                                                                                        ACCEPTED
                                                                                   04-14-00746-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                               1/2/2015 3:53:38 PM
                                                                                     KEITH HOTTLE
                                                                                            CLERK

                  No. 04-14-00746-CV

                                                             FILED IN -
                                                    4th COURT OF--APPEALS      ----
                 In the Court of Appeals             SAN ANTONIO,      --- - -   TEXAS
             for the Fourth District of Texas                  - - ---- LE ------
                                                    01/2/2015
                                                            - I3:53:38
                                                             -       D         - PM
                                                                                -
                                                        ---- VO ------
                                                      KEITH -E.       - -
                                                                        HOTTLE
                                                                 - --
                                                           ----Clerk

ALAMO HEIGHTS
ALAMO HEIGHTS INDEPENDENT   SCHOOL DISTRICT,
              INDEPENDENT SCHOOL   DISTRICT,
                 Appellant,
                                                           FILED IN
                            v.
                            V.                      4th COURT OF APPEALS
                                                     SAN ANTONIO, TEXAS
                                                    01/5/2015 8:40:00 AM
                CATHERINE CLARK,
                CATHERINE   CLARK,                    KEITH E. HOTTLE
                     Appellee.                              Clerk




     On Appeal from the 285th Judicial District Court
     On
                of Bexar County, Texas


                APPELLANT’S BRIEF
                APPELLANT’S BRIEF


                                 ATTORNEYS FOR APPELLANT
                                 ATTORNEYS FOR APPELLANT
                                 Robert A A Schulman
                                                  17834500
                                 State Bar No. 17834500
                                 Leonard J. J. Schwartz

                                                  17867000
                                 State Bar No. 17867000
                                 Bryan P.P. Dahlberg
                                                 24065113
                                 State Bar No. 24065113
                                 SSCHULMAN,
                                   CHULMAN, L   LOPEZ &H
                                                 OPEZ &   OFFER, L.L.P.
                                                        HOFFER,
                                 517 Soledad Street
                                 San Antonio, Texas 78205
                                 Tel.:
                                 Tel.: (210) 538-5385
                                               538-5385
                                 Fax: (210)    538-5384
                                       (210)538-5384


          ORAL ARGUMENT REQUESTED
          ORAL ARGUMENT REQUESTED
                            OF PARTIES
                   IDENTITY OF
                   IDENTITY            AND COUNSEL
                               PARTIES AND COUNSEL
      The following is is a complete list
                                     list of all
                                             all parties,
                                                 parties, as well as the names and
addresses of all
             all counsel:
                 counsel:

Defendant/Appellant:
Defendant/Appellant:             Alamo Heights Independent School District

Defendant/Appellant’s            Robert A. Schulman
trial
trial and appellate counsel:     State Bar Number 17834500
                                                      17834500
                                 Leonard J. J. Schwartz

                                 State Bar Number 17867000
                                                      17867000
                                 Bryan P.P. Dahlberg
                                 State Bar Number 24065113
                                                     240651 13
                                 SSCHULMAN,
                                    CHULMAN, L  LOPEZ &H
                                                 OPEZ &   OFFER, L.L.P.
                                                        HOFFER,
                                 517 Soledad Street
                                 San Antonio, Texas 78205
                                 Tel.:
                                  Tel.: (210) 538-5385
                                 Fax: (210) 538-5384

Plaintiff/Appellee:
Plaintiff/App ellee:             Catherine Clark

Plaintiff/Appellee’s
Plaintiff/App ellee’ s           Matthew R. Pearson
trial
trial and appellate counsel:
                      counsel:   State Bar Number 00788173
                                 GRAVELY
                                 G RAVELY && PPEARSON,
                                               EARSON, L.L.P.
                                 425 Soledad Street,
                                              Street, Suite 600
                                 San Antonio, Texas 78205
                                 Tel.:
                                 Tel.: (210) 472-1111
                                       (210)472-1111
                                 Fax: (210)  472-1110
                                       (210)472-1110




                                          ii
                                           TABLE OF
                                           TABLE    CONTENTS
                                                 OF CONTENTS
                    AND COUNSEL
         OF PARTIES AND
IDENTITY OF             COUNSEL .....................................................................
                                ...................................................................   ii
                                                                                                      ii                   ..




TABLE OF
TABLE    CONTENTS ...................................................................................................
      OF CONTENTS                                                                                                     iii
                  ................................................................................................. ..iii



INDEX OF
INDEX OF AUTHORITIES
         AUTHORITIES .............................................................................................. vi
                     ............................................................................................ ..vi



STATEMENT OF
STATEMENT    THE CASE
          OF THE CASE ...........................................................................................
                      .........................................................................................   11           ..




STATEMENT REGARDING
STATEMENT REGARDING ORAL ARGUMENT .........................................................
                    ORAL ARGUMENT .......................................................   2                                  ..




       PRESENTED ........................................................................................................
ISSUES PRESENTED ......................................................................................................   33   ..




STATEMENT OF
STATEMENT OF FACTS
             FACTS ..................................................................................................
                   ................................................................................................   6        ..




    I.
    I.       AHISD terminated Clark’s employment in
             AHISD                                            in response to numerous
             irremediable performance deficiencies
                                      deﬁciencies ................................................................
                                                   ..............................................................  6           ..




    II.
    II.      Clark’s allegations of harassment ........................................................................
                                               ......................................................................   9      ..




    III.
    III.     AHISD’s immediate investigation and effective response ................................
                                                                    .............................. 1111                   ..




    IV.      Clark’s performance deteriorated during the 2008-2009 school year ...............
                                                                               ............. 1212                         ..




    V.               EEOC Charge and subsequent reports of
             Clark’s EEOC                               of bullying ...............................
                                                                    ............................. 1515                    ..




    VI.      Clark provided an untruthful statement during AHISD’s investigation
             into
             into a potential breach of
                                     of state
                                        state testing protocols ................................................
                                                                ..............................................   19
                                                                                                                 19       ..




    VII. Clark’s credibility
                  credibility is
                              is destroyed and additional performance failures              failures come
         to
         to the attention of Kershner................................................................................
                                       .............................................................................. 20  ..




SUMMARY OF
SUMMARY        ARGUMENT ................................................................................
           THE ARGUMENT
        OF THE          ..............................................................................   23               ..




ARGUMENT ....................................................................................................................
ARGUMENT ..................................................................................................................
                                                                                                                          ..  28

    I.
    I.       The standard of review for jurisdictional
                                          jurisdictional challenges to             TCHRA claims
                                                                               to TCHRA
             based on governmental immunity mirrors that    that of of a traditional          summary
                                                                            traditional summary
             judgment motion, and requires dismissal unless the plaintiff    plaintiff establishes
             the primafacie
                 prima facie elements of her claims ..............................................................
                                                     ............................................................  28     ..




                                                              iii
                                                              iii
        A. Mission Consolidated,
                     Consolidated, the first        ﬁrst controlling case disregarded by                    by the
           trial court .....................................................................................................
           trial       ...................................................................................................   28
                                                                                                                            ..




        B. McDonnell Douglas is        is the second source of analysis disregarded by                           by
           the trial
               trial judge ...............................................................................................
                           .............................................................................................   31
                                                                                                                           31..




        C. The McDonnell Douglas burden-shifting framework requires a
           showing of of pretext and must be considered a part         part of the
           jurisdictional analysis under Mission Consolidated ....................................
           jurisdictional                                     .................................. 33                          ..




           AHISD had multiple legitimate,
        D. AHISD                        legitimate, non-retaliatory reasons for
           termination, as
                         as well as
                                 as every other decision made with respect to                              to
           plaintiff’s employment ................................................................................
           plaintiffs              ..............................................................................  36        ..




II.
11.    Plaintiff cannot show pretext because her allegations are based solely on
       speculation .........................................................................................................
                    .......................................................................................................  38
                                                                                                                             ..




        A. The doctrine of collateral
                            collateral estoppel bars plaintiff
                                                     plaintiff from re-litigating
                                                                          re-litigating
           the Board’s reasons for acting on her termination ......................................
                                                             .................................... 39                         ..




        B. Plaintiff cannot rely
                            rely on subjective beliefs or conclusory allegation to                            to
           demonstrate pretext .....................................................................................
                                 ................................................................................... 40      ..




        C. Plaintiff cannot rely
                            rely on the alleged unreasonableness of       of the Board’s
           determination to
                          to show pretext for retaliation
                                              retaliation .............................................. 41
                                                          ............................................ ..4l



        D. Plaintiff cannot rely
                            rely on temporal proximity to
                                                       to show pretext ......................
                                                                       ....................   44                             ..




        E. Plaintiff cannot show pretext through disparate treatment because
           there is
                 is no similarly situated comparator .................................................... 46
                                                     .................................................. ..46



        F.
        F. Plaintiff’s
           Plaintiffs retaliation
                        retaliation claim fails   fails under the McDonnell Douglas
           burden-shifting
           burden—shifting framework, therefore she cannot establish all                           all of
                                                                                                        of the
           jurisdictional elements of her claim, and the trial
           jurisdictional                                                 trial court lacked subject
           matter jurisdiction
                   jurisdiction ......................................................................................
                                 ....................................................................................  48    ..




III.
III.   Plaintiff cannot establish the required elements of her sexual harassment
       claim ................................................................................................................... 49
             ................................................................................................................. ..49



        A. Plaintiff
           Plaintiff cannot prove AHISD’s negligence in         in controlling working
           conditions necessary to to establish vicarious liability
                                                               liability for the alleged
           misconduct ofof plaintiff’s
                           plaintiffs co-workers
                                       co—workers ..........................................................
                                                  ........................................................   49              ..




                                                            iv
                                                            iv
               B. Plaintiff does not complain of discrimination based on her gender ............
                                                                                    .......... 5151                            ..




               C. Courts have repeatedly and consistently rejected the sexual
                  harassment claims of plaintiffs
                                       plaintiffs who were subjected to to more frequent
                  and egregious conduct than that alleged by
                                                          by plaintiff
                                                             plaintiff...................................
                                                                       ................................. 54                    ..




               D. Plaintiff did not report harassment at              at or even near the time of the
                  alleged event ................................................................................................
                                .............................................................................................. ..60

               E. Notwithstanding
                  Notwithstanding the quality of      plaintiff’ss mostly unsupportable
                                                   of plaintiff’
                          AHISD took immediate remedial actions calculated to
                  claim, AHISD                                                  to insure
                  that
                  that the conditions in
                                      in its
                                         its workplace were discrimination free .....................
                                                                                ...................   61
                                                                                                      61                       ..




                    1. AHISD adopted and enforced sexual harassment policies and had
                    1. AHISD

                       implemented sexual harassment training ...............................................
                                                              .............................................   61
                                                                                                              61               ..




                    2. AHISD immediately investigated and took prompt remedial
                    2. AHISD
                       action in
                              in response to
                                           to plaintiff’s report.
                                                          report. Plaintiff did not contest
                       AHISD’s investigative conclusions, made no further reports of                  of
                       similar behavior until
                                         until she filed      EEOC Charge until
                                                    filed an EEOC                   until several
                       months later
                               later based on the same allegations.  .......................................... 63
                                                        allegations .........................................                  ..




PRAYER ...........................................................................................................................
PRAYER .........................................................................................................................
                                                                                                                               ..  66

CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE ..........................................................................................
                       ........................................................................................   67           ..




               COMPLIANCE ................................................................................
            OF COMPLIANCE
CERTIFICATE OF            ..............................................................................   68                  ..




APPENDIX.............................................................................................................
APPENDIX ...........................................................................................................  69      ..




                                                                 v
                                          OF AUTHORITIES
                                    INDEX OF
                                    INDEX    AUTHORITIES
CASES
CASES

Anderson v.
         v. Tupelo Regional Airport Authority,
                                    Authority,
      No. 13–60666,       WL 1929866
          13-60666, 2014 WL    1929866 (5th
                                        (5th Cir. May 15,
                                             Cir. May 15, 2014) ........................
                                                                ......................   42                   ..




Arredondo v. Gulf Bend Center,
          v. Gulf

                          WL 1004051
     No. H-06-1580, 2007 WL    1004051 (S.D. Tex. Mar. 30,
                                                       30, 2007) ...................
                                                                 .................   46                       ..




AutoZone, Inc.
AutoZone, Inc. v.
               v. Reyes,

      272 S.W.3d 588 (Tex. 2008) .............................................................
                                 ........................................................... .. 28, 46-47



Barnett v.
        v. Boeing Co.,
                  C0,,
                App’x 875 (5th
     306 Fed. App’x       (5th Cir.
                               Cir. 2009) .......................................................
                                          .....................................................   57-58 ..




Bland Independent School District v.
                                  v. Blue,

      34 S.W.3d 547 (Tex. 2000) .............................................................
                                 ...........................................................  23,
                                                                                              23, 29,
                                                                                                  29, 31
                                                                                                  ..  31

Burlington Industries,
           Industries, Inc.
                       Inc. v. Ellerth,
                            v. Ellerth,

      524 U.S. 742 (1998) ....................................................................................
                            ..................................................................................
                                                                                                             ..49

Burlington Northern and Santa Fe Railway Co.          Co. v. v. White,
                                                                 White,
      548 U.S. 53 (2006) ......................................................................................
                         .................................................................................... .. 37



City of El Paso v.
     ofEl          Heinrich,
                v. Heinrich,

       284 S.W.3d 366 (Tex. 2009) .......................................................................
                                  .....................................................................   31
                                                                                                          31 ..




City of Elsa v.
     ofElsa  V. Gonzales,

       325 S.W.3d 622 (Tex. 2010) .......................................................................
                                  .....................................................................   30 ..




     of Houston v.
City of         v. Rushing,

                          App.—Houst0n [1st
       7 S.W.3d 909 (Tex. App.—Houston [1st Dist.]
                                            Dist] 1999,  pet. denied) ............
                                                   1999, pet.         ..........   29                        ..




Clark County School District
                    District v.
                              v. Breeden,

      532 U.S. 268 (2001) ....................................................................................
                          .................................................................................. ..45

       ofCameron
County of Cameron v.
                  v. Brown,

     80 S.W.3d 549 (Tex. 2002) .........................................................................
                               .......................................................................   29  ..




                                                        vi
                                                        vi
Crutcher v.
         v. Dallas Independent School District,
                                      District,
                            App.—Dal1as 2013, no pet.)
      410 S.W.3d 487 (Tex. App.—Dallas           pet.) ...................................
                                                       .................................   43            ..




Dallas Area Rapid Transit v.
                          v. Carr,

      309 S.W.3d 174         App.—Dal1as 2010, pet.
                  174 (Tex. App.—Dallas        pet. denied).............................
                                                           ........................... .. 29



DeHart v.
       v. Baker Hughes Oilfield
                       Oilﬁeld Operations,     Inc.,
                                Operations, Inc.,
              App’x
     214 Fed. App’x 437 (5th
                        (5th Cir.
                              Cir. 2007) .......................................................
                                         .....................................................   44-45
                                                                                                   ..




E.E.O.C.   v. Exxon Shipping Co.,
E.E. 0. C. v.                 C0,,
       745 F.2d 967 (5th
                     (5th Cir.
                          Cir. 1984)
                               1984) ...................................................................
                                     .................................................................
                                                                                                    ..   40-41
                                                                                                         40-41

Ellerbrook v.
           v. City
              City of Lubbock,
                   0fLubb0ck,
      465 Fed. Appx. 324 (5th
                           (5th Cir.
                                Cir. 2012) .............................................................
                                           ...........................................................   38
                                                                                                          ..




        V. Pohanka of
English v.          of Chantilly, Inc.,
                       Chantilly, Inc.,
      190
      190 F.
           F. Supp. 2d 833 (E.D.Va. 2002) ...........................................................
                                          .........................................................   53 ..




Evans v.
      v. City
         City of Houston,
              ofHouston,
      246 F.3d 344 (5th
                    (5th Cir.
                         Cir. 2001) .......................................................................
                                    ....................................................................... 44

         v. Boca Raton,
Faragher v.
     524 U.S. 775 (1998) ..................................................
                         ................................................   50,
                                                                            50, 54-55, 59-61, 63,
                                                                           ..                 63, 65

FFort
  ort Bend Independent School District
                              District v.
                                       v. Williams,
                                          Williams,
                                             WL
                                       4779693
        No. 01-13-00052-CV, 2013 WL 4779693
        (Tex. App.—Houston [1st Dist.] September 5,
                            [1stDist.]           5, 2013, no pet.)
                                                             pet.) ....................
                                                                   ..................   46               ..




Gearhart v.
         v. Eye
            Eye Care Centers of
                             of America,
     888 F.
          F. Supp. 814 (S.D. Tex. 1995)
                                  1995) ...................................................
                                        .................................................   55-56, 58
                                                                                              ..




Gilster v.
        v. Primebank,

      884 F.F. Supp. 2d 811
                        811 (N.D. Iowa 2012) ..........................................................
                                             ........................................................   3      ..




      v. Lowe
Green v.      ’s Home Centers, Inc.,
         Lowe’s       Centers, Inc.,
     199
      199 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2006, pet.
                                        [1stDist.]        pet. denied) ........
                                                                       ......   41
                                                                                41                       ..




                                                     vii
                                                     Vii
Grice v. FMC Technologies Inc.,
      v. FMC              Inc.,
      216 Fed Appx. 401
                    401 (5th
                        (5th Cir.
                             Cir. 2007) .............................................................
                                        ...........................................................   37        ..




Gulf
Gulf States Toyota,      v. Morgan,
                    Inc. v.
            Toyota, Inc.
                             App.—H0uston [1st.
      89 S.W.3d 766 (Tex. App.—Houston    [1st. Dist.]
                                                Dist.] 2002, no pet.)
                                                                pet.) ............
                                                                      ..........   50-51
                                                                                   50-51                   ..




Hale v.
     V. Napolitano,

                                WL 1507144
      No. SA-08-CV-106-XR, 2009 WL                    May 28,
                                   1507144 (W.D. Tex. May 28, 2009) ... 57
                                                              2009)...


Hancock v.
        v. Barron Builders && Management Company,
                                             Company, Inc.,   Inc.,
     523 F.
          F. Supp. 2d 571
                      571 (S.D. Tex. 2007) ....................................................
                                           ..................................................   57-58  ..




Hockman v. Westward Communications,
        v. Westward                 L.L.C.,
                    Communications, L.L.C.,
         407 F.3d 317 (5th
                      (5th Cir.
                           Cir. 2004) ..................................................................
                                      ................................................................ ..57-58

Hornsby v.
        v. Conoco, Inc,
           Conoco, Inc,
     777 F.2d 243 (5th
                   (5th Cir.
                        Cir. 1985)
                             1985) .......................................................................
                                   .....................................................................   40   ..




Indest   v. Freeman Decorating,
         v.         Decorating, Inc.,
                                  Inc.,
         164
         164 F.3d 258 (5th
                      (5th Cir.
                           Cir. 1999)
                                1999) .................................................................
                                       .................................................................51,
                                                                                                        51, 55

La Day
   Day v.
       V. Catalyst Tech., Inc.,
                   Tech, Inc.,
     302 F.3d 474 (5th
                    (5th Cir.
                         Cir. 2002) ......................................................
                                    ....................................................   24-25, 49,
                                                                                             ..   49, 52

           v. Texas Department of
Lauderdale v.                   of Criminal Justice,
                                                   Justice,
      512 F.3d 157
               157 (5th
                   (5th Cir.
                        Cir. 2007) .......................................................................
                                   .....................................................................   64   ..




Little
Little   v.
         v. Liquid Air Corp.,
                       Corp,
          37 F.3d 1069
                  1069 (5th
                        (5th Cir.
                             Cir. 1994)
                                  1994) .......................................................................
                                        .....................................................................   37
                                                                                                                ..




Long v. Eastfield College,
     v. Eastﬁeld  College,
      88 F.3d 300 (5th
                   (5th Cir.
                        Cir. 1996)
                             1996) .........................................................................
                                   .......................................................................   38 ..




Love v.
     v. Motiva Enterprises LLC,
                           LLC,
      349 Fed. App’x 900 (5th
                          (5th Cir.
                               Cir. 2009) .......................................................
                                          .....................................................   51-52..




Mayberry v.
         v. Vought Aircraft Co.,
            Vought/lircraft  Co.,
     55 F.3d 1086
              1086 (5th
                   (5th Cir.
                        Cir. 1995)
                             1995) ........................................................................
                                   ......................................................................   43   ..




                                                       viii
                                                       viii
Martinez v.       Workforce Commission —
         v. Texas Workforce              – Civil Rights Division,
                                                                Division,
      No 14-50391
      No  14-50391 (5th
                   (5th Cir.
                        Cir. Dec. 30,
                                  30, 2014)....................................................
                                           ..................................................   43-44   ..




McCoy
McCoy v City
        City of
             of Shreveport,
                Shreveport,
        492 F.3d 551
                 551 (5th
                     (5th Cir.
                          Cir. 2007) .................................................................
                                     ...............................................................   36,
                                                                                                       36, 38
                                                                                                       ..




