Select Page




Case citation: Edwards v. Senatobia Municipal School District,     Fed. Appx.     , 2013 WL 6511501 (5th Cir. 2013) (unpublished).

Summary: George Edwards was an African-American male who began working as a middle school custodian for the Senatobia Municipal School District in Mississippi on July 28, 2011.  On August 1, 2011, Kristina Scruggs, a white third-grade teacher at the middle school, reported to the school principal and assistant principal that her cell phone was missing from her classroom. According to Scruggs, it went missing when she had left her classroom earlier that day.

Custodial staff, including Edwards, were questioned about the missing phone.  When school district superintendent Jay Foster questioned Edwards, Edwards denied taking the phone.  Foster then showed Edwards the surveillance video footage and asked him what he was doing in Scruggs’s classroom.  Edwards stated that he might have been cleaning, but when Foster pointed out that Edwards did not take anything into the room with him and had stayed in the classroom for only about one minute, Edwards offered no explanation.  Foster dismissed Edwards from his custodial position on August 2nd, and subsequently hired another African-American male to replace Edwards.

Edwards filed suit against the school district, claiming discrimination based on race, gender, religion, and national origin under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA).  The district moved to dismiss all of Edwards’s claims, except for his Title VII race claim, on the basis that Edwards had failed to exhaust his administrative remedies.  The district court granted the motion.  The district later moved for summary judgment on Edwards’s remaining Title VII claim, which the district court granted. Edwards appealed the judgment in favor of the district to the Fifth Circuit Court of Appeals.

Ruling: The appeals court upheld the dismissal of Edwards’s Title VII race discrimination claims.  According to the appeals court, Edwards failed to establish a prima facie case of discrimination, which requires a showing that he (1) was a member of a protected class, (2) was qualified for his position, (3) suffered an adverse employment action, and (4) was treated less favorably than employees outside of the protected class.   The record showed that Edwards was a member of a protected class who suffered an adverse employment action, and was qualified for the middle school custodian position.  However, Edwards failed to show that he was treated less favorably than a similarly-situated employee outside his protected class. Edwards claimed that another African- American custodian who was seen entering Scrugg’s office on the day her phone went missing and was questioned about the phone, did not suffer any adverse employment action.  The appeals court observed, however, that the other custodian also was African American.   Thus, Edwards could not rely on the treatment of that employee to establish a prima facie case of discrimination under Title VII.  The Fifth Circuit affirmed the dismissal of the Title VII race discrimination lawsuit.

Comments:  Perhaps Mr. Edwards could have survived the “prima facie” test with regard to sex discrimination, since he alleged that a female custodian was treated more favorably than he was.  But the court had already dismissed the sex discrimination case due to the failure to exhaust administrative remedies.





Case citation:  Pineiro v. Killeen ISD, Civil Action No. W-12- CV-271 (W.D. Tex.   Dec. 23, 2013) (unpublished).

Summary: Margarita Pineiro worked for the Killeen Independent School District as a high school Spanish teacher. Pineiro had been granted three one-year probationary contracts.  At the end of her third contract, the district did not renew the contract as a result of a reduction in force (RIF).  The district declined to rehire her when a subsequent Spanish teacher position became available.

Pineiro filed this wrongful termination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983, alleging that she was terminated due to her Puerto Rica n national origin.  She claimed further that she was subjected to a hostile work environment, and that she was retaliated against because of her objections to the district’s alleged discriminatory practices. In response, the school district sought pretrial judgment in its favor, arguing that the evidence was insufficient to establish her discrimination and retaliation claims.

Ruling:  The trial court agreed that the evidence was insufficient to support Pineiro’s lawsuit and entered judgment in favor of the school district.   The uncontroverted evidence showed that the school district faced a revenue shortfall in 2011, requiring a reduction in personnel across the entire district.  Out of the fifteen employees that the high school had to eliminate, Pineiro was the only Hispanic.  Twelve of those terminated were non-minorities. Of the six employees remaining in the Spanish department, only one was a non-minority.  Three employees of the Spanish department were considered for termination, one of which was the only Caucasian teacher in the department.  Further, the others who were retained had been highly involved in extracurricular activities. Pineiro provided no evidence that the decisions regarding the RIF of the Spanish department were discriminatory.

Pineiro’s allegation that she was not rehired because of her national original also was without merit.  The record showed that, after several employees had been selected for termination under the RIF, another employee in the Spanish department notified the district of her decision to retire.  However, the resignation occurred after it was too late to reverse the RIF decision with respect to Pineiro.  The vacant position was slated to be used to hire a teacher for the college-level Advanced Placement Spanish course.  After that position was posted, Pineiro applied and was interviewed.  However, the district hired another person who had more experience teaching Spanish and was better qualified to handle the Advanced Placement course.  Pineiro, on the other hand, had no experience with the Advanced Spanish course. Thus, the hiring decision did not amount to discrimination.  Ultimately, the trial court concluded that Pineiro failed to produce any evidence, other than her subjective belief, that the district’s employment decisions were based on discriminatory intent.  The trial court, therefore, granted judgment in favor of the school district.



