Adrienne Gallien v. Houston Independent School District

Opinion issued

July 7, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00485-CV

———————————

ADRIENNE GALLIEN , Appellant

V.

HOUSTON

INDEPENDENT SCHOOL DISTRICT , Appellee

On Appeal from the 295th

District Court

Harris County, Texas

Trial Court Case No. 2007-14685

MEMORANDUM

OPINION

Adrienne

Gallien sued her former employer, Houston Independent School District (“HISD”),

for breach of contract and for violation of the Texas Whistleblower Act. [1] The trial court granted summary judgment in

favor of HISD, concluding that Gallien had failed to exhaust her administrative

remedies before filing suit. In two

issues, Gallien appeals the summary judgment.

We

affirm, as modified.

Background

From 1995 until 2004, Adrienne

Gallien worked as a teacher for HISD. In

2004, HISD assigned Gallien to the position of high school registrar. One year later, HISD removed Gallien from the

position and reassigned her to a teaching position. Gallien’s employment with HISD ended in

2006. The parties disagree whether

Gallien resigned or whether HISD terminated her teaching contract.

Gallien

filed suit against HISD on March 6, 2007.

In her original petition, Gallien alleged that, while in the position of

registrar, she observed and reported to the high school principal a number of

record keeping discrepancies, which violated HISD policy. Gallien asserted that, over time, she “became

the target of retaliation and harassment by the principal.” Gallien alleged that, in May 2005, the

principal’s “continued [] harassment, defamation and retaliatory acts” led her

to file “a claim of harassment due to whistle blowing and retaliation with the

HISD office of Equal Employment Opportunity (EEO).”

In 2005, Gallien was

reassigned to a teaching position. She

alleged that she “continued to report misconduct and record discrepancies to

the HISD.” At that time, Gallien also initiated

“the employee grievance process.”

Gallien took a medical leave

of absence. During this period, Gallien

submitted her resignation. Gallien,

however, returned to work in March 2006 as a clerk in HISD’s Career and

Technology Education Department.

Gallien

alleged that, in April 2006, HISD sent her an employment contract for the

following school year, which she accepted by signing and returning to HISD. In May 2006, Gallien was told during a

meeting that an audit had uncovered “record errors” at the high school at which

she had served as registrar. The next

month the school board upheld the principal’s decision to remove Gallien from

the registrar position.

Gallien

also alleged that in July 2006, she received a letter from HISD informing her that

the contract that she had returned in April had been sent to her in error. HISD took the position that the contract

would not be honored because Gallien had resigned from HISD while she was on

medical leave.

The

day before school started in August 2006, Gallien was offered a substitute

teacher position with HISD, which she accepted. Gallien alleged that in September 2006, she

was informed that she could no longer work as a substitute teacher because the

necessary paperwork had not been received.

That same month, Gallien “filed a complaint of discrimination based on

race with the United States Equal Employment Opportunity Office [EEOC].” Gallien alleged that HISD had replaced her,

an African-American female, with a Hispanic female without following its own employee

discipline procedures.

Gallien

claimed in her original petition that HISD “discriminated against [her] on the

basis of her race and retaliated against her for engaging in a protected

activity.” Gallien also asserted a

breach of contract claim. Gallien filed

an amended petition in which she asserted claims, including discrimination

claims, similar to those asserted in her original petition.

Gallien

filed her second amended petition on November 18, 2008. Gallien alleged causes of action based on

violations of the Texas Education Code and the Texas Whistleblower Act. She also asserted claims for breach of

contract and retaliation. Gallien did

not allege discrimination based on race as she had in her original and first

amended petitions.

HISD

filed a motion for summary judgment asserting that Gallien’s claims should be

dismissed for lack of subject-matter jurisdiction because Gallien had not

exhausted her administrative remedies.

HISD also averred that Gallien’s retaliation claim under the

Whistleblower Act was barred by limitations.

