Houston Independent School District v. Ramiro Florez

Reversed and Rendered and Memorandum Opinion filed January 26, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00153-CV
HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellant
V.
RAMIRO FLOREZ, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2018-37398
MEMORANDUM OPINION
Appellee Ramiro Florez sued appellant Houston Independent School District
(“HISD”) and asserted that he was terminated in retaliation for reporting
standardized testing violations. The trial court denied HISD’s plea to the
jurisdiction and HISD filed this interlocutory appeal. For the reasons below, we
reverse the trial court’s denial of HISD’s plea and render judgment dismissing
Florez’s suit for want of jurisdiction.
BACKGROUND
Underlying Facts
The events underlying Florez’s claim involve protocols governing the
administration of Texas’s standardized test (the “STAAR test”) at Fondren
Elementary.
In October 2017, Florez was hired as an instructional reading specialist at
Fondren. Tabitha Dudley was the principal at Fondren during Florez’s
employment.
On April 11, 2018, the students at Fondren were taking the STAAR test.
Two teachers at the school reported to Principal Dudley an incident involving
Florez, which Dudley described as follows:
[An] incident that caused me significant concern . . . occurred on
April 11, 2018, where Mr. Florez used his master key to unlock the
office door of the school’s STAAR Testing Coordinator, Ms. Chantel
Pearl, and entered her office while she and another employee,
Sharonda Easter, were arranging STAAR testing materials. It was
reported to me that Mr. Florez was walking around Ms. Pearl’s office
with his cell phone, which caused Ms. Pearl and Ms. Easter significant
concern.
Principal Dudley sent a memorandum to Florez reporting the security violation and
asking him to “correct these deficiencies and take immediate steps to improve your
ability to meet the expectations set at Fondren.” Florez refused to sign the
memorandum and added a handwritten paragraph stating: “This memo is
absolutely false and it is just one more adverse action against me.”
On April 27, 2018, Florez faxed a letter to Principal Dudley, interim HISD
superintendent Grenita Lathan, HISD area superintendent Dr. Erick Pruitt, Texas
Education Agency Commissioner Mike Morath, and HISD police, which stated as
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follows:
Dear People;
I am Ramiro Florez, an HISD Instructional specialist/administrator,
and I believe that on April 11, 2018, I witnessed two teachers at
Fondren Elementary behaving suspiciously and probably altering test
answers on the 2018 STAAR test in Room T-16. I am not liked by
Prin. Dudley. I believe that she will say that I am a disgruntled
employee. I am not.
What I saw on April 11, 2018 in Room T-16, when I heard noises in
the room, entered and surprised two persons, Ms. Pearl (Teacher
Specialist) and Ms. Easter (Teacher) with pencils and test answer
booklets in their hands, was suspicious, but not fully appreciated by
me until yesterday.
In other words, I did not put it all together until responding to an April
26, 2018 memo when Prin. Dudley falsely stated that I had breached
testing security by entering that room, T-16 after school, about 4:10
p.m. I suddenly realized that Prin. Dudley was probably going to
scapegoat me again to protect her more favored teachers.
I believe in good faith that Ms. Dudley was aware of what was
happening in T-16 and that the two teachers were probably altering
student test answers.
Fax confirmations offered into evidence showed that the fax to Principal Dudley
failed; however, the faxes to the other recipients were successfully transmitted.
Approximately two weeks later, Principal Dudley scheduled a conference
with Florez and told him that his position as an instructional reading specialist was
being eliminated due to budget constraints. Florez’s employment with HISD was
officially terminated in July 2018.
Procedural History
Florez sued HISD in June 2018. In his amended petition, Florez asserted a
violation of the Texas Whistleblower Act and discrimination and retaliation claims
under Chapter 21 of the Texas Labor Code. In his third amended petition, Florez
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added claims arising under the Texas Constitution.
HISD filed a plea to the jurisdiction in June 2021, asserting that
governmental immunity barred Florez’s claims. The trial court ordered Florez to
respond to the plea, but Florez failed to file a response. The trial court granted
HISD’s plea.
Florez filed a motion for new trial, asserting that his failure to respond to
HISD’s plea was due to his attorney’s health issues. The trial court granted
Florez’s motion and the case was reinstated. HISD filed an amended plea to the
jurisdiction. Florez filed a third amended petition and a response to HISD’s plea.
Florez did not attach exhibits to his jurisdictional response and incorporated by
reference those exhibits attached to his new trial motion.
On February 22, 2022, the trial court signed an order denying HISD’s plea to
the jurisdiction. HISD timely filed this interlocutory appeal. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(8).
ANALYSIS
In his live petition, Florez asserted (1) a retaliation claim under the Texas
Whistleblower Act, (2) discrimination and retaliation claims under Chapter 21 of
the Texas Labor Code, and (3) violations of the Texas Constitution’s due process
guarantees. HISD’s plea to the jurisdiction sought judgment in its favor on all
claims.
