Preview
Filed: 1/7/2022 2:56 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 60616325
By: Shailja Dixit
1/7/2022 3:00 PM
CAUSE NO.: 21-CV-0717
DR. MEGAN EVANS, §
Plaintiff § IN THE 56th DISTRICT COURT
§
v. §
§ GALVESTON COUNTY, TEXAS
CLEAR CREEK INDEPENDENT §
SCHOOL DISTRICT, and §
MIKE MORATH, in his individual capacity § JURY TRIAL DEMANDED
as Texas Commissioner of Education, §
Defendants §
PLAINTIFF’S RESPONSIVE TRIAL BRIEF
COMES NOW PLAINTIFF Dr. Megan Rynn Evans (hereinafter as “Plaintiff”), and files
this, her Responsive Trial Brief under Texas Education Code § 21.307, requesting judicial review
and reversal of the Determination of the Texas Commissioner of Education in favor of Clear
Creek Independent School District (hereinafter, collectively as “Defendants”, or individually as
“Morath” and “CCISD” respectively) and would show the Court as follows:
I. BACKGROUND
1. On or about April 27th, 2021, under Docket No. 030-R1-03-2021, the Commissioner found
for the Defendant Clear Creek Independent School District in the appeal of the termination
/ contractual non-renewal of a Texas Education Code Chapter 21 Employee.
2. On or about April 8th, 2021, Plaintiff timely filed her Request for Review of the non-renewal
of her term contract under Chapter 21 to the Commissioner of Education of the State of
Texas.
3. Throughout the Review process, Defendant CCISD materially failed to produce documents
which would constitute it’s “true and correct copy of the local record” which the
Commissioner requested that they file.
4. A true and correct copy of the local record was never submitted by Defendant CCISD.
Despite Plaintiff’s objections and protestations to the Commissioner, Defendant CCISD was
allowed to proceed, and filed multiple briefs wherein factual allegations unsupported by
contemporaneous documentation were manufactured.
5. Commissioner Hon. Mike Morath ultimately made his determination based on this arbitrary
and capricious evidence, despite the dearth of “substantial evidence.”
6. On or about April 27th, 2021, the Commissioner returned a Determination in favor of
Defendant CCISD.
7. Pursuant to Texas Education Code § 21.307, Plaintiff timely filed her Judicial Appeal with
this Court in order to overturn the Commissioner’s Decision on the basis of a total lack of
support by substantial evidence. The filing of this Judicial Appeal was achieved prior to
thirty (30) days from the date of the Commissioner’s Determination issued on or about April
27th, 2021.
8. Plaintiff’s counsel was unable to timely file an initial trial brief in this proceeding, but
reiterates Plaintiff’s arguments and factual contentions in this responsive instrument,
which are reflective of her original instrument in this cause of action.
II. ARGUMENTS & AUTHORITIES
9. Plaintiff reiterates all arguments in her Original Petition for Review, verbatim.
10. An agency decision that is not supported by substantial evidence is deemed arbitrary and
capricious. Weslaco Fed’n of Teachers v. Tex. Educ. Agency, 27 S.W.3d 258, 266
(Tex.App.-Austin 2000, no pet.) (citing Pub. Util. Comm’n v. Gulf States Utils. Co., 809
S.W.2d 201, 211 (Tex.1991)). See Tarrant v. Clear Creek Indep. Sch. Dist., 238 S.W.3d
445, 452 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Lewis v. Austin Indep.
Sch. Dist, No. 03-02-00325-CV, 2003 WL 124250, at *9 (Tex. App.—Austin Jan. 16,
2003, no pet.) (mem. op.).
[A] DEFENDANTS FAILED TO MEET “SUBSTANTIAL EVIDENCE” STANDARD
11. “The Commissioner may only substitute his judgment for that of the board of
trustees if their decision was arbitrary, capricious, unlawful, or not supported by
substantial evidence.” Tex. Educ. Code § 21.303(a).(emphasis added)
12. “[t]he test . . . is whether the evidence as a whole is such that reasonable minds could
have reached the conclusion that the agency must have reached in order to justify its
action.” Tex. State Bd. Of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex.
1988)(emphasis added).
13. Pursuant to Texas Government Code, Section 2001.174, Review Under Substantial
Evidence Rule: “If the law authorizes review of a decision in a contested case under the
substantial evidence rule or if the law does not define the scope of judicial review, a court
may not substitute its judgment for the judgment of the state agency on the weight of the
evidence on questions committed to agency discretion but: (2) shall reverse or remand the
case for further proceedings if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or decisions are: (E) not
reasonably supported by substantial evidence considering the reliable and probative
evidence in the record as a whole; or (F) arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.”
14. Evidence does not have to meet technical requirements of competency, but it had to be
more than a mere scintilla, and had to have “rational probative force.”1
1
Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).
15. Because the Substantial Evidence Rule was thought to make an administrative finding
impregnable where supported by a page of testimony, even though contrary evidence was
overwhelming in quantity and quality, Sections 7(c) and 10(e) were included in the
Federal Administrative Procedure Act.2 These sections prescribed that administrative
orders were to be sustained only if supported by substantial evidence on the whole record.
Thus, if evidence supporting a material finding is rendered insubstantial by opposing
evidence, the reviewing court is authorized to reverse.3
16. The evidence, as a whole, has gone unexamined, due to Defendant CCISD’s flagrant
failure to submit the totality of the local record to the Commissioner. And until such time
as a true and correct copy of the record is submitted, the Respondent’s “evidence”
remains a single, stand-alone, ostensible six page “report”, which is little more than a
narrative fiction crafted by one of the very District officials whom Dr. Evans has
complained of. The same official who paradoxically submitted his resignation in late
April of 2021. CCISD L.R. 012-016.
