Hinojosa Motion

Case 3:06-cv-02325-O Document 86 Filed 12/08/2008 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GRACIELA SERNA MCKAY, §

§
Plaintiff, §
§
v. § CIVIL ACTION NO. 3:06-CV2325-L
§ ECF
DALLAS INDEPENDENT SCHOOL §
DISTRICT, et al., §
§
Defendants. §
DEFENDANT DR. MICHAEL HINOJOSA’S BRIEF IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT
GODWINRONQUILLO PC
MARCOS G. RONQUILLO (attorney in charge)
State Bar No. 17226000
JOSE L. GONZALEZ
KATHRYN E. LONG
RAMONA SOTO
mronquillo@godwinronquillo.com
jgonzalez@godwinronquillo.com
klong@godwinronquillo.com
rsoto@godwinronquillo.com
1201 Elm Street, Suite 1700

Dallas, Texas 75270-2084
(214) 939-4400 (Telephone)
(214) 760-7332 (Telecopier)
ATTORNEYS FOR DEFENDANTS

TABLE OF CONTENTS
I. Summary of the Argument .............................................................................................. 1

II. Summary Judgment Standard.......................................................................................... 3
III. Summary Judgment is Proper on McKay’s Breach of Contract Claim ............................. 4
A. McKay’s breach of contract allegations against Hinojosa. ................................... 4
B. Texas law regarding McKay’s breach of contract claim. ...................................... 4
C. As a non-party to the Contract, Hinojosa is not liable as a matter of law. ............. 5
IV. Summary Judgment is Proper on McKay’s Due Process Liberty Claim. .......................... 6
A. McKay’s due process liberty interest claim fails as a matter of law...................... 6
B. McKay’s allegations of violations of her due process liberty interests.................. 7
C. Legal standard for violations of due process liberty interest in a name-clearing
hearing. ............................................................................................................... 8
D. McKay has no evidence to sustain her claim for violations of her due process
liberty interests. ................................................................................................. 10
1) McKay has no evidence that Hinojosa made false, public, stigmatizing
charges against her in connection with her contract non-renewal. ........... 10
2) Hinojosa presents competent summary judgment evidence that he did not
make any false, stigmatizing charges against McKay. ............................ 14
3) McKay had sufficient notice of the charges against her. ......................... 18
4) Hinojosa did not deny McKay a name-clearing hearing.......................... 19
5) McKay voluntarily abandoned the process to obtain a name-clearing
hearing................................................................................................... 21
V. Declaratory Action and Injunctive Relief ...................................................................... 23
A. McKay’s declaratory judgment action is improper............................................. 23
B. Injunctive Relief................................................................................................ 24
C. Declaratory action or injunctive relief against Hinojosa relating to alleged
Title VI violations is improper as a matter of law............................................... 25
i
TABLE OF AUTHORITIES
CASES
Bd. of Regents for State Coll. v. Roth,

408 U.S. 564 (1972)........................................................................................................... 8-9
Blackburn v. City of Marshall,

42 F.3d 925 (5th Cir. 1995).................................................................................... 8-9, 13, 17
Bledsoe v. City of Horn Lake,

449 F.3d 650 (5th Cir. 2006).............................................................................................. 8-9
Boy Scouts of Am. v. Responsive Terminal Sys., Inc.,

790 S.W.2d 738 (Tex. App.—Dallas, 1990, writ granted) ..................................................... 5
Burnley v. Thompson,
524 F.2d 1233 (5th Cir. 1975)............................................................................................... 9
Cabrol v. Town of Youngsville,

106 F.3d 101 (5th Cir. 1997)................................................................................................. 8
Celotex v. Catrett,
477 U.S. 317 (1986).............................................................................................................. 3
Connelly v. Comptroller of the Currency,

876 F.2d 1209 (5th Cir. 1989)......................................................................................... 9, 17
Dennis v. S&S Consol. Rural High Sch. Dist.,

577 F.2d 338 (5th Cir. 1978)........................................................................................... 9, 18
Doe v. Dallas Indep. Sch. Dist.,

153 F.3d 211 (5th Cir. 1998)................................................................................................. 3
Employers’ Liab. Assur. Corp. v. Mitchell,

211 F.2d 441 (5th Cir. 1954)............................................................................................... 23
Formosa Plastics Corp. v. Presidio Eng’rs & Contrs.,

960 S.W.2d 41 (Tex. 1998)................................................................................................... 5
Huffstutler v. Bergland,
607 F.2d 1090 (5th Cir. 1979)......................................................................................... 9, 17
Hughes v. City of Garland,

204 F.3d 223 (5th Cir. 2000)...................................................................................... 8, 13-14
Humana Ins. Co. v. LeBlanc,

No. 07-532, 2007 WL 3237094 (M.D.La Oct. 31, 2007) (slip opinion) ............................... 23
i
Interstate Contr. Corp. v. City of Dallas,

135 S.W.3d 605 (Tex. 2004) ................................................................................................. 5
Kamal v. Hopmayor,
No. 05-CIV-8164 (CLB), 2006 U.S. Dist. LEXIS 80934 (S.D.N.Y. Nov. 2, 2006).............. 24
Kaprelian v. Tex. Woman’s Univ.,

509 F.2d 133 (5th Cir. 1975)................................................................................................. 9
Lashbrook v. Oerkfitz,
65 F.3d 1339 (7th Cir. 1995)................................................................................................. 9
Moore v. Miss. Valley State Univ.,

871 F.2d 545 (5th Cir. 1989)............................................................................................... 13
Nat’l Util. Serv., Inc. v. Xanser Corp.,

No. 3:03-CV-0878-P, 2003 U.S. Dist. LEXIS 21758 (N.D. Tex. Dec. 1, 2003)................... 23
Perez v. Hous. Auth. of Uvalde,

95 F. App’x 51 (5th Cir. 2004)............................................................................................ 22
Phillips v. Director,
No. 9:07-CV-111, 2007 WL 2688476 (E.D. Tex. Sept. 10, 2007) ....................................... 23
Robertson v. Rogers,
679 F.2d 1090 (4th Cir. 1982)............................................................................................... 9
Santamaria v. Dallas Indep. Sch. Dist.,

No. 3:06-CV-692-L, 2006 U.S. Dist. LEXIS 83417 (N.D. Tex. Nov. 16, 2006) .................. 24
In re Selcraig,
705 F.2d 789 (5th Cir. 1983)............................................................................................... 13
Smith Int’l Inc. v. Eagle Group,

490 F.3d 380 (5th Cir. 2007)................................................................................................. 4
Venator Group Speciality Ins. v. Matthew/Muniot Family,

322 F.3d 835 (5th Cir. 2003)............................................................................................... 23
Wells v. Hico Indep. Sch. Dist.,

736 F.2d 243 (5th Cir. 1984)........................................................................................ 8-9, 13
Wheeler v. Miller,
168 F.3d 241 (5th Cir. 1999)................................................................................................. 8
Whiting v. Univ. of S. Miss.,

