Preview
FILED
DALLAS COUNTY
6/27/2016 7:01:30 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-14438
GILBERTO HERNANDEZ, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
DALLAS INDEPENDENT SCHOOL §
DISTRICT, §
§
Defendant. 298th JUDICIAL DISTRICT
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND
MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES
I.
SUMMARY OF THE ARGUMENT
This is a Texas Whistleblower Act dispute. Dallas Independent School District (“Dallas
ISD” or the “District”) employed Plaintiff Gilberto Hernandez as a First Grade Bilingual Teacher
at Gilbert Cuellar Sr. Elementary School (“Cuellar Elementary”). At the conclusion of the 2013-
2014 school year, Dallas ISD’s Board of Trustees (the “Board”) voted to propose the non-
renewal of Hernandez’s employment contract pursuant to Texas Education Code § 21.206(a).
A Texas Education Agency (“TEA”) appointed Independent Hearing Examiner (the
“IHE”) conducted a three-day evidentiary hearing regarding Hernandez’s proposed contract non-
renewal. At the conclusion of the hearing, the IHE issued a Recommendation in which she
found that Dallas ISD “prove[d] that its decision to nonrenew Mr. Hernandez’[s] contract [was]
justified” and recommended that the Board sustain the recommendation not to renew
Hernandez’s contract. On September 29, 2014, a three-member Subcommittee of the Board
unanimously decided to adopt the IHE’s Recommendation and voted to non-renew Hernandez’s
employment contract. At that point, Hernandez’s employment with Dallas ISD ended.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 1
Nevertheless, in his Original Petition (the “Petition” or “Pet.”), Hernandez alleges that
Dallas ISD non-renewed his contract in violation of the Texas Whistleblower Act because of:
…[his federal court] lawsuit and the 2nd Amended Complaint filed on
January 17, 2014 . . . [his] reports to CPS & DISD CHILD ABUSE
OFFICE on 1/17/14, 3/31/2014, [his] letter to the TEA dated January 12,
2014, and his letter to DISD Board Members dated 02/15/14.
See Pet., p. 6, ¶ 11.
Hernandez also lists eleven (11) alleged reports that he contends Dallas ISD “used to
retaliate and wrongfully terminate” him. See Pet., pp. 3-4. In addition, he attaches numerous
Exhibits and references additional alleged reports in the Petition. Dallas ISD has, generally,
identified the following “reports” in the Petition or the Exhibits attached thereto:
1. Unspecified reports to Dallas ISD’s Board, its Office of Professional
Responsibility (“OPR”), the Superintendent, and other District personnel. See
Pet., p. 4, # 8.
2. A September 2013 memorandum he sent to Cuellar Elementary Principal, Dr.
Sheryl Wilson regarding classroom technology. See Exhibit “C” to Pet.
3. “[N]umerous grievances” Hernandez filed. See Pet., p. 5.
4. “[C]ontact[ ] with the Equal Employment Opportunity Commission. Id.
5. An October 2013 email complaint to Dallas ISD’s Equal Opportunity Compliance
Manager. See Exhibit “E” to Pet.
6. A federal court lawsuit he filed against Dallas ISD, Civil Action No. 3:14-CV-
0022-BK. See Pet., p. 6, # 11 & Exhibit “A” to Pet.
7. Pleadings Hernandez filed in the federal court lawsuit, including notification to
Dallas ISD Board members, OPR, and District officials regarding the lawsuit See,
generally, Pet. see also Exhibit “D-1” to Pet.
8. A March 2013 administrative statement and affidavit he submitted to OPR
regarding an alleged improper relationship between his former Principal and a
teacher and speculative confidentiality breaches. See Exhibit “B” to Pet.
9. A March 31, 2014 complaint to OPR regarding errors in his teacher appraisal
process. See Pet., p. 3, # 7 (inaccurately referenced as a report to Child Protective
Services and the District’s Child Abuse Office).
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 2
10. A September 25, 2013 hotline report to OPR regarding Dr. Wilson’s alleged
discrimination and retaliation against him. See Pet., p. 3, # 4.
11. A February 15, 2014 letter to Dallas ISD’s Board that was purportedly also sent to
the Texas Education Agency (“TEA”) and the State Board for Educator
Certification (“SBEC”). See Pet., p. 4, # 9-11 & Exhibit “J” to Pet.
12. A February 14, 2014 letter directed to “Director of Investigations/SBEC.” See
Exhibit “G” to Pet.
13. A November 2013 e-mail he sent to tnwclaims@tnwinc.com with a complaint
addressed to “TEA/Roberto Manzo.” See Exhibit “F” to Pet.
14. A January 12, 2014 letter directed to the TEA attaching a copy of his federal court
lawsuit. See Pet., p. 3, # 8 & Exhibit “K” to Pet.
15. An October 2011 Child Abuse Reporting Form submitted to Dallas ISD’s Child
Abuse Office (“CAO”) and Child Protective Services (“CPS”). See Pet., p. 3, #1
& Exhibit “H-1” to Pet.
16. An alleged February 25, 2013 report to OPR, CPS and CAO regarding a teacher
threatening a female student. See Pet., p. 3, # 2.
17. A May 9, 2013 report to CPS and CAO regarding alleged teacher misconduct
toward a student. See Pet., p. 3, # 3 & Exhibit “H-2” to Pet.
18. A December 13, 2013 report to CPS and CAO regarding alleged excessive force
used by Dr. Wilson toward a student. See Pet., p. 3, # 5 & Exhibit H-3 to Pet.
19. A January 17, 2014 report to CPS and CAO that a student fell and was injured as
a result of an assistant principal chasing the student. Pet., p. 3, # 6.
Many, if not all, of the alleged reports do not constitute good faith reports of a violation
of law to an appropriate law enforcement authority. Thus, this Court lacks subject matter
jurisdiction over all, or at least most of Hernandez’s Texas Whistleblower Act claim.
Even if the Court did have subject matter jurisdiction, Dallas ISD is entitled to summary
judgment on Hernandez’s Whistleblower Act claim. At the outset, Hernandez’s claims are time-
barred under Texas Government Code § 554.006. Hernandez did not file his Whistleblower Act
claim regarding his contract non-renewal within 30 days of the Board Subcommittee’s
September 29, 2014 Decision to adopt the IHE’s Recommendation and non-renew his contract.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 3
Furthermore, in his federal court lawsuit, the Court dismissed with prejudice Hernandez’s
whistleblower claims based on some of the reports referenced in or attached to the Petition. Res
judicata bars re-litigating Hernandez’s whistleblower complaints based on these reports.
II.
FACTUAL & PROCEDURAL BACKGROUND
A. The non-renewal of Hernandez’s employment with Dallas ISD
During the 2013-2014 school year Dallas ISD employed Hernandez as a First Grade
Bilingual Teacher at Cuellar Elementary. See Pet, p. 2, ¶ 4. Dr. Sheryl Wilson became the
Principal of Cuellar Elementary at the beginning of the 2013-2014 school year. Id.
On April 28, 2014, Dr. Wilson recommended to the Superintendent that Hernandez’s
employment contract be non-renewed pursuant to Dallas ISD Board policy DFBB (Local)1 for
the following reasons:
Deficiencies pointed out in observation reports, appraisals or
evaluations, supplemental memoranda, or other communications, or
receiving an evaluation with “unsatisfactory” in one or more
domains or a “below expectations” in two or more domains.
Incompetency or inefficiency in the performance of duties.
Insubordination or failure to comply with official directives.
Failure to maintain an effective working relationship, or maintaining
good rapport with parents, the community, or colleagues.
Failure to fulfill duties or responsibilities.
Behavior that presents a danger of physical or mental harm to a
student or to other individuals.
Failure to fulfill the requirements of a Teacher In Need of
Assistance (TINA) plan.
See Exhibit “L” to Pet.
1
DFBB (Local) sets forth Dallas ISD’s pre-established reasons for proposed non-renewal of an employee’s
term contract as required by Texas Education Code § 21.203(b). A copy of DFBB (Local) is attached
hereto as Exhibit “A.” Dallas ISD further asks the Court to take judicial notice of DFBB (Local) under
Texas Rule of Evidence 201. See, e.g., Van Deelen v. Cain, 628 Fed. Appx. 891 n.1 (5th Cir. 2015) (court
can take judicial notice of the subject matter and content of specific school board policies).
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 4
On May 23, 2014, Hernandez received a “Proposed Notice of Non-Renewal” letter
advising that the Board had voted to propose the non-renewal of his employment contract. See
Exhibit “B”; see also Exhibit “C,” p. 2, ¶ A. The Proposed Notice of Non-Renewal advised that
the recommendation not to renew Hernandez’s contract was made for pre-established reasons set
forth in DFBB (Local)—namely, DFBB (Local) #1-3, 5, 7, 15, 22, 23, 29, and 39. See Exhibit
“B.” The Proposed Notice of Non-Renewal further advised that the proposed non-renewal was
based on twenty-six (26) specific reasons. Id.
B. Hernandez’s Texas Education Agency appeal of the proposed non-renewal of his
employment contract
On May 26, 2014, Hernandez invoked the applicable grievance or appeals process by
filing a request for a hearing with the TEA under Texas Education Code § 21.207. See Exhibit
“D.” On August 27-29, 2014, Karen Roberts Washington, an Independent Hearing Examiner for
the TEA, presided over an evidentiary hearing regarding the proposed non-renewal of
Hernandez’s employment contract. See Exhibit “C.”