Gallien responded, asserting that HISD did not meet its summary-judgment

burden.

The

trial court granted summary judgment in HISD’s favor. The trial court’s order indicates that it

granted summary judgment “because Plaintiff has not exhausted her

administration remedies and, therefore, this Court does not have

jurisdiction.”

Gallien

now appeals the trial court’s judgment in two issues. Gallien frames her first issue as follows:

“The trial court erred in finding that Appellant failed to seek and pursue

required administrative remedies sufficient to vitiate the jurisdictional basis

of every alleged cause of action or any such cause that might have been alleged

by pleading amendment.” In her second

issue, Gallien contends, “[T]he trial court erred in granting summary judgment

of all [sic] claims without conclusive evidence establishing the absence of

issuable facts as to the question of jurisdiction.”

Standard of Review

To prevail on a

“traditional” Rule 166a(c) summary-judgment motion, a movant must prove that there

is no genuine issue regarding any material fact and that it is entitled to

judgment as a matter of law. [2] See Tex. R. Civ. P . 166a(c); Little v. Tex. Dep’t of Criminal Justice ,

148 S.W.3d 374, 381 (Tex. 2004). A

plaintiff moving for summary judgment must conclusively prove all essential

elements of its claim. See Rhone–Poulenc, Inc. v. Steel , 997

S.W.2d 217, 223 (Tex. 1999).

A defendant may prevail by

traditional summary judgment if it conclusively negates at least one essential

element of a plaintiff’s cause of action. S ee IHS

Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794 , 798

(Tex. 2004). A movant seeking

traditional summary judgment on an affirmative defense has the initial burden

of establishing entitlement to judgment as a matter of law by conclusively

establishing each element of his affirmative defense. See Chau

v. Riddle , 254 S.W.3d 453, 455 (Tex. 2008); see also Tex. R. Civ. P .

166a(b) – (c).

A matter is conclusively established if

reasonable people could not differ as to the conclusion to be drawn from the

evidence. See City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005).

If the movant meets its

burden, the burden then shifts to the nonmovant to raise a genuine issue of

material fact precluding summary judgment. See

Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if

reasonable and fair-minded jurors could differ in their conclusions in light of

all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes ,

236 S.W.3d 754, 755 (Tex. 2007).

On appeal, we review de novo

a trial court’s summary judgment ruling. See Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). In our review, we consider

all the evidence in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. See Mack

Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006).

We consider all grounds on

which the trial court ruled that are preserved for review and that are

necessary for disposition of the appeal. See

Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 626 (Tex. 1996). We may consider other preserved grounds in the

interest of judicial economy. See id . We must affirm the summary judgment if any one

of the grounds presented to the trial court is meritorious. See

Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003).

Breach of Contract Claim:

Failure to Exhaust Administrative Remedies

On

appeal, Gallien contends that it was improper to grant summary judgment against

her based on HISD’s assertion that she failed to exhaust her administrative

remedies before filing suit. HISD agrees

that failure to exhaust administrative remedies would not support summary

judgment on Gallien’s whistleblower claim, but it maintains that summary

judgment on this ground was appropriate regarding Gallien’s breach of contract

claim. [3]

A. Relevant Legal Principles

Typically,

if an agency has exclusive jurisdiction, a party must exhaust all

administrative remedies before seeking judicial review of the agency’s action. Subaru of Am., Inc. v. David McDavid Nissan,

Inc ., 84 S.W.3d 212, 221 (Tex. 2002) (citing Cash Am. Int’l Inc. v. Bennett , 35 S.W.3d 12, 15 (Tex. 2000)). Until then, the trial court lacks subject

matter jurisdiction and must dismiss the claims within the agency’s exclusive

jurisdiction. Id . “Requiring exhaustion

of administrative remedies is not meant to deprive an aggrieved party of any

legal rights. It is meant, rather, to

provide an orderly procedure by which aggrieved parties may enforce those

rights.” See Ysleta Indep. Sch. Dist. v. Griego , 170 S.W.3d 792, 795 (Tex.