17. This single report cannot stand in the face of the Plaintiff’s volume of evidence, as
previously submitted by the Plaintiff.
18. In point of fact, though CCISD L.R. 012-016 references a multitude of meetings, at least
one of which purportedly occurred on September 15th, 2020, and conversations, and
evaluations which took place with the Petitioner, the Respondent has yet to submit any
notes, memoranda, emails, documentation or other proof of such incidents.
2
60 stat. 237 (1946), 5 U.S.C. 1946 ed sec 1001 et seq.
3
Universal Camera Corporation v. NLRB, 340 U.. 474 (1951) ; NLRB v. Pittsburgh S.S.
Company, 340 U.S. 498 (1951).
19. Again, no contemporaneous documentation was supplied by the Defendants to support
after-the-fact narrative statements which are not even time-stamped.
20. More damning than anything, the Deputy Superintendent of Curriculum and Instruction,
and the Assistant Superintendent of Human Resources, literally admit, within the
Respondent’s most recent brief in the record, and within CCISD L.R. 016, that they
“interviewed district leaders and employees concerning the Petitioner.” Id. at 016.
21. Though these employee & district leader interviews were serious enough to warrant a
meeting on November 12th, 2020 with Dr. O’Pry, Dr. Smith, and the district’s General
Counsel, Leila Sarmecanic – and the Plaintiff’s subsequent Administrative Leave was
ostensibly based on these interviews – such interviews have never been admitted into
Local Record.
22. Not even a brief report detailing the sum and substance of the interviews was included. If
the Board made its determination to non-renew based on these interviews, even in part,
they have not been admitted into the Local Record.
23. If the Commissioner made any determination upon these interviews, even in part, the
Commissioner should have included a reference to such material in his brief.
24. Again – the only evidence relied upon by the Defendants is a “report”, whereas Plaintiff
Evans has supplied a volume of evidence attached in her prior exhibits.
[B] REVERSAL OF THE COMMISSIONER’S RULING IS WARRANTED
25. “A court can reverse the commissioner’s decision on a teacher’s contract if the
decision is not supported by substantial evidence or if the commissioner’s conclusions of
law are erroneous.” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562
(Tex.2000); see also Tex. Educ. Code § 21.307(f).
26. Plaintiff has the burden to demonstrate that the Commissioner’s decision was not
supported by substantial evidence and that his conclusions were erroneous. Miller v.
Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied); Nelson v. Weatherwax, 59 S.W.3d 340, 349 (Tex. App.—Fort Worth 2001,
pet. denied). The Plaintiff has done so in her above arguments, and as explained in her
prior factual allegations & pleadings with this Court.
27. While Defendants were correct in asserting the presedences from the above case law, they
sadly failed to complete the cited arguments from their chosen authorities.
[C] DEFENDANT’S OWN CHOSEN CITATIONS SUPPORT THE PLAINTIFF
28. The Miller court reasoned that “if a board that terminated a teacher's continuing contract
modified the examiner's fact findings, the Commissioner must accept the board's decision
unless it is arbitrary, capricious, or unlawful or the examiner's original fact findings are
not supported by substantial evidence. Id. § 21.303(b)(2) (Vernon 1996); 19
Tex.Admin.Code § 157.1071(g) (2000).” Miller v. Houston Indep. Sch. Dist., 51 S.W.3d
676, 680 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
29. The Miller court further insisted that “[t]he Commissioner's decision must include fact
findings and legal conclusions, which may be adopted by reference from the local record.
Tex.Educ.Code Ann. § 21.304(a) (Vernon 1996).” Miller [as the Plaintiff] had the
burden in court to demonstrate lack of substantial evidence. Firemen's & Policemen's
Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984); Farris v. Fort Bend
Indep. Sch. Dist., 27 S.W.3d 307, 311 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
30. Substantial evidence means more than a mere scintilla; thus, the evidence may
preponderate against the agency's decision, yet still amount to substantial evidence. See
Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999).
31. Ultimately, the Miller court reasoned that “[t]he test is whether reasonable minds could
have reached the same conclusion as the Commissioner. See Texas State Bd. of Dental
Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988); Farris, 27 S.W.3d at 311.” Id.
32. Finally, the Miller court reasoned that “Whether substantial evidence exists to support an
agency's determination is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34
S.W.3d 559, 566 (Tex. 2000).”
The court went on to “review the Commissioner's legal conclusions to determine
whether they are erroneous. Tex.Educ.Code Ann. § 21.303(b)(2) (review is for
whether legal conclusions were erroneous or whether substantial evidence
supported decision). Therefore, when [the court] reviewed the Commissioner's
"decision," [the court was] reviewing his legal conclusion that the board
correctly found substantial evidence did not support the examiner's fact findings.
See id. This can be done only by reviewing the examiner's fact findings. As a
policy matter, the Miller court noted the examiner's hearing is akin to a trial and
his fact findings from that "trial" are subject to limited review. Thus, it makes
sense to consider those original fact findings in determining whether the
Commissioner correctly decided the case.”
Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied)
33. Given the information and arguments submitted by the Plaintiff, this honorable court
should determine that questions of law do indeed exist in whether or not the Defendants
have met the burden of substantial evidence in this matter – which they have not.
34. Defendant CCISD avers that this Court should refrain from entertaining the Plaintiff’s
appeal due to untimely filing of briefs. Their disingenuous argument then cites Seebaldt
v. Dollinger, 01-94-00184-CV, 1994 WL 599352, at *1 (Tex. App.—Houston [1st Dist.]
