Nairn v. Killeen Indep. Sch. Dist.

• Decision Date: 22 February 2012
• Docket Number: No. 08–10–00303–CV.,08–10–00303–CV.
• Citation: 280 Ed. Law Rep. 1129,366 S.W.3d 229
• Parties: Phyllis NAIRN, Appellant, v. KILLEEN INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

366 S.W.3d 229

280 Ed. Law Rep. 1129

Phyllis NAIRN, Appellant,

v.KILLEEN INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 08–10–00303–CV.

Court of Appeals of Texas, El Paso.

Feb. 22, 2012.

Joshua Schroeder, Sneed, Vine & Perry, P.C., Georgetown, for Appellant.

Eric Nordstrom, The Hudgins Law Firm, Houston, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

CHRISTOPHER ANTCLIFF, Justice.

Appellant Phyllis Nairn (hereinafter “Appellant” or “Nairn”) brought a whistleblower suit against Killeen Independent School District (“KISD” or “the District”) claiming that KISD demoted her from her position as Special Education Coordinator to teacher, and ultimately did not renew her term contract with the District. Subsequently, on July 3, 2008, she amended her petition to include claims of: (1) discrimination based on her race, color, religion, sex, and national origin; (2) retaliation for exercising her rights under the First Amendment to the U.S. Constitution; (3) harassment and a hostile work environment; (4) a violation of her Due Process rights under the U.S. Constitution; and (5) wrongful termination. The District filed a Plea to the Jurisdiction, a Motion for Summary Judgment, and a Supplemental Plea to the Jurisdiction. Appellant responded to the plea, the motion, and the supplemental plea. Ultimately, the trial court granted KISD's motion for summary judgment and supplemental plea to the jurisdiction, and struck Plaintiff's Third Amended Petition, disposing of the case. On appeal, Appellant raises five separate issues. Finding no error, we affirm.

BACKGROUND

Factual History

Phyllis Nairn was the Special Education Coordinator at Shoemaker High School in the Killeen Independent School District in Bell County, Texas during the 2006–2007 school year. Her principal and direct supervisor was Ronald Gray. During the school year, Nairn reported what she alleged to be violations of the law to her immediate supervisor, Mr. Gray, KISD Superintendent Jim Hawkins, and other District administrators. Those violations included: (1) Mr. Gray's alleged sexual harassment of another female teacher; (2) alleged failures by the District to follow the special education testing and classification requirements of students; and (3) alleged failures by the District to follow the standardized testing requirements promulgated by the State of Texas.

At the conclusion of the 2006–2007 school year, the District reassigned Nairn from her position as Special Education Coordinator to the position of teacher, which she considered to be a demotion. On June 12, 2007, Nairn filed a grievance with the District challenging her reassignment. On September 25, 2007, the Board of Trustees for KISD considered Nairn's grievance and determined that she “has not carried her burden of proof in her claims of discrimination based upon race, gender, religion and national origin.” The Board further found that neither Nairn's whistleblower claim nor her claims of harassment and retaliation were substantiated. However, the Board noted that Nairn's salary remained the same for the 2007–2008 school year during her reassignment as a teacher. As a result, the Board decided that because Nairn's performance “should be judged based upon her position as a special education coordinator” she should be returned “to the title of special education coordinator,” although not at Shoemaker High School. Finally, the Board directed the superintendent to fully investigate the “problems in the special education program” at Shoemaker High School for the 2006–2007 school year, and “take appropriate action accordingly.” As of September 26, 2007, Nairn was placed on administrative leave with pay for an indefinite period while an investigation into the problems in the special education programat Shoemaker High School was conducted. Nairn was directed to remain available by telephone, and was prohibited from entering any KISD property during the pendency of the administrative leave.¹

Upon completion of the investigation, the Board, by letter dated March 12, 2008, informed Nairn that it proposed not to renew her contract with the District. Nairn requested a hearing with the Board which took place on March 25, 2008, where she was present, but elected not to participate stating “I exercise my right to remain silent.”

On April 1, 2008, the District formally informed Nairn that it would not renew her contract. On April 2, 2008, in an Amended Petition for Review filed with the Texas Commissioner of Education, Nairn requested a hearing relative to the nonrenewal of her contract with KISD. Petitioner's Brief was filed with the office of the Commissioner of Education on May 1, 2008, and alleged, inter alia, that the District retaliated against her when it did not renew her contract, because she had opposed a discriminatory practice in that she made a complaint of sexual harassment. Nairn also alleged that the District's action was arbitrary and capricious.