McDonald v.
         v. Santa Fe Trail Transportation Co.,
                                          Co.,
        427 U.S. 273 (1976) ....................................................................................
                            ..................................................................................
                                                                                                             ..  47

McDonnell Douglas Corp.
                   Corp. v.
                         v. Green,

     411
     411 U.S. 792 (1973) .............................................................................. passim
                         ............................................................................ ..passim



Meritor Savings Bank v.
                     v. Vinson,
                        Vinson,
      477 U.S. 57 (1986) .................................................................................
                         ................................................................................. 54-55

Mission Consolidated Independent School District
                                             District v.   v. Garcia,

      372 S.W.3d 629 (Tex. 2012) ................................................................  passim
                                 .............................................................. .. passim



Montgomery County v.
                  v. Park,

     246 S.W.3d 610 (Tex. 2007) ........................................................................
                                ......................................................................   37   ..




Muniz v.
      v. El Paso Marriott,
                 Marriott,
     773 F.
          F. Supp.2d 674 (W.D. Tex. 2011),
     affirmed
     aﬁﬁrmed 477 Fed. Appx. 189
                             189 (5th
                                 (5th Cir.
                                      Cir. 2012) ..............................................
                                                 ............................................   37           ..




Nairn v.
      v. Killeen Independent School District,
                                    District,
      366 S.W.3d 229 (Tex. App.—El Paso 2012, no pet.)
                                                 pet.) ............................
                                                       ..........................   39-40               ..




Nasti v.
      v. CIBA Specialty Chemicals Corp.,

        492 F.3d 589 (5th
                     (5th Cir.
                          Cir. 2007) ........................................................................
                                     ......................................................................   42
                                                                                                              ..




Oncale v Sundowner Offshore Services,
                                Services, Inc.,Inc.,
     523 U.S. 75 (1998) ......................................................................
                        ....................................................................   51-52, 54-55
                                                                                              ..




Orquiola v.          City Mortgage Co.,
         v. National City          Co.,
     510 F.F. Supp. 2d 1134
                       1134 (N.D. Ga. 2007)..........................................................
                                           ........................................................   33          ..




Plumlee v.
        v. City
           City of Kennedale,
                ofKennedale,
      795 F.Supp.2d 556 (N.D. Tex. 2011) ...........................................................
                                         .........................................................   46       ..




                                                       ix
                                                       ix
Prairie View
        View      A&M
                  A&M University
                      University v. Chatha,
                                          v.

        381
        381 S.W.3d 500 (Tex. 2012) .......................................................................
                                   .....................................................................   28   ..




Ptomey v.
       v. Texas Tech University,
                     University,
                            App.—Amaril10 2009, pet.
     277 S.W.3d 487 (Tex. App.—Amarillo         pet. denied) ..................
                                                             ................   32,
                                                                                32, 38                ..




Quantum Chemical Corp.
                 Corp. v. Toennies,
                       v. Toennies,

     47 S.W.3d 473 (Tex. 2001) .....................................................................
                               ...................................................................   2,
                                                                                                     2, 34 ..




Rodriguez v.
          v. City
             City of Poteet,
                  of Poteet,
                               WL 769286
          04—13—00274—CV, 2014 WL
      No. 04–13–00274–CV,
      (Tex. App.—San Antonio February 26,
                                      26, 2014, no pet.
                                                   pet. h.)
                                                        h.) ...........................
                                                            .........................   46                      ..




Sandstad v. CB Richard Ellis,
         v. CB         Ellis, Inc.,
                              Inc.,
      309 F.3d 893, 899 (5th
                        (5th Cir.
                              Cir. 2002) ...............................................................
                                         .............................................................   43     ..




Septimus v.
         v. University
            University of
                       of Houston,
      399 F.3d 601
                601 (5th
                    (5th Cir.
                          Cir. 2005) .......................................................................
                                     .....................................................................   55 ..




Shepherd v.
         v. Comptroller of Public Accounts of
                        ofPublic                      State Texas,
                                                  ofState
     168
      168 F.3d 871
               871 (5th
                   (5th Cir.
                        Cir. 1999)
                             1999) ...........................................
                                   .........................................   24-25, 54-55, 57-58
                                                                                   ..




Smith v. Wal—Mart Stores,
      v. Wal–Mart         Inc,
                  Stores, Inc,
      891
      891 F.2d 1177
               1177 (5th
                    (5th Cir.1990) ......................................................................
                                   ....................................................................   47    ..




St. Mary
St.      ’s Honor Center v.
    Mary’s               v. Hicks,

      509 U.S. 502 (1993) ......................................................................................
                            .................................................................................... 3   ..




State v.
      v. Lueck,

       290 S.W.3d 876 (Tex. 2009) ..................................................................
                                  ................................................................   29-30
                                                                                                       ..




Stewart v.
        v. Mississippi Transportation Commission,
                                         Commission,
     586 F.3d 321
                321 (5th
                    (5th Cir.
                         Cir. 2009) .......................................................................
                                    .....................................................................   37  ..




Summa v.
Summa v. Hofstra University,
                 University,
    708 F.3d 115
               115 (2d Cir.
                       Cir. 2013) ..........................................................................
                                  ........................................................................   3       ..




                                                        x
Swanson v.
        v. General Services Administration,
                             Administration,
     110
     110 F.3d 1180
              1180 (5th
                    (5th Cir.
                         Cir. 1997)
                              1997) ................................................................
                                    ..............................................................   44-45
                                                                                                        ..




Texas Association of
                  of Business v.
                              v. Texas Air Control Board,

      852 S.W.2d 440 (Tex. 1993)
                             1993) .......................................................................
                                   .....................................................................   30    ..




Texas Dept.
      Dept. of
            of Community Aﬂairs
                          Affairs v.  v. Burdine,

      450 U.S. 248 (1981) ................................................................................
                          ..............................................................................   3,
                                                                                                           3, 34
                                                                                                            ..




Texas Department of       & Wildlife
                 of Parks & Wildlife v.v. Miranda,

      133
      133 S.W.3d 217 (Tex. 2004) .......................................................................
                                 .....................................................................   29      ..




Texas State Office
            Office of
                   of Administrative Hearings v.
                                              v. Birch,

          O4-12-00681-CV, 2013 WL
      No. 04-12-00681-CV,          WL 3874473
      (Tex. App.—San Antonio July 24, 2013, pet.pet. denied) ................................
                                                             ..............................   35                 ..




University
University of
           of Texas, MD. Anderson Cancer Center v.
              Texas, M.D.                        v. Valdizan-Garcia,
                                                    Valdizan—Garcia,
           01-12-00386-CV, 2012 WL
      No. 01-12-00386-CV,         WL 5545783
      (Tex. App.—Houston [1st   Dist.] November 15,
                           [lst Dist.]          15, 2012, no pet.)
                                                             pet.) ..................
                                                                   ................   35                         ..




University of Texas Southwestern Medical Center v.
University of                                                     Nassar,
                                                               v. Nassar,

      133
      133 S.Ct. 2517 (2013) ...........................................................................
                            .........................................................................   38,
                                                                                                        38, 48
                                                                                                       ..




Vance
Vance v.
      v. Ball State University,
                    University,
      133
      133 S.Ct.
           S.Ct. 2434 (U.S. 2013) ................................................................
                                  ..............................................................   4,
                                                                                                   4, 49-50
                                                                                                  ..




Wal-Mart Stores,
Wal-Mart         Inc. v.
         Stores, Inc. v. Canchola,

     121
     121 S.W.3d 735 (Tex. 2003) .......................................................................
                                   ..................................................................... 38      ..




Wang v.
Wang v. University
        University of
                   of Texas at Austin,
     No. 04-13-00065-CV, 2013 WL  WL 5570824
     (Tex. App.—San Antonio Oct. 9,  9, 2013) ...............................................
                                              .............................................   23, 31
                                                                                                  31   ..




Washington
Washington v.
           v. Occidental Chemicals Corp.,
                                    Corp,
     24 F.
        F. Supp. 2d 713
                    713 (S.D. Tex. 199)
                                   199) .............................................................
                                        ...........................................................   32         ..




Wheeler v. BL Development Corp.,
Wheeler v.
     415 F.3d 399 (5th
                   (5th Cir.
                        Cir. 2005) .......................................................................
                                   .....................................................................   46    ..




                                                      xi
                                                      xi
Williams
Williams v.            Buffet, Inc.,
         v. Barnhill’s Buffet, Inc.,
                App’x
      290 Fed. App’x 759 (5th
                            (5th Cir.
                                 Cir. 2008) .................................................
                                            ...............................................   61-62, 65..




Ysleta
Ysleta Independent School District
                          District v. Monarrez,
                                   v. Monarrez,

       177
       177 S.W.3d 915 (Tex. 2005) .................................................................
                                   ...............................................................  28, 46
                                                                                                    28,46      ..




         AND RULES
STATUTES AND
STATUTES     RULES
                & Rem. Code §§ 51.014(a)(8) ..........................................................
Tex. Civ. Prac. &                           ........................................................   11                      ..




Tex. Educ. Code §§ 21.159 ..................................................................................
                          ................................................................................   9,
                                                                                                             9, 39   ..




Tex. Educ. Code §§ 21.251
                   21.251 et seq. ............................................................................
                          et seq. ..........................................................................   9               ..




Tex. Educ. Code §§ 21.301
                   21.301 et seq. ......................................................................
                          et seq. ....................................................................   9,
                                                                                                         9, 39      ..




Tex. Lab. Code §§ 21.001
                  21.001 .............................................................................
                         ...........................................................................   2,
                                                                                                       2, 28,
                                                                                                        ..    51
                                                                                                          28,51

Tex. Lab. Code §§ 21.051, .055 .......................................................................
                               .....................................................................   passim
                                                                                                       passim ..




Tex. R. App. P.
             P. 28.1
                28.1 ................................................................................................
                     ..............................................................................................   11       ..




Tex. R. Civ. P.
             P. 166a(b)
                166a(b) ..........................................................................................
                        ........................................................................................   35     ..




Title VII of the Civil Rights Act of
          ofthe                   of 1964
                                     1964 .........................................
                                          .......................................   2,
                                                                                    2, 28,
                                                                                       28, 34,
                                                                                           34, 51-52
                                                                                              ..




REGULATIONS
REGULATIONS

29 C.F.R.
   C.F.R. §
          § 1604.11
            1604.11 ...............................................................................................
                    .............................................................................................   63    ..




ADMINISTRATIVE PUBLICATIONS
ADMINISTRATIVE PUBLICATIONS
EEOC
EEOC Notice: Policy Guidance on Current Issues in
                                               in Sexual Harassment ...........                             .........     ..        63




                                                          xii
                                                          xii
                                STATEMENT OF
                                STATEMENT    THE CASE
                                          OF THE CASE
Nature of
       of the Case:
              Case.‘            Plaintiff
                                Plaintiff Catherine Clark (“plaintiff” or “Clark”), a
                                former employee of Alamo Heights Independent School
                                District (“AHISD”), alleges unlawful discrimination on
                                the basis of
                                           of her gender and retaliation
                                                                 retaliation in
                                                                              in violation of the
                                Texas Commission on Human    Human Rights Act (“TCHRA”)
                                stemming from her two year employment and ultimate
                                termination as a physical education teacher and coach at        at
                                                                                     1
                                Alamo Heights Junior School. (CR       (CR 24-25).
                                                                             24-25).] After the
                                EEOC rejected her claims (Supp.
                                EEOC                            (Supp. CR,CR, Vol. I.
                                                                                    I. 125-127),
                                                                                        125-127),
                                the plaintiff
                                     plaintiff filed
                                                ﬁled her lawsuit. (CR    (CR 1).
                                                                               1). In response,
                                AHISD
                                AHISD filed
                                          ﬁled its
                                               its Plea to
                                                         to the Jurisdiction on June 19,19, 2014,
                                demonstrating that         plaintiff’ss allegations did not
                                                   that plaintiff’
                                                                 TCHRA sufficient to invoke
                                constitute violations of the TCHRA
                                the Act’s limited waiver of AHISD’s    AHlSD’s governmental
                                immunity, and, consequently, in    in line
                                                                       line with Texas Supreme
                                Court authority,
                                       authority, the trial
                                                       trial court was wholly without subject
                                matter jurisdiction.  (CR 33-92).
                                        jurisdiction. (CR

Trial Court and
Disposition:
Disposition.‘                   The Honorable Karen H. Pozza, 285th Judicial District
                                                                     AHlSD’s Plea to
                                Court, Bexar County, Texas, denied AHISD’s        to the
                                Jurisdiction on October 9,       (CR 459).
                                                        9, 2014. (CR


              Appeal:
Interlocutory Appeal:           Pursuant to
                                          to Rule 28.1
                                                  28.1 of
                                                       of the Texas Rules ofof Appellate
                                Procedure and Section 51.014(a)(8) ofof the Texas Civil
                                                             AHISD timely appealed the
                                Practice and Remedies Code, AHISD
                                trial
                                trial court’s Order denying its
                                                            its Plea to
                                                                     to the Jurisdiction.
                                                                            Jurisdiction.
                                (CR 460).
                                (CR




1
l


    The record for this
                    this appeal was submitted in in three parts,
                                                          parts, consisting of an initial
                                                                                  initial Clerk’s Record
(cited
(cited as “CR”), and two volumes that    that were subsequently filed ﬁled as the Supplemental Clerk’s
Record (cited
        (cited as “Supp.  CR, Vol. I.”  and  “Supp.  CR, Vol.  II.”).
                                                               11.”).
2
Z
   McDonnell Douglas applies to  to this
                                    this case pursuant to to the announcements of the Texas Supreme
Court: “One of   TCHRA’s purposes is
              of TCHRA’s              is to
                                          to ‘provide for the execution of the policies of Title
                                                                                              Title VII of
the Civil Rights Act of 1964
                           1964 and itsits subsequent amendments.
                                                        amendments. Tex. Labor Code §§ 21.001(1).
                                                                                               21.00l( 1).


                                                    11
                 STATEMENT REGARDING
                 STATEMENT REGARDING ORAL ARGUMENT
                                     ORAL ARGUMENT
       Based on controlling precedent from state
                                           state and federal courts,
                                                             courts, the

                                             TCHRA’s waiver of immunity to
Texas Supreme Court narrowly interpreted the TCHRA’s

raise
raise the bar for plaintiffs
                  plaintiffs bringing claims against governmental entity
                                                                  entity employers.


See Mission Consol. Indep. Sch.
            Consol. Indep.      Dist. v.
                           Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012).



                                                          TCHRA cause of action
Under Mission Consolidated, the elements of a plaintiff’s TCHRA

are jurisdictional,
    jurisdictional, and any deficiencies
                            deﬁciencies are grounds for dismissal for lack of subject

matter jurisdiction.
       jurisdiction. In Mission Consolidated the Texas Supreme Court applied the

burden-shifting rubric of McDonnell Douglas Corp.
                                            Corp.               v.
                                                                v. Green, 411
                                                                          411 U.S. 792 (1973)

on a plaintiff
     plaintiff attempting to
                          to overcome governmental immunity at
                                                            at the initial
                                                                   initial plea to


the jurisdiction
    jurisdiction stage of a discrimination claim. Id.
                                                  Id. at
                                                      at 635-36. As such, oral


argument will assist
              assist this
                     this Court as it
                                   it considers the trial
                                                    trial court’s
                                                          Court’s failure
                                                                  failure to
                                                                          to apply the


underlying federal and state
                       state discrimination precedent.
                                            precedent. Oral argument will also

assist
assist the Court in
                 in resolving several interconnected sub-issues concerning the


jurisdictional insufficiencies of plaintiff’s
jurisdictional                    plaintiffs allegations,
                                              allegations, particularly as the Court


studies,
studies, analyzes, and applies the interplay between McDonnell Douglas and the


Texas Supreme Court’s decision in         Consolidatedz2
                               in Mission Consolidated.



2Z
   McDonnell Douglas applies to to this
                                   this case pursuant to
                                                       to the announcements of the Texas Supreme
Court: “One of  TCHRA’s purposes is
             of TCHRA’s              is to
                                        to ‘provide for the execution of the policies of Title
                                                                                         Title VII of
the Civil Rights Act of 1964
                          1964 and its
                                     its subsequent amendments.
                                                      amendments. Tex. Labor Code §§ 21.001(1).
Thus, analogous federal statutes
                         statutes and the cases interpreting them guide our Texas courts’
                                                                                     courts’ in  their
                                                                                              in their
reading and application of     TCHRA.”          Quantum Chem.
                        of the TCHRA.” See Quantum         Chem. Corp.
                                                                 Corp. v.               SW3d 473,
                                                                       v. Toennies, 47 S.W.3d

476 (Tex.
    (Tex. 2001).



                                                  2
                                               PRESENTED
                                        ISSUES PRESENTED

        1.
        1.       The trial
                     trial court erred in
                                       in failing to follow McDonnell Douglas’s shifting
                                          failing to


burdens          “proof’33
              of “proof”           to
                                   to    the    jurisdictional
                                                jurisdictional        requirements         established       in

Mission Consolidated.

        2.
        2.       Plaintiff’s
                 Plaintiffs allegations and submissions in response to AHISD’s plea to
                                                                                    to


the jurisdiction
    jurisdiction were insufficient to
                                   to overcome AHISD’s governmental immunity.
                                                                    immunity.

With the decision in
                  in Mission Consolidated, it
                                           it is
                                              is now black letter
                                                           letter law that when a


defendant files
          files a plea to
                       to the jurisdiction,
                              jurisdiction, the burden is
                                                       is upon the plaintiff
                                                                   plaintiff to
                                                                             to provide


sufficient evidence that
                    that the trial
                             trial court has jurisdiction.
                                             jurisdiction. This plaintiff
                                                                plaintiff failed
                                                                          failed to
                                                                                 to


provide the facts
            facts necessary to           prima facie case under McDonnell Douglas
                            to proffer a primafacie


or to
   to show that the District’s reasons for terminating plaintiffs
                                                       plaintiff’s contract were a

pretext for retaliation,
            retaliation, a necessary ingredient to
                                                to confer subject matter jurisdiction
                                                                         jurisdiction

on the trial
       trial court for plaintiffs
                       plaintiff’s claim of retaliation.
                                            retaliation. Given plaintiffs
                                                               plaintiff’s failure
                                                                           failure to
                                                                                   to offer


evidence of pretext and pursuant to Mission Consolidated and McDonnell Douglas,

the trial
    trial court’s failure
                  failure to
                          to grant the Plea to
                                            to the Jurisdiction was reversible error.
                                                                               error.


        Since plaintiff
              plaintiff is
                        is required to establish the required jurisdictional
                                                              jurisdictional elements of

each of
     of her claims, this
                    this issue is
                               is accompanied by
                                              by sub-issues regarding the
3
     AHISD articulated legitimate, nondiscriminatory reasons for its
    AHISD                                                                    its termination ofof the plaintiff.
                                                                                                      plaintiff.
Once it it did so,
                so, the ultimate burden of   of establishing a violation of      TCHRA shifted back to
                                                                         of the TCHRA                    to the
plaintiff, requiring plaintiff
plaintiff,                plaintiff to
                                    to prove that
                                              that each and every one of the articulated reasons was, in
fact,
fact, a pretext forfor the discharge. See,      e.g., Summa v.
                                          See, e.g.,          v. Hofstra University,
                                                                         University, 708 F.3d 115  115 (2d Cir.
                                                                                                            Cir.
2013); Gilster v.   v. Primebank, 884 F.   F. Supp. 2d 811
                                                         811 (N.D. Iowa 2012); Orquiola v.    M National City
                                                                                                           City
Mortg. Co.,
Mortg.     Co., 510 F. F. Supp. 2d 1134
                                      1134 (N.D. Ga. 2007); St.St. Marys
                                                                   Mary’s Honor Center v.  v. Hicks, 509 U.S.

502 (1993);
      (1993); Texas Dept.       ofCommunity
                         Dept. of Community Affairs
                                                Affairs v.
                                                        v. Burdine, 450 U.S. 248, (1981).
                                                                                    (1981).



                                                       3
identification
identiﬁcation of those jurisdictional
                       jurisdictional elements and plaintiffs
                                                   plaintiff’s requirement to meet

her jurisdictional
    jurisdictional burden is
                          is addressing each of the following:



      3.
      3.     With respect to plaintiff’s
                             plaintifi’s retaliation claim:
                                                     claim:

             A.    The trial
                         trial court erred inin denying AHISD’s Plea to the
                   Jurisdiction given plaintiffs
                                       plaintiff’s failure
                                                   failure to
                                                           to establish allall of
                                                                               of the
                   required elements of
                                     of her primafacie
                                            prima facie case of
                                                              of retaliation.
                                                                 retaliation.


             B.    Because plaintiff
                              plaintiff lacked direct evidence of causation and
                                   retaliation claim under the McDonnell Douglas
                   brought her retaliation
                   burden-shifting framework, the trial
                                                      trial court erred in failing
                                                                           failing to
                   treat
                   treat each step of the burden-shifting framework as
                   jurisdictional.
                   jurisdictional.


