Don Powers v. Northside Independent Sch Dis

Case: 18-50983 Document: 00515322023 Page: 1 Date Filed: 02/26/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-50983

FILED

February 26, 2020

Lyle W. Cayce

Clerk

DON POWERS; KARON WERNLI,

Plaintiffs - Appellants

v.

NORTHSIDE INDEPENDENT SCHOOL DISTRICT; BRIAN T. WOODS,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Plaintiffs-Appellants Don Powers and Karon Wernli filed suit against

their former employer, Northside Independent School District (NISD) and its

superintendent Brian Woods, asserting free speech and retaliation claims in

violation of their First Amendment rights under 42 U.S.C. § 1983; Article 1,

Section 8 of the Texas Constitution; and the Texas Whistleblower Act. On

appeal, Plaintiffs challenge several of the district court’s rulings, as well as its

final judgment in favor of Defendants. We AFFIRM.

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I.

Powers and Wernli, formerly the principal and assistant principal,

respectively, of Adams Hill Elementary School, were employed by NISD,

pursuant to two-year term contracts that were set to expire at the end of the

2014–15 school year. During the 2012–13 school year, Plaintiffs, along with

three other Adams Hill educators, served on a committee (the 504 committee)

which was convened for the purpose of implementing regulations under

Section 504 of the Rehabilitation Act of 1973. 1

Plaintiffs’ Section 504 Practices

In May 2013, the 504 committee met to conduct an evaluation of J.B., a

student diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The

504 committee determined that J.B. had a reading disability and was therefore

entitled to an oral administration accommodation for the upcoming STAAR

test. 2 However, on June 20, 2013, Anna Draker, who was NISD’s Section 504

program coordinator at the time, reviewed J.B.’s Section 504 documentation.

After concluding that J.B. did not meet the criteria to qualify for oral

administration on state tests, Draker notified Plaintiffs that J.B. would not be

given the accommodation for the STAAR test.

Following this incident, NISD conducted an investigation of Adams Hill’s

Section 504 files and 2013 STAAR testing procedures. In July 2013, Draker

and the NISD investigative team met with Wernli and later with Powers to

inform them of potential STAAR testing errors and Section 504 violations at

Adams Hill. After his meeting with NISD, Powers called the Texas Education

1 Section 504 requires federally-funded school districts to “conduct an evaluation . . .

of any [student] who, because of handicap, needs or is believed to need special education or

related services . . . .” 34 C.F.R. § 104.35; see also 29 U.S.C. § 794(a).

2 The STAAR test is a Texas standardized test used to measure students’ academic

performance.

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Agency (TEA) 3 to validate that he and Wernli were “on the right approach for

accommodations on the 504 for oral administration.” The following day, Wernli

also called the TEA because she “felt adamant to report . . . that [NISD] had

violated the law by taking J.B.’s rights away from him.” Wernli and Powers

both placed several subsequent calls to the TEA to validate their Section 504

procedures and to report NISD’s allegedly unlawful conduct.

Thereafter, on July 24 and July 30, 2013, respectively, NISD suspended

Powers and Wernli pending the outcome of their investigation into Plaintiffs’

Section 504 and STAAR administrative practices. Upon the investigation’s

conclusion, NISD filed an incident report with the TEA setting forth the

investigative team’s findings that Plaintiffs intentionally authorized

inappropriate student testing accommodations based on a misapplication of

Section 504 eligibility requirements.

Administrative Proceedings

In early September 2013, Plaintiffs filed grievances asserting that NISD

imposed their suspensions in retaliation for Plaintiffs reporting NISD’s

conduct to the TEA. After hearing Plaintiffs’ grievances, NISD’s

superintendent, Brian Woods, denied their requested remedies. Woods then

sent Plaintiffs follow-up letters informing them that he would be

recommending their termination during an upcoming meeting of the NISD

Board of Trustees (the Board). 4 In advance of the upcoming termination

proceeding, the Board held a hearing on Plaintiffs’ grievances, after which the

Board too denied Plaintiffs’ requested remedies. On December 10, 2013,

3 The TEA is the state agency that oversees primary and secondary public education

in Texas.

4 The Board is the body with decision-making authority over employment decisions

concerning campus-level administrators.

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during the Board’s regular meeting, Woods recommended that Plaintiffs’

employment be terminated, and the Board voted in favor of termination.