On September 17, 2014, the IHE issued her Recommendation. The IHE found that:
(1) “Hernandez repeatedly and consistently demonstrated an unwillingness to follow
rules or direction, a disrespect for authority, and a lack of cooperation that was
disruptive”;
(2) “Hernandez was habitually late”;
(3) Hernandez “defied [Principal Wilson’s] authority in front of [ ] students and [ ]
other teachers”;
(4) “Hernandez failed to maintain an appropriate learning environment and violated
directives relating to lab modeling activities”;
(5) “Hernandez attempted to build on the controversy by polling students and
contacting parents” which constituted a “failure to exercise good professional
judgment” in “violat[ion] of DFBB-Local #22”;
(6) “Hernandez gave false information to other teachers”;
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 5
(7) Hernandez was “insubordinate with respect to [ ] directives” given to him by Dr.
Wilson; and
(8) Hernandez did not complete either Teacher Intervention Plan on which he was
placed.
See Exhibit “C,” pp. 1-14.
The IHE concluded that Dallas ISD sustained its burden to prove that its decision to non-
renew Hernandez’s contract was justified. See Exhibit “C,” p. 15, ¶ 9; see also id., p. 14, ¶¶ 7(a)-
(e). Consequently, the IHE recommended that the Board “sustain the recommendation by DISD
[ ] not to renew Hernandez’[s] term contract.” Id., p. 15.
On September 29, 2014, a three member Subcommittee of Dallas ISD’s Board (the
“Board Subcommittee”) heard Mr. Hernandez’s appeal of the IHE’s Recommendation. See
Exhibit “E.” The Board Subcommittee unanimously decided to “adopt and approve the Findings
of Fact and Conclusions of Law, the Decision and Recommendation of the Independent Hearing
Examiner regarding Gilberto Hernandez; and that Gilberto Hernandez’s employment contract
should be and it is hereby non-renewed.” Id.
C. Hernandez’s federal court lawsuit
On January 3, 2014, prior to any actions regarding his contract non-renewal, Hernandez
filed his Original Petition against Dallas ISD and District personnel (including Dr. Wilson) in the
United States District Court for the Northern District of Texas Dallas Division, Civil Action No.
3-14CV-0022M (the “Original Federal Complaint”). See Exhibit “F.” In his Original Federal
Complaint, Hernandez alleged claims for: (1) age discrimination in violation of the Age
Discrimination in Employment Act; (2) sex discrimination in violation of Title VII of the Civil
Rights Act of 1964, and (3) 42 U.S.C. §§ 1981 and 1983 claims for denial of his equal protection
rights. Id., p. 2. Hernandez also alleged that “he was retaliated against for being a
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 6
‘Whistleblower’, and for having filed complaints with the Texas Education Agency and the
Dallas ISD Office of Professional Responsibility, and with Child Protective Services.” Id.
On January 17, 2014, Hernandez filed an Amended Complaint (the “First Amended
Federal Complaint”) and added claims for defamation, libel, and slander against Dallas ISD and
several of the individual defendants and added a claim for fraudulent misrepresentation against
Dr. Wilson. See Exhibit “G.”
On April 25, 2014, after the Court granted Dallas ISD’s Motion for a More Definite
Statement, Hernandez filed his Second Amended Complaint (the “Second Amended Federal
Complaint”). See Exhibits “H” & “I.”
Hernandez did not amend his complaint in the federal court lawsuit after the Board
Subcommittee voted to non-renew his employment contract. Instead, on December 17, 2014, the
Court granted in part Dallas ISD’s First Motion to Dismiss. See Exhibit “J.” The Court held that
all causes of action, other than portions of Hernandez’s Texas Whistleblower Act claim were
“fatally flawed” and “granting leave to amend would be futile.” Id., p. 16. Therefore, the Court
dismissed these claims with prejudice. The Court did grant Hernandez “limited leave to amend”
portions of his Whistleblower claim. Id., pp. 15-16. However, in footnote 5, the Court stated:
A review of the so-called whistleblower complaints attached to the
Second Amended Complaint reveals they were silent on the law violated
and/or merely complaining of DISD actions Plaintiff deemed
unprofessional or unethical decisions. E.g., Doc. 15 at 41, 46, 50-51, 54-
55, 57-58, 74-77, 80-86, 89, 91, 97-98, 100-01. Since they reference no
law or rule violation(s), leave to amend does not extend to those claims.
See Exhibit “J,” p. 15, n.5.2
2
This included inter alia a dismissal with prejudice of Hernandez’s Whistleblower Act complaint related to
reports to OPR regarding the alleged misconduct of Dr. Wilson including alleged breaches of
confidentiality (Doc. 74-77), which relates to Hernandez’s September 25, 2013 complaint to OPR (Pet., p.
3, # 4) and his November 2, 2013 letter to the TEA now attached as Exhibit “F” to the Petition; a
September 27, 2013 memorandum he sent to Dr. Wilson (Doc. 80-82) that is now attached as Exhibit “C”
to the Petition; a letter complaint to Dallas ISD’s EEO Compliance Officer regarding “Ongoing
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 7
On December 22, 2014, eighty-four (84) days after the Board Subcommittee announced
its decision to non-renew Hernandez’s contract, he filed his Third Amended Complaint (the
“Third Amended Federal Complaint”) and attached numerous Exhibits to the Complaint
regarding his alleged “reports.” See Exhibit “K.” This was the first time Hernandez amended
his complaint to allege that his contract non-renewal violated the Whistleblower Act.
On November 4, 2015, the court issued its Memorandum Opinion and Order in
Hernandez’s federal court lawsuit regarding Dallas ISD’s Second Motion to Dismiss. See
Exhibit “L.” In the Order, the Court declined to exercise supplemental jurisdiction over
Hernandez’s state law Texas Whistleblower Act claim. Id.
Hernandez filed his Petition in this case on December 1, 2015. See Exhibit “M.”
III.
STANDARD OF REVIEW
A. Plea to the Jurisdiction
School districts are immune from suit and liability for common law tort and statutory
claims unless the legislature expressly waives such immunity. Mullins v. Dallas Indep. Sch.
Dist., 357 S.W.3d 182, 185-86 (Tex. App.—Dallas 2012, pet. denied) (citing State v. Lueck, 290
S.W.3d 876, 880 (Tex. 2009)). When applicable, governmental immunity from suit renders the
trial court without subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004). A plaintiff
bears the burden to affirmatively plead facts establishing the trial court’s subject-matter
jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
Harassment/Retaliation/Age & Racial Discrimination” by Dr. Wilson (Doc. 85-86), the e-mail which is
now attached as Exhibit “E” to the Petition; the February 14, 2014 letter to SBEC regarding Breach of
Confidentiality (Doc. 89) which is attached as Exhibit “G” to the Petition; and a February 15, 2014
memorandum to Dallas ISD’s Board which was copied to the TEA and SBEC (Doc. 91) which is now
attached as Exhibit “J” to the Petition.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 8
When subject-matter jurisdiction is contested, “[t]he trial court must determine at its
earliest opportunity whether it has the constitutional or statutory authority to decide the case
before allowing the litigation to proceed.” Miranda, 133 S.W.3d at 226. Subject-matter
jurisdiction is essential for a court’s authority to resolve a case and a trial court lacks such
jurisdiction where the defendant governmental entity is immune from suit. Harris Cnty. v. Sykes,
136 S.W.3d 635, 639 (Tex. 2004). Whether the trial court has subject-matter jurisdiction is a
question of law. Miranda, 133 S.W.3d at 226.
In making its plea to the jurisdiction, the defendant may assert either, or both, that (1) the
pleadings, by their very allegations, do not confer subject-matter jurisdiction on the court or
(2) the underlying evidence—regardless of the pleaded allegations—fails to establish the court’s
jurisdiction. Id. When a plea to the jurisdiction challenges the pleadings, the trial court must
determine if the facts pleaded affirmatively demonstrate the trial court’s jurisdiction to hear the
cause. Id. When a plea to the jurisdiction challenges the existence of evidence to support
jurisdiction, the trial court must consider the relevant evidence submitted by the parties to resolve
the jurisdictional issues. Id. at 227; see also Lueck, 290 S.W.3d at 881-83. Here, Dallas ISD
challenges both the pleadings and the evidence.
B. Motion for Summary Judgment
Summary judgment is appropriate where the defendant establishes that there is no
genuine issue of material fact as to one or more essential elements of the plaintiff’s causes of
action and that it is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995). For the plaintiff to defeat a properly supported
motion for summary judgment, he must produce tangible, admissible evidence raising a fact
issue on all elements of his claims, not merely argument or conclusions. See Liggett v. Blocher,
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 9
849 S.W.2d 846, 852 (Tex. App.—Houston [1st Dist.] 1993, no writ). Mere conclusory
statements do not constitute competent summary judgment proof. Abbott Labs, Inc. v. Seguar,
907 S.W.2d 503, 508 (Tex. 1995).
A defendant is entitled to summary judgment on an affirmative defense if the defendant
presents evidence that establishes each element of the affirmative defense. KPMG Peat Marwick
v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Ryland Group, Inc. v.
Hood, 924 S.W.2d 120, 121 (Tex. 1996). When a defendant moving for summary judgment on
the affirmative defense of statute of limitations establishes that the action is time-barred, the
nonmovant must provide competent summary judgment proof raising a fact issue in avoidance of
the statute of limitations (including evidence to raise a fact issue with respect to each element of
any defense to avoid the application of the statutory limitations period). KPMG Peat Marwick,
988 S.W.2d at 748, 749-50.
IV.
PLEA TO THE JURISDICTION
A. To establish jurisdiction, a Whistleblower Act plaintiff must plead the essential
elements of a valid claim.
