Democratic Sch. Research, Inc. v. Rock, NO. 01-19-00512-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Evelyn V. Keyes, Justice
• Citation: 608 S.W.3d 290
• Parties: DEMOCRATIC SCHOOLS RESEARCH, INC. d/b/a The Brazos School for Inquiry and Creativity, Appellant v. Tiffany ROCK, Appellee
• Docket Number: NO. 01-19-00512-CV
• Decision Date: 04 August 2020

608 S.W.3d 290

DEMOCRATIC SCHOOLS RESEARCH, INC. d/b/a The Brazos School for Inquiry and Creativity, Appellant
v.
Tiffany ROCK, Appellee

NO. 01-19-00512-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 4, 2020

Patrick N. Smith, Dominique M. Boykins, Smith Parker Elliott, PLLC, 10355 Centrepark Dr., Ste. 240, Houston, Texas 77043, for Appellant.

Betty J. Parrimore, 5600 Northwest Central Dr., Ste. 240, Houston, Texas 77092, for Appellee.

Panel consists of Justices Keyes, Lloyd, and Hightower.

Evelyn V. Keyes, Justice

Tiffany Rock sued her former employer, Democratic Schools Research, Inc., doing business as The Brazos School for Inquiry and Creativity (the School), for racial discrimination and retaliation under the Texas Commission on Human Rights Act (TCHRA), Chapter 21 of the Texas Labor Code. The School filed a plea to the jurisdiction asserting governmental immunity from Rock's claims, which the trial court denied, and the School filed this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). In one issue, the School contends that it is a governmental unit entitled to immunity from Rock's claims because: (1) participating in jurisdictional discovery prior to a decision on a plea to the jurisdiction does not waive immunity; (2) Rock did not state a prima facie case of discrimination as required to waive immunity under the TCHRA; (3) Rock did not state a prima facia case of retaliation as required to waive immunity under the TCHRA; and (4) Rock did not show that the School's legitimate, non-discriminatory, and non-retaliatory reasons for terminating Rock's employment were false or pretextual. The School also filed a motion to strike the appendix to Rock's brief for including matters outside the record, and it asks for attorney's fees on appeal.

608 S.W.3d 299

We reverse the trial court's order denying the School's plea to the jurisdiction and remand the case to the trial court with instructions to (1) determine whether to award costs, including attorney's fees and expenses, and (2) render a judgment dismissing the case for lack of jurisdiction over Rock's claims.

Background

The School is a "free, open enrollment public charter school accredited by the Texas Education Agency" and has three campuses in Houston and Bryan, Texas. In 2006, the School hired Rock as a computer teacher and promoted her to assistant principal and then principal soon afterwards. In 2016, Rock was the highest paid of the three campus principals and the highest paid employee in the district under the level of superintendent. Katy Greenwood, a Caucasian, was the Superintendent of the School's campuses and she directly supervised Rock, an African American, and the other two campus principals, who were also African American. Greenwood reported to the School's board of trustees. Jerry Deal, a Caucasian, was an assistant superintendent who did not directly supervise Rock, but he assumed some of her duties when the School, through Greenwood, terminated Rock's employment in April 2017, shortly before the end of the school year, for insubordination and a hostile attitude.¹

Rock began disagreeing with the School's administrative policies in November 2016, during a time when the School was experiencing low enrollment. Rock asked to meet with the board of trustees to discuss her grievances, but Greenwood told Rock that employees "are not routinely entitled to meet with the [board] to air issues and concerns," which "must be addressed through the chain of command." She asked Rock to "outline all issues and concerns you have right away and send them to me for consideration."

In response to Greenwood's request for an outline of her issues and concerns, Rock complained to Greenwood about staffing shortages and told Greenwood she had "yet to receive any resumes for potential candidates" to fill vacant positions. She also told Greenwood that morale was low among the staff at Rock's campus and that, after Greenwood had met with the staff two months earlier for a reason Rock did not explain, the staff were "no longer willing to do more than what [was] required of their job duties." Greenwood explained that "an all-time low in enrollment" and the busing costs at Rock's campus, which were $10,000 more per month than the other campuses, caused the staffing shortages at Rock's campus, but she had sent resumes to Rock the previous day. Greenwood found Rock's comments "troublesome" and "problematic," and Greenwood was "at a loss to know why morale is low," considering that the "[t]eachers all got a raise this year." Greenwood promised to review the operations of Rock's campus.