451 F.3d 339 (5th Cir. 2006)........................................................................................... 8, 13
ii
Wis. v. Constantineau,
400 U.S. 433 (1971).............................................................................................................. 9
Wolf v. Summers-Wood,
214 S.W.3d 783 (Tex. App.—Dallas 2007, no pet.) .............................................................. 5
STATUTES, RULES & REGULATIONS
42 U.S.C. § 1981 ...................................................................................................................... 22
42 U.S.C. § 1983 .................................................................................................................. 1, 22
42 U.S.C. § 1985 .................................................................................................................. 1, 22
42 U.S.C. § 2000(d), et seq....................................................................................................... 24
34 C.F.R. § 100.7(e) ................................................................................................................. 24
FED. R. CIV. P. 12(b)(6) .............................................................................................................. 1
FED. R. CIV. P. 56(c) ................................................................................................................... 3
FED R. CIV. P. 56(e).................................................................................................................... 3
iii
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Dr. Michael Hinojosa (“Hinojosa” or “Defendant”), Superintendent of the
Dallas Independent School District (“DISD”) files this Brief in Support of Motion for Summary
Judgment (“Hinojosa’s Brief”) concurrently with Defendant Dr. Michael Hinojosa’s Motion for
Summary Judgment (“Hinojosa’s Motion”), which Hinojosa incorporates herein by reference.
I. SUMMARY OF THE ARGUMENT
Plaintiff Graciela McKay (“McKay” or “Plaintiff”) asserts claims against Hinojosa only
in his individual capacity for: (1) breach of contract; (2) violations of her Fourteenth Amendment
due process liberty interest in a name-clearing hearing pursuant to 42 U.S.C. § 1983; and (3)
declaratory action and injunctive relief. See Pl.’s First Am. Compl. (“Complaint” or “Compl.”),
Dkt. Entry No. 20.1 Hinojosa seeks summary judgment on all of McKay’s claims.
Summary judgment is proper on McKay’s breach of contract claim because Hinojosa was
not party to McKay’s probationary employment contract with the DISD (the “Contract”). As a
nonparty to the Contract, Hinojosa is not liable on McKay’s breach of contract cause of action.
Summary judgment is proper on McKay’s claim against Hinojosa for violations of her
Fourteenth Amendment due process liberty interest in a name-clearing hearing because McKay
cannot establish essential elements or facts to support this claim. More specifically, McKay
1
On March 12, 2007, DISD, the DISD Board, Parker, and Hinojosa (collectively “Defendants”) filed a Rule
12(b)(6) Motion to Dismiss. See Dkt. Entry No. 15. On September 6, 2007, the Court issued a Memorandum
Opinion and Order that granted in part and denied in part Defendants’ Motion to Dismiss. See Mem. Op., Dkt.
Entry No. 31. In the Order, the Court dismissed with prejudice McKay’s claims against Defendants, including
Hinojosa, for: (1) restriction of freedom of assembly in violation of the First Amendment (Mem. Op., Dkt. Entry No.
31 at 11, 20); (2) violation of McKay’s Fourteenth Amendment property rights pursuant to 42 U.S.C. § 1983 (Mem.
Op., Dkt. Entry No. 31 at 12, 20); and (3) McKay’s 42 U.S.C. § 1985 conspiracy claim (Mem. Op., Dkt. Entry No.
31 at 16-17, 20). Further, the Court in the Memorandum Opinion and Order dismissed: (1) McKay’s claims against
Hinojosa in his official capacity (Mem. Op., Dkt. Entry No. 31 at 8, 20); and (2) McKay’s claim for First
Amendment retaliation pursuant to 42 U.S.C. § 1983 against Hinojosa in his individual capacity (Mem. Op., Dkt.
Entry No. 31 at 10, 20). McKay’s pending claims against Hinojosa are: (1) breach of contract; (2) Fourteenth
Amendment liberty interest violations; (3) declaratory relief; and (4) injunctive relief. See Compl., Dkt. Entry No.
20. McKay voluntarily dismissed claims against Defendants for retaliation under Title VII of the Civil Rights Act of
1964 and defamation. See Compl. Dkt. Entry No. 20; see also Mem. Op., Dkt. Entry No. 31 at 2.
HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

cannot present more than a mere scintilla of evidence that: (1) Hinojosa made any false charges
against her; (2) Hinojosa made the false charges public; or (3) any false, public charges were
stigmatizing. Further, Hinojosa presents competent and unrebutted evidence that he did not
make any charges against McKay, much less false, public, and stigmatizing charges.
Accordingly, McKay’s due process liberty interests would not be implicated to trigger her right
to notice and a name-clearing hearing.
Assuming arguendo for purposes of Hinojosa’s Motion and Brief that McKay can raise a
genuine issue of material fact that Hinojosa made false, public, stigmatizing charges against her,
McKay has not presented any evidence that: (1) she did not have appropriate notice of the
charges against her or (2) that she requested and was denied a name-clearing hearing by
Hinojosa. Hinojosa presents competent and unrebutted evidence that McKay had sufficient
notice of the charges against her. Further, Hinojosa presents competent unrebutted evidence that
he neither received a request from McKay for a name-clearing hearing, nor denied McKay a
name-clearing hearing. Hinojosa presents competent unrebutted evidence that McKay
voluntarily abandoned her grievance process and request for a name-clearing hearing before it
reached the level of Superintendent or the Board. Accordingly, summary judgment is proper on
McKay’s due process liberty interest claim.
Summary judgment is proper on McKay’s declaratory judgment and injunctive relief
claims because the court has dismissed many of the underlying claims in their entirety. On the
remaining claims, Hinojosa cannot be held liable in his individual capacity.
Hinojosa’s Motion and Brief are filed concurrently with an Appendix in Support of
Motions for Summary Judgment (the “Appendix” or “App.”) and all Exhibits thereto, which

Hinojosa incorporates fully in this Brief by reference. Hinojosa’s Motion and Brief are also filed
concurrently with the following motions and briefs, which are incorporated herein by reference:
· Defendants Dallas Independent School District’s and Dallas Independent School

District Board of Trustee’s Motion for Summary Judgment;
· Defendants Dallas Independent School District’s and Dallas Independent School
District Board of Trustee’s Brief in Support of Motion for Summary Judgment;
· Defendant Teresa Parker’s Motion for Summary Judgment; and
· Defendant Teresa Parker’s Brief in Support of Motion for Summary Judgment.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue of material fact that the
moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c). A principal
function of summary judgments is to isolate and dispose of factually unsupported and legally
untenable claims. Celotex v. Catrett, 477 U.S. 317, 323 (1986). A summary judgment finding
discharges a movant’s burden if the movant demonstrates that if the case went to trial, there
would be no competent evidence to support a judgment for his opponent. Id.
To preclude summary judgment, the non-movant must show more than a scintilla of
evidence in support of his position. The non-movant’s evidence must be such that a jury could
reasonably find for him on such evidence. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215
(5th Cir. 1998). Thus, a non-movant seeking to overcome a motion for summary judgment must
do so by setting forth specific facts showing that there is a genuine issue for trial and may not
rest on mere allegations in their complaint. FED R. CIV. P. 56(e).
McKay does not have a scintilla of evidence to support one or more elements of each of
her various causes of action against Hinojosa. Further, McKay has relied solely on the
conclusory allegations in her complaint and her own conjecture and surmise to buttress her
claims. Accordingly, Hinojosa is entitled to a judgment as a matter of law.

III. SUMMARY JUDGMENT IS PROPER ON MCKAY’S BREACH OF CONTRACT CLAIM
A. McKay’s breach of contract allegations against Hinojosa.
McKay’s Complaint conflates her claims for breach of contract and violations of her due
process liberty interest right to a name-clearing hearing. See Compl. ¶¶43-44. McKay alleges
that “DISD breached its employment contract with McKay,” that “[t]he DISD refused to pay
[McKay] while on leave,” and that “the DISD refused to allow McKay to return to work.” Id.
¶43 (emphasis added). In the same section for “Breach of Contract and Due Process”, McKay’s
Complaint states that “Parker, Hinojosa, the DISD, and the School Board did not provide her
reasonable notice of the charges against her.” Id. ¶44. Based on the foregoing, it is unclear
whether McKay asserts breach of contract against Hinojosa. To the extent McKay asserts breach
of contract against Hinojosa, Hinojosa is entitled to judgment as a matter of law because he is not
a party to the Contract and any actions he took were as agent of the disclosed principal and his
actions were within the course and scope of his agency. Thus, he cannot be held liable for the
alleged breach of the Contract.
B. Texas law regarding McKay’s breach of contract claim.
To state a claim for breach of contract under Texas law, a plaintiff must show: (1) the
existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) a
breach by the defendant; and (4) damages sustained as the result of the breach. Smith Int’l Inc. v.
Eagle Group, 490 F.3d 380, 387 (5th Cir. 2007) (citing Valero Mktg & Supply Co. v. Kalama
Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). Further, it is a well
settled principle of Texas law that privity of contract is essential for a breach of contract action.
McIntosh v. Wiley, No. 5:04-CV-120, 2006 U.S. Dist. LEXIS 89589, at *4 (S.D. Tex. Dec. 11,