The Decision of the Commissioner was issued on May 20, 2008. Therein, the Commissioner made numerous findings of fact. Some of those fact-findings were that: (1) Nairn was reprimanded on April 11, 2007 for making an inappropriate comment to another teacher by stating “you white people all look alike;” (2) Nairn was reprimanded on May 18, 2007 for failing to conduct a Texas Assessment of Knowledge and Skills test on April 2, 2007 because she did not reserve a room, failed to fill out forms, and fill out duplicate forms; (3) Nairn was counseled by her principal in May 2007 regarding the “widespread discontent of her staff, the ‘toxic work environment’ that was attributed to [her], [her] failure to respond to e-mails and her numerous failures regarding student testing;” and (4) there was no evidence to support Nairn's report of sexual harassment.²³

The Commissioner noted that despite the claims raised by Nairn, “the record contains substantial evidence supporting other, nonretaliatory, performance-based reasons for nonrenewal” of her contract.

In the Conclusions of Law section of his Decision, the Commissioner determined that: (1) he had jurisdiction over the matter pursuant to Tex.Educ.Code Ann. § 21.301; (2) Nairn “failed to establish a causal connection between her report objecting to an incident of alleged sexual harassment” and KISD's proposal for nonrenewal; (3) there was no evidence that Nairn had “a reasonable belief of unlawful conduct” when she reported an incident of alleged sexual harassment; (4) Nairn's contract was not “nonrenewed in retaliation for opposing a discriminatory practice, sexual harassment, under Tex. Labor Code § 21.055(1) and 42 U.S.C. § 2000e–3(a);” (5) Nairn failed to exhaust administrative remedies regarding her reasonable belief of unlawful conduct and her retaliation claim ⁴; (6) Nairn, by failing to object to the consideration of the 2006–2007 performance evidence and by failing to raise the issue of the lack of 2007–2008 evidence, waived any complaint to such evidence or the lack thereof; (7) Nairn failed to exhaust administrative remedies regarding the issue of the Board's consideration of the 2006–2007 performance evidence and the lack of 2007–2008 evidence; (8) Nairn failed to present evidence or argument to the Board regarding remediation and waived the same; (9) Nairn failed to exhaust administrative remedies regarding the issue of remediation; (10) while Nairn preserved the issue of insufficient time to obtain legal counsel, there is no requirement that the Board grant additional time to secure legal counsel, nor is there any evidence that the Board acted arbitrarily and capriciously in denying Nairn's request for additional time to secure counsel; (11) Nairn failed to maintain an effective working relationship or maintain good rapport with parents, the community or colleagues and failed to meet the District's standards of professional conduct by making “inappropriate or unprofessional comments;” (12) Nairn failed to fulfill her duties and responsibilities, was incompetent or inefficient in performing her duties, failed to discharge her duties with regard to the testing program, and overall, performed her duties inadequately during the April 2007 Texas Assessment of Knowledge and Skills testing; (13) Nairn's performance following the renewal of her contract for the 2007–2008 constitutes substantial evidence to support nonrenewal; and (14) KISD's decision to nonrenew Nairn's term contract of employment was supported by substantial evidence and was not unlawful, arbitrary, or capricious.

Finally, the Commissioner concluded that Nairn's appeal should be denied in part and dismissed in part, and disposed of all of the issues raised in the appeal.

On July 3, 2008, Nairn filed her First Amended Original Petition against KISD in the District Court. Therein, she alleged the facts and claims noted above.

Procedural History

KISD filed a Plea to the Jurisdiction on October 2, 2008 arguing that because Nairn failed to appeal the Decision of the Commissioner under Chapter 21 of the Texas Education Code within thirty days after she or her representative received notice of the Commissioner's decision, the district court was without jurisdiction to hear her claims. On November 4, 2008, Nairn filed her Response to KISD's Plea to the Jurisdiction and asserted that it was inappropriate for the District to argue the merits of Nairn's claims in its Plea to the Jurisdiction, and that the deadlines set out in the Texas Labor Code were inapplicable to her claims regarding the District's violations of her federal constitutional and statutory rights.

On May 26, 2009, KISD filed its Motion for Summary Judgment arguing that: (1) the Decision of the Commissioner became final and unappealable when Nairn failed to appeal the decision to the district court in accordance with the provisions of the Texas Labor Code; (2) Nairn's claims for discrimination, violations of the First Amendment, hostile work environment,...