United States District Court, E.D. Texas, Sherman Division
BENNIE P. WASHINGTON
PLANO ISD, STEVE NEIL, ATPE-LAW FIRM, JEFFERSON BRIMM, RICHARD ARNETT
MEMORANDUM ADOPTING IN PART AMENDED REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. MAZZANT, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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).
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.
21, 2016, Plaintiff filed a second EEOC Charge and alleged
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
(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).
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