Preview
Filed: 8/22/2023 12:27 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 78784821
By: Shailja Dixit
8/22/2023 12:33 PM
CAUSE NO. 23-CV-0928
MAUREEN E. HAYMAN § IN THE DISTRICT COURT
§
Plaintiff, §
§
§ 56TH JUDICIAL DISTRICT
§
v. §
§
GALVESTON INDEPENDENT SCHOOL §
DISTRICT §
§
Defendant. § GALVESTON COUNTY, TEXAS
PLAINTIFF'S RESPONSE TO DEFENDANT'S
PLEA TO THE JURISDICTION
NOW COMES Plaintiff, Maureene E. Hayman ("Plaintiff” and/or “Ms. Hayman”),
and files this her Response to Defendant Galveston Independent School District’s Plea to the
Jurisdiction (“Defendant”) and would respectfully show as follows:
A. BASIS OF DEFENDANT'S PLEA
1. Defendant claims its Plea to the Jurisdiction should be granted because Plaintiff
has failed to plead enough information to establish a prima facie case with regard to Plaintiff’s
disability discrimination claim and retaliation claims. However, Plaintiff’s Original Petition
overwhelming sets out multiple facts that reaches the threshold of prima facie for all of her claims.
Defendant’s Plea to the Jurisdiction should be dismissed.
B. STANDARD OF REVIEW
2. When the court’s jurisdiction is challenged, the standard of review is the same as
that of a summary judgment.1 That is, a plaintiff must only “raise at least a genuine issue of
material fact to avoid dismissal.2 The Texas Supreme Court has held that when determining this
1
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018).
2
Id.
fact, the pleading and evidence are reviewed “favorable to the plaintiff, indulge every reasonable
inference and resolve any doubts” in plaintiffs favor.3
C. PRIMA FACIE – DISABILITY DISCRIMINATION
3. Defendant takes the basis for Plaintiff’s disability discrimination claim out of
context and makes an argument on something Plaintiff never alleged. That is Defendant
claims that Plaintiff alleged “she was reassigned because of her disability.” 4 Plaintiff’s
pleadings are unambiguous that the reassignment punishment was in retaliation of Plaintiff
complaining of a hostile work environment. 5 That goes directly to one of Plaintiff’s
retaliation claims. Plaintiff’s disability discrimination claim is based on Defendant’s failure
to participate in a reasonable accommodation conversation and its failure to provide
reasonable accommodations. 6 The disability discrimination claim is specifically based on
Plaintiff’s attempt to trigger and participate in Defendant’s grievance procedures.
4. It is unlawful for an employer subject to the anti-discrimination provisions of the
Texas Commission on Human Rights Act "to fail or refuse to make a reasonable workplace
accommodation to a known physical or mental limitation of an otherwise qualified" employee
with a disability, unless the employer "demonstrates that the accommodation would impose an
undue hardship on the operation of the business." Tex. Lab. Code § 21.128(a).
5. As plead in Plaintiff’s Original Petition, on August 23, 2022, Defendant was
made aware of Plaintiff’s disability. On August 26, 2022, Plaintiff filed a timely grievance
with regards to her reassignment punishment. Plaintiff submitted her grievance in writing
3
City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
4
Defendant’s Plea to the Jurisdiction, P.8, Section 3.
5
Plaintiff’s Original Petition, P. 7, Paragraph 24.
6
Plaintiff’s Original Petition, P. 6, Section V.
to the Human Resources Director, Superintendent Jerry Gibson, School Board President, and
School Board Trustees. 7 Plaintiff specifically addressed in her complaint, “she was under
doctor’s care and was not “experienced in filing complaints….” 8 Defendant responded, no
action could be taken at that time otherwise the Board member would not be able to participate
in her complaint. 9 But state law requires Defendant to respond, to act, and not ignore. Plaintiff’s
grievance was not processed. Defendant ignoring and failing to process Plaintiff’s grievance,
with knowledge of her disability, establishes a prima facie case of disability discrimination.