The Whistleblower Act prohibits a state or local government entity from terminating “a
public employee who in good faith reports a violation of law by the employing governmental
entity or another public employee to an appropriate law enforcement authority.” TEX. GOV’T
CODE § 554.002(a) (emphasis added). The Whistleblower Act waives immunity for claims that
meet the essential elements of Section 554.002. Id., § 554.0035. Because “[s]tatutory
prerequisites to a suit . . . are jurisdictional requirements in all suits against a governmental
entity,” immunity is not waived for claims that involve a report made to someone who is not “an
appropriate law enforcement authority” or that does not allege a violation of “law,” as those
terms are statutorily defined. TEX. GOV’T CODE § 311.034; Lueck, 290 S.W.3d at 882.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 10
1. A Whistleblower plaintiff must show that he reported a violation of law.
The Whistleblower Act only waives immunity if the plaintiff reported conduct that he in
good faith believed violated an existing law. TEX. GOV’T CODE § 554.002(a); Lueck, 290
S.W.3d at 878, 881. Section 554.001(1) of the Act defines “law” as a state or federal statute, an
ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. TEX.
GOV’T CODE §§ 554.001(1). “An employee need not identify in the report the specific law he
asserts was violated, but there must be some law prohibiting the complained of conduct to give
rise to the Whistleblower action.” Wilson v. Dallas Indep. Sch. Dist., 376 S.W.3d 319, 326 (Tex.
App.—Dallas 2012, no pet.) If a plaintiff were not required to report a violation of an existing
law, “every complaint, grievance, or misbehavior could support a claim.” Llanes v. Corpus
Christi Indep. Sch. Dist., 64 S.W.3d 638, 642-43 (Tex. App.—Corpus Christi 2001, pet. denied);
Coll. of the Mainland v. Meneke, 420 S.W.3d 865, 870 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). Whether the report shows such a violation is a question of law. City of Elsa v.
Gonzalez, 325 S.W.3d 622, 627 (Tex. 2010); Meneke, 420 S.W.3d at 870.
Although a plaintiff need not have identified the specific law when making the initial
report, after filing suit, he must be able to identify the law that was violated in order to meet his
burden to affirmatively establish jurisdiction. Mullins, 357 S.W.3d at 188-89 (citing Llanes v.,
64 S.W.3d at 642-43). Identification of the specific law the employee alleges was violated is
also critical to determining the next element—whether the report was made to an appropriate law
enforcement authority.” Mullins, 357 S.W.3d at 188 (citing Tex. Dep’t of Transp. v. Needham,
82 S.W.3d 314, 320 (Tex. 2002)); Wilson, 376 S.W.3d at 327.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 11
2. A Whistleblower plaintiff must establish that he reported the alleged
violation to an appropriate law enforcement authority.
The Act defines an appropriate law enforcement authority as an authority that is part of a
federal, state, or local governmental entity that the employee in good faith believes is authorized
to either “(1) regulate under or enforce the law alleged to be violated in the report; or (2)
investigate or prosecute a violation of criminal law.” TEX. GOV’T CODE § 554.002(b)
Even though an entity may be required to comply with a particular law, this does not
equate to having the authority to regulate under or enforce the law. Gonzalez, 325 S.W.3d at
628. Furthermore, an entity’s ability to take remedial action is insufficient to show that it is an
appropriate law enforcement authority. Duvall v. Tex. Dep’t of Human Servs., 82 S.W.3d 474,
481 (Tex. App.—Austin 2002, no pet.). Likewise, an entity’s general authority to investigate
employee misconduct does not equate to the authority to investigate or prosecute violations of
criminal law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex.
2013).
In Gentilello, the Supreme Court provided a lengthy analysis of the statutory meaning of
“enforcement” and of its prior decisions applying that definition:
The upshot of [these] decisions is that for an entity to constitute an appropriate
law-enforcement authority under the Act, it must have authority to enforce,
investigate, or prosecute violations of law against third parties outside of the
entity itself, or it must have authority to promulgate regulations governing the
conduct of such third parties. Authority of the entity to enforce legal requirements
or regulate conduct within the entity itself is insufficient to confer law-
enforcement authority status. Indeed, holding otherwise would transform every
governmental entity that is subject to any regulation or that conducts internal
investigations or imposes internal discipline into law-enforcement authorities
under the Act. Such a result would collide head-on with the Act’s limited
definition and our cases interpreting that definition.
Gentilello, 398 S.W.3d at 686 (emphasis added). In other words, the Court has drawn a critical
distinction between internal reports to supervisors or other government officials tasked with
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 12
ensuring internal compliance with the law and reports made to an entity tasked with external
enforcement of the law.
At least eleven times in the past fourteen years, the Texas Supreme Court has held that an
internal report to a supervisor or other employee tasked with ensuring internal compliance is not
a report to an appropriate law enforcement authority and is therefore jurisdictionally
insufficient.3 As the Texas Supreme Court noted in Gentilello, “[f]ederal and other state
whistleblower laws explicitly protect internal reports to supervisors; Texas law does not.”
Gentilello, 398 S.W.3d at 686-87.
3
See Office of Attorney Gen. v. Weatherspoon, 472 S.W.3d 280, 282 (Tex. 2015) (employee’s report to
supervisor, who was required by agency policy to refer matter to authority with outward looking
enforcement power was insufficient under the Act); Tex. Comm’n on Envir. Quality v. Resendez, 450
S.W.3d 520, 521 (Tex. 2014) (“an internal report of wrongdoing does not trigger the Act’s protection
unless it is made directly to an authority with outward-looking law-enforcement power”); Tex. Dep’t of
Human Servcs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014) (“reports up the chain of command are
insufficient to trigger the Act’s protections”); Tex. A&M Univ.-Kingsville v. Moreno, 399 S.W.3d 128, 130
(Tex. 2013) (report to university assistant vice president and comptroller was not made to an appropriate
law enforcement authority because their power only extends to ensuring that the university, itself, complies
with the law); Ysleta Indep. Sch. Dist. v. Franco, 417 S.W.3d 443, 445 (Tex. 2013) (“As Farran made clear
in the school context, reporting to school officials not charged with enforcing laws outside the district falls
short of what the Act requires.”); Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 655 (Tex. 2013)
(reports to the superintendent, assistant superintendent, internal auditor, and school board were not made to
appropriate law enforcement authorities because these officials did not have authority to enforce the
allegedly violated laws outside the school district itself, against third parties); Univ. of Hous. v. Barth, 403
S.W.3d 851, 858 (Tex. 2013) (report to university’s CFO, general counsel, dean, and internal auditor were
not made to an appropriate law enforcement authority because none of these individuals had authority that
extended to violations by third parties outside the university); Gentilello, 390 S.W.3d at 686 (professor’s
supervisor was not an appropriate law enforcement authority because they had no authority to enforce
allegedly violated laws “committed by the citizenry at large”); City of Elsa, 325 S.W.3d at 628 (former city
manager’s report to city council of its alleged violation of Texas Open Meetings Act was not made to an
appropriate law enforcement authority because fact that city council had to comply with the act did not
demonstrate it had the authority to regulate under or enforce those provisions); Lueck, 290 S.W.3d at 876
(employee’s internal e-mail to his supervisor regarding potential non-compliance with federal highway
administration regulations was not made to an appropriate law enforcement authority); Needham, 82
S.W.3d at 885-86 (report to supervisor of co-worker’s alleged violation of Texas’s driving while
intoxicated laws was not made to an appropriate law enforcement authority because department’s authority
regarding these laws was limited to regulating and investigating its employees’ conduct for internal
disciplinary purposes).
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 13
B. Each of Hernandez’s alleged reports are jurisdictionally insufficient to establish a
waiver of Dallas ISD’s immunity.
Hernandez’s Original Petition refers to more than nineteen (19) different complaints he
made or reports that he filed between October 27, 2011 and March 31, 2014. See supra, pp. 2-3.
These reports can be divided into seven (7) general categories:
(1) Hernandez’s internal employee grievances;
(2) Equal employment opportunity (“EEO”) complaints submitted to the District’s
Equal Opportunity Compliance Manager and the EEOC;
(3) The federal court lawsuit;
(4) Reports filed with OPR regarding an alleged improper personal relationship
between two employees, alleged breaches of confidentiality, issues with his
teacher appraisal process, and alleged EEO violations;
(5) Reports filed with the Texas Education Agency regarding the bilingual education
program at Cuellar Elementary;
(6) Reports filed with the Dallas ISD School Board, OPR, and the State Board for
Educator Certification, regarding other teachers observing Hernandez’s classroom
and alleged “confidentiality violations”; and
(7) Reports filed with CPS and Dallas ISD’s Child Abuse Office regarding alleged
threats by other teachers against students.
Initially, Dallas ISD urges the Court to dismiss any and all of Hernandez’s complaints or
reports that were made internally within Dallas ISD—whether submitted to OPR, CAO, Dallas
ISD’s Board, the EEO compliance manager, or other District personnel under Gentilello and the
Texas Supreme Court’s clear precedent. See supra, pp. 12-13, & n. 3. This includes, but is not
limited to: the unspecified reports to Dallas ISD’s Board; reports to OPR; reports to the
Superintendent and other District personnel cited in the Petition; the September 27, 2013 internal
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 14
memorandum Hernandez submitted to Dr. Wilson regarding a request for classroom technology,
attached as Exhibit “C” to the Petition;4 and the internal reports specifically discussed below.
1. Hernandez’s employee grievances do not trigger the Act’s protection.
Hernandez does not attach any alleged employee grievances to the Petition or otherwise
specifically refer to any internal grievance he filed while employed by Dallas ISD. Rather, he
simply asserts he “filed numerous grievances against all parties . . . regarding the allegations of
violations at the hands of DISD administrators.” See Pet., p. 5. Hernandez does not plead facts
regarding the substance of any alleged internal grievance—much less that he reported any
violation of law in these unspecified grievances. Moreover, he does not even allege that any
alleged internal grievance influenced, in any way, his contract non-renewal. Accordingly, any
Texas Whistleblower Act claim pinioned on an internal grievance filed by Hernandez is
jurisdictionally insufficient on the face of the pleadings.
