Hammond v. Katy Independent School Dist.

• Citation: 821 S.W.2d 174
• Decision Date: 09 May 1991
• Docket Number: No. C14-90-633-CV,C14-90-633-CV
• Parties: 71 Ed. Law Rep. 1249 Polly HAMMOND, Appellant, v. KATY INDEPENDENT SCHOOL DISTRICT, James R. Romero, and Deidra Dempsey, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 174

821 S.W.2d 174

71 Ed. Law Rep. 1249

Polly HAMMOND, Appellant, v. KATY INDEPENDENT SCHOOL DISTRICT, James R. Romero, and Deidra Dempsey, Appellees.

No. C14-90-633-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 9, 1991.

Phillip Brantley, Houston, for appellant.

Gina V. Fulkerson, Houston, for appellees.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Polly Hammond appeals from summary judgments entered in favor of appellees in her constructive discharge claim. In a single point of error with two subpoints, appellant argues that the trial court erred in granting summary judgment. We affirm.

Appellant was employed as a special education teacher on a one-year contract beginning January 1986 with the Katy Independent School District (KISD). Appellant was assigned to the Opportunity Awareness Center, a school for troubled children. Dr. Romero and Dr. Dempsey were principal and psychologist, respectively, at the center. Following disagreements with Romero and Dempsey regarding methods of disciplining a disruptive student, appellant voluntarily resigned her position with KISD on December 31, 1986. Appellant's resignation became effective January 16, 1987.

On March 17, 1988, appellant filed suit against KISD, Romero, and Dempsey. She alleged the following claims against the school district: (1) breach of contract; (2) deprivation of property rights under TEX.EDUC.CODE ANN. §§ 13.111 & 13.112 (Vernon 1991), the Texas Constitution, and the U.S. Constitution; (3) and violations of 42 U.S.C.A. §§ 1983 and 1985. She also sued Romero and Dempsey individually for: (1) defamation; (2) intentional infliction of emotional distress; and (3) violations of 42 U.S.C.A. §§ 1983 and 1985. The appellees filed motions for summary judgment addressing all claims asserted by appellant and properly incorporating appellant's deposition testimony. KISD argued that there were no genuine issues of material fact concerning the breach of contract claim. Romero and Dempsey argued that they were entitled to judgment as a matter of law because they were immune from prosecution under the Texas Education Code. ¹ Appellant filed a response addressing her breach of contract claim, the issue of immunity, and her allegations of deprivation of property rights. The appellees now assert that because appellant failed to respond to certain arguments put forth by them, she has waived appellate review of those matters. As a general proposition, appellees' argument is incorrect.

The standards for reviewing a summary judgment are well established. The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). All evidence favorable to the non-movant will be taken as true in determining whether there is a material fact issue precluding summary judgment. Id. at 548-49. Every reasonable doubt must be resolved in the non-movant's favor and any doubts resolved in its favor. Id. at 549.

In the summary judgment context, the rules of civil procedure require contentions to be expressly presented to the trial court in the written motion or in a written answer or response to the motion. TEX.R.CIV.P. 166a(c); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Pleadings do not constitute summary judgment proof. Id. A response to a motion for summary judgment must fairly apprise the movant and the trial court of the issues that the non-movant contends should defeat the motion. Id. However, if no response is filed, there is not an automatic waiver of appellate review as the appellees contend.

In Clear Creek, the supreme court cautioned:

We are not to be understood, however, as shifting the burden of proof that exists in summary judgment proceedings. The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant's summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. [citation omitted.] Summary judgments must stand on their own merits, and the non-movant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right.

Id. Therefore, appellant is not precluded from asserting on appeal that the grounds presented to the trial court in appellees' motion for summary judgment are insufficient as a matter of law to support the motion. Id. Appellant is merely precluded from raising other issues as grounds for reversal. Id; TEX.R.CIV.P. 166a(c). Nor are we faced with the issue as to whether the summary judgments were improperly used in lieu of special exceptions requiring the plaintiff to plead more specifically, because appellant failed to raise the issue before the trial court. See Vawter v. Garvey, 786 S.W.2d 263 (Tex.1990).

Appellant sued KISD for breach of contract claiming she was constructively discharged from her employment. In her first subpoint, appellant argues that genuine issues of material fact exist as to whether a constructive discharge resulted because of her working conditions. The constructive discharge doctrine was first developed in unfair labor practice cases and serves as a legal substitute for the discharge element of a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. See also Junior v. Texaco, Inc., 688 F.2d 377, 378 n. 3 (5th Cir.1982).

A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983), cert. denied sub nom., Whisenhunt v. Spradlin, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983); Benton v. Kroger Co., 640 F.Supp. 1317, 1322 (S.D.Tex.1986). To find a constructive discharge, a court must determine whether or not a reasonable person in the employee's position would have felt compelled to resign. Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir.1981). It is necessary to examine the conditions imposed, not the employer's state of mind. Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980). Therefore, an employee does not need to prove that an employer subjectively intended to force the employee to resign. Junior, 688 F.2d at 379; Pittman, 644 F.2d at 1077.

When appellant resigned her employment in December 1986, she delivered the following letter of resignation to the Board of Trustees of KISD:

Gentlemen:

It will be necessary for me to resign my teaching position at the end of this semester because of a change in my living arrangement. Over the holidays I have found property that interests me, and it is too far from Katy to commute.

It is with deep regret that I leave the district. Thank you for the opportunity of teaching in Katy.

Sincerely,

/s/ Polly Hammond

When deposed, appellant stated that she was considering purchasing property in north Houston with her son and the distance to Katy would make the daily commute prohibitive. Appellant also stated in her deposition that the reason for resigning given in her letter was only a partial reason for her leaving. She claimed that she left the school district as a "result of intolerable conditions" but did not put this in writing because she did not want to cause problems with the principal, Dr. Romero. The intolerable conditions that she referred to allegedly consisted of being "called on the carpet and chewed out" and general "harassment". She alleged two instances when Romero allegedly raised his voice to her in the presence of other school employees. She also stated in her deposition that she resented the fact that the school psychologist, Dr. Dempsey, considered her a subordinate and monitored her progress with one of the special education students. ²

Appellee KISD's motion for summary judgment provided the trial court with the applicable case law concerning constructive discharge. Derogatory comments resulting from disciplinary proceedings do not constitute constructive discharge. Shawgo, 701 F.2d at 481-82. Nor do unfavorable work evaluations support a constructive discharge claim. Junior, 688 F.2d at 380. Humiliation or embarrassment stemming from a transfer to a different position within a school district has been held not to be significant enough to support a claim for constructive termination. Jett v. Dallas Independent School District, 798 F.2d 748, 755 (5th Cir.1986), aff'd in part, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). The case law presented to the trial court effectively refuted all of appellant's specific allegations of constructive discharge. It was then incumbent on appellant to provide the court with additional competent summary judgment evidence that would raise a fact issue as to her claim and defeat KISD's motion. Clear Creek, 589 S.W.2d at 678. Additional evidence would have been unnecessary had appellee KISD's motion been legally insufficient to sustain the burden required for summary judgments. Id.

In her response to KISD's motion for summary judgment, appellant did not present any additional facts that raised a genuine issue of material fact. General allegations of mere "harassment", without more, are insufficient to raise an issue of material fact as to whether working conditions were so intolerable that a reasonable person would have felt compelled to resign. Consequently, we find that the trial court properly entered summary judgment on appellant's breach of contract claim against KISD.

Appellant also alleged KISD violated 42 U.S.C.A. § 1983 and deprived her of property rights under the Fifth and Fourteenth...