             C.    The trial
                          trial court erred in  in not following the Texas and
                   United States Supreme Court’s precedent requiring ‘but    ‘but for’
                   causation to to find that a plaintiffs
                                                  plaintiff’s subjective beliefs and
                   conclusory allegations were legally
                                                   legally insufficient as allegations
                   necessary toto establish that AHISD’s numerous legitimate, non-
                   discriminatory, and non-retaliatory reasons for terminating
                   plaintiff’s
                   plaintiffs employment were pretextual so as to      to demonstrate
                   retaliation
                   retaliation sufficient
                                 sufﬁcient toto overcome AHISD’s Plea to the
                   Jurisdiction.

      4.
      4.     With respect to plaintiff’s
                             plaintifPs gender discrimination claim:

             A.    Given that plaintiff’s
                               plaintiff’ s alleged harassers were co-workers and not
                   supervisors, the trial
                                      trial court erred inin failing
                                                              failing to follow applicable
                   precedent to
                              to find that
                                         that plaintiff
                                               plaintiff must, but did not,not, allege that
                                                                                        that
                   AHISD failed to
                   AHISD            to  take  reasonable    action   to control  or prevent
                   employee-upon-employee              discrimination        under       the
                   United States Supreme Court’s test      test in
                                                                 in Vance
                                                                      Vance v.
                                                                             v. Ball State

                   University,
                   University, 133
                                133 S.Ct. 2434 (U.S. 2013) sufficient to       to withstand
                       AHISD Plea to
                   the AHISD          to the Jurisdiction.
                                              Jurisdiction.


             B.    The trial
                        trial court erred in failing
                                             failing to find that
                                                             that plaintiff’s
                                                                  plaintiffs allegations
                   were insufficient toto establish a primafacie
                                                        prima facie case of same-sex
                   hostile work environment and withstand AHISD’s Plea to         to the



                                           4
     Jurisdiction where the alleged harassment was not based on
     plaintiff’s gender.
     plaintiffs

C.   The trial
          trial court erred in not concluding that
                                              that plaintiff,
                                                   plaintiff, in
                                                              in alleging
     neither severe nor pervasive inappropriate teasing and off-hand
     comments failed
                   failed to
                           to show an actionable hostile work
     environment sufficient to  to withstand AHISD’s Plea to       to the
     Jurisdiction.
     Jurisdiction.


D.   The trial
          trial court erred in
                            in determining that
                                             that plaintiff
                                                  plaintiff established a
     prima
     prima facie
              facie case of
                          of discrimination sufficient to   to withstand
     AHISD’s Plea to the Jurisdiction,
                               Jurisdiction, notwithstanding AHISD’s
     jurisdictional evidence conclusively establishing that
     jurisdictional                                         that plaintiff
                                                                 plaintiff
     failed to
            to timely report the alleged inappropriate conduct, and,
                             AHISD took prompt remedial action
     that once reported, AHISD
     calculated to
                 to prevent further harassment.
                                    harassment.

E.   The trial
           trial court erred in denying AHISD’s Plea to the
     Jurisdiction given plaintiff’s
                        plaintiffs failure
                                    failure to establish the essential
     elements ofof her hostile work environment claim based on
     alleged harassment by
                        by her same-sex co-workers.
                                           co-workers.




                            5
                                   STATEMENT OF
                                   STATEMENT OF FACTS
                                                FACTS44
I.
I.      AHISD terminated Clark’s employment in response to numerous
        AHISD
        irremediable performance deficiencies.
                                 deﬁciencies.

        AHISD terminated Clark’s employment after
        AHISD                               after the 2008-2009 school year as


an ultimate response to
                     to her numerous irremediable performance deficiencies.
                                                              deﬁciencies.

(Supp. CR, Vol. I.
                I. 103-105)
                   103-105) It
                            It was Clark’s principal,
                                           principal, Stephanie Kershner who


                                   AHISD Superintendent, Dr. Kevin Brown
recommended her termination to the AHISD

(Superintendent or Brown). (Supp.
                           (Supp. CR,
                                  CR, Vol. I. 103)
                                      Vol.1.  103) Principal Kershner’s

                                                               Human
recommendation was the aftermath of an extensive Department of Human

Resource (HR)
         (HR) investigation and report reviewing complaints made by
                                                                 by Clark and

complaints against her,
                   her, which concluded that
                                        that despite AHISD’s significant
                                                             signiﬁcant and

repeated efforts
         efforts to
                 to remediate and improve Clark’s performance, her performance

                               5
remained severely substandard.
                  substandard.5 See Appendix, Tab 3,
                                                  3, Kershner’s Letter to
                                                                       to the


Superintendent) Kershner also concluded that Clark had been the cause of extreme

disruptions among faculty
                  faculty at                          (AHJ S), for which she was
                          at the Junior School campus (AHJS),


4
     Clark’s employment history included multiple occurrences of disobedience and misconduct
that
that ultimately led toto her termination. Since the Mission Consolidated jurisdictional
                                                                                 jurisdictional analysis and
the McDonnell Douglas burden-shifting
                             burden—shifting framework require the court to analyze pertinentpertinent facts,
                                                                                                       facts,
some relevant facts
                 facts regarding Clark’s misconduct are not addressed here but are later     later contained
in the Argument section of thisthis Brief.
                                     Brief.
5
5
     For the Court’s convenience, two documents of         of primary importance have been included in     in
the Appendix to to this
                   this Brief,
                         Brief, in
                                 in addition toto being found within the voluminous Clerk’s record for
this
this appeal.
     appeal. Appendix Tab 3 is    is Kershner’s Letter to to Superintendent Kevin Brown supporting her
recommendation that       plaintiff be terminated.
                    that plaintiff       terminated. Appendix Tab 4 is    is AHISD’s Notice of Proposed
Termination sent to plaintiff
                        plaintiff detailing   the several  non-retaliatory
                                                           non—retaliatory reasons for
                                                                                     for AHISD’s proposed
action,
action, as well as plaintiff’s right to   to challenge said action byby requesting a due process hearing.
These two letters
              letters are also found as exhibits to       to the affidavits
                                                                   afﬁdavits of
                                                                              of Stephanie Kershner and
Kevin Brown at  at Supp. CR, Vol. I.  I. 129-136
                                         129-136 and 138-174,
                                                       138-174, respectively).
                                                                  respectively).


                                                     6
responsible that thwarted her campus’s accomplishment of its
                                                         its educational goals.


Id. at
Id. at p.
       p. 8.
          8.                          HR investigation and her own experience with
               Indeed, relying on the HR

Clark, she determined that
                      that Clark had not been truthful during the course of her


investigation. Id. Kershner’s conclusions were based on specific
investigation. Id.                                      speciﬁc factual findings
                                                                        ﬁndings

detailed in
         in a letter
              letter to
                     to Brown, including, but not limited to
                                                          to findings
                                                             ﬁndings (i)
                                                                      (i) that Clark


had made a number of demeaning and derogatory statements to
                                                         to other teachers


about two of her co-workers in the Girls’ Athletic Department, Ann Monterrubio

and Michele Boyer, calling them “lesbian dike [sic]
                                              [sic] coaches who get drunk and

share men”; (ii)
            (ii) that
                 that Clark made false
                                 false reports about her actions in
                                                                 in a District
                                                                      District


investigation of a potential violation of state
                                          state assessment testing protocols,
                                                                   protocols, actions

that
that she at
         at first
            ﬁrst denied and later
                            later admitted to
                                           to having committed;
                                                     committed; (iii)
                                                                (iii) that
                                                                      that Clark had


repeatedly made unsubstantiated claims to
                                       to others,
                                          others, including students, that


Monterrubio and Boyer were engaging in
                                    in criminal wrongdoing, having vandalized


her car,
    car, stolen her keys and stolen her cell
                                        cell phone; (iv)
                                                    (iv) that Clark had, on at
                                                                            at least
                                                                               least


two separate occasions, disobeyed Kershner’s express and clear directive to not

                   to her campus during work hours, and that
bring her daughter to                                   that an examination of


Clark’s teaching records and interviews with and reports from her own students

revealed that Clark was responsible for serious special program and reporting

deficiencies
deﬁciencies under federal and state
                              state law requirements that adversely impacted the




                                          7
educational well-being of her students. Id.
                                        Id. at                         CR Vol. I.I.
                                            at pp. 6-8; see also Supp. CR


330.

       Based on these reasons (and multiple others),
                                            others), Superintendent Brown


recommended Clark’s termination to
                                to the Board of Trustees at
                                                         at a meeting held on


June 25, 2009, at
               at which time the Board, having considered the recommendations


and supporting reasons, along with Clark’s previous and most recent performance

evaluations, proposed her termination of
                                      of employment for cause. (Supp. CR, Vol. I.
                                                                               I.



105,
105, 137,
     137, 178)
          178) Thus, the record submitted to
                                          to the trial
                                                 trial court considering AHISD’s


Plea to
     to the Jurisdiction was replete with overwhelming evidence supporting each


of the eleven stated reasons for Brown’s recommendation. Most significantly,
                                                              significantly, there


is
is nothing in
           in the record submitted to and considered by
                                                     by the trial
                                                            trial court considering


jurisdiction, demonstrating that the reasons for
jurisdiction,                                      Brown’s recommendation to the

Board and the Board’s termination decision were a pretext for discrimination, or

even that
     that Brown or the Board had any animosity toward plaintiff
                                                      plaintiff whatsoever.

       On July 14,
       On                AHISD issued Clark written notice of
               14, 2009, AHISD                             of the Board’s

proposed action,
         action, setting out eleven specific reasons for the recommendation and


citing nineteen documented descriptions of plaintiffs
                                           plaintiff’s misconduct in
                                                                  in support


thereof. (Appendix, Tab 4,
                        4, pp. 1-3,
                               1-3, also at Supp. CR, Vol. I.
                                                           I. 138-140).
                                                              138-140).

       Having received notice of
                              of termination for cause, plaintiff
                                                        plaintiff was entitled
                                                                      entitled to


contest the Board decision in a hearing to
                                        to be conducted by
                                                        by an independent hearing



                                         8
officer appointed by
                  by the Commissioner of Education.
                                         Education. (Supp.
                                                    (Supp. CR, Vol. I.
                                                                    I. 105)
                                                                       105) This

was Clark’s opportunity for a full
                              full due process transcribed hearing, applying Texas


                                       AHISD would be required to
rules of evidence and procedure, where AHISD                   to continue


Clark in
      in employment pending the results
                                results of
                                        of the hearing, where the full
                                                                  full hearing


transcript and court reporting costs would have gone to
                                                     to AHISD, and where the


“free” transcript would then be forwarded to
                                          to the Commissioner of Education in
                                                                           in a


                                         may have required. See Tex. Educ. Code
further two-step appeal process as Clark may

§§
§§ 21.159, .251-260, .301-307. But, despite these rights,
                                                  rights, Clark did not request an


independent hearing examiner nor,
                             nor, in
                                  in any way, contest the Board’s proposal.
                                     any way,

(Supp. CR, Vol. I.
                I. 105)
                   105)

      Because Clark did not challenge her proposed termination, on August 14,
                                                                          14,


2009 the Board of Trustees again voted,
                                 Voted, and Clark’s employment was terminated.
                                                                   terminated.

(Supp. CR, Vol. I.
                I. 178)
                   178) Subsequently, on December 11,
                                                  11, 2009, Clark filed
                                                                  filed this
                                                                        this


lawsuit. (CR 1-5)
lawsuit. (CR 1-5)


II.
II.   Clark’s allegations of harassment.

                                      AHISD in
      Clark began her employment with AHISD                 (CR 24) Her
                                            in August 2007. (CR


lawsuit claims that she had been harassed by
                                          by Monterrubio and Boyer since the

beginning of her employment, but that she did not make a formal complaint to

Kershner until May 15,
         until May 15, 2008, at
                             at the very end of
                                             of the 2007-2008 school year.
                                                                     year.


(CR 24) In fact,
(CR        fact, during her annual review in
                                          in March, two months prior
                                                               prior to her initial
                                                                            initial




                                        9
complaints to
           to Kershner, Clark assured Kershner that her relationship with

                “ﬁne.” (Supp. CR,
Monterrubio was “fine.”       CR, Vol. I.
                                       I. 181-182)          May 15,
                                          181-182) Then, on May 15, 2008,


plaintiff
plaintiff produced for Kershner a thirteen-page litany
                                                litany of complaints against


multiple employees that reached back eight months and included allegations

against Monterrubio, that she was offended by
                                           by Monterrubio’s conversations about

atheism, abortion, and Monterrubio’s use of
                                         of weight loss pills;
                                                        pills; that
                                                               that on one occasion,


when coaching the girls’ basketball team, that Monterrubio
                                               Monteriubio called plays and yelled

                yelled; and that Monterrubio had once left
louder than she yelled;                               left a note on plaintiff’s
                                                                     plaintiffs

desk advising her to
                  to use a different printer.
                                     printer. (Supp. CR,
                                                     CR, Vol. I.
                                                              I. 211-224, Letter




      May 14,
dated May 14, 2008) Additionally, Clark complained that
                                                   that Monterrubio had asked


the students “who they liked more.” Id.
                                    Id. Clark’s complaint also included allegations

suggesting sexual conduct involving Monterrubio:
                                    Monterrubio: that Monterrubio had discussed

her personal sex life
                 life with the female coaching staff;
                                               staff; that
                                                      that she had commented about


plaintiff’s
plaintiffs breasts and body; that she had suggested that plaintiff
                                                         plaintiff purchase an


“indecent tree
          tree ornament” for the office Christmas party;
                                                  party; that she had, on two

occasions, displayed pictures of male private parts;
                                              parts; and that Monterrubio had


emailed “dirty” cartoons to
                         to plaintiff
                            plaintiff using her private email account. (Supp.
                                                                       (Supp. CR,

Vol. I.
     I. 211-213) Clark also reported that
                                     that she had laughed and joked with her co-


workers when viewing one of the photos. (Supp. CR, Vol.
                                                   Vol. I.
                                                        I. 219) Ironically,
                                                                Ironically,




                                        10
                                        10
Clark’s complaint letter
                  letter sexually disparaged Monterrubio and Boyer, describing


them as “dressed like
                 like working girls.” (Supp.
                                      (Supp. CR,
                                             CR, Vol. I.
                                                      I. 220)



III.
III.   AHISD’s immediate investigation and effective response.

       Kershner immediately and thoroughly investigated each of
                                                             of Clark’s

allegations.
allegations. (Supp. CR, Vol. I.
                             I. 183)
                                183) Kershner interviewed every employee

identified
identiﬁed in
           in Clark’s written complaint, meeting with each coach named, including


Monterrubio. Id. When meeting with Monterrubio,
             Id. When              Monterrubio, Kershner reminded

Monterrubio of
            of the District’s sexual harassment policies,
                                                policies, directing compliance. Id.
                                                                    compliance. Id.

Kershner concluded her investigation of Clark’s claims, providing Clark with a

                    May 23, 2008 and meeting with Clark on May
written response on May                                    May 27, 2008 to
discuss the results
            results of
                    of her investigation and her finding of insufficient evidence to
                                                                                  to


support Clark’s allegations of sexual harassment.
                                      harassment. (Supp. CR, Vol. I.
                                                                  I. 183,
                                                                     183, 225-226)

At that
   that meeting, Kershner directed Clark to
                                         to be proactive and to
                                                             to more immediately


report concerns should future complaints arise. Id. Kershner reminded Clark of the
                                         arise. Id.


District’s grievance policies and opportunities for resolving and addressing

workplace complaints, handing her a copy
                                    copy of the District’s policy that
                                                                  that included an


outline of her right to
                     to appeal Kershner’s resolution of her complaint, and again


directing Clark to bring any future complaint in a timely fashion. (Supp. CR,

Vol. I.
     I. 183,
        183, 225-226)




                                        11
                                        11
       From the time of this May 27, 2008 meeting, until
                        this May                   until Clark filed    EEOC
                                                               ﬁled her EEOC

Charge on October 7,
                  7, 2008, Clark was silent,
                                     silent, not renewing her prior
                                                              prior allegations,
                                                                    allegations,

                                  6
nor asserting further allegations,
                      allegations,6 nor availing herself of
                                                         of any of the multiple

avenues of redress or appeal that
                             that were offered to
                                               to her under the very Board Policy


that
that was provided to
                  to her by
                         by Kershner. (Supp. CR, Vol. I.
                                                      I. 183).
                                                         183). If
                                                               If Clark had


subsequent sexual harassment concerns, Kershner remained uninformed. As such,

                            AHISD) had every reason to believe that Kershner’s
Kershner (and her employer, AHISD)

swift actions addressing Clark’s complaints and her conference with and directives

to
to Monterrubio had successfully resolved Clark’s concerns. (Supp. CR,
                                                                  CR, Vol. I.
                                                                           I. 102,
                                                                              102,

183)
183)

IV.    Clark’s performance deteriorated during the 2008-2009 school year.

       Clark’s complaints in May 2008 that closed out the 2007-2008 school year
                          in May


had Kershner sensitive to
                       to the potential
                              potential for continued discord between Clark and

Monterrubio in
            in the next school year.
                               year. As such, Kershner closely monitored the


Girls’ Athletic Department from the beginning of that year.
                                                      year. (Supp. CR, Vol. I.
                                                                            I. 184)
                                                                               184)

Nonetheless, in
             in the 2008-2009 school year,     AHJS campus female coaching
                                     year, the AHJS

staff
staff was plagued by
                  by numerous complaints emanating from Clark, as well as

65
    As discussed below, at at a meeting with Kershner on September 29,    29, 2008, Clark vaguely
alluded to
        to inappropriate conduct alleging that
                                           that she had knowledge of of three incidents,
                                                                               incidents, which she
described as “sexual harassment,” and several other instances she described as “unprofessional
behavior.” (Supp. CR,
                    CR, Vol. I.I. 183-184,
                                  183-184, 230) However, Clark refused Kershner’s request to     to
provide specific
        speciﬁc details
                 details regarding these general allegations,
                                                 allegations, and never told Kershner who or what
she was referring to. Id.
                  to. la’.




                                                12
                                                12
complaints about Clark by
                       by Monterrubio and other co-workers. Id. Kershner’s
                                                co-workers. Id.

response was to
             to again be proactive meeting these complaints with attempts to
                                                                          to


remediate the discord. (Supp. CR, Vol. I.
                                       I. 184,
                                          184, 227-231) Throughout August,

September, and October of 2008, Kershner and Gene Phillips,     AHISD Athletic
                                                  Phillips, the AHISD


Director, met on multiple occasions with all
                                         all of the Girls’ Athletic Department


coaches in
        in an attempt to
                      to encourage and facilitate
                                       facilitate open communications and to
                                                                          to


remediate their
          their specific
                speciﬁc concerns. Id.
                                  Id.

      On one occasion in March of 2008 Kershner corrected Clark, directing her to
      On                                                                       to


not have her children at
                      at her workplace during working hours. Id. On August 26,
                                                             Id. On        26,

2008, Kershner and Phillips met with Clark to discuss complaints by
                                                                 by co-workers

that she was not performing her coaching duties;
                                         duties; that she was continuing to
                                                                         to bring


her children to her workplace;
                    workplace; and that she was leaving work early
                                                             early during team

tryouts
tryouts to
        to transport her children to
                                  to their
                                     their respective schools.
                                                      schools. Id.
                                                               Id. Again, on


September 11,
          11, 2008, Kershner met with Clark regarding complaints by
                                                                 by another

coach that Clark had been surreptitiously recording conversations in the coaches’

office.
office. (Supp. CR, Vol. I.
        (Supp. CR,      I. 229-231) Once more, on October 14,
                                                          14, 2008, Kershner met


with Clark regarding Clark’s complaint that the volume of Monterrubio’s radio

was too high. Id.
              Id.

      Notwithstanding these reports by
                                    by and against her,
                                                   her, Clark described her


perception of
           of improved workplace relationships in several communications and



                                        13
                                        13
meetings with Phillips as “…everything
                          “...everything is
                                         is fine,” and even described the workplace


improvements as “great.” (Supp. CR,
                                CR, Vol. I.
                                         I. 184).
                                            184).


      Then, on September 29,
                         29, 2008, Clark met with Kershner to
                                                           to complain of three


incidents that
          that she described as
                             as sexual harassment, and other incidents that
                                                                       that she


described as “unprofessional behavior.” (Supp. CR, Vol. I.
                                                        I. 183-184,
                                                           183-184, 230) But,

when asked to
           to provide specifics about her allegations,
                                          allegations, such as the identity
                                                                   identity of her


alleged harassers and perpetrators, Clark refused. Id.
                                                   Id. Thus, Kershner once again

directed Clark to
               to follow the District’s Policies and procedures. Id.
                                                     procedures. Id.

      On October 29,
      On                   Kemsher’s annual performance evaluation of Clark
                 29, 2008, Kernsher’s

documented her recent performance deficiencies, that
                                                that is,
                                                     is, her constant fighting
                                                                      ﬁghting and

bickering with multiple co-workers (including,
                                   (including, but not limited to Monterrubio),

and her failure
        failure to
                to follow Kershner’s repeated directives to utilize
                                                            utilize the District policy


to
to address her complaints. As a result,
                                result, Kershner placed Clark on a growth plan,
                                                                          plan,

formally known in the parlance of Texas public school educators as an

“Intervention Plan for Teacher in Need of Assistance (TINA).” (Supp. CR, Vol. I.
                                                                              I.