In his response to HISD’s appellate brief, Florez affirmatively abandoned his
claims premised on Chapter 21 and the Texas Constitution.1 Accordingly, we
address only those jurisdictional issues relevant to Florez’s retaliation claim under
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Specifically, Florez stated that he “no longer desires to pursue th[ese] additional
theories of recovery and limits his claim to the Whistleblower Act.”
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the Texas Whistleblower Act.2
I. Standard of Review and Governing Law
Governmental units, including school districts, are immune from suit unless
the state waives immunity. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d
755, 770 (Tex. 2018). Immunity from suit may be asserted through a plea to the
jurisdiction that challenges the pleadings, the existence of jurisdictional facts, or
both. Id. We review a trial court’s disposition of a plea to the jurisdiction de novo.
City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex.
2018).
Here, where HISD challenged the existence of jurisdictional facts with
supporting evidence, our standard of review mirrors that of a traditional summary
judgment. See Alamo Heights Indep. Sch. Dist., 544 S.W.3d at 771. If the
evidence creates a fact question regarding jurisdiction, then the plea must be
denied and the fact issue resolved by the factfinder. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004). But if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
rules on the plea to the jurisdiction as a matter of law. Id. at 228.
In reviewing the jurisdictional evidence, we take as true all evidence
favorable to the nonmovant. Id. We indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Id.2
See Morath v. Lewis, 601 S.W.3d 785, 787-88 (Tex. 2020) (per curiam) (noting that a
“plaintiff’s right to take a nonsuit is unqualified and absolute as long as the defendant has not
made a claim for affirmative relief,” the court held that “a plaintiff’s right to abandon its claims
does not disappear when trial court proceedings are stayed pending interlocutory appeal”)
(internal quotation omitted); see also, e.g., City of Beaumont Police Dep’t v. Klein Investigations
& Consulting, No. 09-11-00614-CV, 2012 WL 403865, at *1 (Tex. App.—Beaumont Feb. 9,
2012, no pet.) (mem. op.) (after the defendant appealed the denial of its plea to the jurisdiction,
the plaintiff abandoned some of its claims on appeal).
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The Texas Whistleblower Act (“TWA”) waives an employing entity’s
immunity from an employee’s suit alleging a violation of its provisions. Tex.
Gov’t Code Ann. § 554.0035. Specifically, the TWA states that:
[a] state or local governmental entity may not suspend or terminate
the employment of, or take other 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 enforcement authority.
Id. § 554.002(a). “[T]he elements of section 554.002(a) can be considered as
jurisdictional facts, when it is necessary to resolve whether a plaintiff has alleged a
violation under the [TWA].” State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009).
Here, our analysis of the TWA’s jurisdictional elements focuses on
causation.
To prove causation in a whistleblower case, a public employee must
demonstrate that, after he reported a violation of law, he suffered discriminatory
conduct by the employer that would not have occurred in the absence of the report.
City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). In other words, to
prevail on a whistleblower claim, the employee must establish a “but for” causal nexus
between the report of the illegal activity and the employer’s prohibited conduct.
Galveston Cnty. v. Quiroga, No. 14-18-00648-CV, 2020 WL 62504, at *5 (Tex.
App.—Houston [14th Dist.] Jan. 7, 2020, no pet.) (mem. op.).
The TWA allows for a rebuttable presumption of a causal connection if the
employee is terminated not later than 90 days after the reported violation of law. See
Tex. Gov’t Code Ann. § 554.004(a); see also Juarez v. Tex. Legis. Council, No. 14-20-
00331-CV, 2022 WL 806054, at *5 (Tex. App.—Houston [14th Dist.] Mar. 17, 2022,
no pet.) (mem. op.). This presumption does not shift the burden of proof and stands
only in the absence of evidence to the contrary. Patel v. Trevino, No. 01-20-00445-
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CV, 2022 WL 3720135, at *14 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet.
h.) (mem. op.) (applying presumption in the context of a plea to the jurisdiction).
“Once sufficient evidence is produced to support a finding of the nonexistence of the
causal connection between the termination and the reported violation of law, the
presumption is rebutted, and the case then proceeds as if no presumption ever existed.”
Id.; see also Juarez, 2022 WL 806054, at *5 (“an employer rebuts the presumption by
producing evidence sufficient to support a finding that the report did not cause the
adverse action”).
If the presumption is rebutted, the employee must produce some evidence to
support a causal connection between the report made and the alleged retaliatory
conduct. Patel, 2022 WL 3720135, at *15; Juarez, 2022 WL 806054, at *6. An
employee need not prove that his reporting of the illegal conduct was the sole reason
for the alleged adverse action and circumstantial evidence may be sufficient to
establish this causal link. Patel, 2022 WL 3720135, at *15. Relevant circumstantial
evidence may include: (1) knowledge of the reported illegal conduct; (2) expression of
a negative attitude toward the employee’s report of the illegal conduct; (3) failure to
adhere to established company policies regarding employment decisions;
(4) discriminatory treatment in comparison to similarly situated employees; and
(5) evidence that the stated reason for the adverse employment action is false. City of
Fort Worth, 29 S.W.3d at 69; Harris Cnty. v. Vernagallo, 181 S.W.3d 17, 25 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied).