2006).2 A plaintiff bears the burden of proving that the defendant “obligated himself under the
contract.” Formosa Plastics Corp. v. Presidio Eng’rs & Contrs., 960 S.W.2d 41, 46 (Tex.
1998).
Moreover, under Texas law an agent of a disclosed principal acting within the course and
scope of such agency cannot be held liable on the contracts of his principal. Walsh v. Am.’s
Tele-Network Corp., 195 F. Supp. 2d 840, 849 (E.D. Tex. 2002) (citing Hartford Cas. Ins. Co. v.
Walker County Agency, Inc., 808 S.W.2d 681, 687 (Tex. App.—Corpus Christi 1991, no writ)).
A corporate officer who signs a contract on behalf of the corporation is not a party to the
contract, but merely acting in his corporate capacity. Wolf v. Summers-Wood, 214 S.W.3d 783,
792 (Tex. App.—Dallas 2007, no pet.).
For purposes of this Motion and Brief, Hinojosa does not challenge the existence of a
valid contract. Hinojosa is entitled to judgment as a matter of law because McKay has not and
cannot meet her burden of proving that Hinojosa is a party to the Contract or obligated himself
under such Contract.
C. As a non-party to the Contract, Hinojosa is not liable as a matter of law.
On August 19, 2005, McKay signed her DISD Educator Probationary Contract (the
“Contract”). See Parker Decl., Ex. “J-2,” App. 134. The Contract was indisputably entered into
between the DISD Board and McKay. Id. The Contract explicitly states that: “The Board of
Trustees . . . of the Dallas Independent School District, hereby employs the undersigned
professional Educator, and the Educator accepts employment on the following terms and
conditions.” Id. The Contract further states that “[t]he Board shall pay the Educator an annual
2
See also Interstate Contr. Corp. v. City of Dallas, 135 S.W.3d 605, 607 (Tex. 2004); Boy Scouts of Am. v.
Responsive Terminal Sys., Inc., 790 S.W.2d 738, 747 (Tex. App.—Dallas, 1990, writ granted). Only those who are
parties to a contract may be held liable for its breach. McIntosh, No. 5:04-CV-120, 2006 U.S. Dist. LEXIS 89589,
at *5 (S.D. Tex. Dec. 11, 2006) (citing G.H. Treitel, THE LAW OF CONTRACT 538 (8th ed. 1991)).

salary pursuant to a schedule of workdays and applicable compensation policies as adopted by
the Board.” Id. The Contract was signed by McKay and Hinojosa in his official capacity as
“Superintendent on Behalf of the Board of Trustees Dallas Independent School District.” Id.
Based upon the Contract, it is clear that the DISD Board and McKay were the only
parties to the Contract. Hinojosa was not a party to the Contract, and merely signed on behalf of
the DISD Board as the Superintendent of the DISD. To the extent he is an agent of the disclosed
principal, Hinojosa is not liable for the alleged breach. Hinojosa did not obligate himself in any
manner under the Contract. Further, McKay has not presented a scintilla of evidence that
Hinojosa was a party to the Contract or obligated himself to the Contract in order to sustain her
breach of contract claim. Accordingly, Hinojosa cannot be held liable on McKay’s breach of
contract claim and is entitled to judgment as a matter of law.
IV. SUMMARY JUDGMENT IS PROPER ON MCKAY’S DUE PROCESS LIBERTY CLAIM.
A. McKay’s due process liberty interest claim fails as a matter of law.
McKay cannot satisfy several elements required to establish a violation of her due
process liberty interests. McKay has no evidence that Hinojosa made any false, public, and
stigmatizing charges against McKay in connection with the discharge of her employment to raise
a genuine issue of material fact. Hinojosa has presented competent summary judgment evidence
that establishes that he did not make any statements about McKay in connection with the non-
renewal of her Contract, much less false, public, and stigmatizing charges against McKay.
Assuming arguendo that McKay raises a genuine issue of material fact that Hinojosa
made false, public stigmatizing charges against her in connection with the non-renewal of the
Contract, McKay’s due process liberty interest claim against Hinojosa fails because McKay
presents no evidence that she was given insufficient notice of the charges against her or that
Hinojosa denied her a name-clearing hearing. Hinojosa has presented competent summary

judgment evidence establishing that McKay was given sufficient notice of the charges against
her, that DISD policy affords McKay an opportunity for a name-clearing hearing, and that he did
not deny McKay a name-clearing hearing, but rather that McKay initiated, but prematurely
abandoned, her request for a name-clearing hearing. Summary judgment on McKay’s claim for
violations of her due process liberty interests is, therefore, proper.
B. McKay’s allegations of violations of her due process liberty interests.
In support of McKay’s claim against Hinojosa for violations of her due process liberty
interests, McKay contends that “[t]he DISD refused to provide [her] an adequate name-clearing
hearing before the end of her contract in violation of the contract and constitutional due process.”
See Compl. ¶44. McKay avers that before she was “dismissed or suspended without pay for
good cause” she should have been provided “reasonable notice in writing of the charges against
her and an explanation of the DISD’s evidence, set out in sufficient detail to fairly enable [her] to
show any error that may exist.” Id. McKay alleges that Hinojosa did not provide her reasonable
notice of the charges or evidence against her so that McKay could demonstrate any error in the
evidence that may have existed. Id.
The Complaint expounds that “the charges of insubordination and negative or
disparaging communication with parents is stigmatizing” and that the non-renewal and the
charges “gave rise to a badge of infamy, public scorn, or presumption of intentional misconduct”
and “forecloses [McKay’s] freedom to take advantage of other employment opportunities.” Id.
¶51. McKay avers that the “charges of insubordination and misconduct were false” and “were
made public by making them to the School Board at a public meeting.” Id. ¶54.
These general and conclusory allegations in the Complaint are not supported by any
evidence. Moreover, Hinojosa presents competent summary judgment evidence to dispute these
allegations.

C. Legal standard for violations of due process liberty interest in a name-

clearing hearing.
Procedural due process rights, such as the right to a name-clearing hearing, are triggered
when actions would deprive an individual of the liberty or property interests encompassed by the
Fourteenth Amendment.3 If a governmental employee is discharged amidst allegations of
misconduct, the employee may have a procedural due process right to notice and an opportunity
to clear his name. Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006) (citing Bd. of
Regents for State Coll. v. Roth, 408 U.S. 564, 569 (1972)). However, “[n]either damage to
reputation alone nor the stigma resulting from the discharge itself trigger the protections of due
process.” Bledsoe, 449 F.3d at 653 (citing Paul v. Davis, 424 U.S. 693, 701 (1976); Wells v.
Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir. 1984)). A claim for violations of due process
liberty interests and the right to notice and an opportunity to clear one’s name “arises, only when
the employee is ‘discharged in a manner that creates a false and defamatory impression about
[the employee] and thus stigmatizes [the employee] and forecloses . . . other employment
opportunities.’” Bledsoe, 449 F.3d at 653 (quoting White v. Thomas, 660 F.2d 680, 684 (5th Cir.
1981). Moreover, an employee should avail himself of the policies and procedures made
available by the government to clear his name. Id. at 654.
Accordingly, in order to establish a claim for violations of due process liberty interests, a
plaintiff must establish that: (1) she was discharged; (2) charges were made against her in
connection with the discharge; (3) the charges were false4; (4) the charges were made public5; (5)
3
McKay’s claims for deprivation of property rights was dismissed by the Court. McKay only has a
remaining claim for her liberty interest in a name-clearing hearing.
4
In order to establish a claim for violation of due process liberty interests, a plaintiff must prove an essential
prerequisite—that the publicized basis of the termination was false. Blackburn v. City of Marshall, 42 F.3d 925, 936
(5th Cir. 1995); Bledsoe, 449 F.3d 654; Wells, 736 F.2d at 256; Wheeler v. Miller, 168 F.3d 241, 251 (5th Cir.
1999). In the absence of a “concrete, false assertion” of wrongdoing on the part of the plaintiff, a plaintiff cannot