Defendant violating mandatory requirements regarding reasonable accommodation conversation
establishes a prima facie case of disability discrimination.
6. Once Plaintiff initiated the reasonable accommodation process, it was
mandatory that Defendant participate in the process. 10 The 5th Circuit Court of Appeals has
described this employer responsibility and the process as:
…once the employee presents a request for an accommodation, the employer is
required to engage in [an] interactive process so that together they can determine
what reasonable accommodations might be available. This process should
identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations. It requires
both parties to exchange information to “craft a reasonable accommodation.” 11
Defendant’s failure to participate in a process that the 5th Circuit has categorized as
mandatory creates a prima facia case of disability discrimination. Plaintiff initiated the
reasonable accommodation conversation on August 23, 2023, when she specifically told
Superintendent Jerry Gibson about her disability and requested accommodations. She again
7
Exhibit 1 - Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing
repetitive documents, only one copy of the August 26, 2023, grievance is being submitted).
8
Id.
9
Exhibit 1 – Attachment B.
10
Equal Employment Opportunity Commission v. Methodist Hospitals of Dallas, 62 F.4th 938, 947 (5th Cir. 2023).
11
Id. Emphasis added.
initiated it on August 26, 2022, when she submitted her grievance with the Human Resources
Director, Superintendent Gibson, School Board President, and School Board Trustees and
informed them about her disability. 12 In response, Defendant ignored Plaintiff and
ultimately dismissed her grievance as “untimely.” 13 At a minimum, and as directed by the
5th Circuit, a reasonable accommodation conversation should have taken place regarding
Plaintiff’s timely filed grievance and a discussion held to determine if accommodations
could be made, i.e., different submittal format and/or if an extension of time to file if
Plaintiff was truly untimely, which Plaintiff denies. With the mandatory conversation, and
only with that conversation, could Defendant make a determination if such accommodations
are reasonable. “When an employer’s unwillingness to engage in a good faith interactive
process leads to a failure to reasonably accommodate an employee, the employer…”
violates the statute. 14
7. The 5th Circuit includes in the definition of a reasonable accommodation,
“[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy
equal benefits and privileges of employment as are enjoyed by its other similarly situated
employees without disabilities.” 15 This would include modification to Defendant’s grievance
policy if such accommodations were reasonable. Defendant failed to discuss reasonable
accommodation and ascertain if any exist. Defendant’s conduct, as plead in Plaintiff’
Original Petition establishes a prima facie case of disability discrimination. Defendant’s
Plea to the Jurisdiction should be denied.
12
Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing
repetitive documents, only one copy of the August 26, 2023, grievance is being submitted).
13
Exhibit 1 – Attachment C.
14
Equal Employment Opportunity Commission at 948.
15
Feist v. Louisiana , Department of Justice, Office of the Attorney General, 730 F.3d 450, 453 (5th Sept. 16, 2013).
D. PRIMA FACIE – RETALIATION
8. With regards to Plaintiff’s retaliation claims, Defendant only focuses on the job
reassignment punishment and not all of Plaintiff’s retaliation claims. An employer commits an
unlawful employment practice if the employer retaliates or discriminates against a person who (1)
makes or opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4)
testifies, assists, participates in any manner in an investigation, proceeding, or hearing.” Tex. Labor
Code § 21.055. The Texas Supreme Court has held that an adverse employment action is conduct
that is “materially adverse, meaning an action that might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” 16 Plaintiff participated in a protected activity and
Defendant ignoring and dismissing her complaint prevented her from “making or supporting a
charge.”