The Board’s first vote to terminate entitled Plaintiffs to a hearing before

an independent hearing examiner (IHE) 5 appointed by the TEA. The hearing

was held before the IHE on March 18, 19, 20, and 24, 2014. Over those four

days, the parties presented witnesses, offered exhibits, and cross-examined

opposing witnesses. On April 14, 2014, the IHE issued his findings of fact and

conclusions of law and found that NISD was justified and met the standard of

good cause in proposing termination of Plaintiffs’ employment contracts. At

the following Board meeting on April 22, 2014, the Board adopted the IHE’s

recommendation and unanimously voted to terminate Plaintiffs’ employment. 6

District Court Proceedings

On May 22, 2014, Plaintiffs filed suit against NISD in Texas state court,

alleging NISD terminated their employment in violation of the Texas

Whistleblower Act. Plaintiffs later amended their state court petition to name

Woods as a defendant and to raise additional causes of action under the Texas

and United States Constitutions, 42 U.S.C. § 1983, the Rehabilitation Act, and

the Americans with Disabilities Act. Thereafter, Defendants timely filed a

notice of removal. On August 4, 2015, Plaintiffs filed their First Amended

Complaint, raising the following claims against NISD: (1) violation of the

Texas Whistleblower Act, TEX. GOV’T CODE § 554.002(a); (2) violation of

Plaintiffs’ First Amendment free speech rights under § 1983; and (3) violation

5 The IHE presides over a quasi-judicial hearing, administered in accord with Texas

Rules of Civil Procedure and Rules of Evidence, and makes findings of fact, conclusions of

law, and a recommendation to the Board.

6 Following their termination for good cause, Plaintiffs filed an appeal with the Texas

Commissioner of Education; however, on June 10, 2014, Plaintiffs voluntarily dismissed their

appeal.

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of Plaintiffs’ free speech rights under Article I, Section 8 of the Texas

Constitution. In their First Amended Complaint, Plaintiffs also raised a § 1983

claim against Woods.

On October 29, 2015, the district court dismissed Plaintiffs’ First

Amendment retaliation claims against Woods on the basis of qualified

immunity. On January 27, 2016, the district court granted in part and denied

in part NISD’s motion for summary judgment. The district court granted

summary judgment on Plaintiffs’ free speech claims under the First

Amendment and the Texas Constitution. 7 However, the district court

concluded that genuine issues of material fact precluded summary judgment

on Plaintiffs’ Texas Whistleblower claims against NISD. Consequently, only

Plaintiffs’ Texas Whistleblower Act claims against NISD survived for trial. On

January 19, 2018, the district court also granted NISD’s motion for summary

judgment on its affirmative defense of Plaintiffs’ failure to mitigate their

economic damages under the Texas Whistleblower Act, finding that Plaintiffs

had failed to identify competent evidence of their efforts to obtain substantially

equivalent employment since their discharge.

Plaintiffs’ remaining claims under the Texas Whistleblower Act went to

a jury trial. During the trial, the district court informed the jury that the IHE’s

findings of fact from the administrative hearing have a preclusive effect,

meaning the jury must accept those facts as true but was still tasked with

determining whether retaliation was the reason for Plaintiffs’ terminations.

The written jury charge likewise incorporated a preclusive effect instruction as

to questions three and seven of the verdict form.

7 In their briefs, Plaintiffs appeal the district court’s summary judgment of their free

speech claims under only the First Amendment. Accordingly, any free speech claims

Plaintiffs previously asserted under the Texas Constitution are deemed waived on appeal.

See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (citing FED.

R. APP. P. 28(a)(9)(A)).

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After the close of evidence, the jury returned a unanimous verdict in

favor of NISD, finding that Plaintiffs’ conversations with the TEA about

NISD’s denial of a student’s test-taking accommodations were not reports of a

violation of law made in good faith. Thereafter, the district court entered

judgment on the verdict in favor of Defendants. On November 20, 2018,

Plaintiffs timely filed their notice of appeal.

II.

Plaintiffs contend that the district court erred by dismissing their claims

against Defendant Woods based on qualified immunity. We review de novo a

motion to dismiss for failure to state a claim under Rule 12(b)(6), applying the

same standard as the district court. In re Katrina Canal Breaches Litig., 495

F.3d 191, 205 (5th Cir. 2007). “The court accepts all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Id. (internal

quotation marks omitted). However, the plaintiff must plead “specific facts,

not mere conclusory allegations” to state a claim for relief that is facially

plausible. Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir.