184-185,                  TINA was one of
184-185, 236-237) Clark’s TINA         of two issued by
                                                     by Kershner to
                                                                 to teachers on


her campus that year.
                year. (Supp.
                      (Supp. CR, Vol. I.
                                      I. 184-185)
                                         184-185) Clark’s TINA cited two
                                                  C1ark’s TINA

“domains” or areas of concern, in
                               in which Clark’s performance needed improving:
                                                                   improving:

her professional communications with co-workers and supervisors, and her

compliance with AHISD’s policies and procedures (in
                                                (in the reporting workplace




                                          14
                                          14
concerns). (Supp.
           (Supp. CR, Vol. I.
                           I. 236-237) Accompanying the TINA, Kershner issued



a memorandum to
             to Clark citing
                      citing specific
                             speciﬁc examples of
                                              of her deficiencies.
                                                     deﬁciencies. (Supp. CR,
                                                                         CR,

Vol. I.
     I. 229-231) Under her TINA, Clark was required to
                                                    to utilize
                                                       utilize the District’s


policies to
policies to bring complaints,   and to
                                    to “work with all
                                                  all colleagues in a supportive and


cooperative manner.” Id.
                     Id. Kershner also placed Monterrubio on a TINA, requiring

her to comply with the District’s policies on appropriate workplace conduct.

(Supp. CR, Vol. I.
                I. 238-247)



V.              EEOC Charge and subsequent reports of bullying.
        Clark’s EEOC

        In October 2008, Clark filed
                               ﬁled a Charge of                         EEOC
                                             of Discrimination with the EEOC

alleging sexual harassment and retaliation.
                               retaliation. (Supp.
                                            (Supp. CR, Vol. I.
                                                            I. 232-235) Her charge



                                May 15,
mirrored the allegations of her May 15, 2008 letter
                                             letter to
                                                    to Kershner, six months prior.
                                                                            prior.


Id.
Id.   AHISD responded to
      AHISD                                                             EEOC
                      to Clark’s Charge, and on September 28, 2009, the EEOC


dismissed the Charge, finding
                      ﬁnding no substance to
                                          to any of Clark’s claims.
                                                            claims. (Supp. CR,
                                                                           CR,

Vol. I.
     I. 102,
        102, 125-127)
             125-127)

        Three months later,
                     later, in
                            in January of 2009, Clark submitted three more letters
                                                                           letters to
                                                                                   to


Kershner, complaining this
                      this time that
                                that she had been “bullied” and ostracized by
                                                                           by

Monterrubio and Boyer since November of 2008. (Supp. CR, Vol. I.
                                                              I. 185-187,
                                                                 185-187, 250-

                                         to follow AHISD’s grievance policies
253) Despite Clark’s TINA, directing her to

(policies
(policies that require,
               require, among other things,
                                    things, that an employee grieve within fifteen
                                                                           ﬁfteen

days of
     of the event spawning the complaint) Clark filed
                                                ﬁled the first             “new”
                                                         ﬁrst of her three “new”




                                          15
                                          15
letter
letter complaints on January 23, 2009, more than two months after
                                                            after much of the


conduct she was grieving. Id.
                          Id.

      Clark’s letter
              letter complained that Monterrubio and Boyer had hidden her keys


and had taken and hidden her cell
                             cell phone.
                                  phone. (Supp.
                                         (Supp. CR, Vol. I.
                                                         I. 250-253) She also



complained that Kershner had “blindsided” her by
                                              by asking her to attend a meeting

without previously informing her of the meeting agenda. Id.
                                                        Id. She claimed that
                                                                        that “all


the coaches” were “snapping” at
                             at her,
                                her, and that
                                         that she was being “bullied.” Id.
                                                                       Id. She

complained that Boyer had purchased breakfast tacos for other coaches, but not for

her. Id. She also alleged that
her. Id.                  that her print jobs had been removed from the Department


printer,
printer, wadded up and thrown away. Id.
                                    Id. In her next January 30,
                                                            30, 2009 letter,
                                                                     letter, she


complained that another female coach had failed to inform her that a manager had

quit;
quit; that Kershner was “blindsiding” her in
                                          in meetings; that the radio in
                                                                      in the


                                  that when other coaches purchased lunch they
Athletic Office was too loud, and that

had “overlooked the professional courtesy of
                                          of including [her]
                                                       [her] when providing food


for everyone else
             else in
                  in the workplace.” (Supp.
                                     (Supp. CR, Vol. I.          On February 6,
                                                     I. 254-256) On          6,


2009, plaintiff submitted a third letter
                                  letter to
                                         to Kershner complaining that
                                                                 that the other


coaches would not speak to
                        to her;
                           her; that
                                that Boyer had asked her to gather and store “balls


and Frisbees” that were not hers (Clark’s); that another coach, Christi Gonzalez,

had twice “interrupted” her (Clark) while she was trying to coach players;
                                                                  players; that

“someone had gone through [her]           [her] desk” and that
                          [her] things on [her]           that “many papers




                                        16
                                        16
were out of order and [she]
                      [she] had two clipboards missing”; and that coaches were

talking about student activity
                      activity monies that were missing in
                                                        in front of her.
                                                                    her. (Supp.
                                                                         (Supp. CR,

Vol. I.
     I. 257-258) Again, despite the requirements of her TINA, and despite



Kershner’s specific
           speciﬁc directives on at
                                 at least
                                    least three prior occasions (Supp. CR, Vol. I.
                                                                                I.



185,
185, 227-231, 248-249), none of these most recent complaints were brought under

applicable grievance policies
                     policies and procedures.
                                  procedures. (Supp. CR,
                                                     CR, Vol. I.
                                                              I. 185)
                                                                 185)

      On February 11,
      On                                      FMLA leave,
                  11, 2009, Clark applied for FMLA leave, claiming on her leave

application that she was suffering from “persistent episodic diarrhea” and

“cognitive
“cognitive: difficulty” brought about by
                                      by “severe situational
                                                 situational disturbance” and


“reactive depression with anxiety.” (Supp. CR, Vol. I.
                                                    I. 259) Clark’s leave request



was immediately granted. Id.
                         Id.

      Clark’s latest
              latest complaints were certainly not of sexual harassment.
                                                             harassment. Indeed she

complained incessantly of minor workplace slights.
                                          slights. But Clark’s complaining and


the complaining about her revealed obviously dysfunctional staff
                                                           staff relations to


Kershner who took advantage of the relative peace brought about by
                                                                by Clark’s leave

of absence to
           to more fully
                   fully investigate each of her claims. (Supp. CR, Vol. I.
                                                                         I. 187-
                                                                            187-

188)
188) The result of the investigation was that
                                         that Clark’s claims of petty
                                                                petty annoyances

and personal slights
             slights were not supported, leaving Kershner to
                                                          to conclude that
                                                                      that Clark’s


inability
inability to relate
             relate positively with co-workers had been the cause of extreme


disruption in the workplace.
                  workplace. (Supp. CR, Vol. I.
                                             I. 187-188,
                                                187-188, 260)



                                        17
                                        17
      Kershner issued investigation findings
                                    ﬁndings to
                                             to Clark on April 8,
                                                               8, 2009, the day


Clark returned from leave,
                    leave, informing Clark that
                                           that her complaints about her co-


workers were unsupported, that Kershner believed Clark continued “[…]
                                                                 “[...] to


experience difficulties
           difﬁculties in
                        in [her]
                           [her] work relationships with [her]
                                                         [her] colleagues,” and


                       TINA requirement to
reminding Clark of her TINA             to maintain good working relationships


with her colleagues. (Supp. CR,
                            CR, Vol. I.
                                     I. 187-188,
                                        187-188, 236-237, 260)

      Then, on April 15,
                     15, 2009 Clark filed
                                    ﬁled a grievance, this                AHISD
                                                      this time under the AHISD


grievance policy.
          policy. The grievance was against Monterrubio, alleging that

Monterrubio had pushed her from behind during a student exercise run. (Supp.
                                                                      (Supp. CR,
                                                                             CR,

Vol. I.
Vol. I. 261-263) Clark claimed no injury
                                  injury as a result,
                                              result, and her grievance


acknowledged Monterrubio’s immediate apology. Id.
                                              Id. Still,
                                                  Still, she asserted that
                                                                      that the


“shove” was intentional and done in
                                 in retaliation
                                    retaliation for her previous complaints about


Monterrubio.
Monterrubio. (Supp. CR, Vol. I.
                             I. 188)
                                188) During the investigation of
                                                              of this
                                                                 this formal


grievance, Clark submitted 29 more complaints of
                                              of “bullying” against Monterrubio

and Boyer as “additions” to her grievance. (Supp. CR, Vol. I.
                                                           I. 264-267) Clark’s



additional grievances included allegations that
                                           that either Monterrubio or Boyer had


ripped the antenna from her car and that,
                                    that, on an unspeciﬁed
                                                unspecified date,
                                                            date, Monterrubio (in
                                                                              (in


    car) had “chased” Clark in her car.
her car)                                Id. With regard to
                                   car. Id.             to Clark’s complaint that


Monterrubio had assaulted her,
                          her, Kershner interviewed students involved to


determine that
          that Monterrubio’s contact with Clark had not been intentional.




                                       18
                                       18
(Supp. CR, Vol. I.
                I. 189)              AHISD honored Clark’s requested remedy, in
                        Nonetheless, AHISD
                   189) Nonetheless,                                         in


the last
    last week of
              of April 2009, Monterrubio was transferred to
                                                         to another campus in
                                                                           in the


hopes that this
           this move would eliminate, or at
                                         at least
                                            least reduce the considerable tension


among the female coaching staff
                          staff at
                                at the AHJS. (Supp. CR, Vol. I.
                                                             I. 189,
                                                                189, 316-320)

VI.                                                          AHISD’s investigation
         Clark provided an untruthful statement during AHISD’s
         into a potential breach of state testing protocols.

         On April 29, 2009, Clark and other teachers were monitoring the school’s
         On

yearly
yearly   TAKS testing administration when a ringing cell
         TAKS                                       cell phone disrupted the test.
                                                                             test.


(Supp. CR, Vol. I.
                I. 188)
                   188) Since the Texas Education Agency prohibits students from

having cell
       cell phones during testing (Supp. CR, Vol. I.
                                                  I. 270-280), and none of the test
                                                                               test


monitors stepped forward to
                         to claim the ringing cell
                                              cell phone, the incident was treated


as a potential violation of testing protocols and a diligent search was made to
                                                                             to


determine the source of
                     of the ringing phone. (Supp.
                                           (Supp. CR, Vol.
                                                      Vol. I. 188) But, the phone
                                                           I. 188)



was heard to ring at
                  at least
                     least two more times during the testing,
                                                     testing, and one of
                                                                      of the

                         identiﬁed Clark’s phone as the source.
teacher/monitors present identified                     source. Id.
                                                                Id. Clark was


questioned and asked to provide a written statement. Id.
                                                     Id. Clark’s statement was that

she did not remember a phone ringing during testing,
                                            testing, and that her phone was in
                                                                            in her


pocket and “on vibrate” the entire day.
                                   day. (Supp. CR, Vol. I.
                                                        I. 268) Later that day,
                                                                           day,

Clark admitted and then provided a second statement that it
                                                         it was in fact
                                                                   fact her cell
                                                                            cell


phone that rang during the testing period.
                                   period. (Supp. CR, Vol. I.
                                                           I. 269)




                                         19
                                         19
VII. Clark’s credibility is
                          is destroyed and additional performance failures
     come to the attention of Kershner.

       Monterrubio’s transfer did nothing to
                                          to abate Clark’s continued conflicts
                                                                     conﬂicts with

                                                             whom were the
other coaches, including Boyer and Christi Gonzalez, each of whom

subject of new complaints such as her claim that
                                            that Boyer snubbed Clark by
                                                                     by turning

her back to
         to her.
            her. (Supp. CR, Vol. I.
                                 I. 189)
                                    189) Clark also complained that at
                                                                    at an April 28,


2009 meeting among the Girls’ Athletic Department faculty,
                                                  faculty, that was attended by
                                                                             by

                    falsely accused her of “lying” when Clark was questioned
Kershner, Boyer had falsely

about her missing keys,
                  keys, and about her contention that she was the first
                                                                  first person to


arrive at
       at work each morning. Id.
                             Id. Clark had also asserted that at
                                                              at this
                                                                 this meeting she


had answered each of
                  of Kershner’s questions in
                                          in a polite and professional manner. Id.
                                                                               Id.


But Kershner, having been present at
                                  at the meeting and an eyewitness to
                                                                   to the conduct


of the individuals described in Clark’s complaint, knew first
                                                        first hand that
                                                                   that Clark’s


account of
        of the meeting events differed significantly from what had actually

happened. Id.
          Id. As such, Kershner was able to
                                         to positively conclude that Clark’s report


was not credible. (Supp. CR, Vol. I.
                                  I. 189,
                                     189, 312-313)

       On May
       On May 1,
              1, 2009, Clark was placed on administrative leave with pay
                                                                     pay and

                          Human Resources Director, was directed to
Dr. Dana Bashara, AHISD’s Human                                  to conduct a


comprehensive review of
                     of Clarks 29 grievances. (Supp. CR, Vol. I.
                                                              I. 96-97, 102-103,
                                                                        102-103,

128)
128)




                                        20
                   May 12,
      Beginning on May                        May 28,
                       12, 2009 and ending on May 28, 2009, Dr. Bashara

interviewed coaches, teachers, students,
                               students, and the grievant, Clark. In the end,

Dr. Bashara found not a shred of evidence supporting any of Clark’s allegations.

(Supp. CR, Vol. I.
                I. 96-97, 102-103)
                          102-103)

                                                             AHJS teacher,
      Meanwhile, Janet Briggs, a long-standing and respected AHJS

reported to
         to Kershner that Clark had engaged her,
                                            her, Briggs, in
                                                         in an unsolicited


conversation on April 23, 2009, to
                                to inform her that Monterrubio and Boyer were


“lesbian
“1esbian dikes” [sic]
                [sic] who “get drunk and share men.” (Supp.
                                                     (Supp. CR, Vol. I.
                                                                     I. 189-190,
                                                                        189-190,

321-322) Additionally, Debbie Cathey, a substitute teacher who had been assigned

to                                        FMLA leave,
to teach Clark’s classes while she was on FMLA leave, and was again assigned to


her classes when Clark was placed on paid administrative leave, brought numerous

concerns regarding Clark’s classroom performance to
                                                 to the attention of Bashara.


(Supp. CR, Vol. I.
                I. 96-97, 327-335) Specifically,
                                   Speciﬁcally, Ms. Cathey offered disturbing

reports of significant
           signiﬁcant deficiencies
                       deﬁciencies in
                                   in Clark’s grading practices
                                                      practices and reports,
                                                                    reports, Clark’s


failure
failure to
        to have prepared lesson plans, as well as major deficiencies
                                                        deﬁciencies in Clark’s

classroom organization and management. Id.
                                       Id. Subsequent interviews with Clark’s

students revealed additional previously unreported and undiscovered concerns,

including Clark having complained about her co-workers to her students and

Clark’s continued disregard of Kershner’s prior admonishments and directives to




                                        21
                                        21
not bring her daughter to
                       to the coaching office during working hours. (Supp. CR,


Vol. I.
     I. 96-97, 189-190)
               189-190)

      Bashara concluded her investigation and Kershner reviewed her report to

conclude and to
             to recommend to
                          to her Superintendent that
                                                that Clark be terminated from


employment.
employment. (Appendix, Tab 3,
                           3, p.
                              p. 8;
                                 8; also at Supp. CR, Vol. I.
                                                           I. 315)

Superintendent Brown accepted her recommendation and passed it
                                                            it along with his



concurring recommendation to     AHISD Board of
                          to the AHISD       of Trustees. (Supp. CR, Vol. I.
                                                                          I.



103-105)     AHISD Board of Trustees accepted and approved the
103-105) The AHISD

Superintendent’s recommendation of eleven termination-for-cause reasons and

nineteen specifically
         speciﬁcally cited supporting examples of behavior, proposing Clark’s

termination.
termination. (Appendix, Tab 4, p. 1-3;
                            4, p. 1-3; also at Supp. CR, Vol. I.
                                                              I. 138-140)
                                                                 138-140) Clark did

not contest the Board’s proposal, and on August 14,           AHISD Board acted
                                                14, 2009, the AHISD


to
to terminate Clark’s employment. (Supp.
                                 (Supp. CR, Vol. I.
                                                 I. 105,
                                                    105, 178)
                                                         178)




                                        22
                             SUMMARY OF
                             SUMMARY        ARGUMENT
                                        THE ARGUMENT
                                     OF THE
        The      workplace        conduct        of this
                                                    this       plaintiff
                                                               plaintiff exhibited            a    level
                                                                                                   level     of

unprofessionalism that no employer, let
                                    let alone a public school employer, should be


required to
         to tolerate.
            tolerate. Were it
                           it not for the lower court’s failure
                                                        failure to
                                                                to follow the precedent

               7                                8                                9
of this
   this Court,
        Court,7 the United States Supreme Court,
                                          Court,8 and the Supreme Court of Texas,
                                                                           Texas,°

this
this would be a straightforward case. Had the trial
                                              trial court simply tracked the


framework established by
                      by these governing courts on how to
                                                       to determine a plea to the


jurisdiction in a discrimination case,
jurisdiction                     case, the uncontroverted facts
                                                          facts and reasons for the


school district’s
       district’s employment action would have been the trial
                                                        trial court’s focus and


AHISD would not be an appellant.
AHISD                 appellant.


        The plaintiff
            plaintiff here asserts claims of gender discrimination and retaliation
                                                                       retaliation


          TCHRA. Although she now claims that she was “harassed” from the
under the TCHRA.

7
     Wang v.
     Wang    v.   Univ.
                  Univ. of of Texas at Austin,
                                            Austin, No. 04-13-00065-CV, 2013 WL        WL 5570824, atat *3
(Tex. App.—San Antonio Oct. 9,         9, 2013). This Court recognized, as the lower tribunal failed
                                                                                                   failed to
                                                                                                          to do,
                                                                                                             do,
that a plea to
that         to the jurisdiction
                      jurisdiction challenges the existence of the plaintiff
                                                                       plaintiff’s
                                                                                ’s alleged jurisdictional
                                                                                            jurisdictional facts
                                                                                                           facts
and requires the plaintiff
                       plaintiff to
                                 to affirmatively
                                     afﬁrmatively demonstrate the court's      jurisdiction to
                                                                       court's jurisdiction   to hear the case,
                                                                                                           case,
citing Mission Consolidated.          “When deciding a plea to
                    Consolidated. “When                         to the jurisdiction,”
                                                                        jurisdiction,” the Court writes,
                                                                                                   writes, “we
review not only the pleadings, ‘but may       may consider evidence and must do so when necessary to          to
resolve the jurisdictional
                jurisdictional issues raised.’
                                          raised.’ Bland Indep.
                                                          Indep. Sch.   Dist. v. Blue, 34 S.W.3d 547, 555
                                                                  Sch. Dist. 12.


(Tex. 2000).”
8
“
    McDonnell Douglas Corp.     Corp. v.v. Green, 411
                                                    411 U.S. 792 (1973) (setting
                                                                            (setting forth the procedure for for
assessing a disparate-treatment claim when direct evidence of discrimination is           is lacking).
                                                                                             lacking).
9
    Mission Consol.         Indep. Sch.
                 Consol. lndep.             Dist. v.
                                      Sch. Dist.   v. Garcia, 372 S.W.3d 629, 632 (Tex.     (Tex. 2012). The
framework to   to be applied is  is set
                                    set out in
                                             in the opening paragraph of  of this
                                                                             this Court’s binding precedent
        this Court asked, “Can a plaintiff
where this                              plaintiff establish a primafacie
                                                              prima facie case of of age discrimination when
undisputed evidence shows she was replaced by          by someone older?” answering, “The specific issue
today is
       is whether, under the Texas Commission on Human      Human Rights Act (TCHRA),
                                                                                   (TCHRA), such a claimant
is
is ever entitled to  to a presumption of   of age discrimination under the McDonnell Douglas burden-
shifting framework. We    We answer no.” With such pronouncement, Mission became the structure for
all TCHRA employment discrimination and pleas to the jurisdiction
all TCHRA                                                         jurisdiction determinations to follow.


                                                      23
start
start of her employment in
                        in August 2007, she waited until
                                                   until the end of
                                                                 of her first
                                                                        first


probationary year in May 2008 to
                  in May      to bring this
                                       this alleged harassment to the attention of


her principal,
    principal, Stephanie Kershner. Once having come forward, she became a

prolific
prolific grumbler, complaining of over 100
                                       100 instances of purported “incidents” in
                                                                              in


the year to
         to follow, that upon investigation, proved to be mostly imaginary or


utterly
utterly trivial.
        trivial. Three of
                       of these over 100
                                     100 complaints involved sexual matters. The rest
                                                                                 rest


were indicative of plaintiffs
                   plaintiff’s failure
                               failure to
                                       to co-exist with her female co-workers, and


even though her alleged harassers were women, plaintiff
                                              plaintiff claims that all
                                                                    all the conduct


she complains of was the result
                         result of gender discrimination, creating a sexually


hostile work environment.
             environment.

