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Cooper v. Benavides

United States District Court, E.D. Texas, Sherman Division

November 2, 2017

NANETTE COOPER
v.
LEWIS BENAVIDES, ET AL.

          Nowak, Judge.

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

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the 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 July 3, 2017, the report of the Magistrate Judge (Dkt. #35) was entered containing proposed findings of fact and recommendations that Defendants' Motion to Dismiss (Dkt. #27) seeking dismissal of Plaintiff Nanette Cooper's Second Amended Complaint be granted in part and denied in part. Having received the report and recommendation of the Magistrate Judge (Dkt. #35), having considered each of Defendants' timely filed objections (Dkt. #40), Cooper's response thereto (Dkt. #46), each of Cooper's timely filed objections (Dkt. #41), and Defendants' response thereto (Dkt. #44), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report (Dkt. #35) should be adopted in part as set forth below.

         BACKGROUND

         On November 9, 2016, Plaintiff Nanette Cooper initiated this lawsuit against Texas Woman's University ("TWU"), Lewis Benavides, Bob Mabry, Dr. Abigail Tilton, and Dr. Carine M. Feyten (Dkt. #1). After amending her complaint, Cooper dropped her claims against TWU (Dkt. #26 at 1). Cooper's Second Amended Complaint raises claims against Benavides, Mabry, Tilton, and Feyten (collectively "Defendants") in both their individual and official capacities on behalf of TWU.

         Defendant Feyten is the President and Chancellor of TWU. Defendants Benavides, Mabry, and Tilton are TWU administrators. Cooper was employed by TWU in various roles within the biology department over the span of seventeen years (Dkt. #26 at 2-3). For the Fall 2016 semester, Cooper was appointed as an Adjunct Faculty member (Dkt. #26 at 3). Cooper's appointment letter read that the "position is a part-time temporary, non-tenure-track position, and this offer of appointment is not an offer of future employment, explicit or implied, beyond the Fall 2016 Semester" (Dkt. #27-1). Additionally, the appointment was expressly "subject to change depending on the needs" of TWU's biology department (Dkt. #27-1). In Fall 2016, Cooper started teaching in the biology department. As a TWU Faculty Member, Cooper was bound by the terms of the TWU Policy Manual. The Manual stated that "[n]othing in these guidelines limits 'at will' employment in Texas and at Texas Woman's University or existing non-renewal policies" (Dkt. #28-4 at 4). Further, as stated in its Operating Policy and Procedure, TWU is an at-will employer "for all employees except tenured faculty, tenure-track faculty, or any employee on a valid TWU written contract during the period of the contract" (Dkt. #28-5).

         On October 13, 2016, Cooper received an email from TWU's Human Resources Department directing her to meet with Defendants Mabry and Benavides to discuss "an important matter." In the meeting, Defendants Mabry and Benavides confronted Cooper with allegations that she had secretively recorded confidential meetings with faculty members. Cooper denies these allegations. Even though she disputed the accusations, Cooper was escorted from the TWU campus and was suspended with pay while TWU investigated the matter. While suspended, Cooper was prohibited from teaching at TWU or communicating with anyone from TWU. Cooper claims Defendants Mabry and Benavides warned her that communications with anyone at TWU about their meeting would constitute grounds for immediate termination (Dkt. #26 at 3).

         On October 20, 2016, Defendants Benavides and Mabry, acting on behalf of Defendants Tilton and TWU, terminated Cooper's employment for alleged "multiple instances of unsatisfactory job performance and unsatisfactory conduct" (Dkts. #27-2; 28-3). Cooper alleges that she was never informed of the "reasoning behind her termination" (Dkt. #26 at 3). Cooper alleges that she requested, but did not receive a pre-termination hearing or an adequate opportunity to respond to the allegations (Dkt. #26 at 4). In its termination letter to Cooper, TWU scheduled to review its findings with Cooper on October 20, 2016, at 11:00 a.m., but Cooper canceled the meeting at 7:17 a.m. that same morning. The termination letter further states that TWU's attempts to re-schedule the meeting were unsuccessful (Dkt. #27-2). Following the October 13, 2016 meeting, Defendants allegedly disclosed to others that Cooper's employment was terminated because she recorded confidential conversations with other faculty members, resulting in damage to Cooper's reputation as a trustworthy employee. Cooper asserts she was contacted by a former TWU administrative assistant who stated "she heard what had happened, " and that rumors had spread among the student body that Cooper had recorded confidential conversations (Dkt. #26 at 4).

         After Cooper was terminated, Defendants left voicemails on Cooper's office telephone informing Cooper that she could retrieve her personal belongings. This proved problematic as Cooper no longer had access to the TWU campus or her office telephone. As such, Cooper alleges Defendants failed to afford her any reasonable opportunity to retrieve her belongings from TWU.[1]After this, Cooper's personal property was allegedly used at public events (i.e., a Christmas party), thrown away, and/or freely given to others without her approval (Dkt. #26 at 5).