Nov. 3, 1994, no writ). Plaintiff would call this case to the Court’s attention, as non-
persuasive, as this appellate case (1) originated in Harris County, and (2) was in regards
to an un-born child’s rights. Hence there is no factual similarity which would justify
referencing this case as an instrument which would guide the court in this unique matter.
[D] FAILURE TO SUPPLY A COMPLETE LOCAL RECORD PRECLUDES
ALLEGED SUBSTANTIAL EVIDENCE & PROVIDES GROUNDS FOR
REVERSAL
35. Defendants contend that the Commissioner’s errors and omissions should not favor the
Plaintiff. Defendants rightly cite Moses v. Fort Worth Independent School District,
however, the Moses court’s ruling would apply directly to this Plaintiff’s factual
allegations and stipulations in the instant case.
36. The Moses court went on to hold that “because there was not a complete local record
[filed with the Commissioner], and specifically no testimony at all, there was not
substantial evidence to support the school board's decision.” Moses v. Fort Worth
Independent School District, 977 S.W.2d 851 (Tex. App.-Fort Worth 1998, no pet.). The
Miller Court found the conclusion in Moses to be the correct approach, and that the
Commissioner in Moses correctly reversed the findings of the board. Miller 51 S.W.3d
676.
37. Defendant CCISD failed to timely submit a copy of the complete Local Record to the
Commissioner to support a determination regarding the Plaintiff’s appeal.4 We know this
to be a stipulation of fact and not a mere allegation, as Defendant CCISD has made
multiple references to meetings, discussions, and interviews with CCISD staff which
were never submitted to the local record, either originally or in agreed supplementation.
38. Further, CCISD’s supplement to the record contained information heretofore unseen by
the Plaintiff in the above styled and numbered cause, and failed to provide any
4
See Plaintiff’s paragraph 18 - 21 above.
information regarding the provenance of such information.
39. Even after Plaintiff agreed to Defendant CCISD’s Motion to Supplement the Local
Record, Defendant CCISD failed to supply a complete copy of the local record.
40. Defendant CCISD has time and again failed to provide complete information regarding
the record; this has crystalized in its submissions to the Texas Workforce Commission in
tandem with its responses to this honorable court – which do not dovetail with one
another.
41. Finally, the information supplemented by Defendant CCISD spoke to issues never
addressed with the Plaintiff, and provided convenient information not previously
embodied within her employee file, and which contravenes both documented and
recorded evidence.
42. It cannot be disputed, therefore, that the Commissioner’s determination in this matter was
arbitrary, capricious, and totally lacked substantial evidence. Under these pretenses and
arguments, Plaintiff respectfully requests that this court conduct a judicial review of the
Commissioner’s findings, and determine that such findings were arbitrary and capricious,
and worthy of reversal, as such findings were never supported by substantial factual
evidence.
43. Plaintiff avers that there are questions of law which this Court must review, most
especially in light of her human resources complaints against the very district employees
poised to supervise and rule over her ISD hearing before the board, and her attached
federal complaints against that same independent school district.
[E] NO SUBSTANTIAL EVIDENCE HAS BEEN SUBMITTED
44. While Defendant CCISD contends that this one report is “more than a mere scintilla”
Richard 2013 WL 12173905, the fact is, that the report barely stands up to scrutiny.
45. In no way is the instant case remotely comparable to the determination in Richard, and
the Respondent’s suggestion that there is controlling, or even persuasive authority, is
disingenuous at best.
46. In Richard, the Petitioner’s employment with the district was non-renewed due to
substantial evidence in finding that: (i) “the petitioner failed to complete an associated
growth plan; (ii) did not correct deficiencies after being counseled; and (iii) slept while on
duty.” Id.
47. In the instant case, the Plaintiff Evans was never given a growth plan, performance
improvement plan, or negative metrics which would even be loosely associated with such
negative evaluations. In fact, the Petitioner has continuously led her district in both
performance and achievement. (As attested by the same district leaders in their recorded
conversations with Ms. Evans, previously filed as exhibits.)
48. If such a growth plan was issued to Dr. Evans, the Respondent has failed to submit it
within the Local Record – hence they have failed to provide a true and correct copy of the
Local Record, and the Commissioner’s determination was not made on substantial
evidence. If no Growth Plan exists, the comparison to Richard is moot.
49. If such deficiencies were egregious enough to warrant termination of a contract employee,
then the Respondent has failed to submit any contemporaneous documentation of those
deficiencies. If no deficiencies were catalogued, the comparison to Richard is moot.
50. Therefore there are only two logical conclusions: (a) no such documentation or proof
exists, or (b) no such documentation or proof has been submitted in compliance with the
Commissioner’s order, and the Respondent is intentionally withholding evidence. Hence,
the Commissioner has made a determination without the benefit of substantial evidence.
51. The Plaintiff was never counseled regarding any “deficiencies” used to non-renew her
term employment contract. If the Defendants had bothered to evaluate the Plaintiff’s
initial petition for review to the Commissioner, they would have noticed her attached
exhibits including authenticated audio recordings and transcribed conversations with
District officials, wherein Dr. Evans was praised for her work ethic, performance, and
abilities. Conversations which occurred within the last two (2) weeks of her active
employment, and up to two (2) days prior to being placed on administrative leave for,
heretofore, unexplained reasons.
52. By asserting to the TEA and the Commissioner that Defendant CCISD only used a
portion of Dr. Ebell’s statement ( CCISD L.R. 013-015 ) for its consideration in reaching
its determination to non-renew – despite the fact that the Defendant CCISD admitted to
conducting multiple investigations, interviewing numerous district leaders and Dr. Evans’
entire support team – the Respondent has fundamentally failed at providing the above, or
any substantial evidence, to either the CCISD Board or the TEA & Commissioner
Morath. And Commissioner Morath’s decision based on such a dearth of information is
therefore deserving of reversal by this Court.