the charges were stigmatizing, had a stigmatizing effect on her standing or reputation in her
community6, or had a stigmatizing effect such that she was denied other employment
opportunities as a result; (6) she was not provided notice or an opportunity to be heard; and (7)
the employer denied her request for a hearing to clear her name. Id.; Wells, 736 F.2d at 256.
maintain a liberty interest claim. Blackburn, 42 F.3d at 935-36 (mere allegation that defendant reported to the
newspaper that plaintiff’s “attitude” caused his removal was insufficient). Connelly v. Comptroller of the Currency,
876 F.2d 1209, 1215 (5th Cir. 1989) (statement that plaintiff did not possess the qualifications for the position
contained “no false factual representations, concrete or otherwise”); Huffstutler v. Bergland, 607 F.2d 1090, 1092-93
(5th Cir. 1979) (an “unsatisfactory” rating on a probationary report was not grounds to support a claim for violation
of liberty interest).
5
The false, stigmatizing charges at issue must be made or caused to be made public in an official or intentional
manner to maintain a claim for violations of due process liberty interests. See Wells, 736 F.2d at 255. “A stigma
depriving a person of a liberty interest does so in part because it is a false impression broadcast to either one’s
personal or professional communities.” Cabrol v. Town of Youngsville, 106 F.3d 101, 107 (5th Cir. 1997) (citing
Codd v. Velger, 429 U.S. 624, 628 (1977)). The mere presence of false and/or stigmatizing information in a
confidential personnel file does not amount to a deprivation of one’s liberty rights. See Whiting v. Univ. of S. Miss.,
451 F.3d 339, 347-48 (5th Cir. 2006). In Whiting the court held that charges in a personnel file without any concrete
manner in which defendants have published or will publish, in an official or intentional manner, the accusations
outside of the tenure and promotion process is insufficient to deprive someone of their liberty. See also Wells, 736
F.2d at 258, n. 20 (mere presence of derogatory information in a confidential file does not implicate a liberty interest
unless the employer has or is likely to make the stigmatizing charges public in any official or intentional manner).
Further, “casual gossip falls well short of ‘intentional or official’ disclosure by the [defendant].” Hughes v. City of
Garland, 204 F.3d 223, 227 (5th Cir. 2000) (plaintiff could not satisfy the public disclosure element of a liberty
interest claim by testimony from witnesses who were told the false reason for her discharge because the public
disclosure was not fairly attributable to defendant).
Moreover, self-publication is insufficient to meet the “intentional or official” public disclosure element of a
plaintiff’s due process liberty interest claim. Id. at 228 (rejecting plaintiff’s argument that she was compelled to
disclose the reason for her discharge to perspective employers).
6
A plaintiff alleging violations of her due process liberty interests must also prove that the false charges made
against her had a stigmatizing effect on her standing or reputation in her community such that she was denied other
employment opportunities as a result. Bledsoe, 449 F.3d at 654; Wells, 736 F.2d at 256. Mere proof that non-
renewal might make an individual less attractive to other employers does not, by itself, implicate a liberty interest
and “hardly establish[es] the kind of foreclosure of opportunities amounting to a deprivation of liberty.” Roth, 408
U.S. at 471, n. 13; Wells, 736 F.2d at 256; see alsoBledsoe, 449 F.3d at 653. As the Court noted in its Memorandum
Opinion and Order, mere non-renewal of a teacher’s contract is not such a blight upon her good name, reputation,
honor, or integrity as to constitute a deprivation of liberty. Mem. Op. at 13 (citing Dennis v. S&S Consol. Rural
High Sch. Dist., 577 F.2d 338, 340 (5th Cir. 1978)). Further, the Court noted that non-tenured teachers “may be
discharged for no reason or for any reason not impermissible in itself or as applied.” Mem. Op. at 13 (citing Dennis,
577 F.2d at 340); see also Roth, 408 U.S. at 574, n. 13; Kaprelian v. Tex. Woman’s Univ., 509 F.2d 133, 139 (5th
Cir. 1975).
Courts have found that terminations involving charges of dishonesty, immorality, alcoholism, disloyalty, or
subversive acts may impose a stigma depriving plaintiffs of a liberty interest. Bd. of Regents, 408 U.S. 573;
Blackburn, 42 F.3d at 936, n.9; see also Wis. v. Constantineau, 400 U.S. 433 (1971); Lashbrook v. Oerkfitz, 65 F.3d
1339, 1348 (7th Cir. 1995). Courts have also found that charges supporting termination including participation in an
illegal strike, incompetence, and outside activities did not cause a stigma sufficient to implicate one’s liberty
interest. Burnley v. Thompson, 524 F.2d 1233, 1240 (5th Cir. 1975); Robertson v. Rogers, 679 F.2d 1090, 1092 (4th
Cir. 1982).

Moreover, the appropriate remedy for such a claim is merely the opportunity to refute the
charge and does not encompass the right to continued employment or backpay. Dennis, 577 F.2d
at 344 (the purpose of the due process hearing is not to afford an opportunity o recapture
previous employment but simply to clear one’s name).
D. McKay has no evidence to sustain her claim for violations of her due process
liberty interests.
1) McKay has no evidence that Hinojosa made false, public, stigmatizing

charges against her in connection with her contract non-renewal.
McKay has no evidence that Hinojosa made any charges against her in connection with
the non-renewal of the Contract. Further, McKay has no evidence that any alleged charges made
against her were false or that Hinojosa made them public.
a) McKay does not have a scintilla of evidence that Hinojosa

made charges against her in connection with her non-renewal.
McKay has presented no evidence that Hinojosa made any charges against her in
connection with her non-renewal, much less charges that were false. More specifically, Hinojosa
propounded the following Interrogatory:
INTERROGATORY NO 1: Identify and describe in detail all

statements, charges, and/or actions of Hinojosa about and/or
against you that you contend are “stigmatizing” and state: (a) the
date and time the statement, change [sic] and or action occurred;
(b) where the statement, charge, and/or action occurred; (c) the
context of the statement, charge, and/or action; (d) the content and
subject of the statement, charge and/or action; and (e) all persons
present when such statement, charge, and/or action occurred.
See Soto Decl., Ex. “A,” App. 195.
McKay provided the following response to this Interrogatory:
In the First Amended Complaint, “stigmatizing” was used in the

context of the non-renewal of McKay’s contract and the charges
made the basis for the non-renewal. Pursuant to Fed. R. Civ. P.