Furthermore, internal employee grievances are governed by Dallas ISD Board policy
DGBA (Local) titled “Personnel-Management Relations Employee Complaints/Grievances.”
(See Exhibit “N.”)5 DGBA (Local) states:
The purpose of this policy is to provide employees an orderly process for
the prompt and equitable resolution of grievances. The Board intends
that, whenever feasible, grievances be resolved at the lowest possible
administrative level.
Employees are encouraged to discuss their concerns and grievances with
their supervisor, principal or other appropriate administrator. When
informal discussions fail to resolve the concern or dispute, the employee
may file a grievance with the Office of Employee Relations and Support.
See Exhibit “N,” p. 1.
4
Notably, the September 27, 2013 memorandum Hernandez sent to Dr. Wilson does not report any violation
of law. See Exhibit “C” to Pet.” Thus, even if Dr. Wilson were an appropriate law enforcement
authority—which she is not—the September 27, 2013 is insufficient to trigger the protections of the Act.
5
Dallas ISD asks the Court to take judicial notice of Dallas ISD Board policy DGBA (Local), a copy of
which is attached to this Plea and Motion as Exhibit “N.” See Van Deelen, 628 Fed. Appx. 891 at n.1.
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 15
Dallas ISD’s Office of Employee Relations and Support is not an appropriate law
enforcement authority. As the Texas Supreme Court has held, “purely internal reports
untethered to the Act’s undeniable focus on law enforcement—those who either make the law or
pursue those who break the law—fall short.” Gentilello, 398 S.W.3d at 682. Further, DGBA
(Local) provides that the grievance shall go through three “Levels”—Level I, Level II, and Level
III. See Exhibit “N,” p. 5. At the Level I and Level II grievance hearings, the complaint will be
heard by a hearing officer—a District employee. Id. At the Level III hearing, a Board
Subcommittee shall hear the complaint and render a decision. Id., pp. 5-6. Consequently, the
grievance remains internal within Dallas ISD and culminates in a hearing before a three-member
panel of the District’s Board. Neither the hearing officers, nor the Board Subcommittee, are
appropriate law enforcement authorities. See, e.g., Farran, 409 S.W.3d at 655 (employee’s
report to superintendent, assistant superintendent, internal auditor and school board were not
made to appropriate law enforcement authorities). Consequently, Hernandez cannot establish a
waiver of Dallas ISD’s immunity from suit regarding any Whistleblower Act claim based on his
internal grievances and any claim based on these unspecified grievances should be dismissed.6
2. Hernandez’s complaints to the District’s Equal Opportunity Compliance
Manager and to the EEOC do not fall within the protections of the Act.
Hernandez does not attach documents regarding contact he had with the Equal
Employment Opportunity Commission to his Petition and does not identify any specific
complaint he made or Charge he filed with the EEOC. Hernandez does attach an October 2013
6
In the December 17, 2014 Memorandum Opinion and Order in the federal court lawsuit, the Court
dismissed with prejudice Hernandez’s claims based on the internal grievance documents he attached to his
Second Amended Federal Complaint. See Exhibit “J,” p. 15, n.5 (citing Exhibit “I,” Doc. 15 at 41, an
informal grievance form; Doc. 15 at 46, a Dallas ISD Grievance Form; and Doc. 15 at 54-55, a Dallas ISD
Grievance Form).
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 16
chain of e-mail communications he had with Dallas ISD’s Equal Opportunity Compliance
Manager, Mary McCants. See Exhibit “E” to Pet.
Hernandez does not identify any legal violation he reported to the EEOC or McCants.
Instead, he simply asserts that he “contacted the Equal Employment Opportunity Commission . .
. regarding the allegations of violations at the hands of DISD administrators.” See Pet., p. 5
(citing inter alia Exhibit “E” to Pet.) Hernandez does not plead facts regarding the substance of
any alleged contact he had with the EEOC or McCants, or that he reported any violation of law
in any contact he had with the EEOC or McCants. Furthermore, Hernandez does not even allege
in the Petition that his contact with the EEOC or McCants, in any way, motivated the decision to
non-renew his employment contract. Thus, any Whistleblower Act claim based on this
unspecified contact with the EEOC or communication with McCants is jurisdictionally
insufficient on the fact of the pleadings.
Dallas ISD believes Hernandez is referring to his April 26, 2013 Charge of
Discrimination and his November 27, 2013 Charge of Discrimination. See Exhibits “O” & “P.”
In his April 26, 2013 Charge, Hernandez alleged discrimination based on race, national origin,
sex, and age in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination
in Employment Act. See Exhibit “O.” In his November 27, 2013 Charge, Hernandez alleged
discrimination based on age and sex and retaliation. See Exhibit “P.” Similarly, Dallas ISD
believes that Hernandez’s email communication with McCants relates to the October 3, 2013
letter he sent her regarding “Ongoing Harassment/Retaliation/Age & Racial Discrimination
Principal Dr. Sheryl Wilson.” See Exhibit “I,” Doc. 15 at 85-86.7
7
Notably, the federal court dismissed any Whistleblower Act claim based on Hernandez’s letter complaint to
Ms. McCants. See Exhibit “J,” p. 15, n.5 (citing Exhibit “I,” Doc. 15 at 85-86).)
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 17
Even if Hernandez reported a violation of law to McCants or the EEOC, any
Whistleblower Act claim based on these reports does not waive Dallas ISD’s immunity.
Hernandez’s internal “report” to McCants, the District’s internal Equal Opportunity Compliance
Manager, was not a report to an appropriate law enforcement authority as a matter of law. See,
e.g., Mullins, 357 S.W.3d at 190 (internal report to Dallas ISD’s OPR was not to an appropriate
law enforcement authority because believe that OPR could investigate allegations was
insufficient). Moreover, the EEOC is not an appropriate law enforcement authority with respect
to any alleged violations of law other than violations of state and federal employment anti-
discrimination and anti-retaliation statutes.
Indeed, alleged retaliation that results from an individual’s complaint regarding EEO
violations or the filing of an EEOC Charge is protected by Title VII and the Texas Commissioner
on Human Rights Act (“CHRA”), Chapter 21 of the Texas Labor Code. See TEX. LABOR CODE
§ 21.055. Title VII and the CHRA provide the exclusive remedy for alleged retaliation for
activity protected by those statutes and a plaintiff cannot re-fashion a Title VII or CHRA claim
into a claim for alleged violation of the Whistleblower Act.
In City of Waco v. Lopez, a public employee sued the city claiming that he was fired in
retaliation for filing a grievance with the city’s EEO officer pursuant to the city’s EEO policy.
259 S.W.3d 147, 149-50 (Tex. 2008). The city filed a plea to the jurisdiction arguing that the
CHRA was the exclusive remedy for the plaintiff’s retaliatory discharge claim and that he could
not convert his CHRA claim into a Texas Whistleblower Act claim. Lopez, 259 S.W.3d at 150.
The Texas Supreme Court agreed with the city and held that the CHRA “provides the exclusive
state statutory remedy for public employees alleging retaliation arising from activities protected
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 18
under the CHRA.” Id. at 155. As a result, the Court dismissed the plaintiff’s Texas
Whistleblower Act claim based on his alleged reports to the city’s EEO officer. Id.
As in Lopez, Hernandez was required to pursue any remedies for alleged retaliation
arising from his report to McCants or his Charges of Discrimination filed with the EEOC
through Title VII or the TCHRA.8 Hernandez is not allowed to avoid the exhaustion requirement
for such claims or convert a CHRA retaliation claim into a Whistleblower Act claim.
Consequently, his Whistleblower Act claim based on his reports to McCants and his
communications with the EEOC should be dismissed for lack of jurisdiction.
3. Hernandez’s federal court lawsuit does not constitute a report of a violation
of law to an appropriate law enforcement authority.
Hernandez alleges that Dallas ISD recommended his non-renewal as a result of his
federal court lawsuit, specifically, his January 17, 2014 Second Amended Federal Complaint.
See Pet., pp. 5-6 & Exhibit “A” to Pet. Hernandez also attaches an April 24, 2014 e-mail and
Certified Mail verification regarding his service of the Second Amended Federal Complaint on
Dallas ISD’s Board and several District officials. See Exhibit “D-1” to Pet. Hernandez’s federal
court lawsuit, however, does not constitute a “report” and a court is not an “appropriate law
enforcement authority” as defined by the Act. Dallas ISD is aware of no legal authority for the
proposition that a plaintiff can allege and maintain a Whistleblower Act claim based on a prior
lawsuit filed by the plaintiff seeking individual redress.
a. Hernandez’s lawsuit is not a “report” for purposes of the Act.
The Whistleblower Act provides that a state or local governmental entity may not take
adverse personnel action against a public employee who “in good faith reports a violation of law
by the employing governmental entity or another public employee to an appropriate law
8
Hernandez’s Title VII claims were previously dismissed with prejudice in the federal court lawsuit. See
Exhibit “J.”
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 19
enforcement authority.” TEX. GOV’T CODE § 554.002(a) (emphasis added). In fact, Section
554.002 is titled “Retaliation Prohibited for Reporting Violation of Law.” Id. (emphasis added).
Consequently, to invoke the Act’s protections, a whistleblower plaintiff must make a qualifying
report. A lawsuit designed to seek a court’s adjudication to redress alleged grievances of a party
is not a report for purposes of the Act.