53. Defendant CCISD apparently excels at failing to provide substantive, authenticated
documentation which could even loosely be couched as proof.
54. As Defendants have failed to follow their own Local & Legal Policies (i.e. their rules and
regulations), Plaintiff contends that this District Court is licensed in a Substantial
Evidence Review, and a total reversal of the Commissioner’s determination.
55. The Court must uphold an agency finding-even if the evidence actually preponderates
against that finding as long as the evidence suggests that the agency’s determination was
within the bounds of reasonableness. Sw. Pub. Serv. v. Pub. Util. Comm’n, 962 S.W.2d
207, 215 (Tex.App.-Austin 1998, pet. denied).
56. Defendants cite Tex. Educ. Code §§ 21.258(a), (b) which merely allows parties to present
oral arguments. It requires neither attendance nor presentation. As Plaintiff was not
compelled to attend any hearing before the board, she exercised the option to rely on the
existing record – not one crafted by the board at the time of hearing, or thereafter.
III. FACTUAL ALLEGATIONS
57. Plaintiff reiterates all factual contentions submitted in her original instrument in this
cause of action, in haec verba.
58. In July 2021, Plaintiff applied for unemployment benefits with the Texas Workforce
Commission.
59. On or about Monday, August 2, 2021, Plaintiff received a phone call from the Texas
Workforce Commission (TWC) to investigate her unemployment claim.
60. On the call, the TWC Investigator informed Plaintiff that CCISD’s outside counsel
submitted approximately sixteen (16) statements from District Leaders to the TWC as
“the official documentation used by the CCISD Board of Trustees in support of the non-
renewal” of Plaintiff’s term employment contract in January 2021.
61. At the time of this call from the TWC, Plaintiff was aware of only one statement, which
was electronically provided to Plaintiff’s counsel of record on Thursday, January 21. In
this electronic communication, CCISD’s General Counsel relayed, in summary, that the
statement (with the CCISD elementary cirriculum coordinator’s name redacted) was a
sampling of the statements collected from district leaders that would be provided to the
CCISD Board of Trustees in support of Plaintiff’s forthcoming term contract non-
renewal.
62. As a component of the unemployment investigation, the TWC Investigator indicated that
statements from Dr. Robert Bayard, current CCISD Deputy Superintendent, Dr. Susan
Silva, current Assistant Superintendent of Curriculum and Instruction, and Laura Gaffey,
current data support specialist.
63. To the date of this filing, CCISD has failed to submit any of the statement(s) shared with
Plaintiff’s Counsel of record and the Texas Workforce Commission to the Texas
Education Agency or Plaintiff.
64. On or about August 4, 2021, Plaintiff submitted substantive documentation to the TWC
discrediting the wildly subjective ‘statements’ from the aforementioned CCISD
employees.
65. On or about August 5, 2021, Plaintiff received formal notification from the Texas
Workforce Commission that her request for unemployment benefits was granted.
66. The Texas Workforce Commission’s investigation found that “CCISD fired Plaintiff for a
reason that was not misconduct connected with the work.”
67. In August 2021 and September 2021, Plaintiff submitted Public Information Requests to
the Texas Workforce Commission to obtain a copy of her record. To date of this filing,
the TWC has failed to produce any documents or records in accordance with Chapter 552
of the Texas Government Code, known as the Public Information Act.
IV. REQUEST FOR RECORD
68. Pursuant to Texas Government Code Sec. 2001.175(b), Plaintiff Evans demanded that
Defendants submit an original or certified copy of the entire record of the proceeding under
review, upon perfection of her original complaint. This demand was made without waiver
or effect upon Plaintiff’s rights under Sec. 2001.175(c), and was made within her original
pleadings in the above styled and numbered cause of action.
69. To present date, the record has yet to be filed with the clerk of the Court.
V. PRAYER
For the reasons stated above, Plaintiff prays that this Court reverse the findings of the
Commissioner, and award Plaintiff any and all other relief to which she may be justly
entitled.
Respectfully Submitted,
/s/ Julian Frachtman
H. Julian Frachtman
TBN 24087536
The Law Offices of H. Julian Frachtman
3100 Richmond, Suite 203
Houston, Texas 77098
tel. 832-499-0611
fax. 713-651-0819
Hfrachtmanlaw@gmail.com
CERTIFICATE OF SERVICE
It Is hereby certified that on January 7th , 2021, the undersigned counsel electronically filed
his Plaintiff’s Responsive Trial Brief, In the above styled and numbered cause of action, with the
cm/ecf electronic filing system of Galveston County, and copies same filing to the electronic mail
service of the following:
Clay T. Grover
Cgrover@rmgllp.com
Alexa Gould
Agould@rmgllp.com
Mariana G. Evans
Mevans@rmgllp.com
Rogers, Morris & Grover, LLP
5718 Westheimer, Suite 1200
Houston, Texas 77057
COUNSEL FOR DEFENDANT
CLEAR CREEK INDEPENDENT SCHOOL DISTRICT
&
HON. MIKE MORATH
Texas Commissioner of Education
TEXAS EDUCATION AGENCY
1701 N. Congress Avenue
Austin, Texas 78701
Christina.Eischens@TEA.Texas.gov
/s/ H. Julian Frachtman
H. Julian Frachtman
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.
