiff Bennie P. Washington has filed claims related to her employment with Plano Independent School District ("Plano ISD") in two lawsuits: (1) Washington v. Plano ISD, No. 4:15-CV-789, 2017 WL 73953, at *1 (E.D. Tex. Jan. 9, 2017) (the "First Lawsuit"), previously dismissed with prejudice by this Court; and (2) Case No 4:16-CV-799, the above-captioned action (the "Current Lawsuit") (Dkt. #51 at p. 1).¹

Plaintiff contends that in December 2011, she was hired as a bus driver for Plano ISD (Dkt. #3 at p. 54; Dkt. #38 at p. 24). As an employee of Plano ISD, Plaintiff was eligible to join the Association of Texas Professional Educators ("ATPE"), and to receive legal services through the ATPE Member Legal Services Department (Dkt. #38 at p. 25). During Plaintiff's employment with Plano ISD, Defendant Steve Neill allegedly printed incorrect routes and discriminated against Plaintiff in giving out work assignments (Dkt. #51 at p. 2). Plaintiff thereafter sought legal representation through ATPE for such treatment.

On or before January 23, 2013, Defendant Richard Arnett ("Arnett") began his legal representation of Plaintiff (Dkt. #38 at p. 18). On January 30, 2013, Plaintiff notified Defendant ATPE that she was dissatisfied with Arnett's representation (Dkt. #38 at p. 27). ATPE contacted Defendant Jefferson Brimm ("Brimm"), who explained that Arnett's firm was unwilling to initiate a lawsuit for Plaintiff (Dkt. #38 at p. 27). Plaintiff's representation was then transferred to Defendant Brimm in May 2014 (Dkt. #38 at pp. 13, 29). On July 31, 2014, Plaintiff contacted Defendant ATPE again and complained about Defendants Arnett and Brimm's representation. Defendant ATPE sent Plaintiff the list of attorneys approved to represent members of ATPE through its program (Dkt. #38 at p. 29). On August 18, 2014, Plaintiff advised Plano ISD that Defendants Arnett and Brimm no longer represented her (Dkt. #3 at p. 15).

On August 11, 2015, Plaintiff filed her first charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), wherein she alleged that she was "subjected to mistreatment, in that numerous times Andrew Forrester, Area Director, and K.D. Fain, Dispatcher, [were] disrespectful towards [Plaintiff]," that "[Plaintiff] was cursed out by Gary Tanner, Bus Driver, and subjected to rude behavior by Patti Kelly," and that "[Plaintiff] reported this treatment to the school board to no avail." (Dkt. #3 at p. 52).

On October 12, 2015, Plaintiff met with Plano ISD to discuss settlement of her claims in the First Lawsuit for Plano ISD's alleged violations of state and federal law (Dkt. #38 at p. 21). Plaintiff resigned from her position at Plano ISD two weeks later; her resignation letter demanded $10 million for pain and suffering (Dkt. #38 at p. 20; Dkt. #39, Exhibit 2 at p. 2). Plaintiff also alleged that she never received her final paycheck (Dkt. #38 at pp. 20, 22-23; Dkt. #39, Exhibit 2 at p. 2). On November 3, 2015, Plano ISD rejected Plaintiff's settlement demand (Dkt. #38 at p. 21). On that same date, Plaintiff filed the First Lawsuit against Plano ISD, Assistant Superintendent Kary Cooper, and Plano ISD Board of Trustees, alleging claims for "breach of code of conduct, disrespectfulness, Civil Rights and Discrimination, breach of contract, and the hiding of a previous litigation case." (Dkt. #39, Exhibit 2 at p. 2). On January 9, 2017, Plaintiff's claims in the First Lawsuit were dismissed with prejudice. Washington, 2017 WL 73953, at *3.

The Current Lawsuit

On July 21, 2016, Plaintiff filed a second EEOC Charge and alleged that:

Mr. Steve Neill, denied [Plaintiff] compensation by discriminatory route assignments. On June 26 2014, my attorney Richard (Rick) Arnett, cursed my [sic] out and quit my case, and also breach[ed] the legal representation contract and turned the discrimination case into a wage case. Between Jefferson (Jay) Brimm and Richard (Rick) Arnett, tried to switch positions as attorneys. . . without my authorization.

