UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DR. KRISTEN BENNETT, §

§

 Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-CV-0289-B

§

TARRANT COUNTY COLLEGE

DISTRICT,

§

§

§

 Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Tarrant County College District (“TCCD”)’s Motion to

Dismiss Plaintiff Dr. Kristen Bennett’s Second Amended Complaint. Doc. 21, Mot. Dismiss. The

case concerns Dr. Bennett’s termination from employment at TCCD. Dr. Bennett alleges TCCD

terminated her for discriminatory reasons in violation of the Constitution, the parties’

employment contracts, Title VII, and Title IX. For the following reasons, the Court GRANTS in

part and DENIES in part TCCD’s Motion to Dismiss. 

The Court DENIES the Motion as to Dr. Bennett’s claim for breach of contract based on

TCCD “taking action against Dr. Bennett in retaliation for her exercise of protected speech or

academic freedom and responsibilities.” See Doc. 20, Second Am. Compl., ¶ 5.3. This claim

survives the Motion.

Dr. Bennett’s claims for (1) retaliation under Title VII and (2) breaches of contract for

(a) choosing not to renew her contract or otherwise discriminating against Dr. Bennett for

unlawfully discriminatory reasons, (b) not making a recommendation through the normal

administrative channels prior to choosing not to renew her contract, and (c) choosing not to

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renew her contract in retaliation for bringing a complaint against Dr. Giovannini are

DISMISSED WITHOUT PREJUDICE.

And Dr. Bennett’s claims for (1) discrimination under Title VII, (2) retaliation in

violation of her First Amendment free speech rights pursuant to 42 U.S.C. § 1983, (3) violation

of her Fourteenth Amendment procedural due process rights pursuant to § 1983, (4) breaches of

contract based on (a) her original contract’s notice provision and (b) her EDP, and (5)

discrimination and retaliation under Title IX are DISMISSED WITH PREJUDICE.

I.

BACKGROUND

A. Factual Background1

This is an employment case concerning allegations of discrimination and retaliation

arising out of Dr. Bennett’s employment with TCCD. TCCD is a community college district that

operates a system of community colleges in and around Tarrant County. Doc. 20, Second Am.

Compl., ¶ 2.2. From October 1, 2020, to January 31, 2022, Dr. Bennett worked for TCCD as its

Executive Vice President for Advancement. Id. ¶ 4.1. Dr. Bennett’s supervisor during this time

was the then-chancellor of TCCD, Dr. Eugene Giovannini. Id. ¶ 3.1. 

On July 13, 2021, Dr. Bennett met with a female subordinate to discuss a workplace

conflict between the subordinate and a colleague. Id. ¶ 4.6. Disputes between the subordinate

and other employees continued for four weeks after this initial incident. Id. ¶ 4.10. Dr. Bennett

alleges she disciplined the subordinate in an effort to correct her behavior. Id. 

On August 17, 2021, Dr. Giovannini summoned Dr. Bennett to his office to discuss

Dr. Bennett’s behavior in an earlier meeting. Id. ¶ 4.11. At this meeting, Dr. Bennett first noticed

1

 The Court derives the factual background from Dr. Bennett’s Second Amended Complaint (Doc.

20).

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that Dr. Giovannini’s attitude and demeanor toward her “had . . . changed.” Id. The two met

again on August 31, 2021, at which time Dr. Giovannini informed Dr. Bennett that he was

placing her on an executive development plan (“EDP”), which is the equivalent of a personal

improvement plan (“PIP”). Id. ¶ 4.12. Dr. Giovannini told Dr. Bennett that she would be on the

EDP until December 31, 2021. Id. ¶ 4.15. Additionally, he informed her that her contract was

not being renewed, that she could be “let go” at any time, and that she would be required to

meet with Dr. Giovannini every two weeks. Id.

On October 28, 2021, TCCD’s Associate General Counsel, Carol Bracken, told Dr.

Bennett that Dr. Giovannini was rumored to be having an inappropriate relationship with the

female subordinate that Dr. Bennett had disciplined. Id. ¶ 4.22. Despite the rumors, Bracken

believed there was not enough information to start an investigation. Id. ¶ 4.25. Bracken added it

was her personal opinion that Dr. Bennett should not have been put on the EDP. Id. ¶ 4.26.

On November 15, 2021, Dr. Bennett resigned from her position, stating that her last day

would be January 31, 2022. Id. ¶¶ 4.31–4.32. However, on December 2, 2021, Dr. Bennett

rescinded her resignation and filed an internal grievance against Dr. Giovannini. Id. ¶ 4.34.