1994). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The factual allegations need not be detailed, but they must be enough to raise

a right to relief above the speculative level, assuming all the allegations are

true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

As superintendent, Woods is entitled to qualified immunity from suit

under § 1983 unless Plaintiffs can demonstrate that Woods’ actions violated

clearly established constitutional law. See Salas v. Carpenter, 980 F.2d 299,

305 (5th Cir. 1992). Our qualified immunity determination ordinarily requires

a two-step analysis: (1) whether Plaintiffs have stated a violation of their First

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Amendment rights 8; and if so, (2) whether Woods’ conduct was objectively

reasonable in light of clearly established law. See Salas, 980 F.2d at 305–06.

We need not determine whether Plaintiffs have adequately stated a First

Amendment retaliation claim because even assuming Plaintiffs succeed on the

first prong of our qualified immunity analysis, they fail on the second prong.

See Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018) (per curiam)

(electing to skip the first prong of the qualified immunity analysis because the

case could be resolved on the second prong). “The second prong of the qualified

immunity test is better understood as two separate inquiries: whether the

allegedly violated constitutional rights were clearly established at the time of

the incident; and, if so, whether the conduct of the defendant[] was objectively

unreasonable in the light of that then clearly established law.” Hare v. City of

Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998). In the context of First

Amendment retaliation claims, our law was previously ambiguous as to

whether an individual who recommends an adverse employment decision but

is not a final decision-maker can be liable for retaliation under Section 1983.

See Culbertson, 790 F.3d at 627; see also Sims, 894 F.3d at 641.

In concluding that this area of the law was unsettled, the Culbertson

court discussed the tension in our precedents’ application of Beattie v. Madison

County School District, 254 F.3d 595 (5th Cir. 2001). Culbertson, 790 F.3d at

625–27. In Beattie, a school secretary sued the principal and superintendent,

among other defendants, for First Amendment retaliation after they

recommended her termination to the school board, which unanimously voted

to terminate her employment. 254 F.3d at 599. The Beattie court held that

8 To state a claim for First Amendment retaliation, Plaintiffs must allege (1) they

suffered an adverse employment decision; (2) their speech involved a matter of public

concern; (3) their interest in speaking outweighed Woods’ interest in promoting efficiency;

and (4) their speech motivated Woods’ conduct. See Culbertson v. Lykos, 790 F.3d 608, 617

(5th Cir. 2015) (citing Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc)).

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“[b]ecause the board fired Beattie for permissible, constitutional motives

independently of [the defendants’] recommendation, that superseding cause

shields [the defendants] from liability.” Id. at 605. Although the Beattie court

did not necessarily hold that the principal and superintendent were not

individually liable because they were not the final decision-makers, some later

decisions “have interpreted Beattie to hold that only final decision-makers may

be held liable for First Amendment retaliation under § 1983.” Culbertson, 790

F.3d at 626 (citing Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004));

see also Whiting v. Univ. of S. Miss., 451 F.3d 339, 350–51 (5th Cir. 2006)

(holding that university president could not be liable for First Amendment

retaliation because he was not responsible for the final decision to deny

professor’s tenure). Yet, such an interpretation of Beattie runs contrary to our

earlier and controlling decision in Jett v. Dallas Independent School District,

which required only that the plaintiff show “an affirmative causal link”

between the school principal’s recommendation and the school district’s

decision. See Culbertson, 790 F.3d at 626 (quoting Jett v. Dall. Indep. Sch.

Dist., 798 F.2d 748, 758 (5th Cir. 1986)); see also Sims, 894 F.3d at 641.

Because of the uncertainty created by these decisions, our law on this

issue remained unsettled until 2018 when the Sims court provided “overdue

clarification.” Sims, 894 F.3d at 641. There, our court held that there is no

absolute bar on liability for individuals who are not final decision-makers in a

First Amendment retaliation claim. Id. The Sims court further held that the

“causal link” standard in Jett controls and sets the causation requirement on

such a claim. Id. Nevertheless, like in Sims, this clarification of the law

provides no recourse to the plaintiffs in the instant case because the law was

not clearly established at the time the incident occurred. See id. When Powers

and Wernli were terminated in April 2014, the inconsistency in our law as to

whether First Amendment liability can attach to a public official who did not

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make the final employment decision had not yet been resolved. See Culbertson,

790 F.3d at 627 (concluding that the law remained unsettled in June 2015).

Accordingly, the district court did not err in dismissing Plaintiffs’ claims

against Woods based on qualified immunity.