33(d), McKay directs Defendant to document Bates numbered D-

McK1959.7
Additionally, McKay describes Hinojosa as having (a) on the

evening of March 30, 2006; (b) at the Regular Board Meeting of
the DISD Board of Trustees; (c) in the context of a
recommendation to the Board; (d) recommended to the Board that
it was in the best interest of DISD to not renew McKay’s contract
based on the charges; (e) to all persons present at the Board
meeting.
McKay directs Defendant to any documents which he presented to

the Board which he has not identified. The charges in any
documents submitted to the Board speak for themselves. Among
school districts, the non-renewal of a contract stigmatizes a teacher
or employee with the equivalent of having been terminated for
cause or significant performance problems. Non-renewal of
contracts is relatively rare, even among problem teachers or
employees; therefore, a non-renewal is known as a harsh remedy
for only the worst problem teachers or employees.
See Soto Decl., Ex. “C,” App. 210.
McKay’s response provides no evidence of any false charges Hinojosa made against
McKay, or that Hinojosa made any specific statements or charges to the DISD Board or at the
DISD Board Meeting about McKay or the reasons for McKay’s non-renewal. McKay has
produced no documentary evidence of any charges or statements made by Hinojosa.
Accordingly, McKay has not raised a genuine issue of material fact on this essential element of
her due process liberty interest claim against Hinojosa, and this claim fails as a matter of law. In
fact, the DVD of the Board meeting shows that Hinojosa made no statements about McKay. See
Soto Decl., Ex. “S,” App. 554.
7
The documents Bates numbered McK 59 is a copy of the March 30, 2006 letter sent from the DISD Board to
McKay notifying her that her Contract has not been renewed. See Soto Decl., Ex. “W,” App. 563.

b) McKay has no evidence that Hinojosa made public any of the

alleged charges against McKay.
McKay has presented no documentary evidence that Hinojosa made public any of the
alleged charges against McKay, much less that Hinojosa made any false charges public in an
“intentional” or “official” manner. In Hinojosa’s Interrogatory Requests, Hinojosa specifically
asked McKay to describe the “facts evidencing that the statements, charges, and/or actions of
Hinojosa identified in [her] answer to Interrogatory No. 1 were made public.” See Soto Decl.,
Ex. “A,” App.195. McKay responded as follows:
Subject to the objection, McKay states that the non-renewal was

published to the DISD at the March 30, 2006, Board Meeting as
identified in answer to Interrogatory No. 1. McKay has not been
given the opportunity to depose Hinojosa to determine other
publications. Defendant may have disclosed the non-renewal and
the charges to others and an investigation is continuing in this
regard. McKay is required to state in her application to school
districts, in response to a specific question, that she had a contract
that was not [sic] non-renewed.
The applications for teaching positions at school districts,

including the DISD, require a person to admit whether they have
had a contract non-renewed. The DISD adds the question in the
termination for cause category. The actual question on the DISD
application is:
Have you ever: been terminated for cause, been asked to resign,
had a contract non-renewed or left employment involuntarily?
been the subject of disciplinary action by a previous school district
employer? (See McK 2169).
See Soto Decl., Ex. “C,” App. 211 (emphasis added).
Hinojosa’s Interrogatory Requests further asked McKay to provide the facts “evidencing
that Hinojosa made or caused to be made the reasons for [her] non-renewal public.” See Soto
Decl., Ex. “A,” App. 196. McKay responded as follows:
Subject to the objection, McKay states that the non-renewal was

published to the DISD on the evening of March 30, 2006 at the
Regular Board Meeting of the DISD Board of Trustees, in the

context of a recommendation to the Board that it was in the best

interest of DISD to not renew McKay’s contract based on the
charges to all persons present at the Board meeting. Defendant
may have disclosed the non-renewal and the charges to others and
an investigation is continuing in this regard. McKay is required to
state in her application to school districts, in response to a specific
question, that she had a contract that was not [sic] non-renewed.
See Soto Decl., Ex. “C,” App. 214 (emphasis added).
The foregoing responses do not provide even a mere scintilla of evidence that Hinojosa
made any charges against McKay public, much less that Hinojosa made charges against McKay
public in an “intentional” or “official” manner. Although the response sets forth that her non-
renewal was made public at the March 30, 2006 Board Meeting, McKay presents no evidence
that any charges against her were discussed at the March 30, 2006 Board Meeting, that her name
was mentioned at the March 30, 2006 Board Meeting, or that any issues or facts relating to
McKay were presented in any manner at the March 30, 2006 Board Meeting.
Further, the foregoing responses that Hinojosa “may have disclosed the non-renewal” and
that McKay is continuing an “investigation” in that regard is insufficient to defeat summary
judgment. The March 30, 2006 Board Meeting occurred more than two and a half years ago.
McKay’s lawsuit has been on file for almost two years. The deadline for fact discovery has
passed. McKay has had sufficient time to provide Hinojosa any evidence that she contends
supports her assertion that he made the charges against her public, in any manner, but has failed
to do so because she does not have any.
Moreover, to the extent McKay contends that the mere presence of charges against her in
the contract non-renewal materials violate her due process liberty interest, this is insufficient.
Under well-established law, the “mere presence of false and/or stigmatizing information in a
confidential personnel file does not amount to a deprivation of one’s liberty rights.” Whiting,

451 F.3d at 347-48; Wells, 736 F.2d at 258, n.20. Information and/or charges contained in
McKay’s non-renewal packet submitted to the DISD Board does not qualify as publication.
In addition, McKay’s contention that she has to engage in “self-publication” and notify
prospective employers, including the DISD, that the Contract was not renewed, does not satisfy
the publication requirement to sustain a claim for violations of her due process liberty interests.8
Merely being compelled to disclose that McKay’s Contract was not renewed by the DISD Board
is insufficient to meet the “intentional or official” public disclosure element to sustain McKay’s
due process liberty interest claim. See Hughes, 204 F.3d at 228. Because McKay is unable to
provide evidence showing Hinojosa made or caused to be made public any charges against
McKay in an official and intentional manner, McKay is unable to support the public disclosure
element of her claim. City of Garland, 204 F.3d at 228.
2) Hinojosa presents competent summary judgment evidence that he did

not make any false, stigmatizing charges against McKay.
In his deposition, Hinojosa testifies as to his involvement in the process by which the
DISD Board determined that McKay’s Contract should be non-renewed. See Soto Decl., Ex. “I,”
Hinojosa Deposition, at 8:11-15, 9:1-14:3, 15:1-12, App. 268-270. Based upon the deposition
testimony it is clear that Hinojosa did not make any charges against McKay, much less false,
public, stigmatizing charges against her in connection with her non-renewal.9
8
McKay cannot attribute her own publication to Hinojosa. The publication requirements for a due process liberty
interest claim is not established by McKay’s self-publication. City of Garland, 204 F.3d at 228; Blackburn, 42 F.3d.
at 936, n.10; Moore v. Miss. Valley State Univ., 871 F.2d 545, 549-50 (5th Cir. 1989); Wells, 736 F.2d at 257-58; In
re Selcraig, 705 F.2d 789, 795-97 (5th Cir. 1983). Rather, Hinojosa must intentionally and officially publicize the
false stigmatizing statements, and any publication by McKay is insufficient as a matter of law.
9
At his November 13, 2008 deposition, Hinojosa testified as follows:
Q. . . . And what I’m trying to find out is do you recall when you would have first—when
you would have first been involved in that process [for nonrenewing a teacher]?
A. Yeah. According to this timeline, it would have been on or about March 3rd of 2006.
...