Shortly after her rescission, Dr. Bennett was placed on paid administrative leave and prohibited

from entering campus. Id. ¶¶ 4.40–4.41. On January 14, 2022, Dr. Bennett made a “written

demand for a due process hearing,” which TCCD denied. Id. ¶ 4.43. Dr. Bennett’s employment

with TCCD ended on January 31, 2022, though the parties dispute whether she was terminated

or TCCD merely accepted Dr. Bennett’s resignation. Id. ¶¶ 4.1, 4.40–4.44; Doc. 21, Mot.

Dismiss, 10. 

On December 30, 2021, Dr. Bennett submitted complaints of discrimination and

retaliation to the Texas Workforce Commission Civil Rights Division (“TWC-CRD”) and the

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United States Equal Employment Opportunity Commission (“EEOC”). Doc. 20, Second Am.

Compl., ¶ 4.45.

B. Procedural Background

This suit was filed February 7, 2022. Id. ¶ 4.46. On March 24, 2022, Dr. Bennett received

her Notices of Right to Sue and subsequently filed her First Amended Complaint within ninety

days of receiving notice. Id. ¶ 4.47. TCCD then moved to dismiss some of Dr. Bennett’s claims.

Doc. 8, Mot. Dismiss. The Court granted TCCD’s motion and dismissed without prejudice Dr.

Bennett’s claims for sex discrimination under Title VII and the TERA, age discrimination under

the ADEA, retaliation in violation the First Amendment, breach of contract based on the

original contract’s notice provision, breach of contract based on the EDP, and violations of her

procedural and substantive due process rights. Doc. 19, Mem. Op. & Order, 20. In the Order,

the Court gave Dr. Bennett “one chance to amend her pleadings.” Id.

Dr. Bennett filed her Second Amended Complaint on September 5, 2022. Doc. 20,

Second Am. Compl. She brings claims against TCCD for (1) discrimination and retaliation under

Title VII and Title IX, (2) retaliation in violation of her First Amendment free speech rights

pursuant to 42 U.S.C. § 1983, (3) violation of her Fourteenth Amendment procedural due

process rights pursuant to § 1983, and (4) breaches of contract based on (a) her original

employment contract and (b) her EDP. Id. ¶¶ 5.1–5.21. TCCD filed a second motion to dismiss

Dr. Bennett’s claims. Doc. 21, Mot. Dismiss. The Motion is ripe for review and the Court

considers it below.

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II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6)

authorizes a court to dismiss a plaintiff’s complaint for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “the

Court must accept all well-pleaded facts as true, and view them in the light most favorable to the

plaintiff.” Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019) (alterations and

internal quotations omitted). But the Court will “not look beyond the face of the pleadings to

determine whether relief should be granted based on the alleged facts.” Spivey v. Robertson, 197

F.3d 772, 774 (5th Cir. 1999).

To survive a motion to dismiss, plaintiffs must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). When well-pleaded

facts fail to meet this standard, “the complaint has alleged—but it has not shown—that the

pleader is entitled to relief.” Id. at 679 (quotation marks and alterations omitted). 

“In deciding a motion to dismiss the court may consider documents attached to or

incorporated in the complaint and matters of which judicial notice may be taken.” U.S. ex rel.

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Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003). The Court may

consider documents attached to a defendant’s motion to dismiss to the extent that those

documents are referred to in the complaint and are central to the plaintiff’s claims. Causey v.

Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).

III.

ANALYSIS

The Court begins by addressing Dr. Bennett’s discrimination and retaliation claims based

on violations of Title VII and Title IX. The Court then examines her First Amendment

retaliation and due process claims. Finally, the Court addresses Dr. Bennett’s breach-of-contract

claims.

A. Title VII & Title IX Claims

Dr. Bennett asserts claims for sex discrimination and retaliation under Title VII and Title

IX. Doc. 20, Second Am. Compl., ¶¶ 5.20–5.21. TCCD argues, and Dr. Bennett does not

contest, that Dr. Bennett’s claims under Title IX are preempted by Title VII. See Doc. 21, Mot.

Dismiss, 14; Doc. 24, Resp., 3–9. The Court agrees. In federally funded educational institutions

Title VII provides the exclusive remedy for claims of employment discrimination on the basis of

sex, Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995), and for retaliation against conduct

protected by Title VII, Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 248 (5th Cir. 1997).

TCCD is a federally funded educational institution, so Title VII provides the exclusive remedy

for the claims Dr. Bennett asserts under Title IX. Accordingly, Dr. Bennett’s claims for sex

discrimination and retaliation under Title IX are DISMISSED WITH PREJUDICE.

1. Sex Discrimination Under Title VII

Title VII makes it unlawful for employers to “discriminate against any individual with

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respect to [her] compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under the McDonnell Douglas burden-shifting

framework employed in such cases, a plaintiff must first establish a prima facie case of

discrimination by showing that she 

(1) is a member of a protected group; (2) was qualified for the position at issue;

(3) was discharged or suffered some adverse employment action by the employer;

and (4) was replaced by someone outside [her] protected group or was treated less

favorably than other similarly situated employees outside the protected group.