III.

Next, Plaintiffs contend that the district court erroneously granted

summary judgment on their First Amendment claims, upon concluding that

Plaintiffs’ complaints to the TEA regarding NISD’s application of Section 504

accommodations were activities performed pursuant to Plaintiffs’ official

duties.

We review de novo a grant of summary judgment. Goudeau v. Nat’l

Oilwell Varco, L.P., 793 F.3d 470, 474 (5th Cir. 2015). Summary judgment is

appropriate when the movant is entitled to judgment as a matter of law, and

there is no genuine dispute of material fact. FED. R. CIV. P. 56(a). “An issue of

material fact is genuine if a reasonable jury could return a verdict for the

nonmovant.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th

Cir. 2010).

We “draw all reasonable inferences in favor of the nonmoving party, and

avoid credibility determinations and weighing of the evidence.” Goudeau, 793

F.3d at 474. “However, a party cannot defeat summary judgment with

conclusory allegations, unsubstantiated assertions, or only a scintilla of

evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.

2007) (internal quotation marks and citation omitted). The party opposing

summary judgment must go beyond the pleadings and identify specific

evidence in the record showing that there is a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). The movant is entitled to summary

judgment if “the nonmoving party has failed to make a sufficient showing on

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an essential element of her case with respect to which she has the burden of

proof.” Id. at 323.

In reviewing a free speech claim brought by a public employee, we

conduct a two-step inquiry. First, we must “determin[e] whether the employee

spoke as a citizen on a matter of public concern. If the answer is no, the

employee has no First Amendment cause of action based on his or her

employer’s reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006) (internal citation omitted). If the answer is yes, the question becomes

“whether the relevant government entity had an adequate justification for

treating the employee differently from any other member of the general

public.” Id. The first step in that analysis “sets out two predicates for public-

employee speech to receive First Amendment protection”: the speech must be

(1) made as a citizen and (2) on a matter of public concern. Gibson v. Kilpatrick,

773 F.3d 661, 667 (5th Cir. 2014).

“The ‘as a citizen’ requirement draws a distinction between when public

employees speak in their private capacities and when they speak ‘pursuant to

their official duties.’” Id. (quoting Garcetti, 547 U.S. at 421). When public

employees speak pursuant to their official duties, they are not speaking as

citizens for First Amendment purposes, and their speech is not protected. Id.

(citing Garcetti, 547 U.S. at 421). Although the Supreme Court articulated no

comprehensive framework for determining whether speech is within the scope

of an employee’s official duties, it did state that neither job descriptions nor the

fact that the speech concerns the subject matter of the employment are

dispositive. Id. (citing Garcetti, 547 U.S. at 421, 424–25). The Court further

advised that the proper inquiry should be practical and focused on the scope of

the employee’s professional duties. Id. (citing Garcetti, 547 U.S. at 424–25).

Here, Plaintiffs placed several calls with the TEA to validate their

Section 504 procedures and report NISD’s allegedly unlawful conduct. It is

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undisputed that Plaintiffs’ job duties included implementing Section 504 for

students at Adam Hill. Yet, Plaintiffs contend that their job duties did not

include reporting NISD’s alleged misconduct to a higher level authority, e.g.

the TEA; therefore, their calls to the TEA constitute private, protected speech.

We find this argument unconvincing. Both Powers and Wernli were members

of the school’s committee that was tasked with implementing and ensuring

compliance with Section 504. Indeed, as members of the 504 committee,

Plaintiffs participated in the meeting specifically convened to determine

whether student J.B. was eligible for Section 504 accommodations. It then

follows that Plaintiffs’ calls to TEA regarding Section 504 construction and

application at Adams Hill were clearly “activities undertaken in the course of

performing [their] job[s],” such that they were pursuant to Plaintiffs’ official

duties. See Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693–94 (5th Cir.

2007) (holding that a school athletic director’s memoranda expressing concern

regarding the handling of school athletic funds were not protected speech

because they were “part-and-parcel of his concerns about the program he ran”).

Such activities are not protected by the First Amendment; accordingly, the

district court did not err in granting summary judgment on Plaintiffs’ First

Amendment claims. 9

IV.

