Employee failed to establish at trial decision makers had any knowledge of prior lawsuit, so no retaliation claim can be sustained says 13th Court of Appeals

Trinidad Rivera v. Port Arthur Independent School District, et al., 13-14-00214-CV (Tex. App. – Corpus Christi, April 21, 2016).

This is an employment retaliation case where the 13th Court of Appeals affirmed the granting of a judgment notwithstanding the verdict on behalf of the Port Arthur Independent School District (“PAISD”)  and the dismissal of the individual school employees.

Rivera was a teacher at PAISD’s Memorial High School.  Rivera previously sued the school for discrimination and had a settlement.  Three years later, Rivera sued for retaliation in bringing the first lawsuit in relation to how the PAISD handled a student complaint against him (which resulted in a suspension for his alleged choking of a student). Rivera also asserted a common-law defamation claim against individual employees of the PAISD. The trial court dismissed the employees under the Texas Tort Claims Act’s election of remedies in §101.106. After a jury returned a verdict in Rivera’s favor, the trial court granted a judgment notwithstanding the verdict in favor of the PAISD. Rivera appealed the judgment. The individual employees cross-appealed for attorney’s fees under Tex. Education Code §22.0511.

Rivera asserted another teacher/coach (Cooper) encouraged the student to report the choking incident because he wanted Rivera’s position. However, the trial court granted the JNOV on the basis that Rivera presented no evidence “to establish a causal link between [Rivera’s] prior protected activity and any alleged adverse employment action on the part of . . . PAISD.”  Essentially, none of the individuals involved, including the principle, were linked to knowing Rivera had previously filed a lawsuit against PAISD. With respect to this element, the employee must establish that absent his protected activity, the adverse employment action would not have occurred when it did. Rivera’s evidence was largely based on his theory that Cooper encouraged the student complaint because he aspired to become the head football coach. However, Cooper did not have the authority to suspend or terminate Rivera.  And his aspirations are not because of Rivera’s protected lawsuit activity. Further, there was no evidence establishing the decision makers regarding the suspension knew of the prior lawsuit. Further, there was no evidence that the allegations of the student were false, but ample evidence they were true. Additionally, “the three-year span between Rivera’s earlier discrimination lawsuit and his suspension … does not serve as any evidence of a causal connection.”  And while the court agreed the TTCA election-of-remedies provision cannot serve as a basis to dismiss a claim brought under the TCHRA, Rivera did not bring TCHRA claims against the individuals.  He only brought defamation claims.  As to the cross-appeal, §22.0511 of the Education Code is an affirmative defense which provides professional school employees immunity from liability in relation to actions taken within the scope of their employment. As an affirmative defense, it goes only to immunity from liability, not suit. The trial court, therefore did not error in granting dismissal for grounds other than those articulated in §22.0511. There was no abuse of discretion in refusing to award attorney’s fees to the individuals dismissed.

If you would like to read this opinion click here. Panel: Justice Garza, Justice Perkes and Justice Longoria.  Memorandum Opinion by Justice Perkes. The attorneys listed for PAISD are  Melody Chappell and Nancy Y. Hart.  The attorneys listed for Rivera are Melissa Azadeh and Larry Watts.