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).2 The parties do not dispute the

first two prongs.

To satisfy the fourth element—the “similarly situated” prong—the employee must

establish that she was “treated less favorably than a similarly situated employee outside of her

protected class in nearly identical circumstances.” Saketkoo v. Adm’rs of Tulane Educ. Fund, 31

F.4th 990, 998 (5th Cir. 2022). 

[C]ritically, the plaintiff’s conduct that drew the adverse employment decision

must have been nearly identical to that of the proffered comparator who allegedly

drew dissimilar employment decisions. If the difference between the plaintiff’s

conduct and that of those alleged to be similarly situated accounts for the

difference in treatment received from the employer, the employees are not

similarly situated for the purposes of an employment discrimination analysis. 

Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (internal citations and quotations

omitted). Additionally, courts consider factors such as “job responsibility, experience, and

qualifications” to determine whether an employee is similarly situated. Saketkoo, 31 F.4th at 998.

In her Second Amended Complaint, Dr. Bennett contends she was punished without

2 Title VII plaintiffs are also required to exhaust their administrative remedies before seeking judicial

relief. See 42 U.S.C. § 2000e-5(e)(1). The parties do not appear to dispute that Dr. Bennett satisfied the

exhaustion requirement. See Doc. 20, Second Am. Compl., ¶¶ 4.45–4.47; Doc. 21, Mot. Dismiss.

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cause while Dr. Giovannini was given “preferential treatment” and Dr. Giovannini created a

hostile work environment3by punishing Dr. Bennett for speech he “did not find offensive in

males, thereby imposing gender stereotyping upon plaintiff.”4 Doc. 20, Second Am. Compl.,

¶¶ 5.10(2), 5.10(10). TCCD argues that Dr. Bennett did not sufficiently plead (1) an adverse

employment action and (2) less favorable treatment than a similarly situated employee. Doc. 21,

Mot. Dismiss, 15. The Court finds that Dr. Bennett has failed to sufficiently plead facts

supporting her Title VII sex discrimination claim. 

Assuming without deciding that Dr. Bennett could satisfy the first three requirements of a

prima facie discrimination case, she has not sufficiently pleaded that she was treated differently

than a similarly situated male. “[F]or employees to be similarly situated[,] those employees’

circumstances, including their misconduct, must have been ‘nearly identical.’” See Perez v. Tex.

Dep’t of Crim. Just., 395 F.3d 206, 213 (5th Cir. 2004). “The employment actions being compared

will be deemed to have been taken under nearly identical circumstances when the employees

being compared held the same job or responsibilities, shared the same supervisor or had their

employment status determined by the same person, and have essentially comparable violation

histories.” Lee, 574 F.3d at 260.

Dr. Bennett argues her immediate predecessor as head of advancement, Joe McIntosh,

was similarly situated and received more favorable treatment from Dr. Giovannini. See Doc. 20,

3 As the Court previously noted, see Doc. 19, Mem. Op. & Order, 7 n.5, the Court understands Dr.

Bennett’s reference to a “hostile work environment” as simply referring to Dr. Giovannini’s alleged disparate

treatment of Dr. Bennett—not bringing a separate Title VII hostile work environment claim.

4

“An employer is subject to vicarious liability to a victimized employee for an actionable hostile

environment created by a supervisor with immediate (or successively higher) authority over the employee.”

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Thus, the Court analyzes Dr. Bennett’s claims

pertaining to TCCD and Dr. Giovannini.

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Second Am. Compl., ¶¶ 4.3–4.5, 5.21. But Dr. Bennett does not allege that Mr. McIntosh ever

confronted Dr. Giovannini concerning his relationship with the female subordinate. This

“difference between [Dr. Bennett’s] conduct and that of [Mr. McIntosh likely] accounts for the

difference in treatment received from [Dr. Giovannini],” making “the employees . . . not similarly

situated for the purposes of an employment discrimination analysis.” See Lee, 574 F.3d at 260. Dr.

Bennett and Mr. McIntosh may have “literally had the same role,” see Doc. 20, Second Am.

Compl., ¶ 4.4, but their difference in conduct makes them not similarly situated for the purposes

of Dr. Bennett’s claim. Because Dr. Bennett has not alleged a similarly situated employee,

Dr. Bennett’s Title VII sex discrimination is DISMISSED WITH PREJUDICE. 