In Leach v. Texas Tech University, former Texas Tech University football coach Mike
Leach sued the University and university officials for breach of contract, violation of the
Whistleblower Act, and alleged violation of the takings clause. 355 S.W.3d 386 (Tex. App.—
Amarillo 2011, pet. denied). The alleged report that formed the basis of Leach’s whistleblower
claim was the lawsuit he filed against the University and university officials in state district
court. Leach, 355 S.W.3d at 395. While the court noted that “it would be rather easy to
conclude that an original petition commencing a lawsuit falls within the realm of a report,” the
context of the word within the Whistleblower Act’s statutory text and scheme leads to a
conclusion that “filing a lawsuit . . . failed to satisfy the mandates of § 554.002(a)” as a matter of
law. Id. at 396.
The court reached this conclusion for two primary reasons. First, as discussed more fully
below, the “report” must be made to an “appropriate law enforcement authority.” A district
court’s adjudicative capabilities, as opposed to investigative or regulatory authority, is
insufficient. Id. Second, the court noted the Act’s requirement that a plaintiff exhaust
administrative remedies before seeking judicial relief and stated that “[i]t makes little sense to
have this [exhaustion] requirement if filing an original petition in a court of law constitutes an
acceptable report under the [A]ct.” Id. (citing TEX. GOV’T CODE § 554.006(a)). To find that a
lawsuit is a “report” for purpose of the Act would, effectively, negate the statutory exhaustion
DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION
AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 20
requirement. Id. Because Leach’s lawsuit was not a “report” for
Preview
FILED DALLAS COUNTY 6/27/2016 7:01:30 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-14438 GILBERTO HERNANDEZ, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § DALLAS INDEPENDENT SCHOOL § DISTRICT, § § Defendant. 298th JUDICIAL DISTRICT DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES I. SUMMARY OF THE ARGUMENT This is a Texas Whistleblower Act dispute. Dallas Independent School District (“Dallas ISD” or the “District”) employed Plaintiff Gilberto Hernandez as a First Grade Bilingual Teacher at Gilbert Cuellar Sr. Elementary School (“Cuellar Elementary”). At the conclusion of the 2013- 2014 school year, Dallas ISD’s Board of Trustees (the “Board”) voted to propose the non- renewal of Hernandez’s employment contract pursuant to Texas Education Code § 21.206(a). A Texas Education Agency (“TEA”) appointed Independent Hearing Examiner (the “IHE”) conducted a three-day evidentiary hearing regarding Hernandez’s proposed contract non- renewal. At the conclusion of the hearing, the IHE issued a Recommendation in which she found that Dallas ISD “prove[d] that its decision to nonrenew Mr. Hernandez’[s] contract [was] justified” and recommended that the Board sustain the recommendation not to renew Hernandez’s contract. On September 29, 2014, a three-member Subcommittee of the Board unanimously decided to adopt the IHE’s Recommendation and voted to non-renew Hernandez’s employment contract. At that point, Hernandez’s employment with Dallas ISD ended. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 1 Nevertheless, in his Original Petition (the “Petition” or “Pet.”), Hernandez alleges that Dallas ISD non-renewed his contract in violation of the Texas Whistleblower Act because of: …[his federal court] lawsuit and the 2nd Amended Complaint filed on January 17, 2014 . . . [his] reports to CPS & DISD CHILD ABUSE OFFICE on 1/17/14, 3/31/2014, [his] letter to the TEA dated January 12, 2014, and his letter to DISD Board Members dated 02/15/14. See Pet., p. 6, ¶ 11. Hernandez also lists eleven (11) alleged reports that he contends Dallas ISD “used to retaliate and wrongfully terminate” him. See Pet., pp. 3-4. In addition, he attaches numerous Exhibits and references additional alleged reports in the Petition. Dallas ISD has, generally, identified the following “reports” in the Petition or the Exhibits attached thereto: 1. Unspecified reports to Dallas ISD’s Board, its Office of Professional Responsibility (“OPR”), the Superintendent, and other District personnel. See Pet., p. 4, # 8. 2. A September 2013 memorandum he sent to Cuellar Elementary Principal, Dr. Sheryl Wilson regarding classroom technology. See Exhibit “C” to Pet. 3. “[N]umerous grievances” Hernandez filed. See Pet., p. 5. 4. “[C]ontact[ ] with the Equal Employment Opportunity Commission. Id. 5. An October 2013 email complaint to Dallas ISD’s Equal Opportunity Compliance Manager. See Exhibit “E” to Pet. 6. A federal court lawsuit he filed against Dallas ISD, Civil Action No. 3:14-CV- 0022-BK. See Pet., p. 6, # 11 & Exhibit “A” to Pet. 7. Pleadings Hernandez filed in the federal court lawsuit, including notification to Dallas ISD Board members, OPR, and District officials regarding the lawsuit See, generally, Pet. see also Exhibit “D-1” to Pet. 8. A March 2013 administrative statement and affidavit he submitted to OPR regarding an alleged improper relationship between his former Principal and a teacher and speculative confidentiality breaches. See Exhibit “B” to Pet. 9. A March 31, 2014 complaint to OPR regarding errors in his teacher appraisal process. See Pet., p. 3, # 7 (inaccurately referenced as a report to Child Protective Services and the District’s Child Abuse Office). DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 2 10. A September 25, 2013 hotline report to OPR regarding Dr. Wilson’s alleged discrimination and retaliation against him. See Pet., p. 3, # 4. 11. A February 15, 2014 letter to Dallas ISD’s Board that was purportedly also sent to the Texas Education Agency (“TEA”) and the State Board for Educator Certification (“SBEC”). See Pet., p. 4, # 9-11 & Exhibit “J” to Pet. 12. A February 14, 2014 letter directed to “Director of Investigations/SBEC.” See Exhibit “G” to Pet. 13. A November 2013 e-mail he sent to tnwclaims@tnwinc.com with a complaint addressed to “TEA/Roberto Manzo.” See Exhibit “F” to Pet. 14. A January 12, 2014 letter directed to the TEA attaching a copy of his federal court lawsuit. See Pet., p. 3, # 8 & Exhibit “K” to Pet. 15. An October 2011 Child Abuse Reporting Form submitted to Dallas ISD’s Child Abuse Office (“CAO”) and Child Protective Services (“CPS”). See Pet., p. 3, #1 & Exhibit “H-1” to Pet. 16. An alleged February 25, 2013 report to OPR, CPS and CAO regarding a teacher threatening a female student. See Pet., p. 3, # 2. 17. A May 9, 2013 report to CPS and CAO regarding alleged teacher misconduct toward a student. See Pet., p. 3, # 3 & Exhibit “H-2” to Pet. 18. A December 13, 2013 report to CPS and CAO regarding alleged excessive force used by Dr. Wilson toward a student. See Pet., p. 3, # 5 & Exhibit H-3 to Pet. 19. A January 17, 2014 report to CPS and CAO that a student fell and was injured as a result of an assistant principal chasing the student. Pet., p. 3, # 6. Many, if not all, of the alleged reports do not constitute good faith reports of a violation of law to an appropriate law enforcement authority. Thus, this Court lacks subject matter jurisdiction over all, or at least most of Hernandez’s Texas Whistleblower Act claim. Even if the Court did have subject matter jurisdiction, Dallas ISD is entitled to summary judgment on Hernandez’s Whistleblower Act claim. At the outset, Hernandez’s claims are time- barred under Texas Government Code § 554.006. Hernandez did not file his Whistleblower Act claim regarding his contract non-renewal within 30 days of the Board Subcommittee’s September 29, 2014 Decision to adopt the IHE’s Recommendation and non-renew his contract. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 3 Furthermore, in his federal court lawsuit, the Court dismissed with prejudice Hernandez’s whistleblower claims based on some of the reports referenced in or attached to the Petition. Res judicata bars re-litigating Hernandez’s whistleblower complaints based on these reports. II. FACTUAL & PROCEDURAL BACKGROUND A. The non-renewal of Hernandez’s employment with Dallas ISD During the 2013-2014 school year Dallas ISD employed Hernandez as a First Grade Bilingual Teacher at Cuellar Elementary. See Pet, p. 2, ¶ 4. Dr. Sheryl Wilson became the Principal of Cuellar Elementary at the beginning of the 2013-2014 school year. Id. On April 28, 2014, Dr. Wilson recommended to the Superintendent that Hernandez’s employment contract be non-renewed pursuant to Dallas ISD Board policy DFBB (Local)1 for the following reasons: Deficiencies pointed out in observation reports, appraisals or evaluations, supplemental memoranda, or other communications, or receiving an evaluation with “unsatisfactory” in one or more domains or a “below expectations” in two or more domains. Incompetency or inefficiency in the performance of duties. Insubordination or failure to comply with official directives. Failure to maintain an effective working relationship, or maintaining good rapport with parents, the community, or colleagues. Failure to fulfill duties or responsibilities. Behavior that presents a danger of physical or mental harm to a student or to other individuals. Failure to fulfill the requirements of a Teacher In Need of Assistance (TINA) plan. See Exhibit “L” to Pet. 1 DFBB (Local) sets forth Dallas ISD’s pre-established reasons for proposed non-renewal of an employee’s term contract as required by Texas Education Code § 21.203(b). A copy of DFBB (Local) is attached hereto as Exhibit “A.” Dallas ISD further asks the Court to take judicial notice of DFBB (Local) under Texas Rule of Evidence 201. See, e.g., Van Deelen v. Cain, 628 Fed. Appx. 891 n.1 (5th Cir. 2015) (court can take judicial notice of the subject matter and content of specific school board policies). DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 4 On May 23, 2014, Hernandez received a “Proposed Notice of Non-Renewal” letter advising that the Board had voted to propose the non-renewal of his employment contract. See Exhibit “B”; see also Exhibit “C,” p. 2, ¶ A. The Proposed Notice of Non-Renewal advised that the recommendation not to renew Hernandez’s contract was made for pre-established reasons set forth in DFBB (Local)—namely, DFBB (Local) #1-3, 5, 7, 15, 22, 23, 29, and 39. See Exhibit “B.” The Proposed Notice of Non-Renewal further advised that the proposed non-renewal was based on twenty-six (26) specific reasons. Id. B. Hernandez’s Texas Education Agency appeal of the proposed non-renewal of his employment contract On May 26, 2014, Hernandez invoked the applicable grievance or appeals process by filing a request for a hearing with the TEA under Texas Education Code § 21.207. See Exhibit “D.” On August 27-29, 2014, Karen Roberts Washington, an Independent Hearing Examiner for the TEA, presided over an evidentiary hearing regarding the proposed non-renewal