9. As plead in Plaintiff’s Original Petition, Plaintiff engaged in the following
protected activities:
a. When she made the hostile work environment complaint(s) to her supervisor on August
22, 2022.
b. When she initiated the reasonable accommodations conversation on August 23, 2022.
c. When she submitted her August 26, 2022, written complaint/grievance to Defendant
through the Superintendent, Human Resources Department, Board President, and Board
Trustees. 17
d. When she reminded Defendant, in her August 26, 2022, complaint/grievance that she was
under a physician’s care regarding her disability and was filing her grievance.
16
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 788 (Tex. 2018).
17
Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing
repetitive documents, only one copy of the August 26, 2023, grievance is being submitted).
Plaintiff participated in a protected activity four separate times and Defendant retaliated against her
each time.
10. To establish a prima facie claim of retaliation, a plaintiff must show: (1)
plaintiff engaged in protected activity; (2) plaintiff experienced an adverse employment action;
and (3) there was a causal link between the two. 18
11. Regarding the first two elements, Plaintiff participated in a protected activity
four times as described above. August 22, 2022, Plaintiff made a complaint of hostile work
environment. Three days later she is reassigned to a different work location and position. 19 She
was the Advanced Placement and Honors English Teacher and demoted to just a general English
teacher. The relocation and demotion establish a prima facie case of retaliation.
12. Regarding the third element, causal link, the 5th Circuit Court of Appeals has
held that the causal link element of a retaliation claim is “easily satisfied by a showing of temporal
proximity between the protected activity and adverse action….” 20 Close proximity between the
protected activity and the adverse employment action creates a prima facie case of retaliation.21
Plaintiff made a hostile work environment complaint on a Friday and three days later, on Monday,
she is reassigned location and position. 22 The close proximately of making the complaint and the
reassignment “easily satisfies” and establishes a prima facie case of retaliation. 23
13. On August 23, 2022. Plaintiff made a request for reasonable accommodation.
She was assured that a conversation would take place if necessary. The conversation never
occurred. Defendant has a duty to participate in a reasonable accommodation discussion if initiated
18
Clark, 544 S.W.3d 782.
19
Exhibit 1 – Attachment D.
20
Shirley v. Chrysler First, Inc., 970 F.2d 39, 43-44 (5th Cir. 1992). Emphasis added.
21
Strong v. University Healthcare System, LLC 482 f3d 802, 808 (5th Cir. 2007). Emphasis added.
22
Exhibit 1 – Attachment D.
23
Strong at 808.
by an employee. It never occurred. Plaintiff was ignored.
14. On August 26, 2022, Plaintiff submitted a written complaint/grievance to
Defendant through the Superintendent, Human Resources Department, Board President, and
Board Trustees. 24 A protected activity that was ignored and ultimately dismissed. Defendant had
a duty to process the grievance. Instead, it retaliated against Plaintiff and ignored/dismissed her
grievance.
15. Again, on August 26, 2022, Plaintiff participate in a protected activity when
she filed her grievance and told Defendant that she was under a physician’s care regarding her
disability and was filing her grievance. 25 Defendant had a duty to participate in a reasonable
accommodation meeting if it had issues with the format or method Plaintiff used to submit her
grievance. Instead, Defendant ignored and dismissed her grievance as untimely. The dismissal
occurred shortly after Plaintiff submitted it. Again, close proximity alone with the protected
activity and adverse employment action is prima facie case of retaliation. 26
16. PRAYER
As previously indicated, plaintiff must only “raise at least a genuine issue of material fact
to avoid dismissal. 27 Plaintiff’s Original Petition and this response creates more than a material
fact issue, they demonstrate a plethora of fact issues indicating a prima facia case of discrimination
and retaliation. Time and time again, Plaintiff participated in a protected activity. Instead of
fulfilling its mandatory requirement to engage with Plaintiff, Defendant chose to use her disability
24
Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing
repetitive documents, only one copy of the August 26, 2023, grievance is being submitted).
25
Id.
26
Strong at 808.