      Because plaintiff
              plaintiff was unable to establish each of the required elements of a


prima
prima facie
      facie sexual harassment-hostile work environment case,
                                                       case, the lower court


erred when it
           it found jurisdiction
                    jurisdiction for that                 TCHRA. See
                                     that claim under the TCHRA.


Mission Consol.  Indep. Sch.
        Corisol. Indep.      Dist. v.
                        Sch. Dist. v. Garcia, 372 S.W.3d 629, 635-36 (Tex. 2012).



Specifically,
Speciﬁcally,    with   respect   to   plaintiff’s
                                      plaintiffs    sexual   harassment-hostile   work

environment claim, plaintiff
                   plaintiff was required to
                                          to plead and demonstrate that
                                                                   that the


behavior of which she complained was both based on her sex,
                                                       sex, and, that
                                                                 that it
                                                                      it was so



severe or pervasive as to
                       to alter
                          alter the conditions of her employment and create an


                environment. See La Day
abusive working environment.        Day v.
                                        v. Catalyst Tech., Inc., 302 F.3d 474,
                                                    Tech, Inc.,

478 (5th
    (5th Cir.
         Cir. 2002); Shepherd v.
                              v. Comptroller of Public Accounts of
                                             0fPublic              State Texas,
                                                                ofState



                                           24
168
168 F.3d 871, 874 (5th
                  (5th Cir.
                       Cir. 1999).
                            1999). But, plaintiff neither argued, let
                                                                  let alone


demonstrated, either prima facie
                           facie element. See Argument, Part III,
                                                             III, B. and C.


Nor did plaintiff
        plaintiff even attempt to show that AHISD was negligent in controlling
                                       that AHISD


working conditions, another prima facie
                                  facie element. Rather, the uncontroverted

evidence at
         at the jurisdictional
                jurisdictional hearing on appeal conclusively established that

AHISD had met its
AHISD         its requirements for defending sexual harassment claims, having


promulgated appropriate anti-harassment policies,
                                        policies, and when plaintiff
                                                           plaintiff finally
                                                                     ﬁnally

reported alleged harassing conduct after                 AHISD followed its
                                   after several months, AHISD          its


policies to
         to immediately investigate plaintiffs
                                    plaintiff’s claims, issue a report and take

prompt remedial actions. See Argument, Part III,
                                            III, D. and E.


      In spite
         spite of the overwhelming evidence to the contrary, plaintiff also claims
                                                   contrary, plaintiff

that she was terminated in retaliation
                           retaliation for having engaged in
                                                          in a protected activity.
                                                                         activity.


However, instead of sweeping plaintiff’s
                             plaintiff’ s complaints under the rug or punishing


her, AHISD welcomed, and on several occasions literally
her, AHISD                                    literally begged plaintiff
                                                               plaintiff to
                                                                         to bring


her complaints in a timely manner under proscribed policies and procedures. And,

notwithstanding plaintiff’s
                plaintiff” s circumvention of those processes, each and every one


of her allegations was fully
                       fully investigated, no matter how trivial
                                                         trivial they appeared to be.


(Supp. CR, Vol. I. 185-187)
           Vol.1.  185-187)

      Plaintiff’s
      Plaintiffs eventual termination from employment was based on numerous,

significant,
signiﬁcant, legitimate, non-retaliatory reasons, and her termination was proposed




                                         25
only after AHISD had exhausted every effort
     after AHISD                     effort to improve and remediate a myriad of


well-documented performance deficiencies.
                            deﬁciencies. (Appendix, Tab 4,
                                                        4, pp. 1-3,
                                                               1-3, also at


Supp. CR, Vol. I.
               I. 138-140) Among the multiple reasons for her termination was
                  138-140) Among

plaintiff’s
plaintiff’ s failure
             failure to
                     to perform local,
                                local, state
                                       state and federally required teaching


responsibilities,
responsibilities, to
                  to follow clear and repeated administrative directives,
                                                              directives, for her


having lodged unsupported and salacious comments about and descriptions of co-

workers to
        to other teachers and students, accusing those co-workers of criminal


conduct and ribald and indiscriminate sexual conduct, and describing them as

homosexuals, and for her having provided a knowingly false
                                                     false statement to
                                                                     to protect


her own interests
        interests in an investigation into potential
                                           potential state
                                                     state standardized student


testing procedures. Id.
                    Id. Plaintiff has no evidence that
                                                  that any of these documented


reasons proffered for her termination were a pretext for retaliation.
                                                         retaliation. Rather, the


evidence at
         at the jurisdictional
                jurisdictional hearing under review clearly
                                                    clearly demonstrated that
                                                                         that


plaintiff
plaintiff   was terminated solely
                           solely due to
                                      to the reasons offered to     AHISD Board of
                                                             to the AHISD


Trustees that issued the termination notice.
                                     notice. As such, the trial
                                                          trial court again erred by
                                                                                  by

not dismissing plaintiffs  TCHRA retaliation
               plaintiff’s TCHRA retaliation claim because plaintiff
                                                           plaintiff could not,
                                                                           not, and


did not establish the primafacie
                      prima facie elements for a retaliation
                                                 retaliation claim, most notably, she


                               prima facie element —
was missing the third required primafacie          – causation.

      Pursuant to the Texas Supreme Court’s holding in
                                                    in Mission Consolidated


Independent School District
                   District v.
                            v. Garcia, 372 S.W.3d 629 (Tex. 2012), plaintiff’s
                                                                   plaintiff’ s




                                         26
inability to establish the necessary elements of her prima
inability to                                         prima facie
                                                           facie case should have

meant that
      that AHISD’s governmental immunity was not waived for either of her


claims.
claims. Accordingly, the trial
                         trial court erred when it
                                                it denied AHISD’s Plea to
                                                                       to the


Jurisdiction,
Jurisdiction, and as will be clearly
                             clearly demonstrated below, this
                                                         this Court must reverse the


trial
trial court’s order and dismiss plaintiff’s claims for want of
                                                            of subject matter

jurisdiction.
jurisdiction.




                                        27
                                         ARGUMENT
                                         ARGUMENT

I.
I.        THE
          T    STANDARD OF
            HE STANDARD      REVIEW FOR
                          OF REVIEW FOR JURISDICTIONAL CHALLENGES TO
                                        JURISDICTIONAL CHALLENGES     TCHRA
                                                                  TO TCHRA
          CLAIMS BASED
          CLAIMS    BASED ON   GOVERNMENTAL IMMUNITY
                           ON GOVERNMENTAL     IMMUNITY MIRRORS   THAT OF
                                                         MIRRORS THAT       A
                                                                         OF A
          TRADITIONAL    SUMMARY JUDGMENT
          TRADITIONAL SUMMARY      JUDGMENT MOTION    AND REQUIRES
                                             MOTION,, AND REQUIRES DISMISSAL
                                                                    DISMISSAL
                   THE PLAINTIFF
          UNLESS THE
          UNLESS                             THE PRIMA
                                 ESTABLISHES THE
                       PLAINTIFF ESTABLISHES                 ELEMENTS OF
                                                       FACIE ELEMENTS
                                                 PRIMA FACIE              HER
                                                                       OF HER
          CLAIMS..
          CLAIMS

     A.    Mission Consolidated, the First Controlling Case Disregarded by
                                                                        by the
           Trial Court.

          Deciding a plea to
                          to the jurisdiction
                                 jurisdiction in an employment discrimination or

retaliation
retaliation case brought against any state
                                     state agency that has governmental immunity,


such as this
        this public school district,
                           district, requires the application of two convergent


principles of
principles    jurisprudence; in
           of jurisprudence; in the           first,
                                              first, the Texas rules on how to
                                                                            to judge a


jurisdictional plea under the
jurisdictional                     TCHRA are grounded in Mission Consolidated, both
                                   TCHRA

its
its ancestry and its
                 its progeny (see
                             (see Mission Consolidated, 372 S.W.3d 629, 635-36

                        set of canons are the McDonnell Douglas federal
(Tex. 2012); the second set

guidelines established by
                       by the United States Supreme Court, guiding both federal

and state
    state courts in
                 in the resolution of employment discrimination and retaliation
                                                                    retaliation

                                                                  10
claims.
claims. See McDonnell Douglas Corp.
                              Corp. v.
                                    v. Green, 411
                                              411 U.S. 792 (1973).
                                                           (1973).1°




10
10
         TCHRA was enacted with the express purpose of providing for the execution of
    The TCHRA                                                                                  of the
policies of Title
policies    Title VII of
                      of the Civil Rights     Act of
                                                  of 1964
                                                      1964 and its
                                                                 its subsequent amendments. See
Tex. Lab. Code §§ 21.001(1).
                    2l.00l(l). The Texas Supreme Court has observed thatthat the purpose behind the
TCHRA isis “to correlate state
TCHRA                        state law with federal law in in employment discrimination cases.”
Autozone, Inc.
Autozone,   Inc. v.
                 v. Reyes, 272 S.W.3d 588, 592 (Tex.
                                                   (Tex. 2008) (citing
                                                               (citing Ysleta   Indep. Sch.
                                                                        Ysleta Indep.        Dist. v.
                                                                                        Sch. Dist.  v.

Monarrez, 177
            177 S.W.3d 915, 917 (Tex.                       TCHRA seeks to
                                   (Tex. 2005). Because the TCHRA           to promote federal civil
                                                                                                 civil
rights policy,
       policy, courts look to federal law for guidance when the provisions of the TCHRATCHRA and
Title                                  WewA&M
Title VII are analogous. See Prairie View  A&M Univ.
                                                 Univ. v.
                                                       v. Chatha, 381
                                                                  381 S.W.3d 500 (Tex.
                                                                                    (Tex. 2012).


                                                 28
      Unless a public school district’s
                             district’s governmental immunity has been clearly
                                                                       clearly

and unambiguously waived by
                         by statute,
                            statute, its
                                     its immunity deprives a trial
                                                             trial court of subject


matter jurisdiction
       jurisdiction over claims filed
                                ﬁled against the district,
                                                 district, and an assertion of


immunity is
         is an appropriate grounds for filing
                                       ﬁling a plea to
                                                    to the jurisdiction.
                                                           jurisdiction. See State v.
                                                                                   v.



                                        When a lawsuit is
Lueck, 290 S.W.3d 876, 880 (Tex. 2009). When           is barred by
                                                                 by

governmental immunity, “dismissal with prejudice for want of jurisdiction
                                                             jurisdiction is
                                                                          is


                  ofHouston
proper.” See City of Houston      v.
                                  v. Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston



[1st
[lst Dist.]
     Dist.] 1999,
            1999, pet.
                  pet. denied).


      To preserve this
                  this immunity, a governmental defendant challenges the trial
                                                                         trial


court’s right to hear a case by
                             by filing
                                ﬁling a plea to the jurisdiction
                                                    jurisdiction on any ground for

which it
      it claims the trial
                    trial court lacks subject matter jurisdiction.     Tex. Dep’t of
                                                     jurisdiction. See Tex.       of

      & Wildlife
Parks & Wildlife v.
                 v. Miranda, 133             225-26 (Tex. 2004); Dallas Area
                             133 S.W.3d 217, 225–26

Rapid Transit
      Transit v.
              v. Carr, 309 S.W.3d 174,
                                  174, 176       App.—Da1las 2010, pet.
                                       176 (Tex. App.—Dallas       pet.


denied). The trial
             trial court must then determine “at its
                                                 its earliest
                                                     earliest opportunity whether it
                                                                                  it



has the constitutional or statutory authority to
                                              to decide the case.” Miranda,


133
133 S.W.3d at
           at 226. To make this
                           this determination, the court must “consider the


plaintiff’s
plaintiffs pleadings and any
                         any evidence necessary to resolve the issue of
                                                                     of

jurisdiction.” See   County of
                            of Cameron v.
                                       v. Brown, 80 S.W.3d 549, 555 (Tex. 2002);



see also Bland Indep.
               Indep. Sch. Dist. v.
                      Sch. Dist.                                          We
                                 v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We



emphasize the phrase “any evidence.”



                                           29
      Once a defendant files
                       ﬁles a plea to the jurisdiction,
                                          jurisdiction, it
                                                        it becomes incumbent upon



the plaintiff
    plaintiff to allege sufficient facts
                                   facts to
                                         to affirmatively show that the trial
                                                                        trial court has


subject matter jurisdiction.
               jurisdiction. See City of
                                      of Elsa v.
                                              v. Gonzales, 325 S.W.3d 622, 625



(Tex. 2010); see also Tex. Ass’n
                      Tex. Ass ’n of Bus. v.
                                  ofBus.  v. Tex.
                                             Tex. Air Control Bd.,
                                                              Bd., 852 S.W.2d 440,

446 (Tex. 1993).
          1993). It               AHISD to
                 It was not up to AHISD to show a lack of jurisdiction,
                                                          jurisdiction, but was

rather the burden of the plaintiff
                         plaintiff to
                                   to raise
                                      raise a fact
                                              fact question on each of
                                                                    of the

jurisdictional elements of her claims (see
jurisdictional                        (see Mission Consol.,      372 S.W.3d at
                                                                            at 635).


Because the plaintiff
            plaintiff here failed to
                                  to meet her burden, the trial
                                                          trial court was duty-bound


to
to dismiss her claims for lack of subject matter jurisdiction.
                                                 jurisdiction. Id.
                                                               Id.

      With this
           this in mind, we turn our attention to the seminal case of


Mission Consolidated, which, while disregarded by
                                               by the lower court,
                                                            court, directs the


outcome of this                                       TCHRA claim waives
           this appeal. The Mission Court held that a TCHRA


governmental immunity only where a plaintiff
                                   plaintiff “actually alleges a violation of
                                                                           of the

TCHRA by
TCHRA    pleading facts
      by pleading facts that state
                             state a claim thereunder.” Mission Consol.,

372 S.W.3d at
           at 635-36 (emphasis added). Thus, a conclusory allegation in a


TCHRA petition,
TCHRA petition, such as a statement that a school district’s
                                                  district’s conduct violated the


TCHRA, is
TCHRA, is wholly insufficient to raise
                                 raise a fact
                                         fact question on the jurisdictional


elements such claim as to implicate the statute’s
                                        statute’s waiver of immunity.
                                                            immunity. See Lueck,

290 S.W.3d at
           at 884. Rather, a plaintiff’s
                             plaintiff’ s ability
                                          ability to establish each of the elements of


a prima facie TCHRA case “by pleading
        facie TCHRA          pleading facts
                                      facts that state
                                                 state a claim thereunder” is
                                                                           is




                                          30
fundamental to
            to a showing that the trial
                                  trial court has subject matter jurisdiction.
                                                                 jurisdiction.

Mission Consol.,
        C0ns0l., 372 S.W.3d at
                            at 636.


        Because the elements required to
                                      to establish liability           TCHRA are
                                                   liability under the TCHRA


also the elements required to
                           to invoke the statute’s waiver of immunity and establish


the court’s subject matter jurisdiction,
                           jurisdiction, the trial                   TCHRA
                                             trial court considering TCHRA


jurisdiction
jurisdiction   must “consider evidence as necessary to
                                                    to resolve any dispute over those


facts,
facts, even if
            if that evidence implicates both the subject matter jurisdiction
                                                                jurisdiction of
                                                                             of the

court and the merits of the case.” Id.
                                   Id. at
                                       at 635 (internal
                                              (internal quotations omitted). Thus,


when as here,
        here, a governmental entity
                             entity defendant challenges the trial
                                                             trial court’s subject


matter jurisdiction      TCHRA claims brought against it,
       jurisdiction over TCHRA                        it, “the trial
                                                               trial court’s review


of a plea to
          to the jurisdiction                               summary judgment
                 jurisdiction mirrors that of a traditional summary

motion.” Id.                   On appeal of the trial
         Id. (emphasis added). On               trial court’s failure
                                                              failure to
                                                                      to grant


AHISD’s Plea to
             to the Jurisdiction,
                    Jurisdiction, the Court must conduct this
                                                         this same analysis under


a de novo standard of review. See City of El Paso v.
                                       ofEl       v. Heinrich, 284 S.W.3d 366,



378 (Tex. 2009).

   B.    McDonnell Douglas is
                           is the Second Source of Analysis Disregarded by
                                                                        by
         the Trial Judge.

        Had the trial
                trial judge adhered to
                                    to her obligation under Mission Consolidated,


Bland Indep.
      Indep. Sch. Dist. v.
             Sch. Dist.                                        Wang v.
                        v. Blue, 34 S.W.3d 547 (Tex. 2000) and Wang v. Univ.
                                                                       Univ. of
                                                                             of

                                          WL 5570824 (Tex. App.—
Texas at Austin, No. 04-13-00065-CV, 2013 WL               App.—

San Antonio Oct. 9,
                 9, 2013, no pet.),
                             pet.), she would have dissected the facts
                                                                 facts to
                                                                       to analyze



                                           31
                                           31
plaintiff’s claims under the burden-shifting analytical edifice
plaintiffs                                              ediﬁce established in

McDonnell Douglas Corp.
                  Corp. v.
                        v. Green,
                           Green, 411
                                  411 U.S. 792 (1973).            AHISD
                                               (1973). Thus, once AHISD

offered legitimate, nondiscriminatory reasons for its
                                                  its action,
                                                      action, (as
                                                              (as it
                                                                  it did in
                                                                         in its
                                                                            its


submissions and exhibits offered to
                                 to the trial
                                        trial court)
                                              court) any presumption of

discrimination that had been established by plaintiffs prima facie
                                         by plaintiff’s      facie case—

          that she had even constructed a prima
presuming that                            prima facie
                                                facie case,
                                                      case, which as shown infra,
                                                                           infra,


she had not—dissolved and plaintiff’s
                          plaintiffs burden of persuasion once again arose,
                                                                     arose,


requiring plaintiff
          plaintiff to produce sufﬁcient
                               sufficient evidence to
                                                   to raise a fact
                                                              fact issue that

defendant’s proffered reasons were mere pretext,
                                        pretext, and that the real
                                                              real reason for
                                                                          for her


termination was based on an impermissible retaliatory
                                          retaliatory motive. See Washington
                                                                  Washington v.
                                                                             v.



           Chem. Corp.,
Occidental Chem. Corp, 24 F.
                          F. Supp. 2d 713, 721
                                           721 (S.D. Tex. 1998).
                                                          1998).

      Thus, there are two independent reasons as
                                              as to why AHISD’s Plea to
                                                 to why              to the


Jurisdiction should have been granted by
                                      by the lower court,     why this
                                                   court, and why this Court must


reverse:

      First,
      First, plaintiff
             plaintiff fails to make even a prima facie
                       fails to                   facie case of retaliation by
                                                                retaliation by


showing that:
        that: (1)
              (1) she engaged in
                              in a protected activity,
                                             activity, (2) AHISD took an adverse
                                                       (2) AHISD

employment action against her,
                          her, and (3)
                                   (3) a causal connection exists between the


          activity and the adverse employment action. See Ptomey v.
protected activity                                               v. Texas Tech



Univ.,                                               pet. denied). AHISD
Univ., 277 S.W.3d 487, 495 (Tex. App.—Amarillo 2009, pet.          AHISD

concedes that plaintiff
              plaintiff engaged in a protected activity
                                               activity when she filed
                                                                 filed her Charge




                                       32
         EEOC on October 7,
with the EEOC                     AHISD also concedes that
                         7, 2008. AHISD               that plaintiff
                                                           plaintiff suffered an


adverse employment action when the Board of Trustees voted to
                                                           to terminate her


employment. However, plaintiff
                     plaintiff did not,
                                   not, because she cannot establish beyond mere


allegation that a causal connection existed between the two.

                                          plaintiff had pled a marginal prima
      Second, even assuming arguendo that plaintiff

facie case,
facie case, defendant articulated multiple legitimate reasons for its
                                                                  its actions and



plaintiff did not rebut a single
plaintiff                          one nor did plaintiff
                                               plaintiff even attempt to
                                                                      to demonstrate


that the reasons given by AHISD for its
                       by AHISD     its actions were a pretext for discrimination.


      We now address these failures
      We                   failures in
                                    in reverse order,
                                               order, confronting first
                                                                  first plaintiff’s
                                                                        plaintiffs

failures
failures to
         to rebut the reasons for her termination to
                                                  to show them to
                                                               to be pretext.


   C. The McDonnell Douglas Burden-Shifting Framework Requires a
      Showing of Pretext and Must be Considered a Part of the
      Jurisdictional Analysis Under Mission Consolidated.

      Under Mission Consolidated,
                    Consolidated, this
                                  this Court must review the sufficiency of


plaintiff’s
plaintiffs claims as it
                     it would a traditional            summary judgment.
                                traditional motion for summary judgment. See

Mission Consol., 372 S.W.3d at      We initially
                            at 635. We initially examine plaintiff’
                                                         plaintiff’ss retaliation
                                                                      retaliation


claim. Since plaintiff
             plaintiff brings this
                              this claim as mere conclusion, absent any direct


         of causation, she proceeds under the familiar McDonnell Douglas
evidence of

burden-shifting framework, for analyzing discrimination and retaliation
                                                            retaliation claims at
                                                                               at


the summary judgment stage when a plaintiff
                                  plaintiff lacks direct
                                                  direct evidence of causation.


