A Texas state appeals court has affirmed the dismissal of a claim brought by a teacher, who claimed he was retaliated against by the Dallas Independent School District (DISD) after he resisted pressure to give a student a passing grade to keep him eligible to participate in sports.
In so ruling, the appeals court found, among other things that the plaintiff had failed to sufficiently support his allegations that the student competed in athletics when he should have been barred.
The plaintiff, Stephen Wilson, was employed by DISD and taught engineering graphics at Franklin D. Roosevelt High School from 2005 to 2008. During the 2007-08 school year, one of the school’s football players was enrolled in the plaintiff’s class. During the first six-week grading period of the school year, the student rarely attended the teacher’s class. The plaintiff spoke to the student, his father, his coaches, and other school personnel, and they agreed that the student should be attending the appellant’s class. He agreed not to fail the student for the first six-week period. The plaintiff gave the student a passing grade because he hoped to be able to work with the student during the second six-week period and help him. The first six-week period ended on October 5, and the plaintiff turned in his grades—including a passing grade for the student—sometime between October 8 and 10. A couple of days later, the student came to the plaintiff with an Add/Drop Slip, which removed the student from his class and placed him in an environmental science class.
Wilson “felt betrayed and used after having gone out on a limb for the student,” wrote the appeals court. The teacher “filled out a grade-correction form and changed the student’s grade to a failing grade of 60. By that time, the report cards had already been printed showing the student had passed his class. That evening, at a parent-teacher conference, the student’s mother learned the plaintiff was changing her son’s grade to a 60. She confronted the teacher about the grade change, and they had a heated exchange. The student’s mother complained to the principal about the grade change, and the assistant principal told the plaintiff to change the grade back to a passing grade. The teacher refused. The next morning, the assistant principal met with the teacher and again asked him to change the student’s grade back to a passing grade. According to the plaintiff’s affidavit, the assistant principal ‘forced’ appellant ‘to illegally change [the] grade of a student athlete to keep him eligible to play sports.’”
The plaintiff reported the alleged injustice to school board members and the superintendent. “After making these reports, his class was eliminated from the curriculum for the next school year,” wrote the court. After failing to get another job in the school district, and taking a lesser paying job in another district, the plaintiff sued.
After a trial court granted summary judgment to the defendant, the plaintiff appealed, making the following arguments:
“(1) the Texas “No Pass, No Play” rule is a law as defined by the Whistleblower Act; (2) appellant reported a violation of the law to a local governmental entity that appellant believed in good faith was authorized to regulate, enforce, investigate, or prosecute the law; and (3) there was a genuine issue of material fact concerning whether appellant suffered an adverse employment action because of his report.”
As part of its analysis, the appeals court examined the Texas Whistleblower Protection Act as set forth in chapter 554 of the Texas Government Code. See Tex. Gov’t Code Ann. § 554.001-.010 (West 2004). The Act prohibits a state or local governmental entity from taking adverse personnel action against a public employee who reports in good faith a violation of “law” by the employing governmental entity or another public employee to an “appropriate law enforcement authority.” Id. § 554.002(a). The Act can potentially waive the government’s immunity from suit and liability against a person who alleges a violation of the Act. Id. § 554.0035.
Also at play was Section 33.081(c) of the Education Code, commonly known as the “no pass, no play” rule, which prohibits a student who has received a grade below 70 for a grade evaluation period from participating in competitions or public performances of extracurricular activities for at least three weeks. One of the key areas in contention here was rather the rule was a law or a regulation set forth by the University Interscholastic League (UIL), as the defendant argued.
The appellate court affirmed, noting that “the petition did not allege a violation of Tex. Educ. Code Ann. § 33.081(c); none of the evidence in the employee’s reports asserted that the student participated in football games or other competitions or public performances when he should have been suspended from extracurricular activities. He also did not report a violation of Tex. Penal Code Ann. § 37.10(c)(2) because the grade records, report cards, and grade-correction forms that might have been falsified were not public school records, reports, or assessment instruments under Tex. Educ. Code Ann. ch. 39. The employee did not preserve for appeal an argument that there was a violation of other statutes.”
Stephen Wilson v. Dallas Independent School District; Ct. App. Tex., 5th Dist.; No. 05-11-00468-CV, 2012 Tex. App. LEXIS 6738; 8//13/12