Plaintiffs also appeal the district court’s grant of summary judgment

barring Plaintiffs from recovering for lost wages under the Texas

Whistleblower Act. 10 The Texas Whistleblower Act permits a successful

plaintiff to receive “compensation for wages lost during the period of

9 Because we conclude that Plaintiffs’ speech was made pursuant to their official

duties, we need not determine whether the speech was a matter of public concern.

10 Our standard of review on a motion for summary judgment has been set forth supra.

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suspension or termination.” TEX. GOV’T CODE ANN. § 554.003(b)(2) (West

2019). The statute allows for recovery of back pay, as well as front pay, when

job reinstatement is not feasible. See Dall. Cty. v. Glasco, No. 05-03-01330-CV,

2004 WL 1202008, at *4 (Tex. App.—Dallas June 2, 2004, no pet.) (mem. op.);

City of Hous. v. Levingston, 221 S.W.3d 204, 232 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). However, a plaintiff must use reasonable diligence to

mitigate damages by seeking other employment which is substantially

equivalent to the job from which the plaintiff was discharged. Office of the

Attorney Gen. of Tex. v. Rodriguez, 535 S.W.3d 54, 84 (Tex. App.—El Paso 2017,

pet. granted). Employment is substantially equivalent when it “affords

virtually identical promotional opportunities, compensation, job

responsibilities, working conditions, and status” as the position from which the

plaintiff has been terminated. West v. Narbors Drilling USA, Inc., 330 F.3d

379, 393 (5th Cir. 2003). In a wrongful discharge case, the defendant has the

burden of proving plaintiff’s failure to mitigate damages. Id. However, if the

defendant establishes that the plaintiff has not made reasonable efforts to

obtain work, the defendant is not required to prove that evidence of equivalent

work exists and is available. Id.

In the instant case, both Powers and Wernli, instead of seeking

comparable employment, retired and began taking annuity payments from the

Texas Teacher Retirement System after their termination. Plaintiffs contend

that by doing this, they exercised reasonable care to minimize their damages.

We disagree. Our court has recognized that the appropriate focus for

mitigation of damages is on Plaintiffs’ efforts to obtain other employment. See

Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1468 (5th Cir.

1989) (finding plaintiff was clearly not entitled to back pay after he stopped

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looking for work). For four years following their termination, neither Powers

nor Wernli made reasonable efforts to look for work. 11

Plaintiffs justify their lack of efforts to obtain comparable employment

by contending that any efforts they could have made would have been futile.

However, Plaintiffs’ unilateral decision that their job-seeking efforts would be

futile does not absolve them of their duty to mitigate damages. See Johnston

v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1579, n.3 (5th Cir. 1989)

(reversing an award of back pay where the plaintiff did not try to obtain other

employment and, thus, did not fulfill his duty to exercise reasonable diligence

to mitigate his damages, because he had unilaterally determined the job search

would be pointless). Because Plaintiffs have failed to exercise reasonable

diligence to mitigate their damages, they are not entitled to recovery of lost

wages.

Lastly on this issue, Plaintiffs contend that the district court erred in

denying Plaintiffs’ motion for rescission or modification, which they filed

nearly seven months after the district court’s order denying Plaintiffs’ recovery

of lost wages, after the close of discovery, and only three months before trial.

Yet, a review of the record reveals that Plaintiffs’ “new evidence” of their efforts

seeking employment was not previously unavailable. See In re Benjamin

Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002); FED. R. CIV. P. 59(e). Plaintiffs

had the opportunity to raise evidence of their efforts to obtain comparable

employment prior to the district court’s ruling on the original motion for

summary judgment. Instead, because Plaintiffs had not made such efforts,

they rested on their futility argument. Plaintiffs cannot relitigate the issue by

subsequently creating new evidence. Cf. Rosenzweig v. Azurix Corp., 332 F.3d

In their later motion for rescission, Plaintiffs raise “changed circumstances” alleging

11

they sought comparable employment, though notably, not until after the court’s order

denying Plaintiffs’ recovery of lost wages.

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854, 863 (5th Cir. 2003) (“[A] motion to alter or amend the judgment under

Rule 59(e) . . . cannot be used to raise arguments which could, and should have

been made before the judgment issued.”). Accordingly, the district court did

not err in denying Plaintiffs’ motion for rescission or modification.