2. Retaliation Under Title VII

Title VII makes it unlawful for an employer to “discriminate against any of [its]

employees . . . because [she] has opposed any practice made an unlawful employment practice by

this subchapter, or because [she] has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a

prima facie case of discrimination by showing: “(1) she engaged in a protected activity; (2) she

suffered an adverse employment action; and (3) a causal connection exists between the protected

activity and the adverse employment action.” Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571,

577 (5th Cir. 2020) (internal quotations omitted). TCCD argues Dr. Bennett has not sufficiently

alleged an adverse employment action or an activity protected by Title VII. Doc. 21, Mot.

Dismiss, 18.

The Court finds Dr. Bennett fails to show that she engaged in a protected activity. “An

employee has engaged in activity protected by Title VII if she has either (1) ‘opposed any

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practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title

VII.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e–3(a)).

Dr. Bennett claims that she was retaliated against for two activities: (1) speaking to the female

employee in question for corrective action and (2) filing a grievance.5 Doc. 20, Second Am.

Compl., ¶¶ 5.10(5)–(6), 5.20. 

Dr. Bennett does not allege that, in either of these activities, she was “oppos[ing] any

practice made an unlawful employment practice by Title VII or . . . ma[king] a charge,

testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or

hearing under Title VII.” See Long, 88 F.3d at 304. An employee’s use of their employer’s internal

grievance mechanisms is a protected activity if the employee used the grievance mechanisms to

oppose a practice made an unlawful employment practice by Title VII. See id. at 306 n.5.

However, in her grievance, Dr. Bennett does not complain that Dr. Giovannini’s conduct

constituted an unlawful employment practice under Title VII. See Doc. 20-1, Ex. A. Instead, the

grievance alleges Dr. Giovannini retaliated against Dr. Bennett for asking her subordinate to

apologize and because Dr. Bennett knew of Dr. Giovannini’s relationship with the subordinate.

See id. The type of retaliation alleged in the grievance is not an unlawful employment practice

under Title VII. Because Dr. Bennett does not show she engaged in a protected activity under

Title VII, Dr. Bennett’s Title VII retaliation claim is DISMISSED WITHOUT PREJUDICE.

5 The Court interprets this reference to “filing a grievance” as referring to Dr. Bennett’s grievance

against Dr. Giovannini filed with TCCD, not her complaint against TCCD filed with the TWC-CRD and the

EEOC. Dr. Bennett alleges TCCD retaliated against her by “placing her on leave and barring her from

campus.” Doc. 20, Second Am. Compl., ¶ 5.10(6). These actions occurred before Dr. Bennett filed her

complaint with the TWC-CRD and the EEOC. Id. ¶¶ 4.40–4.41, 4.45.

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B. First Amendment Retaliation and Due Process Claims

Dr. Bennett claims TCCD violated her First Amendment rights by retaliating against her

for exercising her free speech rights. Doc. 20, Second Am. Compl., ¶¶ 5.11–5.12. She also alleges

TCCD violated her constitutional due process rights by terminating or failing to renew her

contract. Id. ¶ 5.13. Dr. Bennett argues that TCCD is therefore liable under 42 U.S.C. § 1983 for

violating her constitutional rights. Id. ¶ 1.1. TCCD moved to dismiss these claims, arguing Dr.

Bennett has not sufficiently pled violations of her free speech or due process rights. Additionally,

TCCD contends that it is not liable because Dr. Bennett failed to allege a policymaker under

§ 1983. Because the Court finds Dr. Bennett has not shown municipal liability under § 1983, the

Court dismisses her claims for violations of her free speech and due process rights.

Section 1983 prohibits government officials, acting under color of state law, from

depriving individuals of rights guaranteed under the Constitution or laws of the United States.

Saenz v. Dall. Cnty. Cmty. Coll. Dist., 2011 WL 1935742, at *3 (N.D. Tex. May 16, 2011)

(O’Connor, J.). A municipal entity like TCCD cannot be held vicariously liable under § 1983 for

the individual acts of its employees. 42 U.S.C. § 1983. Instead, for a municipal entity to be held

liable under § 1983, there must be (1) “a policymaker”; (2) “an official policy”; and (3) “a

violation of a constitutional right whose ‘moving force’ is the policy or custom.” Piotrowski v. City

of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978)). The first element requires “proof that an official policymaker with actual or

constructive knowledge of the constitutional violation acted on behalf of the municipality.”

Zarnow v. City of Wichita Falls, 614 F.3d 161, 167 (5th Cir. 2010). Dr. Bennett fails to meet this

requirement.

Dr. Bennett argues that Dr. Giovannini is a policymaker for purposes of Monell liability.

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Doc. 24, Resp., 12–13. Courts determine policymaker status by reference to state law. Jett v. Dall.