Case citation:  Jones v. Houston ISD, 2013 WL 6054498 (S.D. Tex.   2013) (unpublished).

Summary: Donald A. Jones worked for the Houston Independent School District when his principal transferred him from a Teacher Specialist to the position of Instructional Coordinator, and later to Literary Coach.  Jones claimed that he was not trained for either of those positions and was not originally hired to perform those job duties.  Jones held a probationary contract with the school district.  The principal documented deficiencies in Jones’s work performance and ultimately recommended termination of the probationary contract at the end of the contract term.  The district provided Jones notice of proposed termination, and also offered him an opportunity to resign.   Jones submitted his resignation one day past the stated deadline and the board voted to terminate the probationary contract.  The superintendent sent Jones a letter informing Jones of the board decision.  Jones acknowledged receipt of the letter, but wrote that he had tried to resign in lieu of termination.  The district then notified him that his resignation had been accepted.   Jones also filed a dispute resolution form, challenging a negative performance appraisal and his termination. The dispute resolution form was treated as a grievance and the board ultimately denied the grievance. Jones appealed the decision to the Commissioner of Education and, while the appeal was pending, filed suit against the school district.

In his lawsuit, Jones raised claims for race and gender discrimination under the Equal Protection Clause of the United States Constitution and race discrimination under Title VI of the Civil Rights Act.   He also alleged that the district violated his right to due process by failing to provide sufficient notice of his termination.  The school district filed a motion requesting a pretrial judgment in its favor on each of the claims.

Ruling: The trial court granted the district’s motion for judgment as a matter of law. The trial court observed that an equal protection claim based on race or gender must be supported by evidence that the actions taken against the plaintiff were motivated by discriminatory intent. Here, although Jones alleged discriminatory treatment, he failed to offer any evidence to support his allegations. He did not identify any examples of discriminatory treatment and provided no evidence to show discriminatory animus on the part of the school district.  According to the court, Jones’s mere allegations without supporting evidence, could not defeat the district’s request for judgment on the discrimination claims.

The equal protection claims against the school district also required a showing of a policy, custom, or practice of the school district that was the moving force behind the alleged constitutional violations. Again, Jones did not identify an unconstitutional school district policy that resulted in harm to him.  Thus, judgment was granted in favor of the district on the equal protection claims. For the same reasons, the trial court determined that Jones’s Title VI race discrimination claims were without merit.

Jones next claimed that his termination violated his due process rights because he was not provided proper notice of his termination.   Jones claimed, specifically, that the notice was flawed because it was signed by the superintendent rather than the board of trustees.  The trial court observed that the “essential requirements” of procedural due process are “notice and an opportunity to respond.”  It was undisputed in this case that Jones received notice of his proposed termination.  The notice provided was timely and sufficiently stated the reasons for his proposed termination. In addition, the district provided Jones an opportunity to respond to the reasons for his termination during the grievance process.   Jones simply failed to demonstrate a violation of his due process rights.  Because Jones did not provide evidence to support his race, gender, or due process claims, the trial court entered judgment in favor of the school district.

Comments:   The plaintiff made a big point of the fact that the statute requires the notice of termination to come from the board of trustees. The court spends several paragraphs discussing the fact that the superintendent signed the notice letter, rather than a member of the board.  It helped the district’s cause that the notice letter specifically stated that the superintendent had “been authorized” by the board to send the notice.


Whistleblower Act

Texas Supreme Court Case



Case citation:  Ysleta ISD v. Franco, _S.W.3d_ , 2013 WL 6509471 (Tex. 2013).

Summary:   Marcelino Franco was a principal at the Robert F. Kennedy Pre–K Academy in the Ysleta Independent School District.  He sent a memorandum to his immediate supervisor, the chief academic officer, Gloria Polanco-McNealy, reporting various “asbestos hazards” in the school and raising several “Administrative Issues.”  Specifically, he stated that “staff members [are] suffering from recent cancers, liver ailments, respiratory ailments and several advise [him] that ‘they just feel sick’.  Absenteeism is high.  One teacher has traveled to the Mayo Institute and remains ‘sick’ but undiagnosed.”

Franco feared that he and the teachers, staff, and students were at risk of “contracting a cancer, other related illness(es) or just being chronically ‘sick’.”  Franco asserted that the current working conditions breached his employment contract and the “Code of Ethics and Standard Practices for Texas Educators.” Franco requested a transfer to another school within the district. He included a “confidential communiqué” disclaiming any threatening or provocative motives, and he promised that the district could “rely on [his] complete trust, loyalty and professional discretion and ethics.”