Hinojosa further testified in his November 13, 2008 deposition regarding his involvement
with the DISD Board in the non-renewal process. Hinojosa testified regarding the March 10,
2006 Meeting of the Committee of the Whole wherein the DISD Board meets in closed session
and analyzes materials regarding employees recommended by the DISD Legal Review
Q. . . . I believe you said that your first involvement in the—Ms. Grace McKay’s non-
renewal would have been March 3, 2006. And I’m asking you in what manner would you have
become involved? How did that happen?
...
A. Typically what happens is the legal staff and a person from human resources comes in
and they have a notebook and they just basically give me a list of the employees that have been
recommended by their supervisors for personnel action, adverse personnel action, and they
present that information to me at that point.
Q. . . . And so do you have any separate recollection of looking at a list on March 3 of 2006,
including Grace McKay, or are you relying on what would have been a normal business practice?
A. Relying on a normal business practice.
Q. And then what would you do with that list when it was presented to you?
A. Typically those meetings would be brief. The staff would just kind of go over the
numbers of employees. I may or may not look at the list of who’s on it. I would just ask them if
we followed all the procedures. I make sure that everything is in line. And in the past three
years, I haven’t modified or adjusted any recommendation that’s come from the staff or
subordinates because of the process that it’s been through. And so I would just look and make
sure—I would ensure that they’re following everything they’re supposed to do before we forward
it to the board.
...
Q. Would you make an independent evaluation of the merits—the underlying merits of the
claim or reason for the non-renewal?
A. No, I haven’t.
...
Q. . . . What would have been your next involvement in Grace McKay’s non-renewal
process?
A. I have no further involvement. Legal prepares it for board documentation—board—for
the board docs that go to the board.
Q. So on March—I guess the same day, March 3rd, the board documents for non-renewal
are placed in trustee’s board packet, legal would have prepared that?
...
A. Legal and/or human resources, yes.
See Soto Decl., Ex. “I,” Hinojosa Deposition at 8:11-11:10, App. 268-269.

Committee for non-renewal. Hinojosa’s testimony clearly indicates that he made no statements
to the DISD Board at the March 10, 2006 Meeting of the Committee of the Whole. 10
Hinojosa further discussed the process of non-renewal after the meeting of the Committee
of the Whole and provided the following testimony at his November 13, 2008 deposition:
Q. And so if I’m reading this correctly, on March 10, 2006, if the

dates are correct, the committee as a whole would be submitted the
packets and then they would meet on March 26, 2006; is that right? No.
That’s when they received board recommendations?
A. I think the way that works is that there’s a meeting on the 10th, and
then as we prepare the agenda for the 30th, we typically give that to them
ahead of time. And that’s probably what the 22nd is when they actually
receive the final recommendations in writing from the staff for them to
take action on the 30th.
Q. And that recommendation would have come from legal and human
resources?
A. Yes.
10
Q. There’s a March 10th—March 10, 2006 date on Exhibit 1, the first page. It says submit
non-renewal list for Committee of the Whole. Do you know what that’s referencing?
A. Yes.
Q. What?
A. The Committee of the Whole at that time, in that structure in 2006, was a meeting of the
board, which was the Committee of the Whole of the board. And typically they would meet in
closed session in which legal and human resources would then submit the administrative
recommendations to the board and—for their consideration.
Q. Do you participate in that meeting?
A. I sit in the meeting but I do not—I do not present anything to the board. The legal staff
and the human resources just tells the board, Here is the information, there are the documents if
you want to review them, and I usually just sit on the side while they do that.
Q. And typically does the—what does the board do with the non-renewal list?
A. Typically they would maybe look at some names and some of them may have questions.
If they do, they would look at the notebooks, but that rarely happened. And then they would just
proceed. And if they had questions, they would ask then [sic] of the staff, and then they would
move it forward for action at the next meeting of the board. There was no action taken at the
Committee of the Whole meeting.
Q. Do you recall if any questions were asked about Grace McKay?
A. I don’t recall any.
Q. Typically do they simply rely on the packet that’s presented to them –
A. Yes.
See Soto Decl., Ex. “I,” Hinojosa Deposition at 12:2-13:12, App. 269-270.

See Soto Decl., Ex. “I,” Hinojosa Deposition at 13:15-14:3, App. 270.
Hinojosa further testified regarding the March 30, 2006 DISD Board Meeting and
provided the following answers:
Q. And then we have March 30, 2006, is the regular board meeting,
action taken on non-renewals. And so is that—would that have been the
board meeting where the board would have voted on the committee’s
recommendations for non-renewal?
A. Yes.
Q. And typically would there be discussion at the board meeting about

the non-renewals?
A. No.
Q. And so typically does the board adopt the recommendation of the

committee?
A. Yes.
See Soto Decl., Ex. “I,” Hinojosa Deposition at 15:1-15:12, App. 270.
Based upon the foregoing deposition testimony, Hinojosa testified regarding his role in
the non-renewal process and sets forth that: (1) he did not present anything to the DISD Board at
the meeting of the Committee of the Whole; (2) he did not recall any questions asked at the
meeting of the Committee of the Whole regarding McKay; and (3) that the DISD Board did not
conduct any discussion about the non-renewals at the March 30, 2006 Board Meeting.
In addition to his deposition testimony, Hinojosa clearly sets forth in his Declaration that
he has not “made any public statements concerning the reasons for the non-renewal of Ms.
McKay’s probationary contract with the DISD.” See Hinojosa Decl., ¶ 11, App. 002. Further,
the Declarations of Dr. Edwin Flores, Trustee of the DISD Board, and Jack Lowe, current
President of the DISD Board clearly set forth that no charges were made against McKay, no
specific statements were made regarding the reasons for McKay’s non-renewal, and McKay’s
name was not mentioned at the March 10, 2006 Meeting of the Committee of the Whole or the

March 30, 2006 DISD Board Meeting. See Flores Decl. ¶¶ 4, 7, App. 058-059; see also Lowe
Decl. ¶¶ 4, 7, App. 033-034. Moreover, the videotape of the March 30, 2006 Board Meeting
demonstrates that McKay’s name was not mentioned and the reasons for her non-renewal were
not discussed. See Soto Decl., Ex. “S,” App. 554.
Accordingly, Hinojosa has presented competent summary judgment evidence that is not
rebutted by McKay that demonstrates he did not make any false charges against McKay, much
less make false charges against McKay public in an “intentional” or “official” manner to deprive
McKay of her due process liberty interests. Because Hinojosa did not make any false statement
or charges against McKay, and McKay has no evidence of such, Hinojosa did not deprive
McKay of her due process liberty interests as a matter of law. Blackburn v. City of Marshall, 42
F.3d at 935-36; Connelly v. Comptroller of the Currency, 876 F.2d at 1215; Huffstutler, 607 F.2d
at 1092-93.
The non-renewal of McKay’s contract alone, without more, cannot as a matter of law, be
such a blight upon her good name, reputation, honor, or integrity as to constitute a deprivation of
liberty. Dennis, 577 F.2d at 340.
3) McKay had sufficient notice of the charges against her.
McKay had sufficient notice of the charges against her and, thus, was not denied her due
process liberty interest rights. McKay received a three-page letter from Parker on March 6, 2006
(the “March 6th Letter”) that outlined in significant detail the “areas of concern pertaining to
[McKay’s] job performance and conduct” while employed at Preston Hollow Elementary School
(“PHES”). See Parker Decl., Ex. “J-11,” App. 144-146. The March 6th Letter set forth the
numerous complaints Parker received from parents and teachers regarding McKay, provided the
date upon which Parker received such complaint, the name of the complainant, and the facts
relating to the complaint. Id. The March 6th Letter stated that “[b]ased on [Parker’s] own

observations, reports from our staff, and complaints from parents, the principal finds that you
have violated numerous policies of the Board of Education” and provided the specific DISD
policies that McKay violated. See Parker Decl., Ex. “J-11,” App. 145.
Further, on March 8, 2006, Parker sent McKay a letter titled “Notice of Intent to
Recommend Non-Renewal” (the “March 8th Letter”) which stated:
This letter is to provide advance notice that the administration of

the Dallas Independent School District intends to recommend to
the Board of Trustees, pursuant to Chapter 21 of the Texas
Education Code and Board Policy DFAB, that it is in the best
interest of the district your probationary contract not be renewed
for the 2006-2007 school year. Once the Board accepts the
recommendation, your employment with the district will end at the
conclusion of your current contract.
See Parker Decl., Ex.”L,” App. 185. McKay signed the letter indicating receipt on March 9,
2006. Id.
Based on the March 6th Letter and the March 8th Letter, McKay had sufficient notice of
the charges against her and of Parker’s intent to recommend non-renewal.
4) Hinojosa did not deny McKay a name-clearing hearing.
In his Declaration, Hinojosa unequivocally rejects McKay’s claim that he denied her a
name-clearing hearing. Hinojosa attests to the following in his Declaration:
I never received any request from Ms. McKay, nor was I aware
that Ms. McKay ever requested, that the DISD conduct any hearing
to clear Ms. McKay’s name. I never denied Ms. McKay a hearing
to clear her name or participated in any decision to deny Ms.
McKay and opportunity to clear her name.
See Hinojosa Decl., ¶ 12, App. 002.
McKay has presented no evidence that she requested a name-clearing hearing from
Hinojosa, that Hinojosa denied McKay a name-clearing hearing, or that Hinojosa caused McKay
to be denied a name-clearing hearing in order for McKay to sustain this claim against him. In