Indep. Sch. Dist., 491 U.S. 701, 737 (1989). In Texas, a junior college board of trustees is the final

policymaker for the junior college district. See Tex. Educ. Code §§ 11.051, 130.084(a); Saenz,

2011 WL 1935742, at *5. So TCCD’s sole policymaker is its board of trustees.

Dr. Bennett argues TCCD is nonetheless liable for Dr. Giovannini’s actions in this case

because TCCD’s board of trustees delegated final policymaking authority to Dr. Giovannini or

ratified his actions. In support, Dr. Bennett points to Dr. Giovannini’s ability “to place Dr.

Bennett on a EIP, to place her on leave, and ultimately to terminate her employment with

TCCD.” See Doc. 24, Resp., 13. But delegation of authority to make final employment decisions,

without more, does not show delegation of policymaker status for purposes of § 1983. See City of

St. Louis v. Praprotnik, 485 U.S. 112, 129–30 (1988) (plurality opinion); Bolton v. City of Dall.,

541 F.3d 545, 549 (5th Cir. 2008). The Fifth Circuit, using an example given by the plurality

opinion in Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986), explained,

[I]f county employment policy was set by the Board of County Commissioners,

only that body’s decisions would provide a basis for county liability. This would be

true even if the Board left the Sheriff discretion to hire and fire employees and the

Sheriff exercised that discretion in an unconstitutional manner; the decision to

act unlawfully would not be a decision of the Board. However, if the Board

delegated its power to establish final employment policy to the Sheriff, the

Sheriff’s decisions would represent county policy and could give rise to municipal

liability.

Bolton, 541 F.3d at 549 n.3 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986)

(plurality opinion)). “[S]imply going along with discretionary decisions made by one’s

subordinates . . . is not a delegation to them of the authority to make policy.” Jett v. Dall. Indep.

Sch. Dist., 7 F.3d 1241, 1247 (5th Cir. 1993) (quoting Praprotnik, 485 U.S. at 130). There is no

evidence that Dr. Giovannini’s decisions to place Dr. Bennett on the EDP or not renew her

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contract were “cast in the form of a policy statement and expressly approved by the supervising

policymaker,” or that the decisions “manifested a ‘custom or usage’ of which [TCCD’s board of

trustees] must have been aware.” Id. (quoting Praprotnik, 485 U.S. at 127, 130). So these

decisions alone do not demonstrate delegation of policymaking authority.

Dr. Bennett also fails to show that TCCD’s board of trustees ratified Dr. Giovannini’s

actions. “If a final policymaker approves a subordinate’s recommendation and also the

subordinate’s reasoning, that approval is considered a ratification chargeable to the

municipality.” Culbertson v. Lykos, 790 F.3d 608, 621 (5th Cir. 2015). “This theory of ratification

has been limited to ‘extreme factual situations.’” Id. Dr. Bennett alleges that the board of trustees

was “specifically made aware of Giovannini’s conduct, . . . but at all times acquiesc[ed] in [Dr.]

Giovannini’s treatment of Dr. Bennett.” Doc. 24, Resp. 14. Dr. Bennett does not allege that

TCCD’s board approved Dr. Giovannini’s reasoning—only that “[his] actions were let stand.”

See id. Because ratification is limited to “extreme factual situations” where a final policymaker

approves a subordinates reasoning, see Culbertson 790 F.3d at 621, the Court finds that Dr.

Bennett has not shown that TCCD’s board of trustees ratified Dr. Giovannini’s actions.

For these reasons, the Court finds that Dr. Bennett has not alleged a municipal

policymaker. Because Dr. Bennett has not alleged a policymaker, she cannot show an official

policy. See Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017) (requiring an official

policy to be promulgated by the municipal policymaker). 

And “[b]ecause Plaintiff fails to adequately plead an official policy, the Court need not

address whether Plaintiff sufficiently alleged a constitutional violation.” See Maxwell v. Mesquite

Indep. Sch. Dist., 2022 WL 2392410, at *4 (N.D. Tex. July 1, 2022) (Scholer, J.) (citing Gomez v.

Galman, 18 F.4th 769, 777 (5th Cir. 2021)). Dr. Bennett’s § 1983 claims against TCCD for

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violations of her free speech and due process rights are therefore DISMISSED WITH

PREJUDICE.

C. Breach-of-Contract Claims

A plaintiff seeking to recover on a breach-of-contract claim must show “(1) the existence

of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the

contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.”