Ms. Polanco-McNealy responded that the district’s facilities department was unaware of any asbestos at the school.   She also told Franco that she would investigate his accusations of asbestos and mold and the allegedly related illnesses. In response, Franco directed Ms. Polanco-McNealy to the district’s Asbestos Management Plan, which the district used to assess asbestos- containing materials located in its buildings.   He also attached a work order showing that floor tiles in the building had been replaced.   Franco noted that the following comment appears on the work order: “Have school direct this request to Risk Management-Asbestos Abatement attn: Grant Curtis.”   Franco highlighted this comment to controvert Polanco-McNealy’s claim that the facilities department was unaware of any asbestos in the school.  At the end of his memorandum, Franco again requested a transfer to another school.  Eventually, the district indefinitely suspended Franco.

Franco sued the district, claiming violations of the Texas Whistleblower Act. He alleged that the district’s failure to respond to an asbestos hazard violated the Asbestos Hazard Emergency Response Act and that he made a good faith report of the violation of law to a law enforcement authority.  The district filed a plea to the jurisdiction.  According to the district, the trial court did not have jurisdiction over the case because Franco had not reported the alleged violations to an “appropriate law enforcement authority,” as required by the Whistleblower Act.   The trial court denied the district’s plea to the jurisdiction and the district appealed. The appeals court affirmed the trial court decision to deny the district’s plea to the jurisdiction and the district sought review by the Texas Supreme Court.  [See, Ysleta ISD v. Franco, S.W.3d, 2012 WL 6707752 (Tex. App. – El Paso 2012); Texas School Administrators’ Legal Digest, February 2013].

Ruling:  The Texas Supreme Court reversed, holding that Franco had not reported violations of law to an “appropriate law enforcement authority.”  Under the Whistleblower Act, a government employer cannot take adverse action against an employee who makes a good faith report to an appropriate law enforcement authority that the entity or another employee violated the law.   Recent Texas Supreme Court cases have held that a report to someone charged only with internal compliance is jurisdictionally insufficient under the Whistleblower Act.  In the school context, reporting to school officials not charged with enforcing laws outside the district falls short of what the Whistleblower Act requires.

Here, Franco submitted no evidence of the school district’s authority to enforce laws beyond the institution itself.  The Supreme Court concluded that the district’s authority to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law enforcement authority status. Thus, Franco could not establish that the school district was an appropriate law enforcement authority.  The trial court, thus, should have granted the school district’s request for dismissal for lack of jurisdiction.

Comments:   This is not the first time that this issue has come before our state’s highest court.  For the third time in recent months, the Court holds that an internal complaint does not amount to a blowing of the whistle.  Moreover, the court again holds that cases that allege only an internal report are subject to dismissal due to lack of jurisdiction. The first two cases are Texas Southwestern Medical Center v. Gentilello and Canutillo ISD v. Farran   [Texas School Administrators’ Legal Digest, Oct. 2013].





Case citation:   Ortiz   v. Plano ISD, 2014 WL 24227 (Tex. App. – Fort Worth 2014) (unpublished).

Summary:  Sylvia Ortiz was a high school teacher for the Plano Independent School District when she submitted a grievance against the principal to the school district’s Executive Director for Human Resources, Tamira Griffin.  When Griffin denied the grievance, Ortiz filed suit against Griffin, alleging that she violated provisions of the Texas Educator’s Code of Ethics, as adopted by the district in its Employee Standards of Conduct.  While the grievance was pending, Griffin placed Ortiz on administrative leave.   The district’s school board denied the grievance.   Ortiz then sued the district under the Texas Whistleblower Act, claiming that Griffin had placed her on administrative leave in retaliation for her filing a grievance against Griffin.  The district filed a plea to the jurisdiction, claiming that jurisdiction did not exist over the suit because Ortiz could not show that she made a good faith report of a violation of law to an appropriate law enforcement authority.  The trial court granted the plea to the jurisdiction and Ortiz appealed.

Ruling:  The court of appeals affirmed the trial court ruling against Ortiz.  The main issue was whether Ortiz reported a violation of law to an “appropriate law enforcement authority.” The appeals court observed that to constitute an appropriate law enforcement authority under the Act, it must have authority to enforce, investigate, or prosecute violations of the law allegedly violated against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties with respect to the law allegedly violated.  Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law enforcement authority status.

Here, nothing in Ortiz’s response to the plea to the jurisdiction showed that the district’s board had the authority to enforce the Employee Standards of Conduct against third parties or that it could make rules or regulations extending those standards to third parties outside of the district.  Indeed, all of the conduct described in the standards is specifically directed at, and applicable to, the educators, employees, and staff within the district.  Ortiz simply failed to explain how the district could enforce the standards, or any rules and regulations promulgated pursuant thereto, against parties outside of the district.   Thus, the trial court did not err when it granted the district’s plea to the jurisdiction and dismissed Ortiz’s Whistleblower suit.

Comments: See our comments to the Ysleta case above. Same issue.   Same result.





Case citation:   AliefISD   v. Perry     S.W.3d      , 2013 WL

5861516 (Tex. App. – Houston [14th Dist.] 2013).