See McDonnell Douglas Corp.
                      Corp. v.
                            v. Green, 411
                                      411 U.S. 792 (1973).
                                                   (1973). Despite the lack of




                                           33
direct evidence of retaliation,
                   retaliation, a plaintiff
                                  plaintiff bringing a retaliation
                                                       retaliation claim under Title
                                                                               Title VII


       TCHRA may
or the TCHRA may proceed under the McDonnell Douglas burden-shifting
analysis as a substitute method of proof, relying initially
                                                  initially on a rebuttable


presumption of
            of retaliation
               retaliation that
                           that vanishes when the defendant articulates
                                                            articulates a


legitimate, non-retaliatory rationale for its
                                          its employment action.
                                                         action. See Quantum


Chem.
Chem. Corp.
      Corp. v.
            v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001) (citing Tex. Dep’t of
                                                        (citing Tex.       of

Cmty. Affairs v.
Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981))
                                               (1981)) (explaining that the

employer’s provision of a legitimate reason eliminates the presumption initially
                                                                       initially


relied on by
          by the plaintiff).
                 plaintiff). Once an employer makes this
                                                    this showing, the plaintiff
                                                                      plaintiff can

no longer rely
          rely on this
                  this presumption,
                       presumption, and in order to
                                                 to avoid dismissal, must produce


sufficient circumstantial evidence of
                                   of pretext to
                                              to create a fact
                                                          fact question on each of the


employer’s legitimate, non-retaliatory reasons. Id.
                                                Id. Therefore, the rebuttable

presumption alone is
                  is insufficient to
                                  to carry a plaintiff’s burden of establishing the


jurisdictional elements of a retaliation
jurisdictional               retaliation claim under the        TCHRA, otherwise a
                                                                TCHRA,

plaintiff would
plaintiff         be able to
                          to continue to rely
                                         rely solely
                                              solely on this
                                                        this presumption, even after
                                                                               after it
                                                                                     it



has vanished, to
              to establish the court’s subject matter jurisdiction.
                                                      jurisdiction. This is
                                                                         is the logical


extension of the Texas Supreme Court’s rationale in
                                                 in Mission Consolidated, and it
                                                                              it



compels the trial
            trial court and this
                            this Court to
                                       to consider the entire burden-shifting


framework, including pretext,
                     pretext, in
                              in its jurisdictional analysis.
                                 its jurisdictional analysis.




                                           34
      Yet, the trial
               trial court failed to
                                  to conduct this
                                             this complete pretext analysis,
                                                                   analysis, obviously

disregarding precedent from this
                            this Court and the First
                                               First Court of Appeals, analyzing


retaliation
retaliation claims since Mission Consolidated. See Tex. SOAH v.
                                                   Tex. SOAH v. Birch, No. 04-12-



               WL 3874473 atat *19
00681-CV, 2013 WL              *l9 (Tex. App.—San Antonio July 24, 2013, pet.
                                                                         pet.


denied) (holding that trial
                      trial court lacked subject matter jurisdiction
                                                        jurisdiction over retaliation
                                                                          retaliation


claim because plaintiff
              plaintiff could not rebut employer’s legitimate,
                                                   legitimate, non-retaliatory


reasons for termination); see also Univ.
                                   Univ. of Tex. MD.
                                         of Tex. M.D. Anderson Cancer Ctr.
                                                                      Ctr. v.
                                                                           v.



Valdizan-Garcia,                          WL 5545783 atat *7-8 (Tex. App.—
Valdizan-Garcia, No. 01-12-00386-CV, 2012 WL                         App.—

Houston [1st Dist.] November 15,
        [lst Dist.]          15, 2012, no pet.)
                                          pet.) (addressing causation in
                                                                      in a


retaliation
retaliation claim by
                  by analyzing pretext evidence as jurisdictional).
                                                   jurisdictional).

      Moreover, applying the burden-shifting framework, including the showing

of pretext,
   pretext, as part
               part of the jurisdictional
                           jurisdictional analysis under Mission Consolidated does

not impose a significant
             signiﬁcant burden on a plaintiff.
                                    plaintiff. To avoid dismissal under the same


analysis that would be used in a traditional motion for summary judgment, a

plaintiff need only to
plaintiff           to proffer   competent summary judgment evidence that if
                                                                          if viewed


favorably for the plaintiff
                  plaintiff would produce a genuine issue of material fact.
                                                                      fact. See


Tex. R. Civ. P.
             P. 166a(b)
                l66a(b) and Mission Consol., 372 S.W.3d at
                                                        at 635-36.




                                           35
      AHISD Had
   D. AHISD     Had Multiple Legitimate, Non-Retaliatory Reasons for
                                                   Made With Respect to
      Termination, as well as Every Other Decision Made
      Plaintiff’s
      Plaintiffs Employment.

      AHISD’s burden to
                     to articulate
                        articulate such reasons is
                                                is “only one of production, not



persuasion, and involves no credibility
persuasion,                 credibility assessment.” See        McCoy
                                                                McCoy v City of
                                                                             of

Shreveport, 492 F.3d 551, 557 (5th
                              (5th Cir.              AHISD clearly
                                   Cir. 2007). Here, AHISD clearly met its
                                                                       its


burden. AHISD’s reasons for proposing plaintiffs
                                      plaintiff’s termination were not about her

internal reports to
                 to Kershner or her filing                  EEOC, but were rather
                                    ﬁling a Charge with the EEOC,

based on the eleven (11)
                    (11) independent performance deficiencies
                                                 deﬁciencies supported by
                                                                       by

nineteen (19)
         (19) described examples of conduct that were identified
                                                      identiﬁed in
                                                                 in the Notice of


Proposed Termination.
         Termination. (Supp. CR,
                             CR, Vol. I.
                                      I. 103-105;
                                         103-105; see also Appendix, Tab 4,
                                                                         4,


pp. 1-3,
    1-3, AHISD’s Notice of Proposed Termination) Except for plaintiff’s
                                                            plaintiffs weak

attempts through bare argument and conclusory allegations (discussed below), it
                                                                             it



remains undisputed that
                   that these stated reasons and identified
                                                 identiﬁed descriptions of
                                                                        of

plaintiff’s
plaintiffs multiple and significant
                        signiﬁcant performance deficiencies
                                               deﬁciencies constituted legitimate,

non-retaliatory reasons for her termination.

                                      AHISD has also articulated legitimate, non-
      Additionally, we point out that AHISD

retaliatory
retaliatory reasons for each of
                             of its
                                its prior actions and decisions made with respect to
                                                                                  to


plaintiff’s
plaintiffs employment. (Appendix, Tab 3,
                                      3, pp. 6-8; also at Supp. CR, Vol. I.
                                                                         I. 134-
                                                                            134-

136,
136, 190-192) AHISD demonstrated that itit took every conceivable action to
     190-192) AHISD

remediate plaintiff’s
          plaintiffs substandard performance and unprofessional conduct, further




                                         36
supporting its
           its legitimate, non-retaliatory reasons for each of
                                                            of the professional

development assignments,
            assignments, performance evaluations, reprimands, and other

employment actions,
           actions, each of which was thoroughly and exhaustively detailed in


writings to plaintiff.
            plaintiff. (Supp. CR, Vol. I.
                                       1. 191,                   AHISD
                                          191, 391-416) As such, AHISD

demonstrated that it
                  it had considered and articulated legitimate, non-retaliatory



reasons for every action taken with respect to
                                            to plaintiff’s
                                               plaintiffs employment, even with

regard to
       to employment decisions that would not constitute adverse employment


actions11
                   TCHRA. Id,
actions“ under the TCHRA. Id. Other than her base contentions that she was the

victim of retaliation, plaintiff can produce no competent summary judgment
          retaliation, plaintiff


evidence that any of these actions,
                           actions, and particularly the decision to
                                                                  to terminate her


employment, were not fully justified by
                     fully justified by the circumstances, much less
                                                                less that they


were retaliatory
     retaliatory in
                 in nature. See Little
                                Little v.
                                       v. Liquid Air Corp.,
                                                     Corp, 37 F.3d 1069,
                                                                   1069, 1075
                                                                         1075

(5th
(5th Cir.
     Cir. 1994)
          1994) (holding that unsubstantiated assertions and conclusory allegations

are not competent summary judgment evidence).
                                   evidence).


11
I   I

           TCHRA’s anti-retaliation provision only protects materially adverse employment
     The TCHRA’s
decisions that
             that “would dissuade a reasonable worker from making or supporting a charge of
discrimination.” See Montgomery Cty.        Cty. v.v.   Park, 246 S.W.3d 610, 612 (Tex.       (Tex. 2007) citing
                                                                                                               citing
Burlington Northern and Santa Fe Ry.
Burlington                                Ry. Co.
                                                Co. v.v. White,        US. 53,
                                                          White, 548 U.S.    53, 57 (2006).
                                                                                     (2006). Although Plaintiff
                                                                                                            Plaintiff
points toto the “bullying” and “ostracism” visited upon her by             by  her  co-workers,     they   were   not
materially adverse employment actions under the TCHRA.            TCHRA. See Muniz v.      v. El Paso Marriott,

773 F.Supp.2d 674, 682 (W.D. Tex. 2011), affirmed    afﬁrmed 477 Fed. Appx. 189    189 (5th
                                                                                        (5th Cir.  May 14,
                                                                                              Cir. May    14, 2012)
(citing
(citing Stewart v. v. Mississippi Transp.      Comm 586 F.3d 321, 332 (5th
                                    Transp. Comm’n,      ’n,                       (5th Cir.
                                                                                         Cir. 2009)).
                                                                                               2009)). Similarly,
                                                                                                          Similarly,
Plaintiff’s
Plaintiff ’s claim that
                     that she was placed under increased scrutiny by        by Kershner, even if   if true,
                                                                                                      true, was not
an adverse employment action.action. See id.
                                           id. (citing
                                               (citing Grice v.  v. FMC
                                                                    FMC Techs.   Inc., 216 Fed Appx. 401, 404
                                                                          Techs. Ine.,
(5th
(5th Cir.
      Cir. 2007) (holding that an adverse employment action had not occurred where the employer
(1)
(1) watched    the plaintiff
                    plaintiff closely,
                              closely, (2)
                                       (2) accused the plaintiff
                                                             plaintiff of
                                                                       of forgery,
                                                                          forgery, and (3)
                                                                                        (3) falsified
                                                                                             falsiﬁed an incident
report to
        to place blame on the plaintiff)).
                                  plaintiff)).


                                                        37
II.
II.     PLAINTIFF
        P LAINTIFF CANNOT   SHOW PRETEXT
                   CANNOT SHOW    PRETEXT BECAUSE HER ALLEGATIONS
                                          BECAUSE HER             ARE
                                                      ALLEGATIONS ARE
        BASED SOLELY
        BASED         ON SPECULATION
               SOLELY ON SPECULATION..

        Plaintiff must either demonstrate that all
                                               all eleven reasons and nineteen


examples are mere pretext for retaliation
                              retaliation or her claim must be dismissed as
                                                                         as a


matter of law. See Ellerbrook v.
                              v. City of
                                      of Lubbock, 465 Fed. Appx. 324, 330

(5th Cir. 2012); see also McCoy,
(5th Cir.                 McCoy, 492 F.3d at
                                          at 557. To establish pretext,
                                                               pretext, a plaintiff
                                                                          plaintiff


must show that the defendant’s explanation for the employment action is
                                                                     is false,
                                                                        false, and


that                        real reason. See Ptomey v.
that discrimination was the real                    v. Tex.
                                                       Tex. Tech Univ.,
                                                                 Univ., 277 S.W.3d

487, 493 (Tex. App.—Amarillo 2009, pet.                   Wal—Mart Stores,
                                   pet. denied); see also Wal-Mart         Inc.
                                                                   Stores, Inc.


v.
v. Canchola, 121
             121 S.W.3d 735, 740 (Tex. 2003) (an employee’s proof that the

investigation leading to
                      to her termination was imperfect, incomplete, and arrived at
                                                                                at


an incorrect conclusion is
                        is insufficient
                           insufﬁcient to
                                        to prove pretext).
                                                 pretext). Such a showing can only

be accomplished by               AHISD would not have taken its
                by evidence that AHISD                      its adverse


employment action ‘but for’ plaintiff’s
                            plaintiffs protected activity.
                                                 activity. See Univ.
                                                               Univ. of
                                                                     of Texas Sw.
                                                                              Sw.

                                                 12
Med.
Med. Ctr.
     Ctr. v.
          v. Nassar, 133
                     133 S.Ct. 2517, 2533 (2013).
                                          (20l3).12 Plaintiff offers no such


evidence. (Supp. CR,
                 CR, Vol. II.
                          II. 68-80, Plaintiff’s
                                     Plaintiff’ s Deposition)




12
‘2
    “[E]ven if
            if a plaintiff
                 plaintiff’s
                           ’s protected conduct isis a substantial element inin a defendant’s decision to
                                                                                                       to
terminate an employee, no liability
                               liability for unlawful retaliation
                                                        retaliation arises
                                                                    arises if
                                                                           if the employee would have
been terminated even in in the absence of  of the protected conduct.” See Long v.      Eastfield College,
                                                                                    v. Eas;‘field

88 F.3d 300, 305 n.
                  n. 4 (5th
                       (5th Cir.
                             Cir. 1996).
                                  1996).


                                                   38
     A. The Doctrine of Collateral Estoppel Bars Plaintiff from Re-Litigating
        the Board’s Reasons for Acting on Her Termination.

       The Texas Education Code establishes a robust framework that provided

plaintiff with ample opportunity to
                                 to litigate
                                    litigate the Board’s proposed termination of her


contract. (Appendix, Tab 4,
                         4, pp. 1-3.
                                1-3. Notice of
                                            of Proposed Termination)
                                                        Termination) Had plaintiff
                                                                         plaintiff


merely challenged this
                  this action,
                       action, she would have been provided a full
                                                              full evidentiary


hearing before an independent hearing examiner where plaintiff may have
                                                     plaintiff may


presented her case that the reasons offered in
                                            in support of the proposed termination

                 13
were retaliatory.
     retaliatory.” See Tex. Educ. Code §
                                       § 21.159(b).
                                         2l.l59(b). But, plaintiff
                                                         plaintiff did not


challenge her proposed termination or the purported “good cause” reasons

supporting it.
           it. (Supp. CR, Vol. I.
                               I. 105;
                                  105; Supp. CR, Vol. II
                                                      II 80) As such, the only


evidence before the Board in
                          in its
                             its determination of “good cause” were the reasons


given to plaintiff supporting the administration’s recommendation to
      to plaintiff                                                to terminate.
                                                                     terminate.

(Supp. CR, Vol. I.
                1. 103-15)
                   103-15) The Board’s findings
                                       ﬁndings that
                                                that the proffered reasons


constituted “good cause” resulted from plaintiffs
                                       plaintiff’s failure
                                                   failure to
                                                           to challenge the proposed


termination through the process established by
                                            by the Texas Education Code, and she

is
is barred by
          by the doctrine of collateral
                             collateral estoppel from re-litigating those reasons in
                                                                                  in a


                          TCHRA. See Nairn v.
lawsuit brought under the TCHRA.                      Indep. Sch.
                                           v. Killeen Indep.      Dist.,
                                                             Sch. Dist.,

366 S.W.3d 229, 246-47 (Tex. App.—El Paso 2012, no pet.)
                                                   pet.) (affirming summary


13
“‘
   Under Chapter 21
                  21 of
                      of the Texas Education Code, plaintiff
                                                   plaintiff would have further been entitled
                                                                                     entitled to
                                                                                              to
appeal the Board’s determination of   of good cause to  to the Commissioner of Education.
See Tex. Educ. Code §§ 21.301
                       21.301 et seq.
                              et seq.



                                              39
judgment on sexual harassment and retaliation                  TCHRA because
                                  retaliation claims under the TCHRA


the factual determinations reached in
                                   in support of
                                              of teacher’s termination under the

Education Code had preclusive effect).
                              effect). Plaintiff also gave deposition testimony


that she has no evidence that any Board member acted in
                                                     in retaliation
                                                        retaliation when the


members voted unanimously to terminate her employment.
                                           employment. (Supp. CR, Vol. II.
                                                                       II. 68-



80) Plaintiff
    Plaintiff cannot and did not show to
                                      to the trial
                                             trial court that
                                                         that the Board’s decision to
                                                                                   to


terminate her employment was pretext for retaliation,
                                         retaliation, or that
                                                         that it
                                                              it was based on any



reason other than her failure
                      failure to
                              to request a hearing to
                                                   to challenge the proposed action.


   B.     Plaintiff Cannot Rely on Subjective Beliefs or Conclusory Allegations
          to Demonstrate Pretext.

        Even were plaintiff
                  plaintiff not barred from challenging the reasons supporting the


Board’s action by
               by the doctrine of collateral
                                  collateral estoppel, plaintiff’
                                                       plaintiff’ss claim fails
                                                                          fails because


she cannot show that
                that any of the reasons offered for her termination were


pretextual. This is
pretextual.      is because plaintiff
                            plaintiff has   no evidence of retaliation,
                                                           retaliation, offering only her


unsubstantiated and subjective belief
                               belief in
                                      in its place. (Supp.
                                         its place. (Supp. CR, Vol. II.
                                                                    II. 68-80) These



unsubstantiated assertions and subjective beliefs
                                          beliefs are not sufficient
                                                          sufficient to
                                                                     to prove pretext


or to
   to meet a plaintiffs        facie burden under the McDonnell Douglas
             plaintiff’s prima facie

framework. See Liquid Air Corp.,
                          Corp, 37 F.3d at
                                        at 1075;
                                           1075; see also Hornsby v.
                                                                  v. Conoco,
                                                                     Conoco,

Inc.,
Inc.,   777 F.2d 243, 246 (5th
                          (5th Cir.
                               Cir. 1985)
                                    1985) (holding that
                                                   that an employee’s subjective


beliefs about the reasons for her termination are not sufficient to provide judicial

relief
relief when the employer has presented legitimate,
                                       legitimate, non-retaliatory reasons for its
                                                                               its




                                            40
adverse employment action); E.E.O.C.
                   action); E.E.       v. Exxon Shipping Co.,
                                 0. C. v.                C0,, 745 F.2d 967, 976

(5th
(5th Cir.
     Cir. 1984)
          1984) (holding that
                         that pretext cannot be supported by
                                                          by conclusory

statements). As plaintiff
                plaintiff clearly
                          clearly reveals in her deposition testimony she has no

evidence, outside of her unsupported belief,
                                     belief, of any retaliatory
                                                    retaliatory motive held by
                                                                            by

                                               AHISD Board of Trustees–those
Kershner, Bashara, Brown, or any member of the AHISD          Trustees—those

who had decided the fate
                    fate of her employment.
                                employment. (Supp. CR,
                                                   CR, Vol. II.
                                                            II. 68-80)



               AHISD has remained consistent and has never offered shifting or
      Further, AHISD

inconsistent reasons for its
                         its actions toward plaintiff,
                                            plaintiff, who argues only that she was


the victim of retaliation,
              retaliation, but cannot show that any
                                                any of the reasons proffered for her

termination were false                          AHISD failed to follow its
                 false or not credible, or that AHISD                  its usual


policies and procedures in
                        in carrying out this
                                        this adverse employment action.
                                                                action. See Green


v. Lowe
v.      ’s Home Ctrs., Inc., 199
   Lowe’s       Ctrs., Inc., 199 S.W.3d 514, 519 (Tex. App.—Houston [1st
                                                                    [lst Dist.]
                                                                         Dist.]


2006, pet.
      pet. denied) (discussing factors in context of
                                                  of termination of
                                                                 of employment).

   C. Plaintiff Cannot Rely on the Alleged Unreasonableness of the Board’s
      Determination to Show Pretext for Retaliation.

      In her deposition, plaintiff
                         plaintiff testified
                                   testiﬁed that
                                             that the only “evidence” she has that


AHISD retaliated against her is
AHISD                        is the inference drawn from her averment
                                                             averrnent that
                                                                       that she


never engaged in                  AHISD cited to support its
              in the conduct that AHISD                  its termination decision.


(Supp. CR,
       CR, Vol. II.
                II. 68-70) While plaintiff
                                 plaintiff denies that
                                                  that she actually engaged in
                                                                            in the


terminable conduct cited by
                         by the Board (Supp.
                                      (Supp. CR, Vol. II.
                                                      II. 86),
                                                          86), whether or not


those allegations are true is
                           is of
                              of no legal consequence;
                                          consequence; rather,
                                                       rather, the appropriate inquiry



                                         41
                                         41
for a McDonnell Douglas analysis and the review of
                                                of AHISD’s jurisdictional
                                                           jurisdictional

                      AHISD reasonably believed that plaintiff
challenge was whether AHISD                          plaintiff had engaged in
                                                                           in


such conduct.
     conduct. See Nasti v.
                        v. CIBA Specialty Chem. Corp., 492 F.3d 589, 595
                                Specially Chem.