The evidence presented to rebut the presumption must, at a minimum, “show
that the person who took the adverse employment action knew of the employee’s
report of illegal conduct.” Tex. Health & Hum. Servs. Comm’n v. Vestal, No. 03-19-
00509-CV, 2020 WL 7252320, at *3 (Tex. App.—Austin Dec. 10, 2020, pet. denied)
(mem. op.). “This is because the decision-maker could not fire an employee because
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of the employee’s report of alleged illegal conduct if the decision-maker did not even
know the employee made such a report.” Id.II. Evidence and Analysis
As the following timeline shows, the evidence in the trial court demonstrated
that Florez was terminated within 90 days after he reported the alleged violation of
law:
• April 27, 2018 Florez reported the illegal conduct.
• May 8, 2018 Principal Dudley sent Florez a memorandum entitled
“Directive to Attend Conference for the Record”; the
conference was scheduled for May 17, 2018. The
memorandum states that the conference is to discuss
the “program change” and informs Florez that he
may bring “a representative of [his] choosing.”
• May 17, 2018 Principal Dudley sent Florez a “Conference
Summary” stating that Florez’s position was
eliminated “due to budget constraints” and that he
“would no longer have a position at Fondren ES for
the 2018-2019 school year.”
• May 17, 2018 Principal Dudley sent a memorandum to HISD’s
chief human resources officer recommending that the
district terminate Florez’s employment “due to
budget constraints.”
• May 22, 2018 A member of HISD’s human resources department
sent a letter to Florez officially notifying him that his
employment with HISD was terminated effective
July 3, 2018.
Accordingly, Florez is entitled to the rebuttable presumption of a causal connection
between his report of the alleged violation of law and his subsequent termination.
See Tex. Gov’t Code Ann. § 554.004(a); Juarez, 2022 WL 806054, at *5.
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HISD presented the following evidence to rebut the presumption’s application:
• The following documents discussing the elimination of Florez’s position
state that the change was made due to “budget constraints”: (1) the May 17,
2018 “Conference Summary” from Principal Dudley to Florez; (2) the May
17, 2018 memorandum from Principal Dudley to HISD’s chief human
resources officer; and (3) the May 22, 2018 letter from HISD’s human
resources department to Florez.
• In her affidavit, Principal Dudley stated that Florez’s position was
eliminated due to “a reduction in the school’s budget.” Dudley stated that
she made the decision to eliminate Florez’s position at an April 13, 2018
meeting — which took place before Florez sent the April 27, 2018 letter
reporting the alleged STAAR testing violation.
• The affidavit from Dr. Rona Simmons, HISD school support officer,
stated that Principal Dudley recommended that Florez’s position be
eliminated “due to budget constraints.” Dr. Simmons stated that she had
the authority to approve or deny Principal Dudley’s recommendation.
According to Dr. Simmons, she did not know that Florez had reported
any STAAR testing violations when she approved Principal Dudley’s
recommendation.
• Florez’s April 27, 2018 letter reporting the alleged STAAR testing
violations was addressed to Principal Dudley, amongst other recipients.
However, the “fax confirmations” Florez submitted into evidence show
that the fax to Principal Dudley failed.
• At his deposition, Florez said he did not know if Principal Dudley
received the fax. Florez said he never spoke to Principal Dudley about
the letter.
After HISD submitted this evidence, the burden shifted to Florez to produce some
evidence to support a causal connection between his report and subsequent
termination. See Patel, 2022 WL 3720135, at *15; Juarez, 2022 WL 806054, at
*6. However, Florez did not produce any evidence to support this finding.
Specifically, Florez did not present any evidence showing that (1) Principal Dudley
knew Florez reported the alleged STAAR testing violation, (2) Principal Dudley
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failed to adhere to policies regarding employment decisions, (3) Florez was treated
differently in comparison to similarly situated employees, or (4) the stated reason
for Florez’s termination was false. See City of Fort Worth, 29 S.W.3d at 69;
Harris Cnty., 181 S.W.3d at 25.
In sum, we agree with HISD and conclude that Florez failed to produce any
evidence to raise an issue of fact with respect to the causal connection element of
his whistleblower claim. Therefore, the trial court erred when it denied HISD’s
plea to the jurisdiction. Given our disposition of this issue, we need not address
HISD’s other challenges to Florez’s whistleblower claim.
CONCLUSION
We reverse the trial court’s denial of HISD’s plea to the jurisdiction and
render judgment dismissing Florez’s suit for want of subject matter jurisdiction.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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