         Cooper's original complaint sought damages and injunctive relief, alleging her employment at TWU was terminated in violation of Cooper's procedural and substantive due process rights, and that her personal property was intentionally taken and converted to public use without her consent and without payment of any compensation (Dkt. #1). Cooper's original complaint also raised breach of contract and conversion claims (Dkt. #1). On December 12, 2016, Cooper filed an amended complaint (Dkt. #2). On January 13, 2017, the Court ordered Cooper to serve her amended complaint by February 7, 2017, or face dismissal for failure to prosecute (Dkt. #3). Cooper served the complaint on all Defendants by January 24, 2017 (Dkts. # 8-11). Defendants filed an amended motion to dismiss on February 14, 2017 (Dkt. #15). The Court granted Cooper leave to file a Second Amended Complaint by April 26, 2017 (Dkt. #24). Cooper timely filed her Second Amended Complaint (the live complaint), asserting: (1) procedural due process claims against Defendants in their official capacities; (2) procedural due process claims against Defendant in their individual capacities; (3) substantive due process claims against Defendants in their individual capacities; and (4) a takings claim (Dkt. #26). In her Second Amended Complaint, Cooper alleges she had a property interest in her employment at TWU, which she was deprived of without a hearing. Further, Cooper asserts that she has a liberty interest in her reputation as a trustworthy employee, which was taken without due process when Defendants falsely accused her of recording confidential conversations, disclosed those allegations to the public, and failed to afford her a name-clearing hearing (Dkt. #26 at 7). Additionally, Cooper alleges Defendants' intentional exercise of control over her personal property without her consent or permission, and their denial of any reasonable opportunity to retrieve her property, constitutes a taking (Dkt. #26 at 9). Cooper seeks monetary damages for lost wages, loss of earning capacity, damages to her professional and personal career, the value of her personal property, and emotional distress damages, as well as injunctive relief in the form of a full due process hearing, a hearing to clear her name, reinstatement to teaching, and return of her personal property, and an award of fees, costs, and interest (Dkt. #26).

         On May 10, 2017, Defendants, filed their Motion to Dismiss (Dkt. #27). Cooper filed a Response on May 23, 2017 (Dkt. #28), and Defendants filed a Reply on May 30, 2017 (Dkt. #31). On July 3, 2017, the Magistrate Judge entered a report and recommendation (Dkt. #35) recommending that Defendants' Motion to Dismiss be granted in part and denied in part. Cooper and Defendants each filed objections to the report on July 31, 2017 (Dkts. #40, 41). Defendants filed a response to Cooper's objections on August 14, 2017 (Dkt. #44), and Cooper filed a response to Defendants' objections on August 15, 2017 (Dkt. #46).

         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). In the present case, both Cooper and Defendants have filed objections to the Magistrate Judge's report (Dkts. #40-41). The Magistrate Judge found "with regard to the disposition of Cooper's due process claims, [as follows]: (1)(a) sovereign immunity bars Cooper's procedural due process claims against Defendants in their official capacities for violation of her alleged property interest in continued employment with TWU; (b) Cooper's procedural and substantive due process claims against Defendants in their individual capacities for violation of her alleged property interest in continued employment with TWU should be dismissed; (2)(a) Cooper's procedural due process claims against Defendants in both their individual and official capacities for violation of her alleged liberty interest should survive the Motion to Dismiss; and (b) Cooper's substantive due process claims against Defendants in their individual capacities for violation of her alleged liberty interest in failing to provide a name-clearing hearing should be dismissed" (Dkt. #35 at 21-22). Regarding Cooper's taking claim, the Magistrate Judge found: (1) that Cooper's claim is not moot and her alleged injuries are "fairly traceable" to Defendants' acts and/or omissions (Dkt. #35 at 23); (2) that Cooper's allegations that "Defendants knew the property belonged to Cooper, they did not return it, and they used it for a public purpose" adequately stated a claim for relief at this stage in the proceedings (Dkt. #35 at 24); and (3) Defendants were not entitled to qualified immunity because as alleged, their conduct violated "clearly established statutory or constitutional law of which a reasonable person would have known" (Dkt. #35 at 25). In making these recommendations, the Magistrate Judge considered documents outside of the Second Amended Complaint. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (A court may consider documents attached to a motion to dismiss if they are referred to in the Cooper's complaint and are central to the Cooper's claim). Specifically, the Magistrate Judge found that:

neither Party objects to the Court's considering the appointment letter [Dkts. 27-1; 28-2], the termination letter [Dkts. 27-2; 28-3], and the TWU policies [Dkt. 28-4] at [the Motion to Dismiss stage], and the Court finds these documents are central to (and mentioned in) the Second Amended Complaint [see Dkt. 26]. Accordingly, the Court considers these documents in determining whether Plaintiffs claims should survive the 12(b)(6) Motion to Dismiss. Defendants also have submitted an affidavit and letters dated after this lawsuit was filed stating TWU returned or attempted to return all of Plaintiff s personal property [Dkt. 27-3; 27-4; 27-5]. In response, Plaintiff has submitted her own affidavit contradicting Defendants' evidence [Dkt. 28-1]. The Parties' affidavits and the post-filing letters are not referenced in Plaintiffs Second Amended Complaint and are not properly before the Court for purposes of Defendants' Rule 12(b)(6) motion. The Court may consider these documents for purposes of its jurisdictional analyses, however, and does so where necessary.

(Dkt. #35 at 8, n.2). There is no objection to the documents considered by the Magistrate Judge and/or the manner in which they were considered; accordingly, the Court similarly ...


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