27
Clark at 771.
as a weapon against her and ultimately ignore and completely dismiss her. Of great significance
is how quickly Defendant decided to take adverse employment actions towards Plaintiff after she
participated in a protected activity. The close proximity of the protected activity and adverse
employment action alone creates a prima facia case.28 Defendant’s Plea to the Jurisdiction should
be denied. Plaintiff prays that Defendant’s Plea to the Jurisdiction be denied, and that she has
such other and further relief to which she is justly entitled.
Respectfully submitted,
Thomson Dunkel Law, PLLC
By: /s/ Charles P. Dunkel, Jr.
Charles P. Dunkel, Jr.
State Bar No. 24034427
Ashley N. Thomson
State Bar No. 24097908
2600 South Shore Blvd, STE 300
League City, TX 77573
Telephone: 281.738.3448
Email: cdunkel@tdunklaw.com
Email: athomson@tdunklaw.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
By my signature below, I certify that I served a copy of the foregoing document on all
parties through their attorney of record via efile.txcourts.gov on August 22, 2023:
/s/Charles P. Dunkel, Jr.
Charles P. Dunkel, Jr.
28
Strong at 808.
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Raven Keeler on behalf of Charles Dunkel
Bar No. 24034427
rkeeler@tdunklaw.com
Envelope ID: 78784821
Filing Code Description: Response
Filing Description: Response Plea to Jurisdiction
Status as of 8/22/2023 12:34 PM CST
Associated Case Party: MaureenE.Hayman
Name BarNumber Email TimestampSubmitted Status
Ashley Thomson athomson@tdunklaw.com 8/22/2023 12:27:53 PM SENT
Charles PDunkel cdunkel@tdunklaw.com 8/22/2023 12:27:53 PM SENT
Raven Keeler rkeeler@tdunklaw.com 8/22/2023 12:27:53 PM SENT
Associated Case Party: Galveston Independent School District
Name BarNumber Email TimestampSubmitted Status
Linda Price lprice@thompsonhorton.com 8/22/2023 12:27:53 PM SENT
Celena Vinson cvinson@thompsonhorton.com 8/22/2023 12:27:53 PM SENT
Vanisia Blackmon vblackmon@thompsonhorton.com 8/22/2023 12:27:53 PM SENT
Dena Moghtader dmoghtader@thompsonhorton.com 8/22/2023 12:27:53 PM SENT
Preview
Filed: 8/22/2023 12:27 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 78784821 By: Shailja Dixit 8/22/2023 12:33 PM CAUSE NO. 23-CV-0928 MAUREEN E. HAYMAN § IN THE DISTRICT COURT § Plaintiff, § § § 56TH JUDICIAL DISTRICT § v. § § GALVESTON INDEPENDENT SCHOOL § DISTRICT § § Defendant. § GALVESTON COUNTY, TEXAS PLAINTIFF'S RESPONSE TO DEFENDANT'S PLEA TO THE JURISDICTION NOW COMES Plaintiff, Maureene E. Hayman ("Plaintiff” and/or “Ms. Hayman”), and files this her Response to Defendant Galveston Independent School District’s Plea to the Jurisdiction (“Defendant”) and would respectfully show as follows: A. BASIS OF DEFENDANT'S PLEA 1. Defendant claims its Plea to the Jurisdiction should be granted because Plaintiff has failed to plead enough information to establish a prima facie case with regard to Plaintiff’s disability discrimination claim and retaliation claims. However, Plaintiff’s Original Petition overwhelming sets out multiple facts that reaches the threshold of prima facie for all of her claims. Defendant’s Plea to the Jurisdiction should be dismissed. B. STANDARD OF REVIEW 2. When the court’s jurisdiction is challenged, the standard of review is the same as that of a summary judgment.1 That is, a plaintiff must only “raise at least a genuine issue of material fact to avoid dismissal.2 The Texas Supreme Court has held that when determining this 1 Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018). 2 Id. fact, the pleading and evidence are reviewed “favorable to the plaintiff, indulge every reasonable inference and resolve any doubts” in plaintiffs favor.3 C. PRIMA FACIE – DISABILITY DISCRIMINATION 3. Defendant takes the basis for Plaintiff’s disability discrimination claim out of context and makes an argument on something Plaintiff never alleged. That is Defendant claims that Plaintiff alleged “she was reassigned because of her disability.” 4 Plaintiff’s pleadings are unambiguous that the reassignment punishment was in retaliation of Plaintiff complaining of a hostile work environment. 