Opinion
No. 05-14-01165-CV
03-10-2016
SYLVIA ORTIZ, Appellant v. COMMISSIONER OF EDUCATION AND PLANO INDEPENDENT SCHOOL DISTRICT, Appellees
On Appeal from the 429th Judicial District Court Collin County, Texas
Trial Court Cause No. 429-00459-2014
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers
Appellant Sylvia Ortiz, a high school teacher, received notice from appellee Plano Independent School District (PISD) that it was initiating proceedings to terminate Ortiz's employment for cause. After a five-day evidentiary hearing, an independent hearing examiner concluded that PISD established good cause to terminate Ortiz's employment. The PISD Board of Trustees then voted to terminate Ortiz's employment. Ortiz appealed to the Texas Commissioner of Education. The Commissioner upheld the termination of Ortiz's employment on some but not all of the grounds PISD relied on for its decision. Ortiz then appealed to the district court, which affirmed the Commissioner's decision.
Ortiz appeals from the district court's judgment, arguing that the district court should not have affirmed the Commissioner's decision because it was erroneous for several reasons. In a cross-appeal, PISD argues that the district court "erred in affirming the Commissioner's decision in toto" because the Commissioner's decision to reject PISD's other grounds for the termination of Ortiz's employment was based on erroneous conclusions of law. We affirm the district court's judgment.
ORTIZ'S APPEAL
Standard of Review
The focus of both the district court's judgment and our appellate review of the district court's judgment is on the decision of the Commissioner. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). The district court may not reverse the Commissioner's decision, and we may not reverse the district court's judgment affirming the Commissioner's decision, unless the decision is not supported by substantial evidence or unless the Commissioner's conclusions of law are erroneous. See TEX. EDUC. CODE ANN. § 21.307(f) (West 2012). In this context, substantial evidence means more than a scintilla. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Under this standard, the evidence may preponderate against the decision, yet still amount to substantial evidence. Id. The test is whether reasonable minds could have reached the same conclusion as the Commissioner. See Tex. State Bd. of Dental Exam'rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). The Commissioner's reasoning for his decision is immaterial if his conclusion is supported by substantial evidence. See Tex. Emp't Comm'n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962). This court must uphold the Commissioner's decision on any legal basis shown in the record. See Goodie v. Houston Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
Analysis
In this case the Commissioner determined, among other things, that there was substantial evidence to support the termination of Ortiz's employment because she violated four PISD policies when she violated a confidentiality agreement and improperly communicated with a student about an internal investigation. In this opinion we focus exclusively on these grounds and do not address the other grounds relied upon by PISD to terminate Ortiz's employment because our analysis of the Commissioner's conclusion as to these grounds is dispositive.
The material facts giving rise to these grounds for the termination of Ortiz's employment are largely undisputed. Ortiz taught high school chemistry. In early December 2011, Ortiz met with her principal, Courtney Gober, after multiple students asked to be transferred out of Ortiz's class. During that meeting, Gober directed Ortiz to undertake rapport-building exercises with her students. In another meeting ten days later, Gober gave Ortiz a written memorandum outlining the exercises, but Ortiz refused to sign the memorandum and left the meeting without taking it with her. Gober attempted to send the memorandum and related materials to Ortiz by certified mail, but Ortiz did not sign for the delivery. On January 11, 2012, Gober attempted to deliver the memorandum and related materials to Ortiz in person outside her classroom, but Ortiz would not take them, so Gober entered Ortiz's classroom and left them there.
On January 13, 2012, Ortiz filed a grievance against Gober with PISD alleging, among other things, "harassment, verbal and physical aggression, libel, slander, defamation of character, bullying, intimidation, misrepresentation of facts, [and] intentionally creating a hostile and intolerable work environment[.]" PISD assigned Joseph Parks to investigate Ortiz's complaint against Gober. On March 23, 2012, Ortiz and Parks signed a confidentiality agreement in which she agreed not to discuss the investigation with several categories of people, including her students who were present when Gober entered Ortiz's classroom in January:
Ortiz argues that the confidentiality agreement is more properly characterized as a "gag directive," and she refers to it as such throughout her brief. It is undisputed, however, that it was signed by both the PISD investigator and Ortiz. As a result, we refer to it as a confidentiality agreement.
