Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00099-CV

Lin Grigsby, Appellant

v.

Mike Moses, Commissioner of Education of the State of Texas; The Texas Education

Agency, by and through the Commissioner of Education; and Granbury

Independent School District, a Public Body Corporate, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. 98-09957, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

Lin Grigsby appeals from a district-court judgment affirming a decision of Mike

Moses, Commissioner of Education, in a suit brought by Grigsby against the Commissioner and

her employer, the Granbury Independent School District (the "District"). We will affirm the

judgment.

THE CONTROVERSY

The District has established written "policies" or rules governing employee

complaints regarding conditions of their employment. So far as they apply here, the rules provide

as follows:

1. "Complaints shall be heard in informal administrative conferences" and "an

informal presentation of the complaint to the" District board of trustees, as set out below, "unless

the board grants a hearing."

2. "[U]nless extended by mutual consent," all time limits fixed in the rules must

"be strictly complied with."

3. A complaining employee must "meet with [her] principal or immediate

supervisor within 15 days of the time [she] first knew . . . of the event or series of events causing

the complaint."

4. If dissatisfied with the "outcome" of such meeting, the employee may request

a meeting with the District superintendent to "discuss" the complaint.

5. If dissatisfied with the "outcome" of her meeting with the superintendent, the

employee may request in writing that the "matter" be placed on the agenda at a meeting of the

District board of trustees. After requiring that the superintendent inform the employee of the date,

time, and place of the board meeting, the rules state as follows:

The Board President may set reasonable time limits on complaint presentations.

The Board shall listen to the complaint, but is not required to respond or take any

action on the matter. The lack of official action by the Board upholds the

administrative decision [of the superintendent].

Employees who are granted a hearing shall be afforded that hearing with the Board

in a meeting that includes the hearing as an item in the posted agenda or with the

Board's designee. If the Board conducts the hearing, it shall make and

communicate its decision at any time up to and including the next regularly

scheduled Board meeting.

In addition to her classroom-teaching duties at Granbury High School, Grigsby

coaches tennis, a sport that extends over both the spring and fall semesters of the school year. For

coaching tennis, she receives a single stipend. Other sports at the school typically begin and end

within a single semester. This enables other employees to coach different sports in different

semesters and thereby earn two stipends in the school year. Believing this to be inequitable and

claiming an entitlement to a second stipend, Grigsby initiated the series of "informal administrative

conferences" contemplated by the rules outlined above. She did not, however, request the initial

meeting with her principal until well after the expiration of fifteen days from the date she first

knew of the events giving rise to her complaint.

The principal resolved Grigsby's complaint on the ground that he could "not grant

[Grigsby] relief because the complaint was not filed in a timely manner according to" the rules.

The superintendent resolved her complaint on the same ground, stating he supported the

principal's action in not granting her relief "due to the complaint . . . not being filed in a timely

manner according to" the rules. An uncontradicted affidavit in the administrative record, made

by the president of the board of trustees of the District, states "the Board after due deliberation

took no action on" Grigsby's complaint following her presentation to that body. The

Commissioner "denied" Grigsby's "appeal" to him on the same ground. The district court affirmed

the Commissioner's decision.

In her appeal to this Court, Grigsby contends the district court erred because, as

a matter of law, the District waived the fifteen-day requirement "by allowing a grievance

presentation" at the meeting of the board of trustees. Consequently, the Commissioner's decision

was arbitrary and capricious. See Tex. Govt. Code Ann. § 2001.174 (2) (2000).

HOLDINGS AND DISCUSSION

Grigsby endeavors to bring her case within the scope of our holdings in Havner v.

Meno , 867 S.W.2d 130 (Tex. App.--Austin 1993, no writ), and Hernandez v. Meno , 828 S.W.2d

491 (Tex. App.--Austin 1992, writ denied). In Havner , we held a school district waived its right

to insist upon a hearing before its board of trustees, as required by a rule of the Texas Education

Agency, by the board's making a decision on the merits of an employee's complaint without the

requisite hearing. Havner , 867 S.W.2d at 134 . In Hernandez , we held a school district waived

a ten-day time limitation, within which an employee was required to request a hearing, by the

board's affirmatively granting and conducting a three-day evidentiary hearing on the merits of the

employee's complaint, after which the board purported to deny relief on the ground that the

hearing had not been requested within the ten days required. Hernandez , 828 S.W.2d at 494 . In

each case, our holding rested on the well-settled common-law rule that the waiver of a known right

occurs when the person possessing the right (1) expressly relinquishes the right, (2) acts in a

manner inconsistent with an intent to claim the right, or (3) fails to act in a manner consistent with

an intent to claim the right. See, e.g., PGP Gas Prods. Inc. v. Reserve Equip. , 667 S.W.2d 604,

609 (Tex. App.--Austin 1984, writ ref'd n.r.e.); see also Havner , 867 S.W.2d at 134 ; Hernandez ,

828 S.W.2d at 494 .

The Commissioner found the District "did not consent to waive" the fifteen-day

requirement; he also found the "merits" of Grigsby's complaint were never "addressed" at any

stage of the school-district proceedings. Grigsby does not assail these findings on any basis. She

does not contend the board expressly relinquished its right to insist upon compliance with the time

limitation. She argues instead that the board's mere act of "listen[ing] to her complaint," as the

board was required by its rules to do, were sufficient in and of itself to constitute waiver as a

matter of law because in her presentation to the board she stated her "complete case" and gave to

the board without objection a packet of supporting documents. We disagree with the argument.

