Whitney v. El Paso Indep. Sch. Dist.

545 S.W.3d 150

Marda WHITNEY, Appellant,

v.EL PASO INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 08-16-00007-CV

Court of Appeals of Texas, El Paso.

August 23, 2017

ATTORNEY FOR APPELLANT: Hon. Troy Brown, Troy C. Brown P. C., 300 E. Main, Ste. 1000, El Paso, TX 79901.

ATTORNEY FOR APPELLEE: Hon. S. Anthony Safi, Mounce, Green, Myers, Safi & Galatzan, P. O. Box 1977, El Paso, TX 79950-1977.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief JusticeMarda Whitney sued the El Paso Independent School District (EPISD) under the Texas Whistleblower statute. TEX.GOV'T CODE ANN. § 554.002 (West 2012). The case comes to us after the trial court granted EPISD’s motion for summary judgment. For the reasons explained below, we affirm.

FACTUAL SUMMARY

Whitney was a long time teacher in EPISD. For the time-period at issue, she taught a computer literacy course to sixth graders at an El Paso middle school. EPISD has two policies, relevant here, that address what a teacher may teach in the classroom. The first policy addresses discussion of religion:

The inclusion of religion in the study of history, culture, literature, music, drama, and art is essential to a full and fair presentation of the curriculum. The inclusion of religious elements is appropriate as along as the material included is intrinsic to the field of study in which it is presented and as long as it is presented objectively. ... Such studies shall not foster any particular religious tenet nor demean any religious beliefs, but shall attempt to develop mutual respect among students and advance their knowledge and appreciation of the role that religious heritage plays in the social, cultural, and historic development of civilization.

The second policy addresses discussion of controversial topics:

The District shall address controversial topics in an impartial and objective manner. Teachers shall not use the classroom to indoctrinate students with their personal beliefs regarding political or sectarian issues. ... A teacher selecting topics for discussion in the classroom shall be adequately informed about the issue and capable of providing instruction on the subject, free from personal bias.

In 2005, EPISD claimed Whitney ran afoul of these policies when, in a classroom setting, she engaged in conversations related to religion (by quoting Bible scripture) and she showed an explicit video on AIDS. On November 9, 2005, EPISD issued Whitney a formal letter of reprimand for this conduct.

Some four years later, in May 2009, a student complained that Whitney made inappropriate comments to him to the effect that he was too effeminate. While investigating that complaint, and in interviewing the students in her class, EPISD learned of other comments that it considered inappropriate under the above quoted policies.¹ Based on that investigation, Whitney received another letter of reprimand on October 9, 2009, for making comments to her sixth grade class regarding religion, sex, and politics, when they were not part of the curriculum for a computer tech applications class.² She was also informed this was a final warning and that any further violations of policy would result in a recommendation for her proposed termination from employment.

This history set the stage for a January 2010 parent-teacher conference, when a parent complained that a few days before, Whitney had engaged the computer class on topics of religion, homosexuality, AIDS, and reported that she prayed to the students in class. The middle school principal initiated an investigation. Perhaps not surprisingly, the sixth graders had different recollections of what Whitney actually said.³ A majority of the student interviews confirmed, however, that Whitney had discussed religion, homosexuality, and AIDS in the computer literacy class. No student recalled that she prayed during class.

On May 11, 2010, the middle school principal recommended to her superior that Whitney’s employment be terminated. Two days later, EPISD’s associate superintendent agreed. EPISD then notified Whitney that on July 13, 2010, the Board of Trustees would take up a motion to recommend her proposed termination. Following a closed meeting which Whitney attended, the Board gave Dr. Lorenzo Garcia, then Superintendent of the EPISD, authority to terminate her.

The Texas Education Code requires that any employee under contract be notified of any proposed termination in writing and be informed of the grounds for the action. TEX.EDUC.CODE ANN. § 21.158(a) (West 2012)("Before a teacher employed under a continuing contract may be discharged, suspended without pay, or released because of a necessary reduction of personnel, the board of trustees must notify the teacher in writing of the proposed action and the grounds for the action."). On July 20, 2010, EPISD issued Whitney a letter that gave formal notice of the proposed termination for cause. The letter specifically referenced the failure to meet the accepted standards of conduct for teaching, and attached the prior letters of reprimand, the most recent parent’s complaint, and the report on the investigation of that complaint. The letter also advised Whitney of two procedural deadlines for challenging the action.