V.

Plaintiffs contend the district court also erred by instructing the jury

that the findings from the IHE administrative hearing had a preclusive effect.

Questions three and seven of the jury charge and instructions read, in relevant

part:

In answering this question, you are also bound to consider the

findings of fact and conclusions of law contained in the

independent hearing examiner’s recommendation of termination

as true. In other words, you must take it as true that Northside

ISD had good cause to terminate [the Plaintiffs’] employment

contract.

Additionally, at trial, the district court explained to the jury how this

preclusive effect is applied:

The findings of fact made in [the IHE] hearing could have been

appealed but [were] not; therefore, it’s preclusive, a fancy word

meaning it bounds everybody to exercise their legal rights. Those

facts . . . you must accept on the termination, however, that does

not have preclusive effect on the issue of whether or not they were

. . . terminated as a result of the plaintiffs making complaint under

the Whistle Blower Act . . . [y]ou will have to determine whether

or not [Plaintiffs] were retaliated against and that was the reason

for termination, not the findings of the state hearing officer nor the

investigation of the school board and the reasons that the school

board put forth for termination.

We review jury charges and instructions under the deferential abuse of

discretion standard. Bagby Elevator Co., Inc. v. Schindler Elevator Corp., 609

F.3d 768, 772 (5th Cir. 2010). District courts are given “wide latitude in

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formulating jury charges.” Id. (quoting Carrizales v. State Farm Lloyds, 518

F.3d 343, 348 (5th Cir. 2008)). Therefore, the challenging party has the burden

of showing that “the instruction as a whole creates substantial doubt as to

whether the jury was properly guided.” Id. (quoting Carrizales, 518 F.3d at

348). Furthermore, even if we conclude that a jury instruction is erroneous,

we will not reverse on that error if the challenged instruction could not have

affected the outcome of the case. 12 Id. (citing Dahlen v. Gulf Crews, Inc., 281

F.3d 487, 494 (5th Cir. 2002)).

In Bradberry v. Jefferson County, Texas, our court articulated that a

Texas administrative agency’s findings can have preclusive effect when “the

agency is acting in a judicial capacity and resolves disputed issues of fact

properly before it which the parties have had an adequate opportunity to

litigate.” 732 F.3d 540, 549 (5th Cir. 2013). Parties can be said to have had an

“adequate opportunity to litigate” if they are represented by counsel; they have

the opportunity to present witness testimony and to cross-examine opposing

witnesses; and the respective rules of evidence are applied. Id. at 550. Like in

Bradberry, the administrative proceedings here provided the parties with an

adequate opportunity to litigate: the parties, through their attorneys,

presented witnesses, offered exhibits, and cross-examined opposing witnesses

over four days of testimony; at the hearing, the IHE applied the Texas Rules

of Evidence; and, prior to the hearing, the parties engaged in written discovery,

pursuant to the Texas Rules of Civil Procedure. The district court did not err

by instructing the jury that the IHE’s findings were preclusive.

12 This rule of law is significant to the instant case. Here, the challenged jury

instruction pertains only to questions three and seven of the verdict form. The jury, however,

never reached questions three and seven because they answered the preceding, dispositive

questions one and five in favor of Defendant NISD. Consequently, the challenged instruction

could not have affected the outcome of the case. However, even if it had, Plaintiffs’ argument

fails on the merits, as well.

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VI.

Finally, Plaintiffs contend the district court erred in relying upon the

jury’s verdict that Plaintiffs did not report a violation of law in good faith. We

disagree. Our court has long held that the jury’s role is to hear both sides and

choose which witnesses and what evidence it believes. Polanco v. City of

Austin, Tex., 78 F.3d 968, 980 (5th Cir. 1996). “It is not within the province of

this court to disturb a jury’s finding which is supported by the record, even if

this court would have been inclined to rule differently . . . .” Id. The district

court in the instant case found that the record supported the jury’s finding and

was obligated to affirm the jury’s verdict accordingly. See id. Based on the

record, the jury, in weighing the testimony and evidence presented by the

Plaintiffs with that of the Defendants, could have reasonably found the

Defendants to be more credible and returned a verdict in the Defendants’ favor.

For these reasons, Plaintiffs have failed to show that the district court

committed reversible error with respect to any of the issues raised on appeal.

Accordingly, the judgment of the district court is AFFIRMED.

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