5 That goes directly to one of Plaintiff’s retaliation claims. Plaintiff’s disability discrimination claim is based on Defendant’s failure to participate in a reasonable accommodation conversation and its failure to provide reasonable accommodations. 6 The disability discrimination claim is specifically based on Plaintiff’s attempt to trigger and participate in Defendant’s grievance procedures. 4. It is unlawful for an employer subject to the anti-discrimination provisions of the Texas Commission on Human Rights Act "to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified" employee with a disability, unless the employer "demonstrates that the accommodation would impose an undue hardship on the operation of the business." Tex. Lab. Code § 21.128(a). 5. As plead in Plaintiff’s Original Petition, on August 23, 2022, Defendant was made aware of Plaintiff’s disability. On August 26, 2022, Plaintiff filed a timely grievance with regards to her reassignment punishment. Plaintiff submitted her grievance in writing 3 City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). 4 Defendant’s Plea to the Jurisdiction, P.8, Section 3. 5 Plaintiff’s Original Petition, P. 7, Paragraph 24. 6 Plaintiff’s Original Petition, P. 6, Section V. to the Human Resources Director, Superintendent Jerry Gibson, School Board President, and School Board Trustees. 7 Plaintiff specifically addressed in her complaint, “she was under doctor’s care and was not “experienced in filing complaints….” 8 Defendant responded, no action could be taken at that time otherwise the Board member would not be able to participate in her complaint. 9 But state law requires Defendant to respond, to act, and not ignore. Plaintiff’s grievance was not processed. Defendant ignoring and failing to process Plaintiff’s grievance, with knowledge of her disability, establishes a prima facie case of disability discrimination. Defendant violating mandatory requirements regarding reasonable accommodation conversation establishes a prima facie case of disability discrimination. 6. Once Plaintiff initiated the reasonable accommodation process, it was mandatory that Defendant participate in the process. 10 The 5th Circuit Court of Appeals has described this employer responsibility and the process as: …once the employee presents a request for an accommodation, the employer is required to engage in [an] interactive process so that together they can determine what reasonable accommodations might be available. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. It requires both parties to exchange information to “craft a reasonable accommodation.” 11 Defendant’s failure to participate in a process that the 5th Circuit has categorized as mandatory creates a prima facia case of disability discrimination. Plaintiff initiated the reasonable accommodation conversation on August 23, 2023, when she specifically told Superintendent Jerry Gibson about her disability and requested accommodations. She again 7 Exhibit 1 - Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing repetitive documents, only one copy of the August 26, 2023, grievance is being submitted). 8 Id. 9 Exhibit 1 – Attachment B. 10 Equal Employment Opportunity Commission v. Methodist Hospitals of Dallas, 62 F.4th 938, 947 (5th Cir. 2023). 11 Id. Emphasis added. initiated it on August 26, 2022, when she submitted her grievance with the Human Resources Director, Superintendent Gibson, School Board President, and School Board Trustees and informed them about her disability. 12 In response, Defendant ignored Plaintiff and ultimately dismissed her grievance as “untimely.” 13 At a minimum, and as directed by the 5th Circuit, a reasonable accommodation conversation should have taken place regarding Plaintiff’s timely filed grievance and a discussion held to determine if accommodations could be made, i.e., different submittal format and/or if an extension of time to file if Plaintiff was truly untimely, which Plaintiff denies. With the mandatory conversation, and only with that conversation, could Defendant make a determination if such accommodations are reasonable. “When an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer…” violates the statute. 