Hirsh Frachtman on behalf of Hirsh Frachtman
Bar No. 24087536
Hfrachtmanlaw@gmail.com
Envelope ID: 60616325
Status as of 1/7/2022 3:01 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Clay T.Grover CGrover@rmgllp.com 1/7/2022 2:56:39 PM SENT
Hirsh Frachtman 24087536 hfrachtmanlaw@gmail.com 1/7/2022 2:56:39 PM SENT
Alexa Gould agould@rmgllp.com 1/7/2022 2:56:39 PM SENT
Associated Case Party: Mike Morath
Name BarNumber Email TimestampSubmitted Status
Laura Kiick laura.kiick@oag.texas.gov 1/7/2022 2:56:39 PM SENT
Clayton Watkins clayton.watkins@oag.texas.gov 1/7/2022 2:56:39 PM SENT
Preview
Filed: 1/7/2022 2:56 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 60616325 By: Shailja Dixit 1/7/2022 3:00 PM CAUSE NO.: 21-CV-0717 DR. MEGAN EVANS, § Plaintiff § IN THE 56th DISTRICT COURT § v. § § GALVESTON COUNTY, TEXAS CLEAR CREEK INDEPENDENT § SCHOOL DISTRICT, and § MIKE MORATH, in his individual capacity § JURY TRIAL DEMANDED as Texas Commissioner of Education, § Defendants § PLAINTIFF’S RESPONSIVE TRIAL BRIEF COMES NOW PLAINTIFF Dr. Megan Rynn Evans (hereinafter as “Plaintiff”), and files this, her Responsive Trial Brief under Texas Education Code § 21.307, requesting judicial review and reversal of the Determination of the Texas Commissioner of Education in favor of Clear Creek Independent School District (hereinafter, collectively as “Defendants”, or individually as “Morath” and “CCISD” respectively) and would show the Court as follows: I. BACKGROUND 1. On or about April 27th, 2021, under Docket No. 030-R1-03-2021, the Commissioner found for the Defendant Clear Creek Independent School District in the appeal of the termination / contractual non-renewal of a Texas Education Code Chapter 21 Employee. 2. On or about April 8th, 2021, Plaintiff timely filed her Request for Review of the non-renewal of her term contract under Chapter 21 to the Commissioner of Education of the State of Texas. 3. Throughout the Review process, Defendant CCISD materially failed to produce documents which would constitute it’s “true and correct copy of the local record” which the Commissioner requested that they file. 4. A true and correct copy of the local record was never submitted by Defendant CCISD. Despite Plaintiff’s objections and protestations to the Commissioner, Defendant CCISD was allowed to proceed, and filed multiple briefs wherein factual allegations unsupported by contemporaneous documentation were manufactured. 5. Commissioner Hon. Mike Morath ultimately made his determination based on this arbitrary and capricious evidence, despite the dearth of “substantial evidence.” 6. On or about April 27th, 2021, the Commissioner returned a Determination in favor of Defendant CCISD. 7. Pursuant to Texas Education Code § 21.307, Plaintiff timely filed her Judicial Appeal with this Court in order to overturn the Commissioner’s Decision on the basis of a total lack of support by substantial evidence. The filing of this Judicial Appeal was achieved prior to thirty (30) days from the date of the Commissioner’s Determination issued on or about April 27th, 2021. 8. Plaintiff’s counsel was unable to timely file an initial trial brief in this proceeding, but reiterates Plaintiff’s arguments and factual contentions in this responsive instrument, which are reflective of her original instrument in this cause of action. II. ARGUMENTS & AUTHORITIES 9. Plaintiff reiterates all arguments in her Original Petition for Review, verbatim. 10. An agency decision that is not supported by substantial evidence is deemed arbitrary and capricious. Weslaco Fed’n of Teachers v. Tex. Educ. Agency, 27 S.W.3d 258, 266 (Tex.App.-Austin 2000, no pet.) (citing Pub. Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 211 (Tex.1991)). See Tarrant v. Clear Creek Indep. Sch. Dist., 238 S.W.3d 445, 452 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Lewis v. Austin Indep. Sch. Dist, No. 03-02-00325-CV, 2003 WL 124250, at *9 (Tex. App.—Austin Jan. 16, 2003, no pet.) (mem. op.). [A] DEFENDANTS FAILED TO MEET “SUBSTANTIAL EVIDENCE” STANDARD 11. “The Commissioner may only substitute his judgment for that of the board of trustees if their decision was arbitrary, capricious, unlawful, or not supported by substantial evidence.” Tex. Educ. Code § 21.303(a).(emphasis added) 12. “[t]he test . . . is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action.” Tex. State Bd. Of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988)(emphasis added). 13. Pursuant to Texas Government Code, Section 2001.174, Review Under Substantial Evidence Rule: “If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but: (2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” 14. Evidence does not have to meet technical requirements of competency, but it had to be more than a mere scintilla, and had to have “rational probative force.”1 1 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). 15. Because the Substantial Evidence Rule was thought to make an administrative finding impregnable where supported by a page of testimony, even though contrary evidence was overwhelming in quantity and quality, Sections 7(c) and 10(e) were included in the Federal Administrative Procedure Act.2 These sections prescribed that administrative orders were to be sustained only if supported by substantial evidence on the whole record. Thus, if evidence supporting a material finding is rendered insubstantial by opposing evidence, the reviewing court is authorized to reverse.3 16. The evidence, as a whole, has gone unexamined, due to Defendant CCISD’s flagrant failure to submit the totality of the local record to the Commissioner. And until such time as a true and correct copy of the record is submitted, the Respondent’s “evidence” remains a single, stand-alone, ostensible six page “report”, which is little more than a narrative fiction crafted by one of the very District officials whom Dr. Evans has complained of. The same official who paradoxically submitted his resignation in late April of 2021. CCISD L.R. 012-016. 17. This single report cannot stand in the face of the Plaintiff’s volume of evidence, as previously submitted by the Plaintiff. 