of Hernandez’s employment contract. See Exhibit “C.” On September 17, 2014, the IHE issued her Recommendation. The IHE found that: (1) “Hernandez repeatedly and consistently demonstrated an unwillingness to follow rules or direction, a disrespect for authority, and a lack of cooperation that was disruptive”; (2) “Hernandez was habitually late”; (3) Hernandez “defied [Principal Wilson’s] authority in front of [ ] students and [ ] other teachers”; (4) “Hernandez failed to maintain an appropriate learning environment and violated directives relating to lab modeling activities”; (5) “Hernandez attempted to build on the controversy by polling students and contacting parents” which constituted a “failure to exercise good professional judgment” in “violat[ion] of DFBB-Local #22”; (6) “Hernandez gave false information to other teachers”; DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 5 (7) Hernandez was “insubordinate with respect to [ ] directives” given to him by Dr. Wilson; and (8) Hernandez did not complete either Teacher Intervention Plan on which he was placed. See Exhibit “C,” pp. 1-14. The IHE concluded that Dallas ISD sustained its burden to prove that its decision to non- renew Hernandez’s contract was justified. See Exhibit “C,” p. 15, ¶ 9; see also id., p. 14, ¶¶ 7(a)- (e). Consequently, the IHE recommended that the Board “sustain the recommendation by DISD [ ] not to renew Hernandez’[s] term contract.” Id., p. 15. On September 29, 2014, a three member Subcommittee of Dallas ISD’s Board (the “Board Subcommittee”) heard Mr. Hernandez’s appeal of the IHE’s Recommendation. See Exhibit “E.” The Board Subcommittee unanimously decided to “adopt and approve the Findings of Fact and Conclusions of Law, the Decision and Recommendation of the Independent Hearing Examiner regarding Gilberto Hernandez; and that Gilberto Hernandez’s employment contract should be and it is hereby non-renewed.” Id. C. Hernandez’s federal court lawsuit On January 3, 2014, prior to any actions regarding his contract non-renewal, Hernandez filed his Original Petition against Dallas ISD and District personnel (including Dr. Wilson) in the United States District Court for the Northern District of Texas Dallas Division, Civil Action No. 3-14CV-0022M (the “Original Federal Complaint”). See Exhibit “F.” In his Original Federal Complaint, Hernandez alleged claims for: (1) age discrimination in violation of the Age Discrimination in Employment Act; (2) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, and (3) 42 U.S.C. §§ 1981 and 1983 claims for denial of his equal protection rights. Id., p. 2. Hernandez also alleged that “he was retaliated against for being a DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 6 ‘Whistleblower’, and for having filed complaints with the Texas Education Agency and the Dallas ISD Office of Professional Responsibility, and with Child Protective Services.” Id. On January 17, 2014, Hernandez filed an Amended Complaint (the “First Amended Federal Complaint”) and added claims for defamation, libel, and slander against Dallas ISD and several of the individual defendants and added a claim for fraudulent misrepresentation against Dr. Wilson. See Exhibit “G.” On April 25, 2014, after the Court granted Dallas ISD’s Motion for a More Definite Statement, Hernandez filed his Second Amended Complaint (the “Second Amended Federal Complaint”). See Exhibits “H” & “I.” Hernandez did not amend his complaint in the federal court lawsuit after the Board Subcommittee voted to non-renew his employment contract. Instead, on December 17, 2014, the Court granted in part Dallas ISD’s First Motion to Dismiss. See Exhibit “J.” The Court held that all causes of action, other than portions of Hernandez’s Texas Whistleblower Act claim were “fatally flawed” and “granting leave to amend would be futile.” Id., p. 16. Therefore, the Court dismissed these claims with prejudice. The Court did grant Hernandez “limited leave to amend” portions of his Whistleblower claim. Id., pp. 15-16. However, in footnote 5, the Court stated: A review of the so-called whistleblower complaints attached to the Second Amended Complaint reveals they were silent on the law violated and/or merely complaining of DISD actions Plaintiff deemed unprofessional or unethical decisions. E.g., Doc. 15 at 41, 46, 50-51, 54- 55, 57-58, 74-77, 80-86, 89, 91, 97-98, 100-01. Since they reference no law or rule violation(s), leave to amend does not extend to those claims. See Exhibit “J,” p. 15, n.5.2 2 This included inter alia a dismissal with prejudice of Hernandez’s Whistleblower Act complaint related to reports to OPR regarding the alleged misconduct of Dr. Wilson including alleged breaches of confidentiality (Doc. 74-77), which relates to Hernandez’s September 25, 2013 complaint to OPR (Pet., p. 3, # 4) and his November 2, 2013 letter to the TEA now attached as Exhibit “F” to the Petition; a September 27, 2013 memorandum he sent to Dr. Wilson (Doc. 80-82) that is now attached as Exhibit “C” to the Petition; a letter complaint to Dallas ISD’s EEO Compliance Officer regarding “Ongoing DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 7 On December 22, 2014, eighty-four (84) days after the Board Subcommittee announced its decision to non-renew Hernandez’s contract, he filed his Third Amended Complaint (the “Third Amended Federal Complaint”) and attached numerous Exhibits to the Complaint regarding his alleged “reports.” See Exhibit “K.” This was the first time Hernandez amended his complaint to allege that his contract non-renewal violated the Whistleblower Act. On November 4, 2015, the court issued its Memorandum Opinion and Order in Hernandez’s federal court lawsuit regarding Dallas ISD’s Second Motion to Dismiss. See Exhibit “L.” In the Order, the Court declined to exercise supplemental jurisdiction over Hernandez’s state law Texas Whistleblower Act claim. Id. Hernandez filed his Petition in this case on December 1, 2015. See Exhibit “M.” III. STANDARD OF REVIEW A. Plea to the Jurisdiction School districts are immune from suit and liability for common law tort and statutory claims unless the legislature expressly waives such immunity. Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 185-86 (Tex. App.—Dallas 2012, pet. denied) (citing State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009)). When applicable, governmental immunity from suit renders the trial court without subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-226 (Tex. 2004). A plaintiff bears the burden to affirmatively plead facts establishing the trial court’s subject-matter jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Harassment/Retaliation/Age & Racial Discrimination” by Dr. Wilson (Doc. 85-86), the e-mail which is now attached as Exhibit “E” to the Petition; the February 14, 2014 letter to SBEC regarding Breach of Confidentiality (Doc. 89) which is attached as Exhibit “G” to the Petition; and a February 15, 2014 memorandum to Dallas ISD’s Board which was copied to the TEA and SBEC (Doc. 91) which is now attached as Exhibit “J” to the Petition. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 8 When subject-matter jurisdiction is contested, “[t]he trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed.” Miranda, 133 S.W.3d at 226. Subject-matter jurisdiction is essential for a court’s authority to resolve a case and a trial court lacks such jurisdiction where the defendant governmental entity is immune from suit. Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). Whether the trial court has subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. In making its plea to the jurisdiction, the defendant may assert either, or both, that (1) the pleadings, by their very allegations, do not confer subject-matter jurisdiction on the court or (2) the underlying evidence—regardless of the pleaded allegations—fails to establish the court’s jurisdiction. Id. When a plea to the jurisdiction challenges the pleadings, the trial court must determine if the facts pleaded affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Id. When a plea to the jurisdiction challenges the existence of evidence to support jurisdiction, the trial court must consider the relevant evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227; see also Lueck, 290 S.W.3d at 881-83. Here, Dallas ISD challenges both the pleadings and the evidence. B. Motion for Summary Judgment Summary judgment is appropriate where the defendant establishes that there is no genuine issue of material fact as to one or more essential elements of the plaintiff’s causes of action and that it is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). For the plaintiff to defeat a properly supported motion for summary judgment, he must produce tangible, admissible evidence raising a fact issue on all elements of his claims, not merely argument or conclusions. See Liggett v. Blocher, DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 9 849 S.W.2d 846, 852 (Tex. App.—Houston [1st Dist.] 1993, no writ). Mere conclusory statements do not constitute competent summary judgment proof. Abbott Labs, Inc. v. Seguar, 907 S.W.2d 503, 508 (Tex. 1995). A defendant is entitled to summary judgment on an affirmative defense if the defendant presents evidence that establishes each element of the affirmative defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When a defendant moving for summary judgment on the affirmative defense of statute of limitations establishes that the action is time-barred, the nonmovant must provide competent summary judgment proof raising a fact issue in avoidance of the statute of limitations (including evidence to raise a fact issue with respect to each element of any defense to avoid the application of the statutory limitations period). KPMG Peat Marwick, 988 S.W.2d at 748, 749-50. IV. PLEA TO THE JURISDICTION A. To establish jurisdiction, a Whistleblower Act plaintiff must plead the essential elements of a valid claim. The Whistleblower Act prohibits a state or local government entity from terminating “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” TEX. GOV’T CODE § 554.002(a) (emphasis added). The Whistleblower Act waives immunity for claims that meet the essential elements of Section 554.002. Id., § 554.0035. Because “[s]tatutory prerequisites to a suit . . . are jurisdictional requirements in all suits against a governmental entity,” immunity is not waived for claims that involve a report made to someone who is not “an appropriate law enforcement authority” or that does not allege a violation of “law,” as those terms are statutorily defined. TEX. GOV’T CODE § 311.034; Lueck, 290 S.W.3d at 882. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 10 1. A Whistleblower plaintiff must show that he reported a violation of law. The Whistleblower Act only waives immunity if the plaintiff reported conduct that he in good faith believed violated an existing law. TEX. GOV’T CODE § 554.002(a); Lueck, 290 S.W.3d at 878, 881. Section 554.001(1) of the Act defines “law” as a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. TEX. GOV’T CODE §§ 554.001(1). “An employee need not identify in the report the specific law he asserts was violated, but there must be some law prohibiting the complained of conduct to give rise to the Whistleblower action.” Wilson v. Dallas Indep. Sch. Dist., 376 S.W.3d 319, 326 (Tex. App.—Dallas 2012, no pet.) If a plaintiff were not required to report a violation of an existing law, “every complaint, grievance, or misbehavior could support a claim.” Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642-43 (Tex. App.—Corpus Christi 2001, pet. denied); Coll. of the Mainland v. Meneke, 420 S.W.3d 865, 870 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Whether the report shows such a violation is a question of law. City of Elsa v. Gonzalez, 325 S.W.3d 622, 627 (Tex. 2010); Meneke, 420 S.W.3d at 870. Although a plaintiff need not have identified the specific law when making the initial report, after filing suit, he must be able to identify the law that was violated in order to meet his burden to affirmatively establish jurisdiction. Mullins, 357 S.W.3d at 188-89 (citing Llanes v., 64 S.W.3d at 642-43). Identification of the specific law the employee alleges was violated is also critical to determining the next element—whether the report was made to an appropriate law enforcement authority.” Mullins, 357 S.W.3d at 188 (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002)); Wilson, 376 S.W.3d at 327. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 11 2. A Whistleblower plaintiff must establish that he reported the alleged violation to an appropriate law enforcement authority. The Act defines an appropriate law enforcement authority as an authority that is part of a federal, state, or local governmental entity that the employee in good faith believes is authorized to either “(1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.” TEX. GOV’T CODE § 554.002(b) Even though an entity may be required to comply with a particular law, this does not equate to having the authority to regulate under or enforce the law. Gonzalez, 325 S.W.3d at 628. Furthermore, an entity’s ability to take remedial action is insufficient to show that it is an appropriate law enforcement authority. Duvall v. Tex. Dep’t of Human Servs., 82 S.W.3d 474, 481 (Tex. App.—Austin 2002, no pet.). Likewise, an entity’s general authority to investigate employee misconduct does not equate to the authority to investigate or prosecute violations of criminal law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013). In Gentilello, the Supreme Court provided a lengthy analysis of the statutory meaning of “enforcement” and of its prior decisions applying that definition: The upshot of [these] decisions is that for an entity to constitute an appropriate law-enforcement authority under the Act, it must have authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties. Authority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law- enforcement authority status. Indeed, holding otherwise would transform every governmental entity that is subject to any regulation or that conducts internal investigations or imposes internal discipline into law-enforcement authorities under the Act. Such a result would collide head-on with the Act’s limited definition and our cases interpreting that definition. Gentilello, 398 S.W.3d at 686 (emphasis added). In other words, the Court has drawn a critical distinction between internal reports to supervisors or other government officials tasked with DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 12 ensuring internal compliance with the law and reports made to an entity tasked with external enforcement of the law. At least eleven times in the past fourteen years, the Texas Supreme Court has held that an internal report to a supervisor or other employee tasked with ensuring internal compliance is not a report to an appropriate law enforcement authority and is therefore jurisdictionally insufficient.3 As the Texas Supreme Court noted in Gentilello, “[f]ederal and other state whistleblower laws explicitly protect internal reports to supervisors; Texas law does not.” Gentilello, 398 S.W.3d at 686-87. 3 See Office of Attorney Gen. v. Weatherspoon, 472 S.W.3d 280, 282 (Tex. 2015) (employee’s report to supervisor, who was required by agency policy to refer matter to authority with outward looking enforcement power was insufficient under the Act); Tex. Comm’n on Envir. Quality v. Resendez, 450 S.W.3d 520, 521 (Tex. 2014) (“an internal report of wrongdoing does not trigger the Act’s protection unless it is made directly to an authority with outward-looking law-enforcement power”); Tex. Dep’t of Human Servcs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014) (“reports up the chain of command are insufficient to trigger the Act’s protections”); Tex. A&M Univ.-Kingsville v. Moreno, 399 S.W.3d 128, 130 (Tex. 2013) (report to university assistant vice president and comptroller was not made to an appropriate law enforcement authority because their power only extends to ensuring that the university, itself, complies with the law); Ysleta Indep. Sch. Dist. v. Franco, 417 S.W.3d 443, 445 (Tex. 2013) (“As Farran made clear in the school context, reporting to school officials not charged with enforcing laws outside the district falls short of what the Act requires.”); Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 655 (Tex. 2013) (reports to the superintendent, assistant superintendent, internal auditor, and school board were not made to appropriate law enforcement authorities because these officials did not have authority to enforce the allegedly violated laws outside the school district itself, against third parties); Univ. of Hous. v. Barth, 403 S.W.3d 851, 858 (Tex. 2013) (report to university’s CFO, general counsel, dean, and internal auditor were not made to an appropriate law enforcement authority because none of these individuals had authority that extended to violations by third parties outside the university); Gentilello, 390 S.W.3d at 686 (professor’s supervisor was not an appropriate law enforcement authority because they had no authority to enforce allegedly violated laws “committed by the citizenry at large”); City of Elsa, 325 S.W.3d at 628 (former city manager’s report to city council of its alleged violation of Texas Open Meetings Act was not made to an appropriate law enforcement authority because fact that city council had to comply with the act did not demonstrate it had the authority to regulate under or enforce those provisions); Lueck, 290 S.W.3d at 876 (employee’s internal e-mail to his supervisor regarding potential non-compliance with federal highway administration regulations was not made to an appropriate law enforcement authority); Needham, 82 S.W.3d at 885-86 (report to supervisor of co-worker’s alleged violation of Texas’s driving while intoxicated laws was not made to an appropriate law enforcement authority because department’s authority regarding these laws was limited to regulating and investigating its employees’ conduct for internal disciplinary purposes). DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 13 B. Each of Hernandez’s alleged reports are jurisdictionally insufficient to establish a waiver of Dallas ISD’s immunity. Hernandez’s Original Petition refers to more than nineteen (19) different complaints he made or reports that he filed between October 27, 2011 and March 31, 2014. See supra, pp. 2-3. These reports can be divided into seven (7) general categories: (1) Hernandez’s internal employee grievances; (2) Equal employment opportunity (“EEO”) complaints submitted to the District’s Equal Opportunity Compliance Manager and the EEOC; (3) The federal court lawsuit; (4) Reports filed with OPR regarding an alleged improper personal relationship between two employees, alleged breaches of confidentiality, issues with his teacher appraisal process, and alleged EEO violations; (5) Reports filed with the Texas Education Agency regarding the bilingual education program at Cuellar Elementary; (6) Reports filed with the Dallas ISD School Board, OPR, and the State Board for Educator Certification, regarding other teachers observing Hernandez’s classroom and alleged “confidentiality violations”; and (7) Reports filed with CPS and Dallas ISD’s Child Abuse Office regarding alleged threats by other teachers against students. Initially, Dallas ISD urges the Court to dismiss any and all of Hernandez’s complaints or reports that were made internally within Dallas ISD—whether submitted to OPR, CAO, Dallas ISD’s Board, the EEO compliance manager, or other District personnel under Gentilello and the Texas Supreme Court’s clear precedent. See supra, pp. 12-13, & n. 3. This includes, but is not limited to: the unspecified reports to Dallas ISD’s Board; reports to OPR; reports to the Superintendent and other District personnel cited in the Petition; the September 27, 2013 internal DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 14 memorandum Hernandez submitted to Dr. Wilson regarding a request for classroom technology, attached as Exhibit “C” to the Petition;4 and the internal reports specifically discussed below. 1. Hernandez’s employee grievances do not trigger the Act’s protection. Hernandez does not attach any alleged employee grievances to the Petition or otherwise specifically refer to any internal grievance he filed while employed by Dallas ISD. Rather, he simply asserts he “filed numerous grievances against all parties . . . regarding the allegations of violations at the hands of DISD administrators.” See Pet., p. 5. Hernandez does not plead facts regarding the substance of any alleged internal grievance—much less that he reported any violation of law in these unspecified grievances. Moreover, he does not even allege that any alleged internal grievance influenced, in any way, his contract non-renewal. Accordingly, any Texas Whistleblower Act claim pinioned on an internal grievance filed by Hernandez is jurisdictionally insufficient on the face of the pleadings. Furthermore, internal employee grievances are governed by Dallas ISD Board policy DGBA (Local) titled “Personnel-Management Relations Employee Complaints/Grievances.” (See Exhibit “N.”)5 DGBA (Local) states: The purpose of this policy is to provide employees an orderly process for the prompt and equitable resolution of grievances. The Board intends that, whenever feasible, grievances be resolved at the lowest possible administrative level. Employees are encouraged to discuss their concerns and grievances with their supervisor, principal or other appropriate administrator. When informal discussions fail to resolve the concern or dispute, the employee may file a grievance with the Office of Employee Relations and Support. See Exhibit “N,” p. 1. 