14 7. The 5th Circuit includes in the definition of a reasonable accommodation, “[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” 15 This would include modification to Defendant’s grievance policy if such accommodations were reasonable. Defendant failed to discuss reasonable accommodation and ascertain if any exist. Defendant’s conduct, as plead in Plaintiff’ Original Petition establishes a prima facie case of disability discrimination. Defendant’s Plea to the Jurisdiction should be denied. 12 Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing repetitive documents, only one copy of the August 26, 2023, grievance is being submitted). 13 Exhibit 1 – Attachment C. 14 Equal Employment Opportunity Commission at 948. 15 Feist v. Louisiana , Department of Justice, Office of the Attorney General, 730 F.3d 450, 453 (5th Sept. 16, 2013). D. PRIMA FACIE – RETALIATION 8. With regards to Plaintiff’s retaliation claims, Defendant only focuses on the job reassignment punishment and not all of Plaintiff’s retaliation claims. An employer commits an unlawful employment practice if the employer retaliates or discriminates against a person who (1) makes or opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, participates in any manner in an investigation, proceeding, or hearing.” Tex. Labor Code § 21.055. The Texas Supreme Court has held that an adverse employment action is conduct that is “materially adverse, meaning an action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” 16 Plaintiff participated in a protected activity and Defendant ignoring and dismissing her complaint prevented her from “making or supporting a charge.” 9. As plead in Plaintiff’s Original Petition, Plaintiff engaged in the following protected activities: a. When she made the hostile work environment complaint(s) to her supervisor on August 22, 2022. b. When she initiated the reasonable accommodations conversation on August 23, 2022. c. When she submitted her August 26, 2022, written complaint/grievance to Defendant through the Superintendent, Human Resources Department, Board President, and Board Trustees. 17 d. When she reminded Defendant, in her August 26, 2022, complaint/grievance that she was under a physician’s care regarding her disability and was filing her grievance. 16 Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 788 (Tex. 2018). 17 Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing repetitive documents, only one copy of the August 26, 2023, grievance is being submitted). Plaintiff participated in a protected activity four separate times and Defendant retaliated against her each time. 10. To establish a prima facie claim of retaliation, a plaintiff must show: (1) plaintiff engaged in protected activity; (2) plaintiff experienced an adverse employment action; and (3) there was a causal link between the two. 18 11. Regarding the first two elements, Plaintiff participated in a protected activity four times as described above. August 22, 2022, Plaintiff made a complaint of hostile work environment. Three days later she is reassigned to a different work location and position. 19 She was the Advanced Placement and Honors English Teacher and demoted to just a general English teacher. The relocation and demotion establish a prima facie case of retaliation. 12. Regarding the third element, causal link, the 5th Circuit Court of Appeals has held that the causal link element of a retaliation claim is “easily satisfied by a showing of temporal proximity between the protected activity and adverse action….” 20 Close proximity between the protected activity and the adverse employment action creates a prima facie case of retaliation.21 Plaintiff made a hostile work environment complaint on a Friday and three days later, on Monday, she is reassigned location and position. 22 The close proximately of making the complaint and the reassignment “easily satisfies” and establishes a prima facie case of retaliation. 23 13. On August 23, 2022. Plaintiff made a request for reasonable accommodation. She was assured that a conversation would take place if necessary. The conversation never occurred. Defendant has a duty to participate in a reasonable accommodation discussion if initiated 18 Clark, 544 S.W.3d 782. 