In December 2016, Rock sent Greenwood an email that serves as the basis of Rock's claims in this lawsuit. In her lengthy email, Rock complained primarily of wide-ranging administrative issues, including busing contracts, staffing shortages, the School's allocation of its resources, and board of trustees' meetings being held in a closed forum without public notice.

Rock's email also discussed rumors, including phone calls between Greenwood and other teachers and a phone call that Rock had received "from a teacher who felt threatened because she received the

608 S.W.3d 300

message that ‘[l]oose lips sink ships.’ " Rock did not identify who made the statement or the teacher to whom it was made. Nor did she report what information or misinformation the "loose lips" were spreading. Rock accused Greenwood of low morale at Rock's campus, alleging that experienced African American teachers were paid less than new Caucasian teachers and that "essential staff" at her campus had been fired. Rock also told Greenwood, "In addition, your racial statements more so the one that was made when we were discussing staffing ‘My campus is too Black’ is offensive and appalling and should not have been said [whether] you feel that way or not."

Greenwood responded to some of Rock's administrative complaints but told Rock to file a formal grievance if she had a specific complaint. Rock refused to file a formal grievance with the School, relying instead on her lengthy email, which she told Greenwood was her formal grievance and she "anticipate[d] [Greenwood's] response...." Greenwood again asked Rock to file a formal grievance so Greenwood could attempt to resolve it, and she gave Rock the School's employee grievance form.

Rock never filed an employee grievance form with the School. In January 2017, Greenwood responded to Rock's December 2016 email. Greenwood had identified 32 possible complaints in Rock's email, and Greenwood responded to each complaint in a 13-page chart.

Greenwood wrote that her comment that Rock's campus was "too black" was a reference to another campus, not Rock's campus, although Greenwood acknowledged that Rock's campus also had the same diversity issues. Greenwood also noted that, "in terms of staff diversity, [the other campus] was too black and that [the campus] needed [H]ispanic teachers. 100% of one race does not meet diversity goals." Greenwood continued, "The word ‘black’ which you are now trying to turn into a racial slur was not used that way and is in fact the word used in our PEIMS records to identify race[.]"²

Greenwood also told Rock that the allegation that African American teachers were paid less than Caucasian teachers was unjustified and unproven and that the School's "[w]age averages by race will show there is no bias in salary at the [School] in terms of race, age, sex or disability." Greenwood reminded Rock that it was the principals, including Rock, who made recommendations to Greenwood regarding teachers' salaries. Greenwood also told Rock that the "loose lips sink ships" rumor was "completely false, distorted and based on hearsay and your own interpretation."

Greenwood also explained the School's grievance process to Rock, including what is generally required in a complaint: "[T]ypically, personnel grievances focus on ... perceived unfair treatment in terms of sex, race, age, or disability, or any other incident that would be considered ... a violation of equal opportunity laws...." Greenwood further explained that Rock had "not fill[ed] out the grievance form properly to describe" an actionable grievance but instead "forwarded several pages of emails that [Rock] had sent to [Greenwood] previously[.]" Greenwood determined that Rock's allegations "d[id] not meet the standard or criteria of a legitimate grievance" but instead "cover[ed] many unsubstantiated allegations, hearsay, speculation about many things, argumentation, criticism of other employees and criticism of your supervisor, all of which are

608 S.W.3d 301

irrelevant in terms of a legitimate grievance where an incident caused personal harm to you in terms of your job."

Rock thanked Greenwood for her response but asked to appeal the decision to the School's board of trustees. Greenwood promised that the board would receive Rock's complaints. However, before Greenwood could forward Rock's complaints to the board, Rock stopped her and said, "[B]efore you send it to [the board] I would like to sit down and talk with you." The record does not indicate whether Rock followed up on her request to talk to Greenwood or whether the School took any...