Summary: Troy Perry worked for the Alief Independent School District police force as a “gang officer.”   In 2004, Perry met with the city mayor’s anti-gang task force representative, who had heard a rumor of a planned nationwide gang war that would involve Houston gang members.   On May 4, 2004, Perry sent an email to gang investigators inside and outside of the school district warning them of the event.  An anti-gang liaison with the Texas Attorney General’s Office asked if he could post the information on an information-sharing database maintained by the Texas Department of Public Safety, known as Criminal Law Enforcement Online (CLEO).  After the information was posted, Perry’s supervisor informed him that the district’s superintendent was getting a lot of phone calls about the information, that the superintendent was upset because information was getting outside of the school district, and the information embarrassed the district. As a result, the supervisor sent Perry an email instructing him not to disseminate information regarding activities “in and around the district . . . without prior written approval from [the] departmental supervisor.”

On June 13, 2004, Perry received a performance evaluation, indicating that his performance “met expectations.”  Shortly thereafter, he issued a traffic ticket to a teacher.  The captain and his supervisor later removed the ticket from the citation book in Perry’s office, admittedly because the teacher was a friend and “politically connected.”  Two weeks later, the captain put Perry on a Growth Plan for failing to follow the chain of command, his inappropriate attitude, failing to follow patrol protocol, and spending excessive amounts of time in the office.  At the same time, Perry was demoted from gang officer to patrol officer and lost a weekend day off.  Perry later filed a grievance, which the supervisor denied at Level One.  Although Perry attempted to file Level Two and Level Three grievances, no action was taken in response.

Perry filed a formal complaint with the Harris County District Attorney’s Office, complaining about the destruction of the traffic ticket by the captain and supervisor.   Perry filed another Level Two Grievance, complaining of retaliation for reporting the issue to the district attorney’s office.  Perry also sent a letter to the superintendent and another Level Three grievance claiming that the failure to provide him with a grievance hearing amounted to retaliation for his whistleblower activities.  The superintendent and assistant superintendent of human resources met with Perry on that same day and terminated his employment.

Perry filed suit against the school district, the captain, and the supervisor alleging violations of the Whistleblower Act, as well as the First and Fourteenth Amendments of the United States Constitution.  After a trial, a jury returned a verdict in favor of the district on the First Amendment claims, but in favor of Perry on the Whistleblower and Fourteenth Amendment claims against the district, and the First and Fourteenth Amendment claims against the captain and supervisor.  The jury awarded Perry nearly $400,000 in damages, and the trial court later awarded more than $450,000 to Perry in attorney’s fees.  The district, captain, and supervisor appealed, arguing that the evidence was insufficient to support the claims and challenging certain evidentiary rulings, as well as the award of damages and attorney’s fees.

Ruling:  The court of appeals upheld the judgment in favor of Perry. According to the appeals court, the evidence was sufficient on the Whistleblower claim to demonstrate that the captain and supervisor played a role in Perry’s termination, even though the assistant principal for human resources had the final authority to make the decision.  The evidence also was sufficient for a jury to conclude that those three school officials knew that Perry had reported the destruction of the traffic ticket to the district attorney before making the decision to terminate him.  The appeals court, therefore, upheld the jury’s verdict concerning the Whistleblower claim.

For those same reasons, the appeals court held that the evidence was sufficient to establish First Amendment claims against the captain and supervisor.  Plaintiffs presented evidence sufficient for a reasonable jury to conclude that the defendants knew Perry reported the destruction of the traffic ticket to the district attorney and that they were final decision-makers in the decision to terminate Perry. The appeals court also upheld the trial court’s evidentiary rulings and award of damages.  The appeals court affirmed the judgment in favor of Perry.

Comments:   Unlike the Whistleblower cases reported above, this one got past all procedural hurdles to reach a jury.   Jury verdicts are difficult to overturn on appeal.



Breach of Contract




Case citation:   HoustonISDv. Simpson, 2013 WL 5878919 (Tex. App. – Austin 2013) (unpublished).

Summary:     Reginald Simpson signed a Memorandum of Understanding Regarding Employment on a Contingency Basis with the Houston Independent School District, indicating that employment with the district would be contingent upon satisfactory results of a criminal background check.  Shortly thereafter, the district gave Simpson a one-year probationary contract.  However, the district later informed Simpson that his criminal history precluded his employment with the school district.   Simpson filed a grievance with the district claiming a violation of his employment contract, but the district denied the grievance.

On appeal to the Commissioner, the district argued that no valid contract existed.  The Commissioner agreed and observed that a condition precedent to the contract was that Simpson pass a criminal background check.  However, the background revealed that Simpson had a criminal history that was unacceptable under district policy.   Since the condition precedent had not been met, no valid contract existed.  Further, both parties mistakenly believed that Simpson’s criminal history had been reviewed and approved when Simpson signed his contract.  That belief constituted a “mutual mistake” between the parties.  Due to the mutual mistake, the parties did not enter into a valid contract of employment.  Because no contract existed between Simpson and the district, the Commissioner held that he did not have jurisdiction over Simpson’s claims.  [See, Simpson v. Houston ISD, Dkt. No. 028-R10-1208 (Comm’r Educ. April 14, 2011); Texas School Administrators’ Legal Digest, October 2011].  Simpson appealed the Commissioner’s decision in state court and the trial court reversed the Commissioner’s decision.   The Commissioner and the school district appealed the trial court decision.