App.—El Paso 2005, pet. denied).

Texas law

requires an aggrieved party to exhaust all remedies provided under the

applicable administrative scheme if the party’s claim (1) concerns the

administration of school laws and (2) involves questions of fact. Mission

Indep. Sch. Dist. v. Diserens , 188 S.W.2d 568, 570 (Tex. 1945); Griego , 170 S.W.3d at 795 . In addition, t he Term Contract Nonrenewal

Act, [4] which is found in Chapter

21 of the Education Code, provides an administrative procedure by which a

school teacher, [5]

who is employed under a term contract, may seek judicial review of a district’s

decision not to renew the contract. See Griego , 170 S.W.3d at 794 ; see also Gutierrez v. Laredo Indep. Sch. Dist. , 139 S.W.3d 363 , 366 – 67 (Tex. App.—San Antonio 2004, no

pet.) . The Act requires a teacher

who is aggrieved by the nonrenewal of a term contract to exhaust administrative

remedies before seeking redress in the courts. See Tex. Educ. Code Ann . § 21.209; see also Brown v. Amarillo Independent

School Dist. , 190 S.W.3d 7, 10 (Tex. App. —Amarillo 2005, no pet.) (citing Tex. Educ. Agency v. Cypress–Fairbanks , 830 S.W.2d 88, 90 (Tex. 1992)).

“An employee who alleges that a school

district wrongfully terminated an employment contract must apply to the school

authorities for relief before filing suit in the district court.” Griego ,

170 S.W.3d at 795 ; see also Larsen v.

Santa Fe Indep. Sch. Dist. , 296 S.W.3d 118 , 128 – 29 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied); Gutierrez ,

139 S.W.3d at 366 – 67 .

When a teacher asserts a claim

based on non-renewal of a term contract, the last step in the administrative

process is an appeal to the Commissioner of Education. Tex. Educ.

Code Ann . § 21.209 (providing that “[a] teacher who is

aggrieved by a decision of a board of trustees on the nonrenewal of the teacher’s

term contract may appeal to the commissioner for a review of the decision of

the board of trustees . . .”). Similarly,

a person must pursue her claim with the Commissioner of Education before

filing suit when the claim involves actions or decisions by the school board that

allegedly violate either state school laws or a provision of a written

employment contract between a school district and an employee if the violation

would cause the employee to suffer monetary harm. See Tex. Educ. Code Ann . § 7.057(a) (Vernon 2006). Only when an appeal to the Commissioner of

Education has been exhausted will a district court have jurisdiction to hear a

school district employee’s breach of contract claim premised on contract

non-renewal or the grounds specified in section 7.057(a). See Tex. Educ. Code Ann . § 21.307

(Vernon 2006); see also Griego , 170

S.W.3d at 795 ; Dotson v. Grand Prairie

Indep. School Dist. , 161 S.W.3d

289, 291 (Tex. App.—Dallas 2005, no pet.).

B. Analysis

In

her second amended petition, Gallien alleged the following to support her

breach of contract claim:

·

In April 2006, HISD offered Gallien a contract for

the 2006/2007 school year that she accepted by signing and returning the

contract to HISD’s personnel department.

·

When she accepted the offer, she had already

“rescinded the letter of resignation” that she had given to HISD.

·

At the time she accepted the offer, Gallien was

employed by HISD as a clerk.

·

Gallien alleged that HISD later refused to honor the

contract.

·

HISD informed her that the contract had been sent to

her in error, citing Gallien’s earlier resignation as the reason that it would

not honor the contract.

·

HISD informed her that she would be required “to go

through the re-hiring process, which she did.”

·

HISD offered Gallien a high school teaching

position, which she accepted. However, the

principal at the high school rescinded the offer and filled it with another

teacher.

·

In September 2006, the principal offered Gallien a

long-term substitute teaching position, which she accepted.

