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Avalos v. Dallas Independent School Dist.
October 1, 1998
Unpublished Opinion

Avalos v. Dallas Independent School Dist.

United States District Court, N.D. Texas.

Martin AVALOS, Plaintiff,



No. Civ.A. 3:98–CV–1337–.


Oct. 1, 1998.



*1 In this removed action, defendants Dallas Independent School District (“DISD”) and Graciela Escobedo (“Escobedo”) move to dismiss plaintiff’s 42 U.S.C. § 1983 claim pursuant to Fed.R.Civ.P. 12(b)(6). The court grants the motion and remands the balance of the case to county court.


DISD employed plaintiff Martin Avalos (“Avalos”) beginning in July 1982. During his employment, Avalos sustained an injury while removing a fence post. Avalos filed a compensation claim under the Texas Workers’ Compensation Act (“TWCA”). According to Avalos,1 DISD terminated his employment and failed to advise him of his rights to certain grievance procedures. He brings a § 1983 claim, contending that DISD denied him his due process rights. Avalos also asserts that Escobedo is liable under § 1983 in her capacity as DISD Executive Manager of Personnel Services.

Avalos originally sued defendants in county court, alleging that DISD had retaliated against him for filing a TWCA claim. Defendants removed the case based on this court’s federal question jurisdiction after Avalos amended his petition to allege that “the employer violated the due process clause of the United States Constitution by refusing to re-employ him or provide him an automatic hearing on his wrongful termination.” Am. Pet. at § IV. Defendants moved to dismiss, asserting that as an at-will employee, Avalos could not establish that he had a property right in his employment that would entitle him to due process. In its July 14, 1998 order, the court granted defendants’ motion in part and granted Avalos a period of 30 days to file an amended complaint that alleged the requisite property right.2 The court noted that it would dismiss the § 1983 claim and remand the balance of the case to county court if Avalos amended but failed to allege a property right. Avalos has amended his petition, and defendants now move to dismiss for failure to state a claim.


At the time of his termination, Avalos was a public employee. Accordingly, he enjoyed the Fourteenth Amendment’s procedural due process protections only if he had a sufficient property interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 576–77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Property interests are not created by the Constitution; they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law. Id. at 577. The sufficiency of the claim to a property interest in employment, whether created by statute, contract, or implied contract, must be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). The court therefore looks to Texas law to see whether the employee in question–in this case a DISD employee–possessed a legitimate claim of entitlement to his job, and examines existing rules or understandings that stem from state law. See Roth, 408 U.S. at 577; Batterton v. Texas Gen. Land Office, 783 F.2d 1220, 1222 (5th Cir.1986). Because Texas follows the “employment at will” doctrine, to establish a constitutionally protected property interest, Avalos must show that he had an employment contract limiting DISD’s right to terminate his employment at will. Schultea v. Wood, 27 F.3d 1112, 1116 (5th Cir.1994), on reh’g on other grounds, 47 F.3d 1427 (1995) (en banc).

*2 Avalos has failed to allege a property interest in his former position with DISD. Neither his second amended petition nor his dismissal response refers to any evidence of a contract for the position or any language that indicates that he could be demoted or discharged only for cause. In support of his § 1983 claim, Avalos asserts that he has a property interest in his position because he was employed for 14 years with DISD. This is insufficient. Merely being employed for 14 years does not create a property interest in a job. Juarez v. City of Laredo, 1985 WL 6004, at *3 (S.D.Tex. Oct. 11, 1985); see Snell v. Hidalgo County Water Improvement Dist. No. 2, 507 F.Supp. 834, 837 (S.D.Tex.1981). Continual employment at DISD gave Avalos no more than a subjective expectation of continued employment, which is insufficient to create a constitutionally protected property interest necessary to invoke the Fourteenth Amendment’s procedural due process provisions. Wells v. Doland, 711 F.2d 670, 675 (5th Cir.1983).

Avalos also asserts that he has a property interest in his position because Texas law has established administrative procedures for him to seek relief for any deprivation of employment opportunities. In support of his position, Avalos cites Tex. Educ.Code Ann. § 7.001 et seq. The court has been unable to locate any provision in Chapter 7 of the Texas Education Code that would allow Avalos to employ such procedures. There is only one section in Chapter 7 that establishes administrative procedures for appealing an adverse employment determination. See Tex. Educ.Code Ann. § 7.057 (West 1996). This section applies, however, only if the decision violates either a Texas school law or a provision of the employee’s written employment contract. See id. § 7.057(a)(2). Avalos has not alleged that the decision to terminate his employment violated a Texas school law or a provision of his employment contract. He has failed to identify in his amended petition any basis on which the court could conclude that he had a written employment contract with DISD. Therefore, the court holds that § 7.057 could not create a property interest in Avalos’ job because it is inapposite. Even if § 7.057 did apply, it still would not create a property interest in his position because the section merely provides procedures for solving complaints and does not create a right in any employee to his job. Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 254 (5th Cir.1984).

Accordingly, the court dismisses Avalos’ § 1983 claim against the defendants for violation of his due process rights.


In a removed case, when the federal question claim that provided the basis for removal has dropped out of the lawsuit, the court has discretion to remand pendent state-law claims. Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Pyle v. Beverly Enters.-Tex., Inc.,



When passing on a Rule 12(b)(6) motion, the court is to test the sufficiency of the factual allegations of the complaint. See, e.g., Pin v. Texaco, Inc., 793 F.2d 1448, 1450 n. 4 (5th Cir.1986). The court must accept as true the allegations of plaintiff’s complaint and view them in the light most favorable to him for purposes of deciding the motion to dismiss. Royal Bank of Canada v.. FDIC, 733 F.Supp. 1091, 1094 (N.D.Tex.1990) (Fitzwater, J.).


The court also noted that Avalos’ TWCA retaliation claim was not removable. Id. at 2.