Ruling:  The appeals court upheld the trial court ruling, reversing the Commissioner’s decision in favor of the district. According to the appeals court, based on the plain language of the Memorandum of Understanding, the document unambiguously evidenced the parties’ intent to create a condition precedent, which was that Simpson pass a criminal background check.   The appeals court then had to decide “whether the condition precedent in the Memorandum of Understanding creates a condition precedent to formation of a contract or to obligations to perform under an existing contract.” According to the appeals court, nothing in the Memorandum of Understanding suggested that any offer of employment to Simpson was contingent.  Instead, the Memorandum of Understanding stated that “employment at this time” is contingent.  In addition, the memorandum made it clear that the termination of Simpson’s employment could result if the background check was unacceptable or if Simpson failed to disclose all criminal history.  Under the terms of the memorandum, if a formal contract was offered and accepted, as it was in this case, the unacceptable background check would then serve as the basis for Simpson’s termination.  Thus, under the terms of the memorandum, the executed contract did not create a condition precedent to the formation of a contract, but rather a condition precedent to the district’s obligations under the contract.  The appeals court held that the Commissioner erred when he dismissed Simpson’s appeal for lack of jurisdiction.





Case citation:   Alemanv. Edcouch Elsa ISD, __ F.Supp.2d

    , 2013 WL 6002219 (S.D. Tex. 2013).

Summary: Delfino M. Aleman sued the Edcouch Elsa Independent School District after the district’s board of trustees terminated his employment as the district’s superintendent. Aleman claimed that his refusal to “play ball” when asked to hire unqualified individuals, circumvent board policies and Texas Education Agency directives, and post meetings without advanced warning made him unpopular with the board.  In October of 2011, the board suspended Aleman with pay and later proposed his termination. The notice of proposed termination listed 27 charges that the board claimed amounted to good cause for his termination.  A termination hearing was held before a certified hearing examiner, who concluded that only one and part of another of the 27 charges constituted good cause for Aleman’s termination. Those charges involved comments Aleman allegedly made to the media about his relationship with the board. The board later held a hearing in which it heard oral argument, considered the recommendation, and ultimately voted to terminate Aleman.  Aleman appealed the decision to the Commissioner of Education.   He argued, in part, that the district failed to timely file the local record with the Commissioner.  The Commissioner, nevertheless, upheld Aleman’s termination.

Aleman sued the district under 42 U.S.C. § 1983 for violations of his right to free speech under the First Amendment to the United States Constitution, and also alleged that he was deprived of his Fourteenth Amendment right “to just compensation for taking of property.”   He alleged violations of his Fourteenth Amendment due process rights.  Aleman also claimed conspiracy, violations of the Texas Open Meetings Act, and breach of contract.   In addition, Aleman appealed the Commissioner’s decision upholding his termination.  The district defendants sought dismissal of Aleman’s claims.

Ruling:   The trial court ruled in favor of the district.  The trial court first held that Aleman failed to establish claims that the district violated his right to due process.  To prove a violation of his liberty interests, Aleman had to show that he was terminated for a reason which was (1) false, (2) publicized, and (3) so stigmatizing as to deny him other employment opportunities as a result.   The reason Aleman was terminated had to do with comments he made to the media regarding his relationship with the board.  He did not deny that he made those comments.  Thus, the reason for his termination was not false.  Aleman also did not show that the reasons were made public or were so stigmatizing as to deny him other employment opportunities.

The trial court also dismissed Aleman’s due process claim based on his alleged property interest in continued employment as the superintendent.  It was undisputed that Aleman was given notice of proposed termination, a hearing before a certified hearing examiner, and another hearing before the board of trustees. According to the trial court, Aleman was provided all of the process due to him under the law.

The trial court also dismissed Aleman’s First Amendment claims.  Aleman had to show that his speech involved a matter of public concern and that his interest “as a citizen, in commenting on matters of public concern outweigh the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  Aleman’s First Amendment claims were based on his comments to the media, which were critical of the board of trustees.  According to the trial court, those comments involved a matter of public concern.  However, the comments also disrupted the effectiveness of his working relationship with the board.  Thus, Aleman failed to raise a plausible First Amendment claim.

Aleman’s remaining claims of an unlawful taking under the Fifth Amendment, civil conspiracy, violations of the Open Meetings Act, and breach of contract also were without merit. There was no legal precedent to support a “takings claim” under the facts presented in the lawsuit.  Aleman failed to allege discriminatory animus on the part of the alleged conspirators in support of a conspiracy claim under 42 U.S.C. § 1985(3).  The Open Meetings Act portion of the lawsuit also failed because Aleman did not identify a “voidable” action taken by the board or a specific provision of the law that the board violated.   The breach of contract claims were based on the same allegations supporting Aleman’s due process and First Amendment claims, which the trial court already dismissed.