This investigation or inquiry is confidential and may involve sensitive employee and/or student information. As such, you must not discuss this investigation or inquiry, or any information that you and the investigator discuss, with other District employees (except Safety & Security or Human Resources employees) or any other person who is in any way connected to the incident or event under investigation, or who is a possible witness in this investigation. Disclosure of information pertaining to this investigation may result in disciplinary action against the disclosing employee.
Security specialist Ormie Melton interviewed three of Ortiz's students in May 2012 as part of Parks's investigation into Ortiz's allegations against Gober. In August 2012, Ortiz recorded a telephone conversation she had with one of the students Melton interviewed, who was apparently in Ortiz's classroom on the day that Gober came in to give Ortiz the memorandum and related materials. During that recorded conversation, Ortiz essentially asked the student what transpired during Melton's interview. In his decision, the Commissioner noted the following "verbatim examples of [Ortiz's] questions and statements to the student during the recorded conversation":
• "Okay, so you went in there, she asked you your name, asked you if you knew anything, you said yes, and then she said, 'Okay, you can leave'?"
• "So then you went in first, and they told you to go come out [sic], and then what, did she have somebody else go in and talk to her?"
• "[Student] is kind of the goofy-looking one, right? I was just making sure that it was. [Student] a nice kid, [student] just has that kind of look about [student]."
• "So she just asked, 'So he was hiding around the corner?' Did she ask, 'Well, did you ever find out why he was there?'"
• "What else did you tell her? I'm not trying to . . . I don't want to try to make you feel like you're on the spot or anything, I'm just trying to understand."
• "You told her the whole story?"
• "The majority of it was, like, related to you, right?"
• "So she asked you if I was depressed? And if I cried in the classroom? And if I taught right?"
• "And did she ask you if I ever talked about him in class?"
• "Okay, so that's good."
• "Did she ask you if I hated him or if I was angry about him?"
• So basically, they were investigating me more than investigating him."
The Commissioner concluded that Ortiz's statements and questions in the recorded telephone conversation violated four of PISD's policies that were outlined in its notice of proposed termination. First, the Commissioner concluded that Ortiz violated a PISD policy requiring her to "demonstrate personal integrity, and exemplify honesty" when she violated her confidentiality agreement by asking one of the students that Melton interviewed for details regarding his interview. Second, the Commissioner concluded that Ortiz violated a PISD policy requiring her to "not use institutional or professional privileges for personal or partisan advantage" because her questions during her recorded conversation with a student "were intended as a means for [Ortiz] to gather more information from the student about [PISD's] confidential investigation than [Ortiz] could receive through standard, authorized information channels, to give herself a personal information advantage that she could not otherwise have attained." Third, the Commissioner concluded that Ortiz violated a PISD policy requiring her to "refrain from inappropriate communication with a student" when she violated her confidentiality agreement and communicated with a student to gain more information about the investigation. And finally, the Commissioner concluded that Ortiz violated a PISD policy requiring her to "maintain appropriate professional educator-student relationships and boundaries" when, during her recorded conversation, she described another student as "goofy-looking" and told a student that what happened during his interview was "good." As a result of these violations, the Commissioner determined that there was more than a scintilla of evidence to support PISD's decision to terminate Ortiz's employment contract.
Ortiz argues that the Commissioner's decision is erroneous and must be reversed for multiple reasons. First, Ortiz argues that she did not violate the terms of the confidentiality agreement because that agreement "cannot be construed to apply beyond the end of the investigation to which it was issued." In response, the Commissioner notes that the agreement "contains no expiration date or language suggesting that its applicability is limited to the duration of the investigation," and PISD argues (in part) that "the confidentiality [agreement] itself states the reason why it properly survives the investigation: 'This investigation or inquiry is confidential and may involve sensitive employee and/or student information.'"
Additionally, to support her argument that the confidentiality agreement cannot apply beyond the end of the investigation, Ortiz cites several cases for the proposition that the Texas Constitution generally prohibits "gag orders" of an indefinite duration, "prior restraint" on speech, and "overbroad and vague laws." But in this case, what PISD complained that Ortiz violated was not a law, nor was it a court order--it was a confidentiality agreement that she signed during the investigation that her grievance initiated. As a result, constitutional principles regarding gag orders, prior restraint, overbreadth, and vagueness do not apply.
