Opinion
No. 10-02-313-CV
Opinion delivered and filed November 12, 2003
Appeal from the 77th District Court, Limestone County, Texas, Trial Court #25,650A.
Attorney(s) for Appellant/Relator: Lanelle McNamara, McNamara McNamara, Waco, TX.
Attorney(s) for Appellee/Respondent: Roger Dean Hepworth and Sue M. Lee, Henslee, Fowler, Hepworth Schwartz, L.L.P., Austin, TX.
Before Chief Justice Davis, Justice Vance, and Justice Gray (Chief Justice Davis not participating)
This case was submitted for decision with Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Nevertheless, the two remaining justices may decide the case if they agree on a judgment. See Tex.R.App.P. 41.1(c).
MEMORANDUM OPINION
Jennifer Adams filed suit under the Whistleblower Act asserting that Groesbeck Independent School District ("GISD") had not renewed her teacher's contract in retaliation for a grievance she filed a year earlier. The trial court granted GISD's motion for summary judgment, and Adams appeals. Finding that GISD asserted and conclusively proved an affirmative defense under the Act, we will affirm the judgment.
GISD's motion for summary judgment asserts three grounds:
Adams did not exhaust administrative remedies regarding the non-renewal of her contract before filing the lawsuit, as required by the Whistleblower Act (traditional motion);
there is no evidence establishing that Adams's contract was not renewed because of her whistleblowing (no-evidence motion); and
Adams's contract was not renewed for reasons related to her performance as a teacher and unrelated to her whistleblowing (traditional motion).
The trial court's summary judgment does not state the grounds upon which it was granted.
Adams raises six issues on appeal: (1) If the trial court considered GISD's reply to Adams's response to the summary judgment motion, that was error, because the reply was filed after the summary judgment hearing without leave of court; (2) Adams did not fail to exhaust her administrative remedies; (3) Adams's summary judgment evidence establishes that there is a genuine issue of fact about whether the whistleblowing occurred within ninety days of GISD's decision to suspend and/or terminate Adams's employment, thereby invoking the presumption that the whistleblowing was a motivating factor in the decision; (4) GISD's summary judgment evidence does not establish that there is no genuine issue of fact about whether the whistleblowing occurred within ninety days of GISD's decision to suspend and/or terminate Adams's employment, thereby invoking the presumption that the whistleblowing was a motivating factor in the decision; (5) Adams's summary judgment evidence establishes that there is a genuine issue of fact about whether the whistleblowing was a motivating factor in GISD's decision to suspend and/or terminate Adams's employment; (6) GISD's summary judgment evidence does not establish that there is no genuine issue of fact about whether Adams's contract would not have been renewed whether or not she engaged in whistleblowing.
History of the Dispute
Adams filed three grievances with GISD. The first, filed on August 26, 1998, complained that GISD had not timely shared her performance appraisal with her, thereby depriving her of the opportunity to request a second appraisal. 19 Tex. Admin. Code §§ 150.1003(h), 150.1005 (2003) (Tex. Educ. Agency). She ultimately prevailed on this complaint when, on June 24, 1999, an administrative law judge appointed by the Commissioner found that the appraisal was untimely and therefore void. Her second grievance in 1998 complained about harassment and unfair treatment at school for filing the first grievance; it was held in abeyance by agreement of the parties and was never pursued.
Adams's third grievance was over her contract. On March 26, 1999, Adams was notified that her contract would not be renewed. At her request, a hearing before the GISD Board was held on May 5. The Board voted not to renew her contract, and official notice was sent to Adams on May 11. She filed a grievance about the non-renewal on May 27, claiming its basis was retaliation for her appeal to the Commissioner regarding her first grievance. By agreement of the parties, the third grievance proceeded directly to the GISD Board. After a hearing on June 22, the Board denied this grievance.
Issue 1: Reliance on Reply to Response to Summary Judgment
Adams complains that the trial court, if it did, should not have considered GISD's reply to her response to the motion for summary judgment, because the reply was filed after the summary judgment hearing without leave of court. The reply was simply that — a reply to arguments raised in Adams's response. The reply did not raise new grounds for summary judgment, nor was any new evidence presented. Therefore, any error was harmless. Tex.R.App.P. 44.1(a). We overrule issue one.
Issue 6: Did Poor Job Performance Cause the Non-renewal?
The Whistleblower Act provides an affirmative defense, which GISD asserted in the traditional part of its motion for summary judgment:
It is an affirmative defense to a suit under this chapter that the employing state or local governmental entity would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law.
Tex. Gov't Code Ann. § 554.004(b) (Vernon Supp. 2004).
Standard Of Review
We review a summary judgment de novo. Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). When, as here, the trial court does not specify the basis for the summary judgment, we will affirm it if any one of the movant's grounds has merit. FM Properties Operating v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). "Rule 166a provides a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine fact issue." Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). The movant has the burden to prove by summary judgment evidence that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion." Id; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Tex.R.Civ.P. 166a(c). If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant's cause of action, or alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex.App.-Waco 2003, no pet.). The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, 997 S.W.2d at 222-23. But if the movant meets its burden of proof, the non-movant must present summary judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We must accept as true all evidence that is favorable to the non-movant, and we must resolve all doubts and indulge every reasonable inference regarding the existence of a genuine issue of fact in favor of the non-movant. Rhone-Poulenc, 997 S.W.2d at 223; Nixon, 690 S.W.2d at 548-49.
Proof Of The Affirmative Defense
GISD's motion for summary judgment was supported by proof of intentional disparagement of a student and other reasons for non-renewal of the contract. The summary judgment evidence shows that on March 25, 1999, the superintendent notified Adams by letter that renewal of her contract would not be recommended to the Board, listing ten reasons for the recommendation. On April 23, the attorney for the district supplied Adams's attorney with a list of forty-six specific grounds to be asserted at the hearing Adams requested, along with a list of the evidence and copies of documents. The record of the hearing held on May 5 includes testimony and exhibits-appraisals, memoranda, and other written communications-about Adams's conduct as a teacher that was asserted as grounds for non-renewal. No evidence was presented concerning Adams's allegations of retaliation. Nevertheless, Adams asserts that there is a genuine issue of fact about whether GISD would have decided not to renew her teacher's contract without her whistleblowing and that GISD's summary judgment evidence does not conclusively show that her contract would not have been renewed based solely on job performance.
A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Ridenour v. Herrington, 47 S.W.3d 117, 120 (Tex.App.-Waco 2001, pet. denied) (citing Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)). The summary judgment record is replete with evidence of legitimate, non-retaliatory reasons for the non-renewal of the contract. After a careful review of the evidence submitted in support of the summary judgment motion by GISD and Adams's responsive evidence, considered in the light most favorable to Adams, we conclude that GISD conclusively proved its affirmative defense, i.e., that the Board "would have taken the action against the employee that forms the basis of [this] suit based solely on information, observation, or evidence that is not related to" Adams's whistleblower claims. Id.; Tex. Gov't Code Ann. § 554.004(b). We overrule issue six.
Conclusion
Having overruled Adams's first and sixth issues, we need not address her remaining issues. We affirm the summary judgment.
Affirmed.