The opinion
Case: 16-50193 Document: 00513784605 Page: 1 Date Filed: 12/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50193
Fifth Circuit
FILED
December 5, 2016
DON POWERS; KARON WERNLI, Lyle W. Cayce
Clerk
Plaintiffs - Appellees
v.
NORTHSIDE INDEPENDENT SCHOOL DISTRICT,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CV-1004
Before JONES, BARKSDALE and COSTA, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellees Don Powers and Karon Wernli are a former principal
and assistant principal, respectively, at Adams Hill Elementary School in San
Antonio, Texas, located within Northside Independent School District (NISD),
the defendant-appellant in this case. NISD terminated their employment after
determining that they had improperly implemented the federal Rehabilitation
Act. In response, Powers and Wernli sued NISD under, among other things,
the Texas Whistleblower Act, claiming their termination constituted unlawful
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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retaliation for their reports of NISD’s alleged violations of the Rehabilitation
Act. NISD moved for summary judgment, raising governmental immunity as
a defense to the Whistleblower Act claims. The district court denied NISD’s
motion in relevant part, and NISD now appeals. For the reasons set forth
below, we AFFIRM IN PART the district court’s order denying NISD’s motion
for summary judgment, and DISMISS IN PART NISD’s appeal for lack of
jurisdiction.
I. Background
The Rehabilitation Act prohibits discrimination on the basis of disability
in federal agencies and federally funded programs. See 29 U.S.C. § 794(a)
(enacted originally through Pub. L. No. 93-122, Title V, § 504). Federally
funded school districts fall within the ambit of section 504 of the Rehabilitation
Act, and section 504’s implementing regulations articulate requirements
tailored to school districts. In particular, school districts are required to
“conduct an evaluation . . . of any person who, because of handicap, needs or is
believed to need special education or related services before taking any action
with respect to the initial placement of the person in regular or special
education and any subsequent significant change in placement.” 34 C.F.R.
§ 104.35(a). That evaluation includes establishing standards and procedures
that ensure “[t]ests are selected and administered so as best to ensure that,
when a test is administered to a student with impaired sensory, manual, or
speaking skills, the test results accurately reflect the student’s aptitude or
achievement level or whatever other factor the test purports to measure, rather
than reflecting the student’s impaired sensory, manual, or speaking skills
(except where those skills are the factors that the test purports to measure).”
Id. § 104.35(b)(3).
To comply with the section 504 requirements, NISD created a “504
committee” comprising educators tasked with conducting the required
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evaluations of students. Powers and Wernli were members of the 504
committee during the 2012–2013 school year. That year, the 504 committee
evaluated J.B., a student with attention deficit hyperactivity disorder. The
504 committee determined that J.B. had a reading disability and was thus
entitled to an accommodation during the 2013 STAAR test, which is a Texas
standardized test. Pursuant to the accommodation, a proctor would read the
test questions aloud to J.B. Shortly thereafter, NISD’s 504 coordinator, Anna
Draker, reviewed the 504 committee’s recommendation and notified the 504
committee that J.B. was not entitled to the accommodation due to a lack of
supporting documentation. As a result, J.B. did not receive the
accommodation.
After Draker’s intervention in the J.B. matter, she audited NISD’s 504
files during which she discovered that Wernli had marked as eligible various
students who Draker believed were ineligible for section 504 accommodations.
Draker and other NISD personnel then informed Powers and Wernli that they
believed these practices were illegal. After those conversations, Powers and
Wernli made several calls to the Texas Education Agency (TEA). They testified
in their depositions that they made these calls to report NISD’s purportedly
unlawful conduct in denying disabled students accommodations to which they
were entitled.
Between July 24 and July 30, 2013, NISD suspended Powers and Wernli
on the ground that they had illegally classified students as eligible for section
504 accommodations even though the students were ineligible. In accordance
with NISD’s “DFBA (Local)” grievance policy, Powers and Wernli filed
grievances, which were denied on December 3, 2013. On December 10, 2013,
the NISD Board of Trustees voted to terminate Powers’s and Wernli’s
employment, and they were notified of the termination on December 17, 2013.
The December 17 notification letter explained that, pursuant to an attached
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“DFBA (Legal)” policy, Powers and Wernli could initiate a hearing process to
appeal the termination. Powers and Wernli did so on December 30. That
process culminated in the Board’s final vote to terminate Powers’s and Wernli’s
employment on April 22, 2014. Thirty days later, Powers and Wernli filed this
suit, alleging in part that NISD terminated their employment in violation of
the Texas Whistleblower Act.
NISD filed a motion for summary judgment, arguing, among other
things, that Powers and Wernli failed to satisfy the Texas Whistleblower Act’s
provisions that waive NISD’s governmental immunity. The district court
rejected those arguments and denied NISD’s motion for summary judgment.
NISD now appeals.
II. Analysis
A. Jurisdiction and Standard of Review
Because governmental immunity under Texas law “is complete
immunity from suit,” this court has jurisdiction over NISD’s interlocutory
appeal from the district court’s order denying governmental immunity.
Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 582 (5th Cir. 2013). “And
because governmental immunity from suit defeats a trial court’s jurisdiction,
whether a trial court has jurisdiction is a question of law subject to de novo
review.” Id.