·

Later that month, the principal informed Gallien

that she was “not in the system of active employees” and that “he had to

release her, immediately.”

·

Although she has applied for “many positions,” HISD has

refused to rehire Gallien.

In its motion for summary

judgment, HISD claimed that the trial court lacked subject matter jurisdiction over

Gallien’s breach of contract claim. We

agree with HISD that, as alleged, Gallien was required to exhaust her

administrative remedies by appealing to the Commissioner of Education before

filing her breach of contract claim in the trial court. See

Tex. Educ. Code Ann .

§ 7.057(a), § 21.209. Courts

have held that allegations similar to those underlying Gallien’s breach of

contract claim are the type

of allegations that must first be heard by the Commissioner of Education

before the employee may file suit in district court. See, e.g.,

Godley Indep. Sch. Dist. v. Woods , 21 S.W.3d 656, 660 (Tex. App.—Waco 2000,

pet. denied) (holding that teacher’s

claim of breach of his teaching-employment contract involved administration of

school laws and disputed fact issues, and thus, teacher was required to exhaust

administrative remedies provided by the Education Code before looking to courts

for relief); C aramanian v. Houston Indep.

Sch. Dist ., 829 S.W.2d 814 , 817–18 (Tex. App.—Houston [14th Dist.] 1992, no

writ) (holding teacher’s claim of breach of employment contract involved

disputed fact issues, and thus, administrative proceedings had to be exhausted

before seeking relief in the courts); Jones

v. Dallas Indep. Sch. Dist ., 872 S.W.2d 294, 296 (Tex. App.—Dallas 1994,

writ denied) (holding employee alleging that school district wrongfully

terminated her employment contract must apply to school authorities for relief

before filing suit in district court); see

also Dotson , 161 S.W.3d at 291 ; Gutierrez , 139 S.W.3d at 367 .

The record shows that

Gallien initiated HISD’s administrative grievance process by filing a level one

grievance. Gallien proceeded through the

internal grievance process and on June 16, 2006, obtained a level three decision

from HISD’s board of trustees. Gallien

filed a second level one grievance in June 2007. It is not in dispute that Gallien has never filed

an appeal with the Commissioner of Education as required to exhaust her

administrative remedies. See Tex.

Educ. Code Ann . § 7.057(a), § 21.209.

On appeal, Gallien does not

contend that she exhausted her administrative remedies as prescribed in the

Education Code. Instead, Gallien

contends that she was not required to appeal to the Commissioner of Education

for the trial court to have jurisdiction over her claims. She asserts that underpinning all of her

claims, including her breach of contract cause of action, is her assertion that

HISD engaged in discriminatory employment practices prohibited by the Texas

Commission on Human Rights Act (TCHRA). See Tex.

Lab. Code Ann. §§ 21.001 – .306 (Vernon 2006). Gallien contends that the

Commissioner of Education “lacks jurisdiction” over her discrimination claims,

which she alleges include “retaliatory discrimination,” and a “discriminatory

refusal to rehire [her] or consider [her] for employment.” For this reason, Gallien contends that she was

not required to file an appeal with the Commissioner of Education as a prerequisite

to filing suit.

Gallien asserts that she was,

instead, required to exhaust the administrative remedies prescribed for her discrimination

claims through either the EEOC or the Texas Workforce Commission. Gallien points out that the record shows that

she received a right-to-sue letter from both the EEOC and the Workforce

Commission, evidencing that she has exhausted her administrative remedies for

her discriminatory practices claims. See Rice v. Russell-Stanley, L.P ., 131

S.W.3d 510 , 513 – 14

(Tex. App. — Waco

2004, pet. denied) (stating that receipt of right-to-sue letter evidences that

claimant has exhausted administrative remedies for discrimination claim).

In its brief, HISD counters

that whether Gallien exhausted her administrative remedies for her discriminatory

practices claims under TCHRA is “irrelevant.”