18. In point of fact, though CCISD L.R. 012-016 references a multitude of meetings, at least one of which purportedly occurred on September 15th, 2020, and conversations, and evaluations which took place with the Petitioner, the Respondent has yet to submit any notes, memoranda, emails, documentation or other proof of such incidents. 2 60 stat. 237 (1946), 5 U.S.C. 1946 ed sec 1001 et seq. 3 Universal Camera Corporation v. NLRB, 340 U.. 474 (1951) ; NLRB v. Pittsburgh S.S. Company, 340 U.S. 498 (1951). 19. Again, no contemporaneous documentation was supplied by the Defendants to support after-the-fact narrative statements which are not even time-stamped. 20. More damning than anything, the Deputy Superintendent of Curriculum and Instruction, and the Assistant Superintendent of Human Resources, literally admit, within the Respondent’s most recent brief in the record, and within CCISD L.R. 016, that they “interviewed district leaders and employees concerning the Petitioner.” Id. at 016. 21. Though these employee & district leader interviews were serious enough to warrant a meeting on November 12th, 2020 with Dr. O’Pry, Dr. Smith, and the district’s General Counsel, Leila Sarmecanic – and the Plaintiff’s subsequent Administrative Leave was ostensibly based on these interviews – such interviews have never been admitted into Local Record. 22. Not even a brief report detailing the sum and substance of the interviews was included. If the Board made its determination to non-renew based on these interviews, even in part, they have not been admitted into the Local Record. 23. If the Commissioner made any determination upon these interviews, even in part, the Commissioner should have included a reference to such material in his brief. 24. Again – the only evidence relied upon by the Defendants is a “report”, whereas Plaintiff Evans has supplied a volume of evidence attached in her prior exhibits. [B] REVERSAL OF THE COMMISSIONER’S RULING IS WARRANTED 25. “A court can reverse the commissioner’s decision on a teacher’s contract if the decision is not supported by substantial evidence or if the commissioner’s conclusions of law are erroneous.” Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex.2000); see also Tex. Educ. Code § 21.307(f). 26. Plaintiff has the burden to demonstrate that the Commissioner’s decision was not supported by substantial evidence and that his conclusions were erroneous. Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Nelson v. Weatherwax, 59 S.W.3d 340, 349 (Tex. App.—Fort Worth 2001, pet. denied). The Plaintiff has done so in her above arguments, and as explained in her prior factual allegations & pleadings with this Court. 27. While Defendants were correct in asserting the presedences from the above case law, they sadly failed to complete the cited arguments from their chosen authorities. [C] DEFENDANT’S OWN CHOSEN CITATIONS SUPPORT THE PLAINTIFF 28. The Miller court reasoned that “if a board that terminated a teacher's continuing contract modified the examiner's fact findings, the Commissioner must accept the board's decision unless it is arbitrary, capricious, or unlawful or the examiner's original fact findings are not supported by substantial evidence. Id. § 21.303(b)(2) (Vernon 1996); 19 Tex.Admin.Code § 157.1071(g) (2000).” Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). 29. The Miller court further insisted that “[t]he Commissioner's decision must include fact findings and legal conclusions, which may be adopted by reference from the local record. Tex.Educ.Code Ann. § 21.304(a) (Vernon 1996).” Miller [as the Plaintiff] had the burden in court to demonstrate lack of substantial evidence. Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984); Farris v. Fort Bend Indep. Sch. Dist., 27 S.W.3d 307, 311 (Tex. App.-Houston [1st Dist.] 2000, no pet.). 30. Substantial evidence means more than a mere scintilla; thus, the evidence may preponderate against the agency's decision, yet still amount to substantial evidence. See Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). 31. Ultimately, the Miller court reasoned that “[t]he test is whether reasonable minds could have reached the same conclusion as the Commissioner. See Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988); Farris, 27 S.W.3d at 311.” Id. 32. Finally, the Miller court reasoned that “Whether substantial evidence exists to support an agency's determination is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000).” The court went on to “review the Commissioner's legal conclusions to determine whether they are erroneous. Tex.Educ.Code Ann. § 21.303(b)(2) (review is for whether legal conclusions were erroneous or whether substantial evidence supported decision). Therefore, when [the court] reviewed the Commissioner's "decision," [the court was] reviewing his legal conclusion that the board correctly found substantial evidence did not support the examiner's fact findings. See id. This can be done only by reviewing the examiner's fact findings. As a policy matter, the Miller court noted the examiner's hearing is akin to a trial and his fact findings from that "trial" are subject to limited review. Thus, it makes sense to consider those original fact findings in determining whether the Commissioner correctly decided the case.” Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) 33. Given the information and arguments submitted by the Plaintiff, this honorable court should determine that questions of law do indeed exist in whether or not the Defendants have met the burden of substantial evidence in this matter – which they have not. 34. Defendant CCISD avers that this Court should refrain from entertaining the Plaintiff’s appeal due to untimely filing of briefs. Their disingenuous argument then cites Seebaldt v. Dollinger, 01-94-00184-CV, 1994 WL 599352, at *1 (Tex. App.