Mullins v. TestAmerica, Inc., 564 F.3d 386, 418 (5th Cir. 2009) (quoting Aguiar v. Segal, 167

S.W.3d 443, 450 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). Dr. Bennett alleges

TCCD breached the parties’ original written employment contract and the EDP contract by

violating various TCCD employment policies that were incorporated into the contracts. Doc. 20,

Second Am. Compl., ¶¶ 5.1–5.2. As noted above, the Court can review documents attached to a

defendant’s motion to dismiss to the extent that those documents are referred to in the

complaint and are central to the plaintiff’s claims. Causey, 394 F.3d at 288. Here, the Court

analyzes Dr. Bennett’s breach-of-contract claims by reference to her original contract and the

EDP, both attached to TCCD’s Motion to Dismiss, since both were referenced in Dr. Bennett’s

complaint and are central to her claims. See Doc. 20, Second Am. Compl., ¶¶ 5.1–5.10, 5.6.

6

Texas presumes employment is at-will. Thomas v. Long, 207 S.W.3d 334, 341 (Tex.

2006). So, “absent a specific agreement to the contrary, employment may be terminated by the

employer or the employee at will, for good cause, bad cause, or no cause at all.” Montgomery

Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). “To rebut the presumption of

employment at will, an employment contract must directly limit in a ‘meaningful and special way’

6The Second Amended Complaint contains two paragraphs numbered 5.6. See Doc. 20, Second Am.

Compl., 22–23, 25.

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the employer’s right to terminate the employee without cause.” Hamilton v. Segue Software Inc.,

232 F.3d 473, 478 (5th Cir. 2000) (per curiam) (quoting Rios v. Tex. Com. Bancshares, Inc., 930

S.W.2d 809, 815 (Tex. App.—Corpus Christi 1996, writ denied)). The employee has the burden

of proving the at-will relationship was modified. Dworschak v. Transocean Offshore Deepwater

Drilling, Inc., 352 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

“[E]mployee handbooks or manuals generally do not alter the at-will employment

relationship . . . .” In re Sun Coast Res., Inc., 562 S.W.3d 138, 159 (Tex. App.—Houston [14th

Dist.] 2018, no pet.). “An employee handbook . . . does not create property interests in stated

benefits and policies unless some specific agreement, statute, or rule creates such an interest.”

Parviz-Khyavi v. Alcon Lab’ys, Inc., 395 S.W.3d 376, 382 (Tex. App.—Dallas 2013, pet. denied)

(internal quotations omitted). “[A]bsent any express reciprocal agreement regarding discharge,

[government] personnel policies or employee handbooks constitute no more than general

guidelines and do not create contractual rights in employees.” Heggemeier v. Caldwell Cnty., 826

F.3d 861, 871 (5th Cir. 2016) (internal quotations omitted). “To create contractual rights, [an

employment] policy must specifically and expressly limit the employer’s ability to terminate the

employee. The policy must contain an explicit contractual term altering the at-will relationship,

and must alter that relationship in a meaningful and special way.” Zenor v. El Paso Healthcare

Sys., Ltd., 176 F.3d 847, 862 (5th Cir. 1999) (internal quotations and citations omitted).

Provisions of a policy manual “merely explain[ing] the termination procedure[s] that the

supervisor should employ” do not modify at-will employment status. Williams v. First Tenn. Nat.

Corp., 97 S.W.3d 798, 803 (Tex. App.—Dallas 2003, no pet.). 

Dr. Bennett contends TCCD breached two separate contracts: (1) the original written

employment contract that expired on August 31, 2021, and (2) the EDP Dr. Bennett was placed

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on starting September 1, 2021. Doc. 20, Second Am. Compl., ¶ 5.1. She argues that these

contracts incorporated various TCCD policies and TCCD breached the contracts by violating

these policies. Id. ¶ 5.2. Dr. Bennett claims TCCD violated its policies by (1) “taking action

against Dr. Bennett in retaliation for her exercise of protected speech or academic freedom and

responsibilities,” see id. ¶ 5.3; (2) choosing not to renew her contract or otherwise discriminating

against Dr. Bennett for unlawfully discriminatory reasons, see id. ¶¶ 5.4, 5.6–5.7; (3) choosing not

to renew her contract without a recommendation through normal administrative channels, see id.

¶ 5.5; and (4) choosing not to renew her contract in retaliation for bringing a complaint against

Dr. Giovannini, see id. ¶¶ 5.8–5.9.

7 TCCD argues that these claims should be dismissed for five

reasons, which the Court discusses below. See Doc. 21, Mot. Dismiss, 5–9.

First, TCCD argues, “Plaintiff’s breach of contract claims of discrimination and/or

retaliation based on the same factual basis supporting her Title VII claims should be dismissed

because Title VII and/or the TCHRA is the exclusive remedy for these claims.” Id. at 5–6. In

federally funded educational institutions Title VII provides the exclusive remedy for claims for

employment discrimination on the basis of sex, Lakoski, 66 F.3d at 753, and for retaliation against

conduct protected by Title VII, Lowrey, 117 F.3d at 248. Where Title VII provides an exclusive

remedy for employment discrimination, state-law claims based in employment discrimination are

barred. See, e.g., Hampton v. I.R.S., 913 F.2d 180, 182–83 (5th Cir. 1990) (per curiam) (holding a

state-law tort claim based on conduct made unlawful by Title VII was preempted by Title VII).