HISD points out that Gallien failed to raise any discrimination claim in

her second amended petition, which is her live pleading.

A review of the record shows

that, in her original and first amended petitions, Gallien expressly claimed

that HISD discriminated against her based on her race. Gallien’s second amended petition, however,

does not allege such claims.

Under settled Texas law, a plaintiff’s

timely filed amended pleading supersedes all previous pleadings and becomes the

controlling petition in the case regarding theories of recovery. Elliott

v. Methodist Hosp. , 54 S.W.3d 789, 793 (Tex. App. — Houston [1st Dist.] 2001, pet.

denied); see Tex. R. Civ. P. 65.

Here, Gallien’s second amended petition superseded and completely

replaced her earlier filed petitions. See Tex.

R. Civ. P. 65. It was the live

pleading at the time the trial court granted summary judgment. See Sheerin

v. Exxon Corp ., 923 S.W.2d 52, 55 (Tex. App.—Houston [1st Dist.] 1995, no

writ) . An amended petition that omits causes of

action previously alleged serves to dismiss those claims from the amended

pleading. J.M. Huber Corp. v. Santa Fe Energy Res., Inc ., 871 S.W.2d 842, 844

(Tex. App. —H ouston

[14th Dist.] 1994, writ denied). Here, Gallien

effectively dismissed her discriminatory practices claims by omitting them from

her second amended petition. [6] See id. Thus, whether Gallien exhausted her

administrative remedies for her discrimination claims has no bearing on whether

she exhausted her administrative remedies for purposes of her breach of

contract claim.

We conclude that the trial

court did not have subject matter jurisdiction over Gallien’s breach of contract

claim because she failed to exhaust her administrative remedies under the

Education Code. [7] See

Tex. Educ. Code Ann .

§ 7.057(a), § 21.209. We hold

that the trial court did not err in granting summary judgment on Gallien’s

breach of contract claim.

We overrule Gallien’s two

issues to the extent they challenge the trial court’s summary judgment with

respect to her breach of contract claim.

Whistleblower Claim: Barred

by Limitations

Next, we determine whether

the trial court properly granted summary judgment with regard to Gallien’s

claim that HISD violated the Texas Whistleblower Act by retaliating against her

for reporting record keeping violations.

See Tex. Gov’t Code Ann . § 554.002(a) (Vernon 2004). As mentioned, the trial court’s order

indicates that summary judgment was granted on the ground that Gallien failed

to exhaust her administrative remedies.

On appeal, HISD acknowledges that failure to exhaust administrative

remedies cannot support summary judgment with regard to Gallien’s whistleblower

claim. See Univ. of Tex. Med. Branch at Galveston v. Barrett , 159 S.W.3d

631, 632 (Tex. 2005) (stating, “[Whistleblower Act] does not require that

grievance or appeal procedures be exhausted before suit can be filed; rather,

it requires that such procedures be timely initiated and that the grievance or

appeal authority have 60 days in which to render a final decision”).

Nonetheless,

we may consider HISD’s assertion in its motion for summary judgment that Gallien’s

whistleblower claim was barred by limitations.

On appeal, we may consider all grounds for summary judgment presented to

the trial court that are properly preserved. See Cincinnati

Life Ins. Co. v. Cates , 927 S.W.2d 623, 625 (Tex. 1996). In the interest of judicial economy, we can

affirm a summary judgment on different grounds than those relied on in the

trial court. See City of Garland v. Dallas Morning News , 969 S.W.2d 548, 552,

557 (Tex. App. — Dallas

1998), aff’d 22 S.W.3d 351 (Tex. 2000).

A. Relevant Legal Principles

The Texas Whistleblower Act

requires 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. Tex. Gov’t Code Ann . § 554.002(a). Pursuant to section 554.005 of the Act, an

employee who seeks relief must sue no later than the 90th day after the date on

which the alleged violation occurred or was discovered through reasonable

diligence, except as provided in section 554.006. Tex.