—Houston [1st Dist.] Nov. 3, 1994, no writ). Plaintiff would call this case to the Court’s attention, as non- persuasive, as this appellate case (1) originated in Harris County, and (2) was in regards to an un-born child’s rights. Hence there is no factual similarity which would justify referencing this case as an instrument which would guide the court in this unique matter. [D] FAILURE TO SUPPLY A COMPLETE LOCAL RECORD PRECLUDES ALLEGED SUBSTANTIAL EVIDENCE & PROVIDES GROUNDS FOR REVERSAL 35. Defendants contend that the Commissioner’s errors and omissions should not favor the Plaintiff. Defendants rightly cite Moses v. Fort Worth Independent School District, however, the Moses court’s ruling would apply directly to this Plaintiff’s factual allegations and stipulations in the instant case. 36. The Moses court went on to hold that “because there was not a complete local record [filed with the Commissioner], and specifically no testimony at all, there was not substantial evidence to support the school board's decision.” Moses v. Fort Worth Independent School District, 977 S.W.2d 851 (Tex. App.-Fort Worth 1998, no pet.). The Miller Court found the conclusion in Moses to be the correct approach, and that the Commissioner in Moses correctly reversed the findings of the board. Miller 51 S.W.3d 676. 37. Defendant CCISD failed to timely submit a copy of the complete Local Record to the Commissioner to support a determination regarding the Plaintiff’s appeal.4 We know this to be a stipulation of fact and not a mere allegation, as Defendant CCISD has made multiple references to meetings, discussions, and interviews with CCISD staff which were never submitted to the local record, either originally or in agreed supplementation. 38. Further, CCISD’s supplement to the record contained information heretofore unseen by the Plaintiff in the above styled and numbered cause, and failed to provide any 4 See Plaintiff’s paragraph 18 - 21 above. information regarding the provenance of such information. 39. Even after Plaintiff agreed to Defendant CCISD’s Motion to Supplement the Local Record, Defendant CCISD failed to supply a complete copy of the local record. 40. Defendant CCISD has time and again failed to provide complete information regarding the record; this has crystalized in its submissions to the Texas Workforce Commission in tandem with its responses to this honorable court – which do not dovetail with one another. 41. Finally, the information supplemented by Defendant CCISD spoke to issues never addressed with the Plaintiff, and provided convenient information not previously embodied within her employee file, and which contravenes both documented and recorded evidence. 42. It cannot be disputed, therefore, that the Commissioner’s determination in this matter was arbitrary, capricious, and totally lacked substantial evidence. Under these pretenses and arguments, Plaintiff respectfully requests that this court conduct a judicial review of the Commissioner’s findings, and determine that such findings were arbitrary and capricious, and worthy of reversal, as such findings were never supported by substantial factual evidence. 43. Plaintiff avers that there are questions of law which this Court must review, most especially in light of her human resources complaints against the very district employees poised to supervise and rule over her ISD hearing before the board, and her attached federal complaints against that same independent school district. [E] NO SUBSTANTIAL EVIDENCE HAS BEEN SUBMITTED 44. While Defendant CCISD contends that this one report is “more than a mere scintilla” Richard 2013 WL 12173905, the fact is, that the report barely stands up to scrutiny. 45. In no way is the instant case remotely comparable to the determination in Richard, and the Respondent’s suggestion that there is controlling, or even persuasive authority, is disingenuous at best. 46. In Richard, the Petitioner’s employment with the district was non-renewed due to substantial evidence in finding that: (i) “the petitioner failed to complete an associated growth plan; (ii) did not correct deficiencies after being counseled; and (iii) slept while on duty.” Id. 47. In the instant case, the Plaintiff Evans was never given a growth plan, performance improvement plan, or negative metrics which would even be loosely associated with such negative evaluations. In fact, the Petitioner has continuously led her district in both performance and achievement. (As attested by the same district leaders in their recorded conversations with Ms. Evans, previously filed as exhibits.) 48. If such a growth plan was issued to Dr. Evans, the Respondent has failed to submit it within the Local Record – hence they have failed to provide a true and correct copy of the Local Record, and the Commissioner’s determination was not made on substantial evidence. If no Growth Plan exists, the comparison to Richard is moot. 49. If such deficiencies were egregious enough to warrant termination of a contract employee, then the Respondent has failed to submit any contemporaneous documentation of those deficiencies. If no deficiencies were catalogued, the comparison to Richard is moot. 50. Therefore there are only two logical conclusions: (a) no such documentation or proof exists, or (b) no such documentation or proof has been submitted in compliance with the Commissioner’s order, and the Respondent is intentionally withholding evidence. Hence, the Commissioner has made a determination without the benefit of substantial evidence. 51. The Plaintiff was never counseled regarding any “deficiencies” used to non-renew her term employment contract. If the Defendants had bothered to evaluate the Plaintiff’s initial petition for review to the Commissioner, they would have noticed her attached exhibits including authenticated audio recordings and transcribed conversations with District officials, wherein Dr. Evans was praised for her work ethic, performance, and abilities. Conversations which occurred within the last two (2) weeks of her active employment, and up to two (2) days prior to being placed on administrative leave for, heretofore, unexplained reasons. 52. By asserting to the TEA and the Commissioner that Defendant CCISD only used a portion of Dr. Ebell’s statement ( CCISD L.R. 013-015 ) for its consideration in reaching its determination to non-renew – despite the fact that the Defendant CCISD admitted to conducting multiple investigations, interviewing numerous district leaders and Dr. Evans’ entire support team – the Respondent has fundamentally failed at providing the above, or any substantial evidence, to either the CCISD Board or the TEA & Commissioner Morath. And Commissioner Morath’s decision based on such a dearth of information is therefore deserving of reversal by this Court. 