(5th
(5th Cir.
     Cir. 2007) (holding that no genuine issue of material fact
                                                           fact existed where an


employer’s stated reason for termination was its
                                             its reasonable belief
                                                            belief that the

aggrieved employee submitted a false
                               false report to
                                            to the employer).
                                                   employer). The evidence

conclusively demonstrates that the Board’s belief
                                           belief was genuine.
                                                      genuine. (Supp. CR, Vol. I.
                                                                               I.



103-106)
103-106) At the time of its
                        its decision, Superintendent Brown had presented the


               AHISD Administration’s conclusions regarding the need to
Board with the AHISD                                                 to


terminate plaintiff’s
          plaintiffs employment, which were supported by
                                                      by specific examples of

alleged conduct and a voluminous investigatory record developed by
                                                                by

Stephanie Kershner and Dana Bashara. (Appendix, Tab 3,
                                                    3, pp. 6-8, Kershner’s


Letter to
       to Superintendent Brown) Plaintiff did not challenge the proposed


termination, nor did she dispute any of
                                     of the specific allegations of conduct

attributed to
           to her.        CR, Vol. I.
              her. (Supp. CR,      I. 105)           AHISD Board of Trustees’
                                      105) Thus, the AHISD

conclusion that good cause existed for her termination, based on the

Administration’s
Administration’s uncontroverted version of events regarding plaintiff’s
                                                            plaintiffs conduct,

was entirely
    entirely reasonable. Id.;
                         Id.; see also Anderson v. Tupelo Regional Airport Auth.,
                                                v. Tupelo                  Auth.,

No. 13–60666,       WL
    13-60666, 2014 WL 1929866 at *5 (5th
                      1929866 at    (5th Cir. May 15,
                                         Cir. May     2014).
                                                  15,2014).




                                       42
      Moreover, plaintiff’s                                        AHISD had
                plaintiffs unsupported testimony or assertion that AHISD

acted unreasonably in
                   in terminating her employment, cannot, by
                                                          by itself,
                                                             itself, meet her


burden to
       to show pretext,
               pretext, as a demonstration of
                                           of unreasonableness must be

accompanied by
            by further demonstration of
                                     of discriminatory or retaliatory
                                                          retaliatory animus. See


Crutcher v.        Indep. Sch.
         v. Dallas Indep.                                       App.—
                               Dist., 410 S.W.3d 487, 497 (Tex. App.—
                          Sch. Dist,

Dallas 2013, no pet.)
                pet.) (“The issue at
                                  at the pretext stage is
                                                       is not whether the employer


made an erroneous decision; it
                            it is
                               is whether the decision, even if
                                                             if incorrect,
                                                                incorrect, was the


real
real reason for the employment determination. The employer is
                                                           is entitled to
                                                                       to be


unreasonable so long as it
                        it does not act                     animus”) (citing
                                    act with discriminatory animus.”) (citing


Sandstad
Scmdstad v. CB Richard Ellis,
         v. CB         Ellis, Inc.,
                              Inc., 309 F.3d 893, 899 (5th
                                                      (5th Cir.
                                                           Cir. 2002); see also


Mayberry v.
         v. Vought
            Vought Aircraft Co.,
                            Co., 55 F.3d 1086,
                                         1086, 1091
                                               l09l (5th
                                                    (5th Cir.
                                                         Cir. 1995)).
                                                              1995)). Plaintiff has

not offered any evidence of discriminatory or retaliatory
                                              retaliatory animus motivating the


decision to
         to terminate her employment, and she cannot show that
                                                          that the Board’s stated


reasons were pretext. (Supp. CR, Vol. II.
                                      II. 74-80)



      Additionally, Kershner’s negative assessment of plaintiff’s
                                                      plaintiffs credibility  may
                                                                  credibility may


serve as the basis of its
                      its legitimate, non-retaliatory reason, even though plaintiff
                                                                          plaintiff


complains that such reason is                               AHISD has offered
                           is a subjective opinion, because AHISD


evidence demonstrating how Kershner arrived at
                                            at this
                                               this determination, namely,


plaintiff’s
plaintiffs misrepresentations of
                              of Boyer’s conduct at
                                                 at the meeting attended by
                                                                         by

Kershner, and plaintiff’s                                              TAKS cell
              plaintiffs untruthful written statement given during the TAKS cell




                                        43
phone incident. See Appendix Tab 5,
                                 5, pp. 4-5, Martinez v.
                                                      v. Texas Workforce
                                                               Workforce

Comm ’n —– Civil Rights.
Comm’n                   Div., No 14-50391
                 Rights. Div.,    14-50391 (5th
                                           (5th Cir.
                                                Cir. Dec. 30,
                                                          30, 2014) (per
                                                                    (per curiam)

                                             may serve as the basis for a legitimate
(holding that employer’s subjective opinions may

reason supporting an employment action,
                                action, and that such subjectivity is
                                                                   is not evidence


of pretext).
   pretext).

                                                     Show Pretext.
   D. Plaintiff Cannot Rely on Temporal Proximity to Show

      Temporal proximity can only be considered as evidence of causation if
                                                                         if the


timing between the two events is
                              is very close,
                                      close, and even then,
                                                      then, the Fifth Circuit has

held such consideration cannot stand alone as determinative of retaliation.
                                                               retaliation. See


DeHart v.
       v. Baker Hughes Oilfield
                       Oilfield Operations,                App’x 437, 442
                                            Inc., 214 Fed. App’x
                                Operations, Inc.,

(5th
(5th Cir.
     Cir. 2007) (Close temporal proximity “is not itself
                                                  itself determinative of


retaliation.”);
retaliation”); see also Swanson v.
                                v. Gen. Servs. Admin,
                                   Gen. Servs. Admin., 110
                                                       110 F.3d 1180,
                                                                1180, 1188
                                                                      1188 n.
                                                                           n. 3


(5th
(5th Cir.
     Cir. 1997)
          1997) (“the mere fact
                           fact that
                                that some adverse action is
                                                         is taken after
                                                                  after […]
                                                                        [...] some


          activity will not always be enough for a prima facie
protected activity                                       facie case.”).
                                                               case”). In the

present case,
        case, plaintiff’s
              plaintiffs reliance on temporal proximity is
                                                        is inappropriate because the


time period between plaintiff's EEOC Charge and her termination was seven
                    plaintiff’s EEOC

months, a larger gap than any previously recognized as circumstantial evidence of

retaliation
retaliation by           Circuit. See Evans v.
            by the Fifth Circuit.           v. City of
                                                    of Houston, 246 F.3d 344, 354

(5th
(5th Cir.                                             may establish a causal
     Cir. 2001) (noting up to a four month time lapse may


connection).
connection). Moreover, in Swanson, the Fifth Circuit reasoned that
                                                              that temporal




                                        44
proximity is
          is a particularly poor indicator of retaliation
                                              retaliation when, as
                                                                as is
                                                                   is the case here,
                                                                               here,

the plaintiff
    plaintiff made several complaints over an extended period of
                                                              of time while also

suffering from numerous performance deficiencies
                                    deﬁciencies over that
                                                     that same time period.
                                                                    period. See

Swanson, 110
         110 F.3d at
                  at 1188
                     1188 n.3.
                          n.3. The Fifth Circuit also noted the undesirable result
                                                                            result


if
if temporal proximity to
                      to anything that happened in a prior extended time period


could support a link between that
                             that prior event and the adverse employment action.
                                                                         action.


Id.
Id.


       Finally,
       Finally, although plaintiff
                         plaintiff argues that she was given a TINA/growth plan in


                       EEOC Charge, such isis not indicative of a retaliatory
the days following her EEOC                                       retaliatory motive


        AHISD had identified
because AHISD     identiﬁed and been working to correct each of the

performance deficiencies
            deﬁciencies identified
                         identiﬁed in
                                   in her growth plan. (Supp. CR, Vol. I.
                                                                       I. 184-185,
                                                                          184-185,

                   TINA was not a reaction to
227-228) Thus, the TINA                                    EEOC Charge, but the
                                              plaintiff’ss EEOC
                                           to plaintiff’


natural consequence of plaintiff’s
                       plaintiff’ s failure
                                    failure to
                                            to conduct herself as Kershner had


previously directed. (Supp.
                     (Supp. CR, Vol.
                                Vol. I.
                                     I. 229-231) The United States Supreme Court



held in
     in Clark County School District
                            District v.
                                     v. Breeden, 532 U.S. 268 (2001) that an



employer’s knowledge of an employee’s intervening protected activity
                                                            activity will not


require the employer to
                     to suspend a previously considered, but as yet
                                                                yet untaken

                  14
employment action.   Id. at
           action.” Id.  at 272.




14
1‘
    Plaintiff’s                        EEOC filing
    Plaintiff ’s report and subsequent EEOC                     in the way
                                             ﬁling cannot stand in     way of AHISD ’s legitimate
                                                                           of AHISD’s
                                         employment. See DeHart v.
business decisions concerning her employment.                         v. Baker Hughes Oilfield
                                                                                          Oilﬁeld
Operations,    Inc., 214 Fed.
Operations, Inc.,              App’x  437, 442-44 (5th
                                                   (5th Cir.
                                                        Cir. 2007). The mere fact
                                                                               fact that plaintiff
                                                                                    that plaintiff



                                               45
    E.    Plaintiff Cannot Show Pretext Through Disparate Treatment Because
          There is  No Similarly Situated Comparator.
                 is No


                 plaintiff demonstrate that the reasons AHISD
         Nor did plaintiff                              AHISD proffered for her

termination were pretext through a showing that she was treated more harshly than

other similarly situated employees.
                         employees. In order to
                                             to establish pretext for retaliation
                                                                      retaliation


through a showing of
                  of disparate treatment, a plaintiff
                                            plaintiff must demonstrate a distinction

between treatment of that plaintiff
                          plaintiff and another “similarly situated,” but more


favorably treated employee, under “nearly identical circumstances.” See Rodriguez

v.
v. City
   City of Poteet, No. 04–13–00274–CV,
        of Poteet,                          WL 769286 *7 (Tex. App.—
                       04—13—00274—CV, 2014 WL                 App.—

San Antonio February 26, 2014, no pet.
                                  pet. h.)
                                       h.) (citing
                                           (citing Wheeler v. BL Dev.
                                                   Wheeler v.    Dev. Corp.,
                                                                      Corp,

415 F.3d 399, 406 (5th
                  (5th Cir.
                       Cir. 2005). The comparator employee must be similarly


situated “in all
             all material respects,
                          respects, including similar standards, supervisors, and

conduct.” Id.
          Id. (citing
              (citing Ysleta Indep.
                             Indep. Sch. Dist. v.
                                    Sch. Dist. v. Monarrez, 177
                                                            177 S.W.3d 915, 917

(Tex. 2005)) (emphasis added). Circumstances are not “nearly identical” if
                                                                        if they


involve employees with different work rule violations or disciplinary records. See

engaged in in a protected activity
                             activity does not render her immune from discipline or confer a privileged
status upon her,
status         her, and itit does not tie
                                       tie the District’s hands in
                                                                in responding when it  it reasonably believes

her performance was deficient.
                             deﬁcient. See Arredondo v.    14 Gulf
                                                              Gulf  Bend  Ctr.,
                                                                          C111, No.   H-06-1580,
                                                                                      H—06—l580,      2007 WLWL
1004051,
1004051, at  at  *6  (S.D. Tex. Mar. 30,  30, 2007); see also Fort Bend Indep.
                                                                             Indep. Sch.    Dist. v.
                                                                                      Sch. Dist.   v. Williams,
                                                                                                       Williams,
No. 01-13-00052-CV, 2013 WL         WL 4779693, *8 (Tex. App.—Houston [1st        [lst Dist.]
                                                                                         Dist.] September 5,   5,
2013, no pet.)
            pet.) (holding that the plaintiff’s placement on paid administrative leave pending an
investigation into her misconduct was not an adverse employment action for purposes of her
retaliation claim). Nor can Plaintiff
retaliation                       Plaintiff argue that
                                                    that she should be immune from the consequences of        of
her misconduct merely because the District  District learned of that
                                                                that misconduct, atat least
                                                                                      least in  part, during its
                                                                                             in part,         its
investigation into her reports of harassment.
                                         harassment. See Plumlee v.  v. City
                                                                        City of  Kennedale, 795 F.Supp.2d
                                                                              of Kermedale,
             (ND. Tex. 2011) (employer was “not required to
556, 564 (N.D.                                                        to disregard what it   it believed toto be
evidence of of plaintiff’s
                plaintiff ’s misconduct because of the circumstances under which that evidence came
to
to light”).
   light”).



                                                      46
id.
id. (citing AutoZone, Inc.
    (citing Aut0Z0ne, Inc. v.
                           v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008)). Although



“precise equivalence” is
                      is not required, a plaintiff
                                         plaintiff must show “that the misconduct

for which [the plaintiff] was discharged was nearly identical to that engaged in
          [the plaintiff]                                                     in by
                                                                                 by

            whom [the
an employee whom [the employer] retained.” Id. at 917-18 (quoting McDonald v.
                                           Id. at                          v.



Santa Fe Trail Transp.
               Transp. Co.,
                       C0., 427 U.S. 273, 283 n.
                                              n. 11
                                                 11 (1976) and Smith v. Wal—Mart
                                                                     v. Wal–Mart



Stores, Inc., 891
Stores, Inc., 891 F.2d 1177,
                       1177, 1180
                             1180 (5th
                                  (5th Cir.1990)).

      In fact,
         fact, plaintiff
               plaintiff cannot prove disparate treatment at
                                                          at any level because she


                                            AHISD employees.
was not “similarly situated” with any other AHISD employees. (Supp. CR, Vol. I.
                                                                             I.



105-106,
105-106, 191-192)
         191-192) Here, plaintiff
                        plaintiff was the only employee proposed for termination


by the Superintendent who then failed to contest the Board of Trustees’ approval of
by

that
that proposed action. (Supp. CR, Vol.
                                 Vol. I.
                                      I. 106)
                                         106) Here, plaintiff              AHISD
                                                    plaintiff was the only AHISD

employee who wholly failed to
                           to challenge the allegations of
                                                        of conduct and myriad

performance deficiencies demonstrated by
                                      by the Superintendent, and relied upon by
                                                                             by

the Board in
          in reaching their
                      their decision. Id.
                                      Id. Thus, plaintiff
                                                plaintiff cannot compare herself to


          AHISD employees recommended for termination.
any other AHISD                                        Id. Nor did any other
                                          termination. Id.

employees not recommended for termination have comparable work rule violations

or disciplinary records. Id.
                         Id. In fact,          AHISD employee in
                                fact, no other AHISD          in the recent history


of the District could be associated with such an astounding variety of consistent

and severe performance deficiencies,
                       deﬁciencies, which included multiple instances of
                                                                      of

inappropriate, disruptive,
               disruptive, unprofessional and insubordinate conduct. Id.
                                                                     Id. And had



                                        47
any other employees conducted themselves similarly to plaintiff,
                                                      plaintiff, they too would


have been recommended for termination. Id.
                                       Id.

         Plaintiffs Retaliation Claim Fails Under the McDonnell Douglas
      F. Plaintiff’s
         Burden-Shifting Framework, Therefore She Cannot Establish All of
         the Jurisdictional Elements of her Claim, and the Trial Court Lacked
         Subject Matter Jurisdiction.

        AHISD has articulated the legitimate, non-retaliatory reasons for plaintiff’s
        AHISD                                                             plaintiffs

termination, as well as
                     as for every other decision made with respect to plaintiff’s
                                                                      plaintiffs

employment. (Appendix, Tab 4,
                           4, pp. 1-3;                CR Vol. I.I. 103-105,
                                  1-3; see also Supp. CR           103-105, 190-
                                                                            190-

191)
191) Plaintiff
     Plaintiff has not,
                   not, because she cannot, show that
                                                 that such reasons were pretext


       CR Vol. II,
(Supp. CR                          thus, she did not meet her McDonnell Douglas
               II, pp. 74-80), and thus,


required demonstration of ‘but for’ causation. See Nassar, 133
                                                           133 S.Ct. at
                                                                     at 2533; see


also McDonnell Douglas, 411
                        411 U.S. 792, 807. Additionally, plaintiff
                                                         plaintiff has failed to

establish even the prima
                   prima facie                               TCHRA so that
                         facie elements of a claim under the TCHRA

AHISD’s immunity has not been waived, and the trial
                                              trial court lacked subject matter


jurisdiction over plaintiff’s
jurisdiction      plaintiffs retaliation
                              retaliation claim. See Mission Consol.,   372 S.W.3d at
                                                                                   at


637.

                   plaintiff cannot carry her ultimate burden under the McDonnell
        Therefore, plaintiff

Douglas analysis. On this
        analysis. On this final
                          ﬁnal point,
                                point, independent of all
                                                      all others,
                                                          others, plaintiff’s
                                                                  plaintiffs

retaliation
retaliation claim, that
                   that she was terminated for unlawfully retaliatory
                                                          retaliatory reasons, fails
                                                                               fails


and, as a matter of law, it
                         it must be dismissed for lack of subject matter jurisdiction.



Id.
Id.



                                          48
III.
III.      PLAINTIFF
          P          CANNOT ESTABLISH
            LAINTIFF CANNOT            THE REQUIRED
                             ESTABLISH THE          ELEMENTS OF
                                           REQUIRED ELEMENTS    HER SEXUAL
                                                             OF HER SEXUAL
          HARASSMENT CLAIM
          HARASSMENT   CLAIM..

     A.    Plaintiff Cannot Prove AHISD’s Negligence in Controlling Working
           Conditions Necessary to Establish Vicarious Liability for the Alleged
           Misconduct of Plaintiff’s
                         Plaintiffs Co-workers.

          Nor did plaintiff
                  plaintiff allege facts
                                   facts as necessary to
                                                      to demonstrate that AHISD was
                                                                     that AHISD


vicariously liable
            liable for sexual harassment in
                                         in negligently failing
                                                        failing to
                                                                to control a hostile

                                                     15
work environment.
     environment. Plaintiff’s             environment”
                  Plaintiffs hostile work environment   claim is
                                                              is not about her


supervisor. It
            It is                                                      (CR 24-25) As
               is rather about the alleged behavior of her co-workers. (CR


the United States Supreme Court recently held in
                                              in Vance
                                                 Vance v.
                                                       v. Ball State University,
                                                                     University,

133
133 S.Ct. 2434 (U.S. 2013), an employer’s vicarious liability
                                                    liability for a hostile
                                                                    hostile work


environment hinges on the status
                          status of
                                 of the alleged harasser; essentially,
                                                          essentially, whether the


alleged harasser was a co-worker or a supervisor. Id.
                                                  Id. at
                                                      at 2439. Distinguishing from


a co-worker with merely the ability
                            ability to
                                    to direct a claimant’s day-to-day activities
                                                                      activities and


duties,
duties, the Vance
            Vance Court further held that the “supervisor” of a sexual harassment

claimant must be the employee who is
                                  is “empowered by
                                                by the employer to
                                                                to take


tangible employment actions against the victim.” Id.
                                                 Id. (emphasis added).




15
‘5
     Courts have recognized two distinct
                                      distinct types ofof prohibited sexual harassment; quid pro quo
claims, and hostile work environment claims. Quid pro       pro quo sexual harassment occurs when a
tangible employment action resultsresults from the employee’s refusal to     to submit to
                                                                                        to a supervisor’s
sexual demands. See Burlington Indus, Indus., Inc.
                                              Inc. v.
                                                    v. Ellerth,       US. 742, 752-54 (1998);
                                                       Ellerth, 524 U.S.                 (1998); see also
La Day
    Day v.v. Catalyst Tech., Inc.,
                      Tech., Inc., 302  F.3d 474,  481  (5th  Cir.
                                                   481 (5th Cir.   2002);  see also Wal—Mart
                                                                                    Wal–Mart   Stores,  Inc.
                                                                                               Stores, Inc.
v. Itz, 21
v. Itz, 21 S.W.3d 456, 470 (Tex.
                               (Tex. App.—Austin 2000, pet.   pet. denied).
                                                                    denied). In the instant case,
                                                                                            case, plaintiff
                                                                                                   plaintiff
asserts
asserts only a hostile
                   hostile work environment claim, and she does not claim that any of               of her
supervisor’s made sexual advances towards her.   her.



                                                    49
      In the instant case, plaintiff complains of
                     case, plaintiff           of the behavior of
                                                               of Ann Monterrubio

and Michelle Boyer, fellow female physical education teachers and girls’ athletic
                                                                         athletic


coaches at AH] S. See Plaintiff’s
        at AHJS.      Plaintiffs Second Amended Petition,
                                                Petition, p.
                                                          p. 3.
                                                             3. Boyer was the


girls’ athletic              (CR 25; Supp. CR, Vol. I.
       athletic coordinator. (CR                    I. 181)
                                                       181) While Boyer was

colloquially referred to on campus and in
                                       in documentation,
                                          documentation, including letters
                                                                   letters written


by
by Kershner, as plaintiff’s
                plaintiffs supervisor, such characterization is
                                                             is of
                                                                of no moment (see
                                                                             (see

Vance,
Vance, 133
       133 S.Ct. at
                 at 2439), as Boyer acted only in a coordinating role having had


no authority to
             to hire,
                hire, fire,
                      fire, promote, reassign, or alter
                                                  alter the benefits
                                                            benefits of plaintiff’s
                                                                        plaintiffs

employment. (Supp. CR,
                   CR, Vol. I.
                            I. 181)
                               181) Boyer then,
                                          then, as Vance
                                                   Vance explains, was not

plaintiff’s
plaintiffs “supervisor.” See Vance,
                             Vance, 133
                                    133 S.Ct. at
                                              at 2442; see also Supp. CR, Vol. I.
                                                                               I.