Gov’t Code Ann. § 554.005 (Vernon 2004).

Section 554.006 provides as

follows:

(a) A public

employee must initiate action under the grievance or appeal procedures of the

employing state or local governmental entity relating to suspension or

termination of employment or adverse personnel action before suing under this chapter.

(b) The employee

must invoke the applicable grievance or appeal procedures not later than then

90th day after the date on which the alleged violation of this chapter:

(1) occurred; or

(2) was discovered by the employee through

reasonable diligence.

(c) Time used

by the employee in acting under the grievance or appeal procedures is excluded,

except as provided by Subsection (d), from the period established by Section

554.005.

(d) If a final

decision is not rendered before the 61st day after the date procedures are

initiated under Subsection (a), the employee may elect to:

(1) exhaust the applicable procedures under Subsection (a), in which

event the employee must sue not later than the 30th day after the date those

procedures are exhausted to obtain relief under this chapter; or

(2) terminate procedures under Subsection (a), in which event the

employee must sue within the time remaining under Section 554.005 to obtain

relief under this chapter.

Tex. Gov’t Code Ann .

§ 554.006 (Vernon 2004).

B. Analysis

HISD

contends that Gallien’s whistleblower claim is barred by limitations as a

matter of law. Even when the record is

viewed in Gallien’s favor, we agree that Gallien did not timely file her

whistleblower claim.

The

record shows that Gallien initiated HISD’s grievance procedure in May

2005. She filed an amended grievance in

September 2005. A final decision was not

rendered in the procedure within 61 days.

See id. § 554.006(d). Gallien, however, pursued the grievance procedure

to a level three decision by HISD’s board of trustees. While she pursued the grievance procedure,

the limitations period was tolled. See id. § 554.006(c). The

board of trustees issued its decision against Gallien on June 15, 2006. Under Chapter 21 of the Education Code, Gallien

had 20 days to appeal the board’s decision to the Commissioner of Education. See Tex. Educ. Code Ann. § 21.301(a)

(Vernon 2006). As discussed supra , Gallien did not appeal the

decision. By not appealing to the

Commissioner, Gallien chose to abandon her administrative remedy and terminate

the grievance procedure. Assuming the

broadest reading of the record and statute, the limitations period ran in

October 2006, that is, 90 days from when Gallien terminated the grievance procedure. See Tex. Gov’t Code Ann . § 554.006(d)(2);

see also id. § 554.005. Gallien did not file suit until March 2007 — well outside the limitations period. [8] See id.

§ 554.005.

We conclude that HISD met

its summary-judgment burden to conclusively show that Gallien’s whistleblower

claim was barred by limitations. See Tex.

R. Civ. P. 166a(c). Gallien did

not meet her corresponding burden to raise a genuine issue of material fact

precluding summary judgment. Thus, we

hold that the summary judgment is properly granted in favor of HISD with regard

to Gallien’s whistleblower claim.

We overrule Gallien’s two

issues to the extent they challenge the trial court’s summary judgment with

respect to her whistleblower claim.

Conclusion

The

trial court correctly granted summary judgment and ruled that it lacked subject-matter

jurisdiction over Gallien’s breach of contract claim on the ground that Gallien

failed to exhaust her administrative remedies.

The trial court was not correct in ruling that it lacked subject-matter

jurisdiction over Gallien’s whistleblower claim for lack of exhaustion of

remedies. Nonetheless, summary judgment

on Gallien’s whistleblower claim is proper because Gallien failed to timely

file her whistleblower action within the statutory limitations period; that is,

her whistleblower claim is time-barred.

Therefore, we modify the

trial court’s judgment to reflect that the trial court lacks subject-matter

jurisdiction over Gallien’s breach of contract claim for failure to exhaust

administrative remedies. We further

modify the judgment to grant summary judgment against Gallien on her

whistleblower claim and to reflect that Gallien takes nothing by that claim

from HISD. We affirm the judgment of the

trial court as modified.