53. Defendant CCISD apparently excels at failing to provide substantive, authenticated documentation which could even loosely be couched as proof. 54. As Defendants have failed to follow their own Local & Legal Policies (i.e. their rules and regulations), Plaintiff contends that this District Court is licensed in a Substantial Evidence Review, and a total reversal of the Commissioner’s determination. 55. The Court must uphold an agency finding-even if the evidence actually preponderates against that finding as long as the evidence suggests that the agency’s determination was within the bounds of reasonableness. Sw. Pub. Serv. v. Pub. Util. Comm’n, 962 S.W.2d 207, 215 (Tex.App.-Austin 1998, pet. denied). 56. Defendants cite Tex. Educ. Code §§ 21.258(a), (b) which merely allows parties to present oral arguments. It requires neither attendance nor presentation. As Plaintiff was not compelled to attend any hearing before the board, she exercised the option to rely on the existing record – not one crafted by the board at the time of hearing, or thereafter. III. FACTUAL ALLEGATIONS 57. Plaintiff reiterates all factual contentions submitted in her original instrument in this cause of action, in haec verba. 58. In July 2021, Plaintiff applied for unemployment benefits with the Texas Workforce Commission. 59. On or about Monday, August 2, 2021, Plaintiff received a phone call from the Texas Workforce Commission (TWC) to investigate her unemployment claim. 60. On the call, the TWC Investigator informed Plaintiff that CCISD’s outside counsel submitted approximately sixteen (16) statements from District Leaders to the TWC as “the official documentation used by the CCISD Board of Trustees in support of the non- renewal” of Plaintiff’s term employment contract in January 2021. 61. At the time of this call from the TWC, Plaintiff was aware of only one statement, which was electronically provided to Plaintiff’s counsel of record on Thursday, January 21. In this electronic communication, CCISD’s General Counsel relayed, in summary, that the statement (with the CCISD elementary cirriculum coordinator’s name redacted) was a sampling of the statements collected from district leaders that would be provided to the CCISD Board of Trustees in support of Plaintiff’s forthcoming term contract non- renewal. 62. As a component of the unemployment investigation, the TWC Investigator indicated that statements from Dr. Robert Bayard, current CCISD Deputy Superintendent, Dr. Susan Silva, current Assistant Superintendent of Curriculum and Instruction, and Laura Gaffey, current data support specialist. 63. To the date of this filing, CCISD has failed to submit any of the statement(s) shared with Plaintiff’s Counsel of record and the Texas Workforce Commission to the Texas Education Agency or Plaintiff. 64. On or about August 4, 2021, Plaintiff submitted substantive documentation to the TWC discrediting the wildly subjective ‘statements’ from the aforementioned CCISD employees. 65. On or about August 5, 2021, Plaintiff received formal notification from the Texas Workforce Commission that her request for unemployment benefits was granted. 66. The Texas Workforce Commission’s investigation found that “CCISD fired Plaintiff for a reason that was not misconduct connected with the work.” 67. In August 2021 and September 2021, Plaintiff submitted Public Information Requests to the Texas Workforce Commission to obtain a copy of her record. To date of this filing, the TWC has failed to produce any documents or records in accordance with Chapter 552 of the Texas Government Code, known as the Public Information Act. IV. REQUEST FOR RECORD 68. Pursuant to Texas Government Code Sec. 2001.175(b), Plaintiff Evans demanded that Defendants submit an original or certified copy of the entire record of the proceeding under review, upon perfection of her original complaint. This demand was made without waiver or effect upon Plaintiff’s rights under Sec. 2001.175(c), and was made within her original pleadings in the above styled and numbered cause of action. 69. To present date, the record has yet to be filed with the clerk of the Court. V. PRAYER For the reasons stated above, Plaintiff prays that this Court reverse the findings of the Commissioner, and award Plaintiff any and all other relief to which she may be justly entitled. Respectfully Submitted, /s/ Julian Frachtman H. Julian Frachtman TBN 24087536 The Law Offices of H. Julian Frachtman 3100 Richmond, Suite 203 Houston, Texas 77098 tel. 832-499-0611 fax. 713-651-0819 Hfrachtmanlaw@gmail.com CERTIFICATE OF SERVICE It Is hereby certified that on January 7th , 2021, the undersigned counsel electronically filed his Plaintiff’s Responsive Trial Brief, In the above styled and numbered cause of action, with the cm/ecf electronic filing system of Galveston County, and copies same filing to the electronic mail service of the following: Clay T. Grover Cgrover@rmgllp.com Alexa Gould Agould@rmgllp.com Mariana G. Evans Mevans@rmgllp.com Rogers, Morris & Grover, LLP 5718 Westheimer, Suite 1200 Houston, Texas 77057 COUNSEL FOR DEFENDANT CLEAR CREEK INDEPENDENT SCHOOL DISTRICT & HON. MIKE MORATH Texas Commissioner of Education TEXAS EDUCATION AGENCY 1701 N. Congress Avenue Austin, Texas 78701 Christina.Eischens@TEA.Texas.gov /s/ H. Julian Frachtman H. Julian Frachtman 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. Hirsh Frachtman on behalf of Hirsh Frachtman Bar No. 24087536 Hfrachtmanlaw@gmail.com Envelope ID: 60616325 Status as of 1/7/2022 3:01 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Clay T.Grover CGrover@rmgllp.com 1/7/2022 2:56:39 PM SENT Hirsh Frachtman 24087536 hfrachtmanlaw@gmail.com 1/7/2022 2:56:39 PM SENT Alexa Gould agould@rmgllp.com 1/7/2022 2:56:39 PM SENT Associated Case Party: Mike Morath Name BarNumber Email TimestampSubmitted Status Laura Kiick laura.kiick@oag.texas.gov 1/7/2022 2:56:39 PM SENT Clayton Watkins clayton.watkins@oag.texas.gov 1/7/2022 2:56:39 PM SENT