Hinojosa’s Interrogatory Request No. 9, Hinojosa asked McKay to identify the facts “evidencing
that [McKay] requested a name-clearing hearing and that Hinojosa was aware of [McKay’s]
request.” See Soto Decl., Ex. “A,” App. 196. McKay, unresponsively, answered as follows:
Subject to the objection, McKay states that McKay filed several

grievances to clear her name, including this lawsuit. Pursuant to
Fed. R. Civ. P. 33(d), McKay references the letter to Hinojosa on
February 9, 2006, informing Hinojosa that Parker was retaliating
against her for opposing segregation. Hinojosa also visited Preston
Hollow Elementary School in the Spring of 2006 concerning the
segregation issues. A lawsuit was filed by Latino parents against
the DISD on April 18, 2006, concerning segregation. McKay
reported the segregation and retaliation to governmental agencies.
In light of the claims, the lawsuit, and the outcry of the parents, it
is reasonable to infer that Hinojosa would have known about
McKay’s claims not only generally but in detail, including her
request for name-clearing. The February 9, 2006 letter itself is an
effort to have an investigation to clear her name.
See Soto Decl., Ex. “C,” App. 215.
Although lengthy in words, McKay’s answer was devoid of facts that Hinojosa had actual
awareness that McKay requested a name-clearing hearing. Dissecting McKay’s interrogatory
answer, McKay provides the following bases to support her claim that Hinojosa had knowledge
of her request for a name-clearing hearing: (1) the February 9, 2006 letter; (2) Hinojosa’s alleged
visit to Preston Hollow Elementary School in the Spring 2006; (3) the filing of a lawsuit against
DISD on April 18, 2006 by Latino parents; and (4) McKay’s reports of segregation and
retaliation to governmental agencies. None of these are competent evidence of Hinojosa’s
knowledge of McKay’s request for a name-clearing hearing, but are mere conjecture and surmise
on the part of McKay and are insufficient to defeat summary judgment.
McKay’s interrogatory answer suggest that the February 9, 2006 letter she sent to
Hinojosa constitutes a request to Hinojosa for a name-clearing hearing. Review of the February
9, 2006 letter provides no such evidence. In fact, the only request to Hinojosa in the letter states:

I write to you to plead for an investigation into this matter to end

the unlawful segregation in the school. I am willing to meet with
you and provide you with documentation and more information.
See Hinojosa Decl., Ex. “A,” App. 003.
The February 9, 2006 letter only generically refers to any harm to McKay and states:
“[a]lthough the minority parents and I have attempted to address the segregation concern,
nothing has been done. Instead, they are excluded and I have been retaliated against.” Id.
Nothing in the February 9, 2006 letter states how McKay has been retaliated against or that
McKay has had any charges, much less false or stigmatizing charges levied against her. There
simply is no language in the February 9, 2006 letter that provides any evidence that McKay
requested that Hinojosa afford McKay an opportunity to clear her name or would notify Hinojosa
that McKay should be afforded such opportunity.
Further, McKay’s statement that “Hinojosa . . . visited Preston Hollow Elementary
School in the Spring of 2006 concerning the segregation issues” provides no evidence that
McKay requested that Hinojosa provide her a hearing to clear her name. There is no evidence in
this generic remark that McKay met with Hinojosa, that McKay enumerated any concerns or
problems she was having at Preston Hollow Elementary School, or that McKay requested any
relief, much less a hearing to clear her name, from Hinojosa during his alleged a visit.
In addition, the filing of the April 18, 2006 lawsuit and McKay’s reports of allegations of
segregation and retaliation to governmental agencies are not evidence that McKay requested a
name-clearing from Hinojosa or that he had any knowledge of such a request.
5) McKay voluntarily abandoned the process to obtain a name-clearing

hearing.
DISD has a systematic grievance process for any employee who seeks to file a grievance
regarding employment or other matters with the DISD. McKay filed several grievances against

Parker in accordance with DISD policies and procedures and amended her request to include a
name-clearing hearing in such grievances. See Parker Decl., Ex. “I,” App. 131, Ex. “K,” App.
183.
The DISD Grievance Process Instructions provide:
Grievances that will proceed directly to Level III hearing shall

include: terminations, demotions, suspensions without pay,
involuntary transfers, evaluations, salary appeals, involuntary
leaves for medical evaluation, and whistleblower complaints.
If the Level III decision does not satisfy the grievant, the decision
may be grieved in writing to a Level IV hearing before the Board
within ten (10) days of the date upon which the decision is
received. The Board shall provide a hearing within (3) days or at
the next meeting scheduled for such purposes. Presentations shall
be limited to (10) minutes for each side. If the Board decides to
respond, it will do so within 10 days. Probationary support
employees (120 days or less) who are recommended for
termination may only request a Stop/Look/Listen style hearing
before the Board.
See Soto Decl., Ex. “V,” App. 561-562.
McKay availed herself of the DISD grievance process to clear her name, and she was
granted a Level III hearing before a hearing officer. See Ronquillo Decl., Ex. “B,” App. 088-089,
Ex. “C,” App. 090. McKay, however, subsequently abandoned the Level III grievance process
by letter dated September 19, 2006. Her abandoning the process precluded a Level IV hearing
before the Board. Her attorney’s letter stated:
Thank you for your interest in proceeding with the Level III
hearing; however, Ms. McKay is inclined not to proceed with the
grievance procedure. It would likely be futile, delay litigation, and
cause added expense.
See Ronquillo Decl., Ex. “D,” App. 091.
McKay voluntarily abandoned the grievance process, electing, instead to file this lawsuit.
See Perez v. Hous. Auth. of Uvalde, 95 F. App’x 51, 56 (5th Cir. 2004) (holding that plaintiff’s

liberty interest failed because he was given notice and an opportunity to be heard). McKay’s due
process liberty interest claim fails because she was given adequate notice and an opportunity to
be heard, but abandoned the process.
V. DECLARATORY ACTION AND INJUNCTIVE RELIEF
McKay alleges that she “is entitled to a declaratory judgment, declaring Defendants’ past
practices herein complained of to be in violation of Title VI, Section 1981, Section 1983, and
Section 1985.” See Compl. ¶62. McKay, however, never asserted a claim against Hinojosa
under 42 U.S.C. § 1981. See id. ¶61 (alleging violations of Section 1981 against the Preston
Hollow PTA and the Texas PTA). Further, the Court previously dismissed McKay’s claims
pursuant to 42 U.S.C. § 1985. Mem. Op., Dkt. Entry No. 31 at 16-17, 20. Accordingly,
McKay’s only request for declaratory action and injunctive relief relates to her claims for
violations of Title VI and 42 U.S.C. § 1983.
A. McKay’s declaratory judgment action is improper.
The declaratory action claims against Hinojosa fail as a matter of law. The decision to
grant declaratory relief is statutorily committed to the district court’s discretion, even where the
suit would otherwise meet the requirements of subject matter jurisdiction. Venator Group
Speciality Ins. v. Matthew/Muniot Family, 322 F.3d 835, 838 (5th Cir. 2003). In declaratory
judgment actions, whether a dispute is ripe for adjudication turns on whether a substantial
controversy of sufficient immediacy exists between parties having adverse legal interest. Id. at
838-39. Declaratory relief should not be denied simply because another remedy is available, but
it may properly be refused where the alternative remedy is better or more effective. Employers’
Liab. Assur. Corp. v. Mitchell, 211 F.2d 441, 443 (5th Cir. 1954). If the declaration sought is
subsumed within the substantive causes of action, a declaratory judgment is improper. Nat’l