4 Notably, the September 27, 2013 memorandum Hernandez sent to Dr. Wilson does not report any violation of law. See Exhibit “C” to Pet.” Thus, even if Dr. Wilson were an appropriate law enforcement authority—which she is not—the September 27, 2013 is insufficient to trigger the protections of the Act. 5 Dallas ISD asks the Court to take judicial notice of Dallas ISD Board policy DGBA (Local), a copy of which is attached to this Plea and Motion as Exhibit “N.” See Van Deelen, 628 Fed. Appx. 891 at n.1. DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 15 Dallas ISD’s Office of Employee Relations and Support is not an appropriate law enforcement authority. As the Texas Supreme Court has held, “purely internal reports untethered to the Act’s undeniable focus on law enforcement—those who either make the law or pursue those who break the law—fall short.” Gentilello, 398 S.W.3d at 682. Further, DGBA (Local) provides that the grievance shall go through three “Levels”—Level I, Level II, and Level III. See Exhibit “N,” p. 5. At the Level I and Level II grievance hearings, the complaint will be heard by a hearing officer—a District employee. Id. At the Level III hearing, a Board Subcommittee shall hear the complaint and render a decision. Id., pp. 5-6. Consequently, the grievance remains internal within Dallas ISD and culminates in a hearing before a three-member panel of the District’s Board. Neither the hearing officers, nor the Board Subcommittee, are appropriate law enforcement authorities. See, e.g., Farran, 409 S.W.3d at 655 (employee’s report to superintendent, assistant superintendent, internal auditor and school board were not made to appropriate law enforcement authorities). Consequently, Hernandez cannot establish a waiver of Dallas ISD’s immunity from suit regarding any Whistleblower Act claim based on his internal grievances and any claim based on these unspecified grievances should be dismissed.6 2. Hernandez’s complaints to the District’s Equal Opportunity Compliance Manager and to the EEOC do not fall within the protections of the Act. Hernandez does not attach documents regarding contact he had with the Equal Employment Opportunity Commission to his Petition and does not identify any specific complaint he made or Charge he filed with the EEOC. Hernandez does attach an October 2013 6 In the December 17, 2014 Memorandum Opinion and Order in the federal court lawsuit, the Court dismissed with prejudice Hernandez’s claims based on the internal grievance documents he attached to his Second Amended Federal Complaint. See Exhibit “J,” p. 15, n.5 (citing Exhibit “I,” Doc. 15 at 41, an informal grievance form; Doc. 15 at 46, a Dallas ISD Grievance Form; and Doc. 15 at 54-55, a Dallas ISD Grievance Form). DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 16 chain of e-mail communications he had with Dallas ISD’s Equal Opportunity Compliance Manager, Mary McCants. See Exhibit “E” to Pet. Hernandez does not identify any legal violation he reported to the EEOC or McCants. Instead, he simply asserts that he “contacted the Equal Employment Opportunity Commission . . . regarding the allegations of violations at the hands of DISD administrators.” See Pet., p. 5 (citing inter alia Exhibit “E” to Pet.) Hernandez does not plead facts regarding the substance of any alleged contact he had with the EEOC or McCants, or that he reported any violation of law in any contact he had with the EEOC or McCants. Furthermore, Hernandez does not even allege in the Petition that his contact with the EEOC or McCants, in any way, motivated the decision to non-renew his employment contract. Thus, any Whistleblower Act claim based on this unspecified contact with the EEOC or communication with McCants is jurisdictionally insufficient on the fact of the pleadings. Dallas ISD believes Hernandez is referring to his April 26, 2013 Charge of Discrimination and his November 27, 2013 Charge of Discrimination. See Exhibits “O” & “P.” In his April 26, 2013 Charge, Hernandez alleged discrimination based on race, national origin, sex, and age in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. See Exhibit “O.” In his November 27, 2013 Charge, Hernandez alleged discrimination based on age and sex and retaliation. See Exhibit “P.” Similarly, Dallas ISD believes that Hernandez’s email communication with McCants relates to the October 3, 2013 letter he sent her regarding “Ongoing Harassment/Retaliation/Age & Racial Discrimination Principal Dr. Sheryl Wilson.” See Exhibit “I,” Doc. 15 at 85-86.7 7 Notably, the federal court dismissed any Whistleblower Act claim based on Hernandez’s letter complaint to Ms. McCants. See Exhibit “J,” p. 15, n.5 (citing Exhibit “I,” Doc. 15 at 85-86).) DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 17 Even if Hernandez reported a violation of law to McCants or the EEOC, any Whistleblower Act claim based on these reports does not waive Dallas ISD’s immunity. Hernandez’s internal “report” to McCants, the District’s internal Equal Opportunity Compliance Manager, was not a report to an appropriate law enforcement authority as a matter of law. See, e.g., Mullins, 357 S.W.3d at 190 (internal report to Dallas ISD’s OPR was not to an appropriate law enforcement authority because believe that OPR could investigate allegations was insufficient). Moreover, the EEOC is not an appropriate law enforcement authority with respect to any alleged violations of law other than violations of state and federal employment anti- discrimination and anti-retaliation statutes. Indeed, alleged retaliation that results from an individual’s complaint regarding EEO violations or the filing of an EEOC Charge is protected by Title VII and the Texas Commissioner on Human Rights Act (“CHRA”), Chapter 21 of the Texas Labor Code. See TEX. LABOR CODE § 21.055. Title VII and the CHRA provide the exclusive remedy for alleged retaliation for activity protected by those statutes and a plaintiff cannot re-fashion a Title VII or CHRA claim into a claim for alleged violation of the Whistleblower Act. In City of Waco v. Lopez, a public employee sued the city claiming that he was fired in retaliation for filing a grievance with the city’s EEO officer pursuant to the city’s EEO policy. 259 S.W.3d 147, 149-50 (Tex. 2008). The city filed a plea to the jurisdiction arguing that the CHRA was the exclusive remedy for the plaintiff’s retaliatory discharge claim and that he could not convert his CHRA claim into a Texas Whistleblower Act claim. Lopez, 259 S.W.3d at 150. The Texas Supreme Court agreed with the city and held that the CHRA “provides the exclusive state statutory remedy for public employees alleging retaliation arising from activities protected DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 18 under the CHRA.” Id. at 155. As a result, the Court dismissed the plaintiff’s Texas Whistleblower Act claim based on his alleged reports to the city’s EEO officer. Id. As in Lopez, Hernandez was required to pursue any remedies for alleged retaliation arising from his report to McCants or his Charges of Discrimination filed with the EEOC through Title VII or the TCHRA.8 Hernandez is not allowed to avoid the exhaustion requirement for such claims or convert a CHRA retaliation claim into a Whistleblower Act claim. Consequently, his Whistleblower Act claim based on his reports to McCants and his communications with the EEOC should be dismissed for lack of jurisdiction. 3. Hernandez’s federal court lawsuit does not constitute a report of a violation of law to an appropriate law enforcement authority. Hernandez alleges that Dallas ISD recommended his non-renewal as a result of his federal court lawsuit, specifically, his January 17, 2014 Second Amended Federal Complaint. See Pet., pp. 5-6 & Exhibit “A” to Pet. Hernandez also attaches an April 24, 2014 e-mail and Certified Mail verification regarding his service of the Second Amended Federal Complaint on Dallas ISD’s Board and several District officials. See Exhibit “D-1” to Pet. Hernandez’s federal court lawsuit, however, does not constitute a “report” and a court is not an “appropriate law enforcement authority” as defined by the Act. Dallas ISD is aware of no legal authority for the proposition that a plaintiff can allege and maintain a Whistleblower Act claim based on a prior lawsuit filed by the plaintiff seeking individual redress. a. Hernandez’s lawsuit is not a “report” for purposes of the Act. The Whistleblower Act provides that a state or local governmental entity may not take adverse personnel action against a public employee who “in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law 8 Hernandez’s Title VII claims were previously dismissed with prejudice in the federal court lawsuit. See Exhibit “J.” DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 19 enforcement authority.” TEX. GOV’T CODE § 554.002(a) (emphasis added). In fact, Section 554.002 is titled “Retaliation Prohibited for Reporting Violation of Law.” Id. (emphasis added). Consequently, to invoke the Act’s protections, a whistleblower plaintiff must make a qualifying report. A lawsuit designed to seek a court’s adjudication to redress alleged grievances of a party is not a report for purposes of the Act. In Leach v. Texas Tech University, former Texas Tech University football coach Mike Leach sued the University and university officials for breach of contract, violation of the Whistleblower Act, and alleged violation of the takings clause. 355 S.W.3d 386 (Tex. App.— Amarillo 2011, pet. denied). The alleged report that formed the basis of Leach’s whistleblower claim was the lawsuit he filed against the University and university officials in state district court. Leach, 355 S.W.3d at 395. While the court noted that “it would be rather easy to conclude that an original petition commencing a lawsuit falls within the realm of a report,” the context of the word within the Whistleblower Act’s statutory text and scheme leads to a conclusion that “filing a lawsuit . . . failed to satisfy the mandates of § 554.002(a)” as a matter of law. Id. at 396. The court reached this conclusion for two primary reasons. First, as discussed more fully below, the “report” must be made to an “appropriate law enforcement authority.” A district court’s adjudicative capabilities, as opposed to investigative or regulatory authority, is insufficient. Id. Second, the court noted the Act’s requirement that a plaintiff exhaust administrative remedies before seeking judicial relief and stated that “[i]t makes little sense to have this [exhaustion] requirement if filing an original petition in a court of law constitutes an acceptable report under the [A]ct.” Id. (citing TEX. GOV’T CODE § 554.006(a)). To find that a lawsuit is a “report” for purpose of the Act would, effectively, negate the statutory exhaustion DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES PAGE 20 requirement. Id. Because Leach’s lawsuit was not a “report” for