Given the lack of an expiration date, and the language quoted above, we generally agree with PISD and the Commissioner that there is more than a scintilla of evidence to support the conclusion that the confidentiality agreement was still in effect at the time of the recorded telephone call.
In the alternative, Ortiz argues that even if the confidentiality agreement was still in effect at the time of the recorded telephone conversation, there is no evidence that she violated the agreement because "[t]he factual subjects of the investigation in which the [confidentiality agreement was signed] were not the subjects of [PISD's] investigator's interview of the student in May." We disagree. There was evidence that the investigation that was pending at the time Ortiz signed the confidentiality agreement centered around Ortiz's complaint about Gober's encounter with Ortiz in the classroom. That encounter was the reason for, and the subject of, the student's interview (because the student was apparently present during the encounter), and it was the student's interview that prompted Ortiz's telephone call. As a result, there is more than a scintilla of evidence to support the Commissioner's conclusion that Ortiz violated the agreement when she questioned the student about the interview.
Next, Ortiz attacks the Commissioner's conclusion that Ortiz violated a PISD policy requiring her to "maintain appropriate professional educator-student relationships and boundaries" when, during her recorded conversation, she described another student as "goofy looking" and told a student that what happened during his interview was "good." Ortiz argues that a single question and a single statement, which occurred during a single "summertime conversation with one student," cannot amount to "good cause for termination of a three-year employment contract under Texas law," because "there was no evidence of any harm to anyone from the question and statement." We do not need to address this argument, however, because even if we agreed with Ortiz, we would nevertheless uphold the termination of her employment because we have already determined that there is substantial evidence to support the Commissioner's conclusion that Ortiz violated PISD policies when she violated the confidentiality agreement.
In her final argument, Ortiz contends that the district court erred when it severed her constitutional claims. The record shows that Ortiz claimed in her amended petition that the termination of her employment and the grounds for the termination violated multiple provisions of the Texas Constitution. The record also shows that the district court severed those claims and made them the subject of a separate action. The record does not show, however, that Ortiz objected to this severance or obtained a ruling on her objection in the district court. Generally, to preserve a complaint for appellate review, a party must timely present the complaint to the trial court and seek a ruling on the complaint. See TEX. R. APP. P. 33.1(a) (as prerequisite to presenting complaint for appellate review, record must show (1) party presented timely request, motion, or objection to trial court sufficient to make trial court aware of complaint, and (2) trial court ruled or refused to rule); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). "Without a proper presentation of the alleged error to the trial court, a party does not afford the trial court the opportunity to correct the error." Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003, pet. denied). Because it does not appear that Ortiz raised her objection in the district court and obtained a ruling on it, we conclude that her complaint regarding the severance of her constitutional claims was not preserved for appellate review.
Ortiz also notes that the Commissioner did not address her argument that she was denied "a fundamentally fair hearing complying with Article I, Section 19 of the Texas Constitution and Section 21.256 of the Texas Education Code." To the extent that she is complaining that this argument was also not addressed by the district court, we likewise conclude that her complaint was not preserved for appellate review because it does not appear that she raised it in the district court and obtained a ruling. --------
PISD'S CROSS-APPEAL
In its cross-appeal, PISD contends that the district court erred when it affirmed the Commissioner's decision "in all respects" because the Commissioner erred when he rejected the hearing examiner's numerous other grounds for the termination of Ortiz's employment. In response, the Commissioner argues, in part, that any legal errors the Commissioner made in connection with the other grounds for the termination of Ortiz's employment "are irrelevant to the outcome of this appeal." We agree with the Commissioner. Under our rules of appellate procedure, we are required to "hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." TEX. R. APP. P. 47.1 (emphasis added). In this case, any analysis of the other grounds relied upon by PISD to support the termination of Ortiz's employment, including the Commissioner's decision to reject them and the reasons for that decision, would not affect the disposition of this appeal. As a result, we decline to address them.
CONCLUSION
For the reasons set forth above, we affirm the district court's final judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 141165F.P05
JUDGMENT
On Appeal from the 429th Judicial District Court, Collin County, Texas
Trial Court Cause No. 429-00459-2014.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Commission of Education and Plano Independent School District recover their costs of this appeal from appellant Sylvia Ortiz. Judgment entered this 10th day of March, 2016.