Under the Education Code and EPISD policy, she was required to notify the Board within ten days of receiving the notice of proposed termination of her intent to contest the action. TEX.EDUC.CODE ANN. § 21.159(a). By doing so, she was entitled to a Chapter 21 termination hearing as outlined by the Education Code. Id. at § 21.159(b). A Chapter 21 hearing is held before an independent hearing officer, and is conducted as would a non-jury trial in a district court. Id. at § 21.256(e). The hearing officer then generates a recommendation to the Board based on the adversarial hearing. Id. at § 21.257(d). The Board may then accept or reject the hearing officer’s recommendations, subject to appeal to the Commissioner of the Texas Education Agency (TEA), and then a district court. Id. at §§ 21.259, 21.301-21.307. To obtain that hearing, however, the letter informed Whitney that she needed to file a written request for a hearing with the TEA "not later than the 15th day after the date you receive this notice of proposed termination." Id. at § 21.253(a). She also needed to provide the EPISD with a copy of the request. Id.

Whitney’s response to these deadlines is important to an issue in this case. On July 19, 2010, one day before she received the actual notice of proposed termination, Whitney filed a grievance with EPISD. She identified the factual basis of her grievance to include: (1) violations of TEA policy; (2) wrongful termination; (3) violation of her civil rights; and "multiple violations of federal, state and TEA laws." In an attached explanatory letter, she complained that she was not given adequate time to respond to the charges at the Board’s hearing on July 13. She also claimed that she had never been informed in writing of the nature of the charges, nor asked for her side of the dispute. EPISD responded to that grievance on July 21, 2010.⁴ The letter indicated that Whitney’s right to review was spelled out in the Superintendent’s letter to her of July 20, 2010 (i.e. pursuing a Chapter 21 hearing), and that no action would be taken on the July 19, 2010 grievance. The letter attached the EPISD’s policy on employee complaints and grievance procedures. On August 3, 2010, Whitney sent a letter to the Commissioner of the TEA. In the letter, Whitney contended that she had been falsely accused of "saying and doing things in my classroom since 2005." She complained that she had been removed from the classroom as a teacher, but did not mention the pending termination. She referenced her grievance of July 19, 2010, and claimed that EPISD had not responded to that grievance. The letter recited that the District had violated numerous provisions of the Texas Administrative Code, the Education Code, and Whitney’s civil rights. She claimed to have reported "about the many violations of my rights, as well as other employees" to the FBI, the Office of Civil Rights, the EEOC, the Texas Attorney General, the U.S. Department of Education, and a local state senator. The letter ended with a request to meet and further discuss her complaints, but did not specifically ask for a hearing examiner or hearing. The letter was not carbon copied to EPISD.

The TEA responded to this letter by urging her to pursue the EPISD’s internal process for resolving the July 19 grievance. If EPISD failed to provide her a timely hearing, she could then appeal to the TEA. Otherwise, the response the TEA had no jurisdiction over the matters raised in Whitney’s complaint letter.

Under the Education Code, had Whitney invoked a Chapter 21 hearing to challenge her proposed termination, the Board would have not acted until the hearing officer made recommendations following the hearing. TEX.EDUC.CODE ANN. §§ 21.257 - 21.259. Because EPISD had not received notice that Whitney had sought a hearing, it informed her on August 18, 2010, that the EPISD Board would meet on August 24, 2010, to consider terminating her contract immediately. They did so, and terminated her employment effective as of September 15, 2010.

The TEA also ultimately concluded that Whitney had not validly requested a Chapter 21 hearing on her termination. Whitney’s August 3, 2010 letter never specifically mentioned the termination, nor asked for the appointment of a hearing examiner. The TEA did conclude, however, that Whitney’s August 4 letter invoked the TEA’s jurisdiction to challenge EPISD’s refusal to entertain the July 19 grievance. She had therefore preserved the right to appeal under TEX.EDUC.CODE ANN. § 7.057 (West Supp. 2016)("[A] person may appeal in writing to the commissioner if the person is aggrieved by ... actions or decisions of any school district board of trustees that violate ... the school laws of this state."). An appeal under that sectio...