The trial court also upheld the Commissioner’s decision finding good cause for Aleman’s termination.  According to the trial court, substantial evidence existed to support the board’s decision to terminate Aleman’s contract for his comments to the media concerning the board.  The record showed specifically, that Aleman had described the board as “dysfunctional,” “reactionary,” “underhanded,” and “micro-manager types.”  He also stated that he “despises the exploitation” of children but that “a few rogue board members insist on running business as usual.”  Substantial evidence existed to support Aleman’s termination and Aleman identified no erroneous legal conclusion or procedural irregularity that would require reversal of the Commissioner’s decision.

Comments:  The free speech rights of superintendents are not the same as the free speech rights of custodians and cafeteria workers.  The board and the superintendent must have a strong working relationship based on trust, confidentiality and mutual respect.  Thus, the public criticism of board members by the superintendent may not enjoy constitutional protection, even though the same words from a lower level employee would be protected.





Case citation: Hernandez v. Kingsville ISD, 2013 WL 5774864 (S.D. Tex. 2013) (unpublished).

Summary: Jorge Hernandez worked as a Health Science teacher for the Kingsville Independent School District, when he complained to his principal about grading practices at the school.  Following that discussion, the principal informed Hernandez that he would not be attending a leadership conference in California later that year and directed Hernandez not to talk to anyone about that decision.  Nevertheless, Hernandez discussed hotel reservations and registration details with other district staff, and made several inquiries with the conference organizers and the Texas Education Agency. In addition, employees allegedly reported confrontational and threatening behavior by Hernandez, some of which was related to the district’s decision for him not to attend the conference. The district placed Hernandez on administrative leave and later recommended his termination due to his failure to comply with official directives, for unprofessional communications with staff, and insubordination.

Hernandez requested a hearing before a certified hearing exa mine r.   Following  the  he aring,  the  he ari ng  exam iner recommended Hernandez’s termination.  The board later adopted that recommendation and voted to terminate Hernandez’s continuing contract. Hernandez filed suit alleging violations of the First, Fourth, and Fourteenth Amendments, stemming from his termination. The district moved to dismiss the suit and Hernandez did not respond to the motion.  The trial court granted the motion and Hernandez did not file any post-judgment motions to have the court reconsider the ruling.  Hernandez then filed suit again and the district sought dismissal of the suit.

Ruling: The trial court dismissed Hernandez’s second suit, finding that it was barred by the doctrine of res judicata and because Hernandez failed to state a claim upon which relief could be granted.  Dismissal based on res judicata is proper when (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded to a final judgment on the merits; and (4) the same cause of action was involved in both actions. According to the trial court, all four elements were present in this second lawsuit filed by Hernandez.  The court stated:  “Plaintiff could have sought leave to file a late response or amend his complaint, or he could have filed post-judgment motions and appealed the final judgment of the District Court in the prior lawsuit.  He did none of those things.”  Thus, the district was entitled to dismissal based on res judicata.

The trial court also dismissed Hernandez’s suit for his failure to state a claim upon which relief could be granted.  He alleged First Amendment retaliation against the district and several individual employees.  However, the alleged speech by Hernandez was not made as a citizen, but rather as part of his official duties with the district.  As a result, the First Amendment did not provide protection for his alleged speech.

Hernandez’s procedural due process claim also lacked merit. According to the trial court, Hernandez was granted all of the process due.  The record showed that he received notice of the personnel action and was granted a hearing before an independent hearing examiner.  Hernandez also received an additional hearing over the matter before the board of trustees.  Thus, Hernandez failed to state a due process claim.

Hernandez also raised a due process claim based on alleged stigmatizing charges raised against him and his alleged right to clear his name.   Such a due process claim requires a showing that (1) he was discharged, (2) stigmatizing charges were made against him, (3) the charges were false, (4) he was not given notice or an opportunity to be heard prior to the discharge, (5) the charges were made public, (6) he requested a hearing to clear his name, and (7) the employer denied the request.  The trial court dismissed this due process claim as well.  It was undisputed that Hernandez received a hearing in which he was given an opportunity to contest the charges against him.  The hearing was not open to the public, thus, there was no showing that the charges against him were made public.  Furthermore, he was provided notice and an opportunity to contest the charges.  No due process violation occurred. The court also dismissed Hernandez’s defamation claim because it fell outside of the statute of limitations.   In addition, the district’s filing of the hearing examiner’s recommendation did not constitute defamation because it was subject to judicial immunity from suit for defamation claims based on court filings. The trial court dismissed Hernandez’s lawsuit.




Case citation:  Rawlings v. Houston ISD, 2013 WL 6190300 (S.D. Tex. 2013)(unpublished).

Summary:  In late July of 2009, John Rawlings, an employee of the Houston Independent School District Police Department, met with staff of the Harris County District Attorney’s Office. Rawlings reported that members of the HISD Police Department command staff were using official vehicles for private profit while off duty.  A few months later, Rawlings was told that top HISD staff members were aware of his report to the District Attorney.