Thus Dr. Bennett’s breach of contract claim based on sex discrimination or retaliation made

7 Dr. Bennett makes other allegations in support of her breach of contract claims. See Doc. 20, Second

Am. Compl., ¶¶ 5.10(1)–(10). These claims are either duplicative of the claims enumerated above or do not

create contractual rights because they are “provision[s] merely explain[ing] the termination procedure[s] that

the supervisor should employ.” Williams, 97 S.W.3d at 803.

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unlawful by Title VII is DISMISSED WITHOUT PREJUDICE.

Second, TCCD argues its policies did not require TCCD to make a recommendation of

non-renewal through normal administrative channels. Doc. 21, Mot. Dismiss, 6–8. Even if the

policies require this recommendation, the policy provisions “merely explain[] the termination

procedure[s] that the supervisor should employ” and thus does not create a contractual right. See

Williams, 97 S.W.3d at 803. Thus, Dr. Bennett’s claim based on TCCD choosing not to renew

her contract without recommendation are DISMISSED WITHOUT PREJUDICE.

TCCD’s third argument is that TCCD was not required to provide Dr. Bennett written

notice of her non-renewal. Doc. 21, Mot. Dismiss, 8–9. The notice provision in the polices is

simply an explanation of termination procedures and not an “express reciprocal agreement

regarding discharge.” See Heggemeier, 826 F.3d at 871. Thus, Dr. Bennett’s claim based on TCCD

choosing not to renew her contract without notice are DISMISSED WITH PREJUDICE.

Fourth, TCCD argues the Court should dismiss Dr. Bennett’s claim that TCCD breached

her employment contract by choosing not to renew her contract in retaliation for bringing a

complaint. Doc. 21, Mot. Dismiss, 8. TCCD argues that it chose not to renew Dr. Bennett’s

contract before she filed her grievance against Dr. Giovannini. Id. Dr. Bennett responds that she

is alleging Dr. Giovannini retaliated against her for disciplining her subordinate. Doc. 24, Resp.,

20.

The policy at issue is “DGBA(LOCAL).” See Doc. 20, Second Am. Compl., ¶ 5.8. The

“Freedom from Reprisals” paragraph of the policy states, “No reprisals or retaliation of any kind

shall be taken at any level against an employee for bringing a complaint.” Doc. 21-6, Ex. F, 2.

DGBA(LOCAL) defines a complaint “as an unresolved issue concerning the application of

College District policy, practice, or regulation [including] disciplinary action.” Id at 1. To bring a

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complaint, an employee first raises the issue with their immediate supervisor and then proceeds

up the line of authority if the matter remains unresolved. See id. at 2–3. Dr. Bennett’s “actions to

counsel her female subordinate” were not “bringing a complaint” within the meaning of

DGBA(LOCAL). The discussion did not concern “an unresolved issue concerning the

application of College District policy, practice, or regulation,” and Dr. Bennett did not follow the

procedures for bringing a complaint. See id. at 1–3. The Court therefore finds that Dr. Bennett

has not stated a claim for breach of contract based on the “Freedom from Reprisals” paragraph of

DGBA(LOCAL). Thus, Dr. Bennett’s contractual claim against TCCD for choosing not to

renew her contract in retaliation for disciplining her subordinate are DISMISSED WITHOUT

PREJUDICE.

Fifth and finally, TCCD claims “most of Plaintiff’s violation allegations are not prohibited

by the specific policies cited by Plaintiff.” Doc. 21, Mot. Dismiss, 9. TCCD provides two

examples, see id., neither of which address Dr. Bennett’s claim that TCCD breached its written

contract with Dr. Bennett by “taking action against Dr. Bennett in retaliation for her exercise of

protected speech or academic freedom and responsibilities,” see Doc. 20, Second Am. Compl.,

¶ 5.3. Because TCCD’s Motion does not identify any specific deficiency with this claim, the

Court presumes that this claim is an exception to TCCD’s argument about the deficiency of

“[m]ost of Plaintiff’s violation allegations.” See Doc. 21, Mot. Dismiss, 9.

To the extent TCCD did intend this argument to apply, the Court declines to make

TCCD’s arguments for it. “[D]espite the natural focus on the allegations of the operative

pleading, the movant has the burden on a motion to dismiss under Rule 12(b)(6).” Cantu v.