19 Exhibit 1 – Attachment D. 20 Shirley v. Chrysler First, Inc., 970 F.2d 39, 43-44 (5th Cir. 1992). Emphasis added. 21 Strong v. University Healthcare System, LLC 482 f3d 802, 808 (5th Cir. 2007). Emphasis added. 22 Exhibit 1 – Attachment D. 23 Strong at 808. by an employee. It never occurred. Plaintiff was ignored. 14. On August 26, 2022, Plaintiff submitted a written complaint/grievance to Defendant through the Superintendent, Human Resources Department, Board President, and Board Trustees. 24 A protected activity that was ignored and ultimately dismissed. Defendant had a duty to process the grievance. Instead, it retaliated against Plaintiff and ignored/dismissed her grievance. 15. Again, on August 26, 2022, Plaintiff participate in a protected activity when she filed her grievance and told Defendant that she was under a physician’s care regarding her disability and was filing her grievance. 25 Defendant had a duty to participate in a reasonable accommodation meeting if it had issues with the format or method Plaintiff used to submit her grievance. Instead, Defendant ignored and dismissed her grievance as untimely. The dismissal occurred shortly after Plaintiff submitted it. Again, close proximity alone with the protected activity and adverse employment action is prima facie case of retaliation. 26 16. PRAYER As previously indicated, plaintiff must only “raise at least a genuine issue of material fact to avoid dismissal. 27 Plaintiff’s Original Petition and this response creates more than a material fact issue, they demonstrate a plethora of fact issues indicating a prima facia case of discrimination and retaliation. Time and time again, Plaintiff participated in a protected activity. Instead of fulfilling its mandatory requirement to engage with Plaintiff, Defendant chose to use her disability 24 Exhibit 1 – Attachment A. (Plaintiff emailed the grievance separately to each Board Trustee. To avoid filing repetitive documents, only one copy of the August 26, 2023, grievance is being submitted). 25 Id. 26 Strong at 808. 27 Clark at 771. as a weapon against her and ultimately ignore and completely dismiss her. Of great significance is how quickly Defendant decided to take adverse employment actions towards Plaintiff after she participated in a protected activity. The close proximity of the protected activity and adverse employment action alone creates a prima facia case.28 Defendant’s Plea to the Jurisdiction should be denied. Plaintiff prays that Defendant’s Plea to the Jurisdiction be denied, and that she has such other and further relief to which she is justly entitled. Respectfully submitted, Thomson Dunkel Law, PLLC By: /s/ Charles P. Dunkel, Jr. Charles P. Dunkel, Jr. State Bar No. 24034427 Ashley N. Thomson State Bar No. 24097908 2600 South Shore Blvd, STE 300 League City, TX 77573 Telephone: 281.738.3448 Email: cdunkel@tdunklaw.com Email: athomson@tdunklaw.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE By my signature below, I certify that I served a copy of the foregoing document on all parties through their attorney of record via efile.txcourts.gov on August 22, 2023: /s/Charles P. Dunkel, Jr. Charles P. Dunkel, Jr. 28 Strong at 808. Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Raven Keeler on behalf of Charles Dunkel Bar No. 24034427 rkeeler@tdunklaw.com Envelope ID: 78784821 Filing Code Description: Response Filing Description: Response Plea to Jurisdiction Status as of 8/22/2023 12:34 PM CST Associated Case Party: MaureenE.Hayman Name BarNumber Email TimestampSubmitted Status Ashley Thomson athomson@tdunklaw.com 8/22/2023 12:27:53 PM SENT Charles PDunkel cdunkel@tdunklaw.com 8/22/2023 12:27:53 PM SENT Raven Keeler rkeeler@tdunklaw.com 8/22/2023 12:27:53 PM SENT Associated Case Party: Galveston Independent School District Name BarNumber Email TimestampSubmitted Status Linda Price lprice@thompsonhorton.com 8/22/2023 12:27:53 PM SENT Celena Vinson cvinson@thompsonhorton.com 8/22/2023 12:27:53 PM SENT Vanisia Blackmon vblackmon@thompsonhorton.com 8/22/2023 12:27:53 PM SENT Dena Moghtader dmoghtader@thompsonhorton.com 8/22/2023 12:27:53 PM SENT