As relevant here, summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Whistleblower Act Claims
The Texas Whistleblower Act provides:
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
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the employing governmental entity or another public employee to
an appropriate law enforcement authority.
Tex. Gov’t Code § 554.002(a). When a public employee alleges a violation of
the Act, the employing state or local governmental entity’s immunity from suit
is waived. See id. § 554.0035. NISD offers three arguments why Powers and
Wernli failed to establish a waiver of NISD’s governmental immunity under
the Act. We reject each.
First, NISD claims that Powers and Wernli failed timely to file suit
under the Act. The Act provides that
[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.
Id. § 554.006(a). If a final decision is not rendered within 60 days after the
date the procedures are initiated, then the employee may elect to exhaust those
applicable procedures, “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[.]” Id. § 554.006(d)(1).
Powers and Wernli elected to exhaust NISD’s grievance procedures, but
NISD asserts that Powers and Wernli filed suit long after the 30-day deadline.
NISD emphasizes that its DFBA (Local) policy “states clearly that ‘Employees
who allege adverse employment action in retaliation for reporting a violation
of law to an appropriate authority shall initiate a grievance under this
policy . . .’ and that the Board will make a ‘final decision’ on the Whistleblower
Complaint.” NISD contends that the Board’s final decision on December 3,
2013 to deny Powers’s and Wernli’s grievances triggered the 30-day period
during which Powers and Wernli were required to file their lawsuit. Because
they did not sue until May 22, 2014, NISD argues their suit was untimely, and
NISD’s governmental immunity has not been waived.
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Powers and Wernli, however, respond that their suit followed exhaustion
of the grievance procedure for challenging their December 2013 terminations
and was timely every step of the way. They point to the December 17, 2013,
notification letter explaining their termination, which advised them that they
could “request that a hearing be held concerning the proposed termination of
[their] term contract . . . as set forth in the enclosed policies.” The attached
DFBA (Legal) policy was headed “Northside ISD-Bexar County” and stated
that “[i]f a term contract employee desires a hearing before an independent
hearing examiner, the employee must file a written request with the
Commissioner not later than the 15th day after the date the employee receives
notice of the proposed termination or suspension without pay.” Powers and
Wernli initiated that hearing procedure on December 30, 2013, within the 15-
day window, and it was not resolved until April 22, 2014, when the Board of
Trustees terminated them. With April 22 as the critical date that triggered
the 30-day filing period for a Whistleblower Act suit, the suit was timely.
NISD’s reply brief ignores the DFBA (Legal) document and offers no
reason why compliance with NISD’s DFBA (Legal) policy is not dispositive. See
id. § 554.006(d)(1) (providing suit must be filed within 30 days “after the date
[the DFBA (Legal)] procedures [were] exhausted”). The district court did not
err in holding the Whistleblower Act suit timely filed.
NISD next contends that Powers and Wernli failed to establish a waiver
of NISD’s governmental immunity because they did not report in good faith a
violation of law to “an appropriate law enforcement authority,” as required by
the Whistleblower Act. Id. § 554.002(a). NISD’s only argument on this point,
however, is that they could not have believed in good faith TEA was such an
authority, because “each time that [they] spoke to someone at TEA, they were
referred to the information available on the TEA website, told that they should
‘be okay’ regarding the allegations against [them], and informed that TEA did
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not get involved with the situation that [they] were calling about.” As the
district court pointed out, NISD mischaracterizes Powers’s and Wernli’s
deposition testimony because these references occurred with respect to
Powers’s and Wernli’s requests for legal guidance, not TEA’s general
responsibility for section 504 issues. Despite the district court’s rebuke of
NISD’s mischaracterization, NISD repeats its error on appeal without further
argument. Presented with no other argument why TEA is not an appropriate
law enforcement authority, 1 we agree with the district court’s denial of
summary judgment on this issue.
Finally, in a similar vein, NISD argues that Powers and Wernli lacked a
good faith belief that they were reporting a violation of law. See id.
§ 554.002(a) (protecting “a public employee who in good faith reports a
violation of law”). NISD claims that “[i]t is clear from Plaintiffs’ own testimony
that they were not reporting an actual violation of law; they were seeking
validation of their prior actions for the purpose of protecting their jobs, in light
of the serious allegations they were facing.” Powers and Wernli respond that
their testimony reflects that they reported section 504 violations. The district
court rejected NISD’s argument, noting that “[a] jury, not the Court, is best
equipped to make the credibility determinations resolution of that argument
requires.” Given the district court’s conclusion that NISD’s argument creates
a genuine dispute of material fact, we lack jurisdiction to resolve that
argument. See, e.g., Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408–09 (5th Cir.
2009) (citing cases and noting in the qualified-immunity context that if the
1 We note that NISD’s reply brief contains new arguments on the “appropriate law
enforcement authority” and “good faith” issues that NISD did not raise in either its motion
for summary judgment or its opening brief in this court. Because “arguments raised for the
first time in a reply brief . . . are waived,” and because no extraordinary circumstances
compelling an exception to that rule exist, we do not address these new arguments. E.g.,
United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
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immunity determination “would require the resolution of a genuinely disputed
fact, then that fact is material and we lack jurisdiction over the appeal”).
* * *
For these reasons, we AFFIRM IN PART the district court’s order
denying NISD’s motion for summary judgment, and DISMISS IN PART
NISD’s appeal for lack of jurisdiction.
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