In November of 2010, a subordinate of Rawlings accused him of making inappropriate remarks in the workplace.  An investigation ensued and HISD found that Rawlings had violated an HISD Police Department Directive concerning workplace conduct.   On February 17, 2011, Rawlings received a notice that his employment had been recommended for termination. Rawlings filed an appeal of his proposed termination the next day.  A Level One appeal hearing resulted in HISD Assistant Chief Victor Mitchell upholding the proposed termination.  A Level Two appeal was scheduled, but Rawlings requested a postponement due to illness.  The Level Two hearing ultimately never took place, and the grievance was dismissed.

Rawlings later filed suit alleging that his termination amounted to retaliation for exercising his First Amendment right to report suspected illegal conduct of coworkers. Further, Rawlings claimed that the district’s dismissal of his grievance denied him a hearing to clear his name, in violation of his Fourteenth Amendment right to a “liberty hearing.”  In response, the district sought dismissal of the lawsuit.

Ruling:   The trial court granted the district’s motion to dismiss. The trial court observed that 42 U.S.C. § 1983 creates a private right of action for violations of constitutional rights, including First Amendment retaliation and violations of the Fourteenth Amendment.  A municipality may be held liable for a retaliation claim “when execution of a government’s policy or custom, whether made by its lawmakers” or those who execute official policy, “inflicts the injury that the government as an entity is responsible for under § 1983.”

Rawlings first alleged a violation of his First Amendment speech rights based on the district’s alleged retaliation against him.  However, Rawlings’s complaint did not present factual content providing any reason to believe that an unconstitutional HISD policy or custom caused his termination.  Rawlings merely referenced isolated actions taken by specific municipal employees. A school district cannot be held liable under § 1983 for an injury inflicted by its employees or agents based on a theory of vicarious liability.  Thus, the trial court dismissed Rawlings’s First Amendment retaliation claim.

Rawlings also alleged a due process violation of his Fourteenth Amendment liberty interest based on HISD’s denial of an opportunity to clear his name.  To establish a liberty interest sufficient to implicate the Fourteenth Amendment’s due process safeguards, a public employee must show that (1) “the governmental employer’s charges against her rise to such a level that they create a ‘badge of infamy’ which destroys the claimant’s ability to take advantage of other employment opportunities,” (2) the claims are false, and (3) damage to her reputation and employment opportunities has actually occurred.

In this case, Rawlings failed to show that his termination without a second level grievance hearing inflicted any actual damage to his reputation or employment opportunities. There was no evidence that HISD had publicly disclosed the reasons for his discharge.  Instead, Rawlings merely speculated about potential future harms arising from his own disclosure about the facts of his discharge.  The Fifth Circuit has held that a government employer cannot be liable when it has kept the charges confidential and only the plaintiff has caused them to be public.  Thus, Rawlings’s Fourteenth Amendment claim was also dismissed.  The trial court entered judgment in favor of the district.





Case citation:  Ortiz v. Plano ISD, Dkt. No. 012-R2-10-2013 (Comm’r Educ. Nov. 26, 2013).

Summary: Sylvia Ortiz worked for the Plano Independent School District as a teacher.  During the 2011-12 school year, Ortiz was questioned by her principal about sending an email to parents of students involved in a bullying incident that revealed the identity of other students involved.  The principal questioned Ortiz on whether her actions violated the Family Educational Rights and Privacy Act (FERPA).   Later that year, the principal received a number of complaints from parents about Ortiz, as well as teacher change requests.  The principal attempted to meet with Ortiz and provide her with rapport-building assignments, but Ortiz refused to accept the written orders provided by the principal.   Ortiz later filed a grievance against the principal alleging harassment, retaliation, defamation, and a hostile environment, among other things.  The district conducted an investigation into Ortiz’s claims and found the claims to be without merit.   In addition, the investigation revealed inappropriate conduct on the part of Ortiz that warranted a separate investigation.

Meanwhile, the district had received another parent complaint from a parent who worked for the school district, concerning Ortiz’s grading practices and failure to timely post grades.  In response, Ortiz sent an email to the principal where the parent worked, naming the child that was in her class and accusing the parent of defamation and impugning the parent’s professionalism. The student was later moved out of Ortiz’s class and no other action was taken.

On March 23, 2012, Ortiz signed a confidentiality agreement, in which she agreed not to discuss the investigation of her grievance against the principal.  The investigation, however, revealed that Ortiz had discussed the investigation and the principal with at least one student.

In April of 2012, the district provided Ortiz with a three- year term contract, employing her through the 2014-15 school year.  Within a month, Ortiz filed suit against her principal, alleging retaliation and assault.  It was later established through her deposition that some of the allegations in her lawsuit were false.   In addition, the trial court dismissed the lawsuit for lack of jurisdiction.

The district investigation into misconduct by Ortiz revealed that Ortiz had violated district policy by inappropriately discussing confidential personnel matters involving the principal, making disrespectful and disparaging comments about the principal to students, attempting to influence students regarding their statements provided during the investigation, and by “friending” students and posting photos on Facebook.