Util. Serv., Inc. v. Xanser Corp., No. 3:03-CV-0878-P, 2003 U.S. Dist. LEXIS 21758, at *17
(N.D. Tex. Dec. 1, 2003).
McKay is requesting declaratory judgment, which is subsumed within the other
substantive causes of action against Defendants. Accordingly, the claim is improper as a matter
of law.
B. Injunctive Relief
A plaintiff is entitled to injunctive relief for unlawful employment practices. To be
entitled to injunctive relief, however, a plaintiff must prove (1) a substantial likelihood of success
on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that
the threatened injury outweighs any damage that the injunction will result in irreparable injury,
and (4) that the injunction will not impair the public interest. Humana Ins. Co. v. LeBlanc, No.
07-532, 2007 WL 3237094 at *3 (M.D.La Oct. 31, 2007) (slip opinion). The party seeking the
injunctive relief must clearly carry the onerous burden of persuasion as to all of the elements.
Phillips v. Director, No. 9:07-CV-111, 2007 WL 2688476, at *1 (E.D. Tex. Sept. 10, 2007).
Here, McKay is requesting injunctive relief to prohibit Hinojosa from engaging in
unlawful employment practices and reinstate her with back pay, maintaining polices, practice,
custom or usage that discriminate against her, interfering with her freedom of speech, retaliating
against her, making defamatory statements against her, and interfering with her employment
contract. McKay, however, cannot carry her burden of persuasion on these issues for the reasons
set forth in Hinojosa’s Brief relating to McKay’s breach of contract and due process liberty
interest claims. All other claims against Hinojosa were previously dismissed.

C. Declaratory action or injunctive relief against Hinojosa relating to alleged

Title VI violations is improper as a matter of law.
Title VI of the Civil Rights Act of 1964 provides that no person shall “on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity” covered by Title VI 42 U.S.C. §
2000(d), et seq. In order to effectuate the provisions of Title VI and prevent retaliation for
complaints of Title VI violations, 34 C.F.R. 100.7(e) was enacted and provides that:
No recipient or other person shall intimidate, threaten, coerce, or

discriminate against any individual for the purpose of interfering
with any right or privileged secured by section 601 of the Act or
this part, or because he has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding or
hearing under this part.
34 C.F.R. 100.7(e).
A plaintiff may sue federally funded agencies for Title VI violations but not individuals
or entities that do not receive federal funding. Santamaria v. Dallas Indep. Sch. Dist., No. 3:06-
CV-692-L, 2006 U.S. Dist. LEXIS 83417, at *159 (N.D. Tex. Nov. 16, 2006); see also Kamal v.
Hopmayor, No. 05-CIV-8164 (CLB), 2006 U.S. Dist. LEXIS 80934, at *13-14 (S.D.N.Y. Nov.
2, 2006). Accordingly, Hinojosa is not a proper defendant on McKay’s request for injunctive or
declaratory relief for violations of Title VI.

Respectfully submitted,
GODWINRONQUILLO PC
By: /s/Kathryn E. Long
MARCOS G. RONQUILLO (attorney in charge)

JOSE L. GONZALEZ
KATHRYN E. LONG
RAMONA SOTO
mronquillo@godwinronquillo.com
jgonzalez@godwinronquillo.com
klong@godwinronquillo.com
rsoto@godwinronquillo.com
1201 Elm Street, Suite 1700

Dallas, Texas 75270-2084
(214) 939-4400 (Telephone)
(214) 760-7332 (Telecopier)
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that on December 8, 2008, this Motion was served on the following
counsel electronically via the Court’s ECF system:
Brian P Sanford
Sanford Bethune
3610 Shire Blvd., Ste. 206
Richardson, Tx. 75082
/s/Kathryn E. Long
Kathryn E. Long

D 1485660 v1-11349/0042 PLEADINGS

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Case 3:06-cv-02325-O Document 86 Filed 12/08/2008 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT

GRACIELA SERNA MCKAY, §

DEFENDANT DR. MICHAEL HINOJOSA’S BRIEF IN SUPPORT OF

1201 Elm Street, Suite 1700

ATTORNEYS FOR DEFENDANTS

I. Summary of the Argument .............................................................................................. 1

Bd. of Regents for State Coll. v. Roth,

Blackburn v. City of Marshall,

Bledsoe v. City of Horn Lake,

Boy Scouts of Am. v. Responsive Terminal Sys., Inc.,

Cabrol v. Town of Youngsville,

Connelly v. Comptroller of the Currency,

Dennis v. S&S Consol. Rural High Sch. Dist.,

Doe v. Dallas Indep. Sch. Dist.,

Employers’ Liab. Assur. Corp. v. Mitchell,

Formosa Plastics Corp. v. Presidio Eng’rs & Contrs.,

Hughes v. City of Garland,

Humana Ins. Co. v. LeBlanc,

Interstate Contr. Corp. v. City of Dallas,

Kaprelian v. Tex. Woman’s Univ.,

Moore v. Miss. Valley State Univ.,

Nat’l Util. Serv., Inc. v. Xanser Corp.,

Perez v. Hous. Auth. of Uvalde,

Santamaria v. Dallas Indep. Sch. Dist.,

Smith Int’l Inc. v. Eagle Group,

Venator Group Speciality Ins. v. Matthew/Muniot Family,

Wells v. Hico Indep. Sch. Dist.,

Whiting v. Univ. of S. Miss.,

STATUTES, RULES & REGULATIONS

42 U.S.C. § 1981 ...................................................................................................................... 22

42 U.S.C. § 1983 .................................................................................................................. 1, 22

42 U.S.C. § 1985 .................................................................................................................. 1, 22

42 U.S.C. § 2000(d), et seq....................................................................................................... 24

34 C.F.R. § 100.7(e) ................................................................................................................. 24

FED. R. CIV. P. 12(b)(6) .............................................................................................................. 1

FED. R. CIV. P. 56(c) ................................................................................................................... 3

FED R. CIV. P. 56(e).................................................................................................................... 3

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant Dr. Michael Hinojosa (“Hinojosa” or “Defendant”), Superintendent of the

Summary Judgment (“Hinojosa’s Motion”), which Hinojosa incorporates herein by reference.

I. SUMMARY OF THE ARGUMENT

HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 1

to notice and a name-clearing hearing.

name-clearing hearing. Hinojosa presents competent unrebutted evidence that McKay

McKay’s due process liberty interest claim.

Summary judgment is proper on McKay’s declaratory judgment and injunctive relief

remaining claims, Hinojosa cannot be held liable in his individual capacity.

HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 2

· Defendants Dallas Independent School District’s and Dallas Independent School

II. SUMMARY JUDGMENT STANDARD

would be no competent evidence to support a judgment for his opponent. Id.

rest on mere allegations in their complaint. FED R. CIV. P. 56(e).

claims. Accordingly, Hinojosa is entitled to a judgment as a matter of law.

HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 3

III. SUMMARY JUDGMENT IS PROPER ON MCKAY’S BREACH OF CONTRACT CLAIM

A. McKay’s breach of contract allegations against Hinojosa.

alleged breach of the Contract.

B. Texas law regarding McKay’s breach of contract claim.

HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 4

792 (Tex. App.—Dallas 2007, no pet.).

under such Contract.

C. As a non-party to the Contract, Hinojosa is not liable as a matter of law.

HINOJOSA’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 5