The administrative record contains a transcript of the board proceeding. It

demonstrates only that the board listened to Grigsby's argument in support of her complaint,

without asking questions, and perhaps accepted "a packet of material" that she would be referring

to in her argument. The transcript does not suggest that any documents were authenticated or

offered and received in evidence; nor does it suggest that any person was called to give sworn

testimony subject to cross-examination. The sole evidence of what that board did following

Grigsby's unilateral presentation is found in the uncontradicted affidavit made by the president

of the board. The affiant declares therein that the board, after listening to Grigsby's presentation,

"took no action [on her complaint], thereby upholding the [superintendent's] decision on the basis

of [the] untimely filing." These undisputed facts cannot reasonably be viewed as amounting to an

act or failure to act that is inconsistent with an intent on the board's part to enforce the time

limitation. The manner of proceeding shown by the transcript and the board's express refusal to

act on the merits of Grigsby's complaint manifest the opposite--an intent to "listen to the

complaint," in the words of the rule, but to enforce nevertheless the fifteen-day time limitation

applicable to the course of "informal administrative conferences" invoked by Grigsby's complaint.

The record does not show the waiver for which Grigsby contends in her sole assignment of error.

It is not contended that any constitutional provision, statute, or administrative

practice, rule, or policy required an evidentiary hearing on complaints of the kind made by

Grigsby.

We hold the Commissioner's action denying Grigsby's "appeal" to him is not shown

to be arbitrary and capricious. We therefore affirm the district-court judgment.

John E. Powers, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers *

Affirmed

Filed: October 26, 2000

Publish

* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

nter>

Grigsby endeavors to bring her case within the scope of our holdings in Havner v.

Meno , 867 S.W.2d 130 (Tex. App.--Austin 1993, no writ), and Hernandez v. Meno , 828 S.W.2d

491 (Tex. App.--Austin 1992, writ denied). In Havner , we held a school district waived its right

to insist upon a hearing before its board of trustees, as required by a rule of the Texas Education

Agency, by the board's making a decision on the merits of an employee's complaint without the

requisite hearing. Havner , 867 S.W.2d at 134 . In Hernandez , we held a school district waived

a ten-day time limitation, within which an employee was required to request a hearing, by the

board's affirmatively granting and conducting a three-day evidentiary hearing on the merits of the

employee's complaint, after which the board purported to deny relief on the ground that the

hearing had not been requested within the ten days required. Hernandez , 828 S.W.2d at 494 . In

each case, our holding rested on the well-settled common-law rule that the waiver of a known right

occurs when the person possessing the right (1) expressly relinquishes the right, (2) acts in a

manner inconsistent with an intent to claim the right, or (3) fails to act in a manner consistent with

an intent to claim the right. See, e.g., PGP Gas Prods. Inc. v. Reserve Equip. , 667 S.W.2d 604,

609 (Tex. App.--Austin 1984, writ ref'd n.r.e.); see also Havner , 867 S.W.2d at 134 ; Hernandez ,

828 S.W.2d at 494 .

The Commissioner found the District "did not consent to waive" the fifteen-day

requirement; he also found the "merits" of Grigsby's complaint were never "addressed" at any

stage of the school-district proceedings. Grigsby does not assail these findings on any basis. She

does not contend the board expressly relinquished its right to insist upon compliance with the time

limitation. She argues instead that the board's mere act of "listen[ing] to her complaint," as the

board was required by its rules to do, were sufficient in and of itself to constitute waiver as a

matter of law because in her presentation to the board she stated her "complete case" and gave to

the board without objection a packet of supporting documents. We disagree with the argument.

The administrative record contains a transcript of the board proceeding. It

demonstrates only that the board listened to Grigsby's argument in support of her complaint,

without asking questions, and perhaps accepted "a packet of material" that she would be referring

to in her argument. The transcript does not suggest that any documents were authenticated or

offered and received in evidence; nor does it suggest that any person was called to give sworn

testimony subject to cross-examination. The sole evidence of what that board did following

Grigsby's unilateral presentation is found in the uncontradicted affidavit made by the president

of the board. The affiant declares therein that the board, after listening to Grigsby's presentation,

"took no action [on her complaint], thereby upholding the [superintendent's] decision on the basis

of [the] untimely filing." These undisputed facts cannot reasonably be viewed as amounting to an

act or failure to act that is inconsistent with an intent on the board's part to enforce the time

limitation. The manner of proceeding shown by the transcript and the board's express refusal to

act on the merits of Grigsby's complaint manifest the opposite--an intent to "listen to the

complaint," in the words of the rule, but to enforce nevertheless the fifteen-day time limitation

applicable to the course of "informal administrative conferences" invoked by Grigsby's complaint.

The record does not show the waiver for which Grigsby contends in her sole assignment of error.

It is not contended that any constitutional provision, statute, or administrative

practice, rule, or policy required an evidentiary hearing on complaint