In August of 2012, Ortiz recorded a conversation she had with a student who had been interviewed as part of the district’s investigation into Ortiz’s misconduct.  On August 14, 2012, Ortiz was placed on administrative leave with pay, pending a second investigation of the misconduct.  The district engaged a law firm to further investigate Ortiz’s conduct and the law firm eventually concluded that Ortiz had  made inappropriate statements to students regarding the principal, attempted to influence student statements during the district investigations and litigation process, and retaliated against other employees by filing grievances against them.  The district provided Ortiz notice of proposed termination for those reasons on April 2, 2013.

The district sent Ortiz another notice of termination on May 7, 2013.  This second notice listed the same reasons for proposed termination, but added the allegation that the lawsuit Ortiz filed against the principal had contained allegations that were later shown to be false during Ortiz’s deposition and court testimony. After her termination hearing, the certified hearing examiner found good cause for Ortiz’s termination because Ortiz (1) was insubordinate to the principal in a series of incidents in December and January of 2011, (2) made false statements during the litigation of her lawsuit against the principal, (3) violated FERPA twice, (4) violated board policy on working cooperatively, maintaining the dignity of the profession, acting honestly, and exemplifying ethical relationships with colleagues, and (4) violated board policies and a confidentiality agreement by communicating with students regarding confidential personnel matters.   The board accepted the hearing examiner’s recommendation and voted to terminate Ortiz’s contract.

On appeal to the Commissioner, Ortiz complained that the district improperly terminated her term contract because (1) the notice of termination was insufficient, (2) her termination was based on incidents that occurred in a prior school year before she entered a new term contract, (3) the hearing officer improperly relied on inadmissible hearsay, and (4) substantial evidence did not exist to support her termination.

Ruling:   The Commissioner concluded that, although Ortiz had raised several valid points on appeal, substantial evidence existed to support her termination.  The Commissioner determined that the district’s two notices of proposed termination were insufficient because they did not contain any reference to several grounds upon which the board relied when it voted to terminate her contract. For example, the notice did not reference any direct interactions between Ortiz and her principal, inappropriate correspondence between Ortiz and parents, or any allegation that Ortiz had violated FERPA.   Thus, the district improperly relied on those reasons in support of termination.  According to the Commissioner, the district also waived the ability to terminate Ortiz based on those three reasons because those incidents occurred the previous school year and before the district provided her with a new three-year term contract.

The Commissioner next considered whether the district improperly terminated Ortiz for alleged false statements that she made during the course of the litigation she pursued against the principal. The hearing examiner determined that certain testimony by Ortiz was false.  The Commissioner held, however, that testimony during a judicial proceeding is privileged and should not have been used against Ortiz to support her termination.  The Commissioner stated:  “The absolute privilege that prevents civil litigants from pressing  libel, slander or fraud cases based on false statements made in a judicial proceeding must extend to prevent employers bringing contract termination proceedings based on the falsity of statements made in a judicial proceeding.”  Thus, the district could not rely on alleged false testimony in the judicial proceeding against the principal, to support Ortiz’s termination.

The Commissioner also concluded that the hearing examiner abused her discretion in several evidentiary rulings.  Specifically, the Commissioner held that expert reports on the issue of good cause were improperly admitted into evidence.  Investigative reports, which contained teacher and student statements, also were improper because they contained inadmissible hearsay.

Ortiz’s termination also was improper to the extent that it was based on her alleged violation of state law in tape recording a student without parent consent, making false statements during the internal investigations in this case, and retaliating against employees by filing grievances.  According to the Commissioner, the hearing examiner made no factual findings to substantiate any of those issues.   When a hearing examiner fails to make fact findings on an issue, a school board cannot add or infer facts and then use them as a basis for good cause to terminate a contract.  Thus, those three claims could not support a finding of good cause for Ortiz’s termination.

Despite all of these errors, the Commissioner held that substantial evidence existed to support Ortiz’s termination for good cause.  The notice of proposed termination and admissible evidence before the hearing examiner supported the findings that Ortiz violated a confidentiality agreement concerning district internal investigations and improperly communicated with a student about confidential employment matters.  The Commissioner, thus, upheld the termination of Ortiz’s term contract.

Comments: The Commissioner covers a lot of ground in this 34-page decision, which involves the same Ortiz as in the Ortiz v. Plano ISD case reported above.  One of the more interesting aspects of the case involves “waiver” by the school district.  The Commissioner notes that “the highest levels of administration at Petitioner’s school were aware of her purported misconduct long before they renewed her teaching contract on April 17, 2012.” The Commissioner cited an earlier ruling that “when a school district with full knowledge of a teacher’s actions takes no action against the teacher and decides to offer a teacher a new contract, the district has waived any right it had to take action against the teacher’s contract for the events in the prior school years.” Here, the district not only “renewed” the contract, it gave the teacher a new three-year contract. This constituted a waiver of the right to charge the teacher with misconduct prior to the new contract.