(Dkt. #3 at p. 2). On July 21, 2016, a right to sue letter was issued, stating Plaintiff's claim was time-barred (Dkt. #3 at p. 5). Plaintiff thereafter filed the Current Lawsuit on October 17, 2016, alleging claims for "breach of code of conduct, hiding of a previous litigation case, and civil rights and discrimination." (Dkt. #3 at p. 1). On May 3, 2017, Defendant ATPE filed a Motion to Dismiss Plaintiff's claims (Dkt. #23). On June 2, 2017, Plaintiff filed her Amended Complaint (Dkt. #38). Defendants again moved to dismiss (Dkt. #39; Dkt. #40; Dkt. #41). On July 7, 2017, Plaintiff filed her Second Amended Complaint (Dkt. #51). Defendants then further moved to dismiss the Second Amended Complaint (Dkt. #62; Dkt. #66; Dkt. #68). On August 25, 2017, Plaintiff filed a response (Dkt. #70), and on October 2, 2017, Plaintiff filed an additional response (Dkt. #73).

On February 7, 2017, the Magistrate Judge entered an Amended Report and Recommendation, recommending dismissal of the entirety of Plaintiff's claims solely under Rule 12(b)(6) for failure to state a claim for relief (Dkt. #89). On March 15, 2018, Plaintiff moved for an extension of time to file her objections to the amended report (Dkt. #95); the Court granted Plaintiff an extension until March 23, 2018 to file her objections (Dkt. #96). On March 23, 2018, Plaintiff filed her "Response to Amended Report and Recommendation of United States Magistrate Judge" (Dkt. #97), which the Court construes as her objections.

PLAINTIFF'S OBJECTIONS

A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3).

Plaintiff's objections generally re-urge and rehash her grievances against Defendants ATPE, Brimm, Arnett, Neill, and Plano ISD. Plaintiff does not specifically object to any of the Magistrate Judge's individual findings. Under Federal Rule of Civil Procedure 72, an objectionto a magistrate judge's report and recommendation must be specific to the proposed findings and recommendations. Only objections that are sufficiently specific to focus the district court's attention on the factual and legal issues in dispute should be considered. Notwithstanding that Plaintiff fails to assert any specific objections, the Court addresses Plaintiff's allegations regarding each Defendant raised in Plaintiff's objections: ATPE, Brimm, Arnett, Neill, and Plano ISD.

Defendants ATPE, Brimm, and Arnett

Regarding her claims against Defendant ATPE, Plaintiff states that she

is asking that [her] case not be dismissed by [ATPE] [due] to having [Brimm and Arnett] been (sic) employed by they (sic) union at the time of representing [Plaintiff]. . . and [Brimm] lying about not been employed with ATPE at the time and in ATPE contract if the[y] don't represent you the[y] give you money to go get a[n] outside attorney.

(Dkt. #97 at p. 1). Plaintiff further avers that her claims against Arnett and Brimm should not be dismissed because "Arnett was [her] attorney[,] not [Brimm]. Brim[m] only went to meetings with [her] when Mr. Arnett was out of town." (Dkt. #97 at p. 1).

These are the same facts raised by Plaintiff before the Magistrate Judge (Dkt. #3 at p. 1; Dkt. #38 at p. 3; Dkt. #51 at p. 2; Dkt. #89 at pp. 5-6). In considering Plaintiff's potential civil rights claims against ATPE, Brimm, and Arnett, the amended report found:

Plaintiff has failed to properly allege, much less support with facts, that any of Defendants ATPE, Brimm and/or Arnett were state actors, and therefore, are liable under § 1983. . . . Plaintiff has failed to allege that Defendants Brimm and/or Arnett were state actors or engaged in state action in refusing to provide her legal representation; instead, by identifying them as private attorneys, she has established the opposite. . . . Additionally, ATPE cannot be held liable for Brimm and Arnett's alleged violations of § 1983 under any theory based on respondeat superior.

(Dkt. #89 at p. 13). The amended report also addressed any potential Title VII claims against these Defendants, noting that because Defendants "ATPE, Brimm, and/or Arnett never employed Plaintiff, she cannot pursue a Title VII action against these defendants." (Dkt. #89 at p. 15).

Plaintiff's objections related to ATPE, Brimm, and Arnett do not address, much less establish that: (1) any of these Defendants are state actors, subject to liability under § 1983; or (2) any of these Defendants employed Plaintiff, thereby subjecting them to liability under Title VII. Moreover, the amended report also found that Plaintiff's § 1983 and Title VII claims against Defendants ATPE, Brimm, and Arnett would be...