Laura

Carter Higley

Justice

Panel consists of Justices

Keyes, Higley, and Gamble. [9]

[1] See Tex. Gov’t Code Ann. §§ 554.001–.010 (Vernon

2004).

[2]

“The absence of subject-matter

jurisdiction may be raised by a plea to the jurisdiction, as well as by other

procedural vehicles, such as a motion for summary judgment.” Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Thus, it was appropriate for HISD to assert

in its motion for summary judgment that the trial court lacked subject-matter

jurisdiction because Gallien failed to exhaust her administrative remedies. See

id. Moreover, the plea to the jurisdiction

standard mirrors that of a traditional motion for summary judgment. See Ross

v. Linebarger, Goggan, Blair & Sampson, L.L.P. , 333 S.W.3d 736, 744

(Tex. App.—Houston [1st Dist.] 2010, no pet.).

[3] In her second amended petition,

Gallien asserts that HISD violated sections 7.057 and 21.209 of the Education

Code. See Tex. Educ. Code Ann . § 7.057 (Vernon 2006); id. § 21.209 (Vernon 2006).

Neither statute is an independent basis for a claim but, as discussed, infra , provides that certain claims are appealable

to the Texas Commissioner of Education before suit may be filed in district

court. Moreover, Gallien makes no

allegation in her live pleading that the administrative processes set forth in

these statutes were not properly followed or that she was in some manner

prevented from appealing to the Commissioner of Education.

[4] See Tex. Educ. Code Ann . §§ 21.201–.213

(Vernon 2006).

[5] “Teacher” is defined by the Education

Code as “a superintendent, principal, supervisor, classroom teacher, counselor,

or other full-time professional employee who is required to hold a certificate

issued under [sections 21.031 to 21.060] or a nurse.” See Tex. Educ. Code Ann . § 21.201(1)

(Vernon 2006).

[6] Gallien points out that she pled a

claim for retaliation in her second amended petition. Specifically, Gallien contends that she

asserted a retaliation claim under section 21.055 of the Texas Commission on

Human Rights Act. See Tex. Lab. Code Ann .

§ 21.055 (Vernon 2006). That section provides that it is unlawful for

an employer to retaliate “against a person who, under this chapter: (1) opposes

a discriminatory practice; (2) makes or files a charge; (3) files a complaint;

or (4) testifies assists, or participates in any manner in an investigation,

proceeding, or hearing.” Id. However,

even read broadly, Gallien’s retaliation claim cannot be construed to be a

section 21.055 claim. As discussed, the

second amended petition makes no mention of allegations of discriminatory

practices in violation of the Texas Commission on Human Rights Act. Instead, it is evident from the petition that

the retaliation claim is pled as part of Gallien’s whistleblower claim.

[7] Gallien also asserts that the trial

court has jurisdiction because under the heading “Jurisdiction” in her second

amended petition she cited Article I, section 27 of the Texas Constitution. That provision grants citizens the right to

“apply to those invested with the powers of government for redress of

grievances or other purposes.” Tex.

Const. art. I, § 27. Although she

cited this constitutional provision as a basis to seek redress, she made no

allegation in her petition that she has been denied the right to such

redress. See Dotson v. Grand Prairie Indep. School Dist. , 161 S.W.3d 289, 292 (Tex.

App.—Dallas 2005, no pet.).

[8] The record shows that Gallien also

filed a level one grievance in September 2007.

However, this grievance was initiated after suit was filed in March 2007

and, thus, would not serve to toll limitations or revive Gallien’s claim. See

Tex. Gov’t Code Ann . § 554.006(a)

(Vernon 2004) (providing that public employee must initiate action under the

grievance or appeal procedures before

filing whistleblower claim).

[9] The Honorable Brent Gamble, Judge of

the 270th District Court of Harris County, participating by assignment.