Guerra, 2021 WL 2636017, at *1 (W.D. Tex. June 25, 2021). Given the limited basis TCCD

provides, “additional assessment would essentially amount to judicial screening of the claims

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asserted in this case. But Rule 12(b)(6) is not a judicial screening mechanism . . . .” Id. The Court

therefore finds that Dr. Bennett’s claim that TCCD violated its policies by “taking action against

Dr. Bennett in retaliation for her exercise of protected speech or academic freedom and

responsibilities,” see Doc. 20, Second Am. Compl., ¶ 5.3, survives the motion to dismiss.

In sum, Dr. Bennett’s breach of contract claim based on (1) sex discrimination or

retaliation made unlawful by Title VII, (2) TCCD choosing not to renew her contract without

recommendation, (3) TCCD choosing not to renew her contract without notice, and (4) TCCD

choosing not to renew her contract in retaliation for disciplining her subordinate are

DISMISSED. Because one breach of contract claim survives, the Motion to Dismiss is

GRANTED in part and DENIED in part.

D. Leave to Amend 

“[D]istrict courts often afford plaintiffs at least one opportunity to cure pleading

deficiencies before dismissing a case, unless it is clear that the defects are incurable or the

plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid

dismissal.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.

2002). The Court notes that the liberal standard for leave to amend a complaint under Rule

15(a) is “tempered by the necessary power of a district court to manage a case.” Fed. R. Civ. P.

15(a); Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003). 

The Court has already once dismissed Dr. Bennett’s claims for sex discrimination under

Title VII, retaliation in violation of the First Amendment, violation of her procedural due

process rights, and breach of contract based on the original contract’s notice provision and the

EDP. Doc. 19, Mem. Op. & Order, 20. Previously, “the Court deem[ed] it appropriate to provide

[Dr. Bennett] one chance to amend her pleadings in light of the deficiencies noted in [the

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Court’s August 16, 2022] Order.” Id. The Court finds granting Dr. Bennett leave to amend these

claims in a third amended complaint would be futile. In addition, because Dr. Bennett’s claims

for sex discrimination and retaliation under Title IX are precluded as a matter of law by Title VII,

the Court finds granting Dr. Bennett leave to amend these claims would be futile. Dr. Bennett’s

claims for (1) discrimination under Title VII, (2) retaliation in violation of her First Amendment

free speech rights pursuant to § 1983, (3) violation of her Fourteenth Amendment procedural

due process rights pursuant to § 1983, (4) breaches of contract based on (a) her original

contract’s notice provision and (b) her EDP, and (5) discrimination and retaliation under Title

IX are therefore DISMISSED WITH PREJUDICE.

Because the Court’s previous order (Doc. 19) was on a construed partial motion to

dismiss, see Doc. 19, Mem. Op. & Order, 4 n.3, 20–21, the Court deems it appropriate to provide

Dr. Bennett a final chance to amend her pleadings on her remaining claims, which were not

considered in the previous order. Dr. Bennett’s claims for (1) retaliation under Title VII and (2)

breaches of contract for (a) choosing not to renew her contract or otherwise discriminating

against Dr. Bennett for unlawfully discriminatory reasons, (b) not making a recommendation

through the normal administrative channels prior to choosing not to renew her contract, and (c)

choosing not to renew her contract in retaliation for bringing a complaint against Dr. Giovannini

are therefore DISMISSED WITHOUT PREJUDICE.

IV.

CONCLUSION

For the reasons explained above, the Court GRANTS in part and DENIES in part

TCCD’s Motion to Dismiss (Doc. 21). The Court DISMISSES WITH PREJUDICE Dr.

Bennett’s claims for 

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1. discrimination under Title VII, 

2. retaliation in violation of her First Amendment free speech rights pursuant to

§ 1983,

3. violation of her Fourteenth Amendment procedural due process rights pursuant to

§ 1983,

4. breaches of contract based on (a) her original contract’s notice provision and (b)

her EDP, and 

5. discrimination and retaliation under Title IX.

The Court DISMISSES WITHOUT PREJUDICE Dr. Bennett’s claims for 

1. retaliation under Title VII, and

2. breaches of contract for 

a. failing to renew her contract or otherwise discriminating against Dr.

Bennett for unlawfully discriminatory reasons,

b. not making a recommendation through the normal administrative

channels prior to choosing not to renew her contract, and 

c. failing to renew her contract in retaliation for bringing a complaint against

Dr. Giovannini 

Within TWENTY-ONE (21) days of this Order, Dr. Bennett is ORDERED to file a

third amended complaint as described in Part D, supra. From the date of Dr. Bennett’s filing,

TCCD has FOURTEEN (14) days to file an answer or other responsive pleading pursuant to

Federal Rule of Civil Procedure 15(a)(3).

SO ORDERED.

SIGNED: February 7, 2023.

______________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE 

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