35-36. Thus, even the alleged sexual harassment of plaintiff
                                                   plaintiff by
                                                             by her co-workers,

Boyer and Monterrubio,
          Monterrubio, is
                       is insufficient, by itself,
                          insufficient, by itself, to
                                                   to assert
                                                      assert a vicarious liability
                                                                         liability claim


against AHISD. See Vance,
                   Vance, 133
                          133 S.Ct. at
                                    at 2441, citing Faragher v.
                                                             v. Boca Raton,



                                       AHISD can only be held vicariously liable
524 U.S. 775, 789 (1998). Accordingly, AHISD                              liable


if
if it
   it was negligent in
                    in controlling working conditions. See id.
                                                           id.


      Moreover, to
                to even demonstrate a primafacie
                                      prima facie case that AHISD was negligent
                                                       that AHISD


in controlling working conditions, plaintiff was required to demonstrate:
                                                             demonstrate: (1)
                                                                          (1) that


she is
    is a member of
                of a protected category (i.e.,
                                        (z'.e., female); (2)
                                                         (2) who was subjected to
                                                                               to


unwelcome harassment; (3)
                      (3) that was based on gender; (4)
                                                    (4) and which affected a

term, condition, or privilege of her employment; and (5)
                                                     (5) that
                                                         that her employer,




                                          50
AHISD, knew, or should have known, of the harassment and did not take prompt

remedial action.
         action. See Gulf
                     Gulf States Toyota, Inc. v.
                                 Toyota, Inc. v. Morgan, 89 S.W.3d 766, 770



(Tex. App.—Houston [1st.
                   [lst. Dist.]
                         Dist.] 2002, no pet.).
                                         pet.). But, plaintiff
                                                     plaintiff cannot and did not


attempt to
        to establish the third,
                         third, fourth,
                                fourth, or fifth
                                           ﬁfth elements of
                                                         of her primafacie
                                                                prima facie case.
                                                                            case.


        plaintiff cannot make out the required prima facie
Because plaintiff                                    facie case,
                                                           case, the trial
                                                                     trial court


lacked subject matter jurisdiction
                      jurisdiction over her claims and erred when it
                                                                  it failed
                                                                     failed to
                                                                            to grant


AHISD’s Plea to
             to the Jurisdiction.
                    Jurisdiction.


   B.    Plaintiff Does Not Complain of Discrimination Based on her Gender.

        Anti-discrimination laws like
                                 like Title             TCHRA are “not a general
                                      Title VII and the TCHRA


civility                                          v. Freeman Decorating,
civility code for the American workplace.” Indest v.         Decorating, Inc.,
                                                                         Inc.,

164
164 F.3d 258, 263
              263 (5th
                  (5th Cir.
                       Cir. 1999).                            TCHRA’s ban on
                            1999). Rather, the purpose of the TCHRA’s

sexual harassment is
                  is to
                     to eliminate employment discrimination and establish equal


employment conditions and opportunities for both sexes in
                                                       in the workplace. See


Tex. Lab. Code §§ 21.001. With respect to
                                       to this
                                          this same purpose, the United States


Supreme Court has held:
                  held:


             Title
             Title VII does not prohibit all   all verbal or physical
             harassment in in the workplace; it it is
                                                   is directed only at
                                                                     at
             discrimination because ofof sex. We have never held that
                                         sex. We                   that
             workplace harassment, even harassment between men
             and women, is  is automatically discrimination because of
             sex merely because the words used have sexual content
             or connotations. The critical
                                      critical issue,
                                               issue, Title
                                                      Title VII’s
                                                             VIl’s text
                                                                   text
             indicates,
             indicates, is
                        is whether members of of one’s sex are exposed
             to
             to disadvantageous terms or conditions of employment to to
             which members of the other sex are not exposed.


                                        51
                                        51
See Oncale v Sundowner Offshore Services, Inc., 523 U.S. 75,
                                Services, Inc.,          75, 80 (1998) (internal
                                                                       (internal


quotations and ellipses
               ellipses omitted). While Title             TCHRA clearly
                                        Title VII and the TCHRA clearly allow

same-sex hostile work environment claims, the Supreme Court has specifically
                                                                speciﬁcally

rejected the proposition that workplace harassment is
                                                   is actionable merely because it
                                                                                it



involves sexual content. See id.
                             id. at
                                 at 79. Rather, a plaintiff
                                                  plaintiff pursuing a same-sex


sexual harassment claim “must first
                              ﬁrst demonstrate that the sexual harassment was

discrimination because of sex.” See La Day
                                       Day v.
                                           v, Catalyst Tech., Inc., 302 F.3d 474,
                                                       Tech, Inc.,

478 (5th
    (5th Cir.
         Cir. 2002) (citing
                    (citing Oncale).
                            Oncale). The Oncale court suggested three potential
                                                                      potential

routes for a plaintiff
             plaintiff alleging same-sex sexual harassment to
                                                           to carry
                                                              carry this         A
                                                                    this burden. A


plaintiff must either:
plaintiff      either: (1)
                       (1) establish that the alleged harasser   made explicit or implicit

proposals of sexual activity
                    activity and provide credible evidence that the alleged harasser


was homosexual; (2)
                (2) demonstrate that the alleged harasser was motivated by
                                                                        by

general hostility
        hostility to the presence of members of the same sex in the workplace; or


(3)
(3) offer direct,
          direct, comparative evidence about how the alleged harasser treated


members of
        of both sexes in
                      in a mixed-sex workplace. Id.
                                     workplace. Id.

      Prior to
            to her Response to AHISD’s Plea to
                                            to the Jurisdiction, plaintiff had not
                                                   Jurisdiction, plaintiff


previously claimed that her alleged harassers were homosexuals making sexual

advances. Although she now claims precisely
                                  precisely that (CR 175-176),
                                            that (CR 175-176), such allegations,
                                                                    allegations,


based solely on plaintiff’s
                plaintiffs subjective belief that Monterrubio and Boyer were

homosexual, are insufficient under the first
                                       ﬁrst “evidentiary route” to
                                                                to proving the




                                           52
purported discrimination was based on gender. See Love v. Motiva Enterprises
                                                       v. Mativa



LLC, 349 Fed. App’x 900, 902-03 (5th
                                (5th Cir.
                                     Cir. 2009) (holding that
                                                         that allegations of
                                                                          of

inappropriate comments, gestures, and physical contact by
                                                       by same-sex co-worker

were more indicative of humiliating or bullying behavior, and did not support an

inference of
          of sexual attraction and proposals
                                   proposals for
                                             for sex);                  v. Pohanka
                                                 sex); see also English v.

of
of Chantilly, Inc., 190
   Chantilly, Inc., 190 F.
                        F. Supp. 2d 833, 846 (E.D. Va. 2002) (holding that
                                                                      that


plaintiff’s subjective belief
plaintiffs             belief that
                              that his harasser   was homosexual was insufficient as

sole proof to avoid summary judgment on same-sex sexual harassment claim).
                                                                   claim).

Plaintiff
Plaintiff also did not show, and she did not even attempt to
                                                          to demonstrate,
                                                             demonstrate, that
                                                                          that her


alleged harassers were motivated by
                                 by general hostility
                                            hostility to women in the workplace,
                                                      to women


or that
   that they treated male co-workers differently.
                                     differently. In fact, plaintiff asserted that
                                                     fact, plaintiff          that her


alleged harasser, Monterrubio, acted inappropriately to
                                                     to virtually
                                                        virtually every person she


came into contact with,
                  with, regardless of gender. (Supp. CR, Vol. I.
                                                              I. 264) And in a



          May 15,
report on May 15, 2008, plaintiff               Montermbio and Boyer’s alleged
                        plaintiff asserted that Monterrubio


sexually explicit and unprofessional conduct was also directed towards male

employees, specifically alleging that they showed inappropriate photographs to
                                                                            to a


                 Muﬁoz, and generally alleging that:
male coach, John Muñoz,                        that:


      [Monterrubio]
      [Monterrubio]     constantly complained about Coach Moore,
      Coach Gonzalez, Coach McAllister, and all                 coaches. She
                                                 all the male coaches.
      made fun
             fun of
                  of their professional
                           professional and private  lives. She griped about
                                            private lives.
          way they worked and made digs about their character on a daily
      the way
      basis. So I knew she was doing the same thing to
      basis.                                           to me.
                                                          me.



                                          53
(Supp. CR, Vol. I.
                I. 219) In an email to
                                    to Kershner, plaintiff
                                                 plaintiff again asserted:
                                                                 asserted:


      [Monterrubio]
      [Monterrubio] makes fun of not just me, but students, parents,
      and teachers on a daily basis. She badmouths others and has no
      concern for discretion. […]
                              [...] She is
                                        is known to snap at me, other
      coaches, students, and parents. She enjoys teasing students and
                                   Ann shouts at students and fellow
      staff and causing trouble. Ann
      coaches, including me.

(Supp. CR, Vol. I.
                I. 264)



      For such reasons, and upon such admissions, plaintiff
                                                  plaintiff was, and is,
                                                                     is, unable to



show same-sex sexual harassment under any one of the three permitted routes and

did not,
    not, therefore, prove that
                          that her sexual harassment claim was gender based, as


was required to establish the prima facie
                                    facie case necessary to invoke the trial
                                                                       trial court’s


subject matter jurisdiction.
               jurisdiction. See Oncale, 523
                                         523 U.S. at
                                                  at 79-80; Mission Consolidated,


372 S.W.3d at
           at 637.


   C. Courts Have Repeatedly and Consistently Rejected the Sexual
                                        Who Were Subjected to More
      Harassment Claims of Plaintiffs Who
      Frequent and Egregious Conduct than that Alleged by
                                                       by Plaintiff.
                                                          Plaintiff.


      “Not all
           all harassment will affect a term, condition, or privilege of


employment.” Shepherd v.
                      v. Comptroller of
                                     of Public Accounts of
                                                        of State Texas,

168
168 F.3d 871, 874 (5th
                  (5th Cir.
                       Cir. 1999).
                            1999). “Conduct must be extreme to
                                                            to amount to
                                                                      to a


change in
       in the terms and conditions of
                                   of employment.” Faragher, 524 U.S. at
                                                                      at 788.


“For sexual harassment to
                       to be actionable, it
                                         it must be sufficiently
                                                    sufficiently severe or pervasive


‘to
‘to alter
    alter the conditions of
                         of [the
                            [the victim’s]
                                 victim’s] employment and create an abusive




                                         54
        environment.” Shepherd, 168
working environment.’”          168 F.3d at
                                         at 874, citing Meritor Sav. Bank,
                                                                Sav. Bank,

FSB v.
    v. Vinson,
       Vinson, 477 U.S. 57,
                        57, 67 (1986).

      The United States Supreme Court has elaborated on the standard:
                                                            standard: “in order

to
to be actionable under the statute,
                           statute, a sexually objectionable environment must be


both objectively and subjectively offensive, one that a reasonable person would

ﬁnd hostile
find hostile or abusive, and one that
                                 that a victim
                                        Victim in
                                               in fact
                                                  fact did perceive to
                                                                    to be so.”


FFaragher,
  aragher, 524 U.S. at
                    at 787. “Whether an environment is
                                                    is hostile or abusive depends


on the totality
       totality of the circumstances,
                       circumstances, including factors such as the frequency of
                                                                              of the

conduct, its
         its severity,
             severity, and the degree to
                                      to which the conduct unreasonably interferes
                                                                        interferes


with an employee’s work performance.” Septimus v.
                                               v. Univ.
                                                  Univ. of
                                                        of Houston, 399 F.3d

601, 611 (5th
601,611  (5th Cir.
              Cir. 2005).


      In Faragher, the court reiterated that “[…]
                                             “[...] teasing,
                                                    teasing, offhand
                                                             ofﬂland comments, and

isolated incidents (unless extremely serious) will not amount to
                                                              to discriminatory


changes in the ‘terms
               ‘terms and conditions of employment.’” Faragher, 524 U.S.
                                                                    U.S. at
                                                                         at 788


(citing
(citing Oncale v.
               v. Sundowner Offshore
                            Oﬂshore Servs.,  Inc., 523 U.S. 75,
                                     Servs., Inc.,          75, 82,
                                                                82, (1998)).
                                                                    (1998)).

Likewise, “incidental, occasional or merely playful sexual utterances will rarely
                                                                           rarely

poison the employee’s working conditions to
                                         to the extent demanded for liability.”
                                                                    liability.”


Indest, 164
Indest, 164 F.3d at
                 at 263.


      Courts have repeatedly and consistently rejected the sexual harassment

claims of plaintiffs
          plaintiffs who were subjected to
                                        to more frequent and egregious conduct




                                         55
than that alleged by plaintiff For example, in
                  by plaintiff              in Gearhart v. Eye Care Centers of
                                                        v. Eye              of

America, 888 F.
             F. Supp. 814 (S.D. Tex. 1995),
                                     1995), the plaintiff
                                                plaintiff complained of conduct

from multiple co-workers that included several inappropriate sexual comments in

addition to
         to multiple instances of offensive and unwanted physical contact. Id.
                                                                           Id. at
                                                                               at


824. The plaintiff
         plaintiff claimed that
                           that on one occasion her co-worker told her that she


could be promoted and earn vacation time by
                                         by “sleeping with the boss.” Id.
                                                                      Id. at
                                                                          at 820.


The   co-worker     made     several   lewd    remarks   referencing   masturbation,
                                                                       masturbation,

complementing the plaintiff’s
                  plaintiff’ s legs,
                               legs, telling
                                     telling her she was beautiful
                                                         beautiful while touching her

hair,
hair, talking to
              to her about his
                           his neighbor’s large breasts,
                                                breasts, and asking her to go into a


dark office. Id. at
     office. Id.            On another occasion, one of her co-workers touched the
                 at 820-22. On


plaintiff’s
plaintiffs breasts and told her that he would do anything for her. Id. at
                                                              her. Id. at 820-21.


After considering these allegations and other instances of
                                                        of inappropriate sexual

remarks to
        to the plaintiff,
               plaintiff, the court concluded that
                                              that the behavior did not rise
                                                                        rise to
                                                                             to the


level of
      of an actionable claim for hostile work environment sexual harassment. Id. at
                                                                 harassment. Id. at


825. The court granted the employer’s motion for summary judgment, reasoning

that
that such “allegations [were] nothing more than some evidence of
                                                              of flirting,
                                                                 ﬂirting, some


casual touching, and sexual innuendos or jokes,” and that “Gearhart was not

propositioned,
propositioned, forced to
                      to respond [to
                                 [to her supervisors], or placed in
                                                                 in any threatening


situations.” Id.
             Id. at
                 at 825 (internal
                        (internal quotations omitted).




                                          56
      In Shepherd, the plaintiff was subjected to
                                               to a co-worker’s sexually offensive


behavior including comments, several instances of unwelcome physical touching,

and attempts to
             to look up her dress and down her shirt.
                                               shirt. See Shepherd, 168
                                                                    168 F.3d at
                                                                             at


872. The plaintiff
         plaintiff complained of
                              of behavior that included comments such as
                                                                      as “your


elbows are the same color as your nipples,”
                                  nipples, “you
                                            you have big thighs,” and “here’s
                                             :7   cc




your seat” while patting the lap.     at 872-74. In Hockman v.
                                  Id. at
                             lap. Id.                          Westward
                                                            v. Westward



Communications, L.L.C., 407 F.3d 317 (5th
Communications, L.L.C.,              (5th Cir.
                                          Cir. 2004), a co-worker slapped the


plaintiff
plaintiff   on the buttocks with a newspaper, repeatedly grabbed her breasts and

buttocks, held her cheeks and attempted to kiss her,
buttocks,                                       her, requested opportunities to
                                                                             to be


alone with her,
           her, and made numerous sexually suggestive comments.
                                                      comments. See id.
                                                                    id. at
                                                                        at 321.


The plaintiff in Hockman testified
    plaintiff in         testified that she was inappropriately touched so often


she could not recall
              recall the number of times it
                                         it happened. Id.
                                                      Id. at
                                                          at 328. In Barnett v.
                                                                             v.



Boeing Co.,          App’x 875 (5th
       Co., 306 Fed. App’x     (5th Cir.
                                    Cir. 2009), the plaintiff
                                                    plaintiff alleged that
                                                                      that her


supervisor leered at
                  at her,
                     her, touched her in
                                      in sexually inappropriate and unwelcome


ways, and actively intimidated her after
                                   after she made a complaint by
                                                              by frequenting her

workspace to
          to glare at
                   at her,
                      her, and other acts of psychological
                                             psychological intimidation. Id.
                                                                         Id. at
                                                                             at 879.


In Hale v.
        v. Napolitano, No. SA-08-CV-106-XR,      WL 1507144
                           SA-08-CV-106-XR, 2009 WL 1507144 (W.D. Tex.

May 28,
May 28, 2009), the plaintiff
                   plaintiff was subjected to continuous, repeated “filthy,
                                                                   “filthy, sexist


and obscene language and jokes in the workplace.” Id. at *6. In Hancock v.
                                                  Id. at                v. Barron



         & Mgmt.
Builders & Mgmt. Co., Inc., 523 F.
                 Co., Inc.,     F. Supp. 2d 571
                                            571 (S.D. Tex. 2007), the alleged



                                        57
harasser made over 100
                   100 sexually graphic, vulgar and offensive statements during a

nine-month period and frequently discussed his
                                           his personal sex life
                                                            life with the plaintiff.
                                                                          plaintiff.

See id.,
    id., 523
         523 F.
             F. Supp. at
                      at 576.


        In each of
                of these cases,
                         cases, the courts rejected the plaintiffs’
                                                        plaintiffs’ sexual harassment


claims. In the instant case,
                       case, plaintiff
                             plaintiff made numerous allegations concerning the


behavior of her female co-workers, Monterrubio and Boyer, the overwhelming

majority of which were utterly
                       utterly trivial.
                               trivial. Only a small fraction of
                                                              of the allegations

(three
(three out of over 100)                   women and involve sexual content or
                   100) concern these two women

                 undertones.16 (Supp. CR, Vol. I.
even have sexual undertones.”                  I. 211-224) Plaintiff’s
                                                           Plaintiff” s allegations


fall
fall well short of the threshold for actionable conduct established in Gearhart,


Shepherd, Hockman, and Barnett. See,
                                See, e.g.,
                                     e. g., Gearhart, 888 F.
                                                          F. Supp. at
                                                                   at 825 (holding


as a matter of law that
                   that alleged conduct, even if
                                              if true,
                                                 true, was not actionable sexual


harassment); Shepherd, 168      at 875 (same); Hockman, 407 F.3d at
                       168 F.3d at                               at 329 (same);


and Barnett,          App’x 880 (same).
    Barnett, 306 Fed. App’x

        These alleged events, even if
                                   if they had occurred as plaintiff
                                                           plaintiff claims, describe


isolated,
isolated, discreet instances of
                             of questionable behavior, behavior that,
                                                                that, as described, is
                                                                                    is


perhaps workplace inappropriate, but none, even analyzed under the totality
                                                                   totality of the



16
‘5
    Specifically,
    Speciﬁcally, in       May 15,
                   in her May     15, 2008 report Plaintiff alleged that Monterrubio made comments
about plaintiff’s
       plaintiff’s body, including her breasts,
                                            breasts, critiqued plaintiff’s
                                                                 plaintiff’s clothing,
                                                                               clothing, discussed her own
[Monterrubio’s]
[Montem1bio’s]    sex  life in
                       life in  front  of others,
                                       of others, including   plaintiff,
                                                              plaintiff,  purchased   “indecent” ornaments
for an office Christmas party,
                            party, and on two occasions showed plaintiff plaintiff graphic pictures of male
genitalia.
genitalia. (Supp. CR, Vol. I. I. 211-224) Plaintiff
                                            Plaintiff also claims that her buttocks were grabbed by   by an
unknown person during a group picturepicture at
                                             at the faculty Christmas party.      Id.
                                                                          party. Id.



                                                    58
circumstances, that would be deemed sexual harassment under the law to create

liability     AHISD. Id.
liability for AHISD.               AHISD, in
                     Id. Moreover, AHISD, in investigating plaintiff’s
                                                           plaintiffs claims,

found correctable behaviors but no corroborating evidence of actionable sexual

harassment, particularly
            particularly among the numerous female and male staff
                                                            staff members who,


according to plaintiff
             plaintiff were at
                            at times present and witnessed these alleged conduct.


(Supp. CR,
       CR, Vol. I.
                I. 183)
                   183) Beyond bare assertions, plaintiff provided the court below
                                    assertions, plaintiff


and this
    this Court no evidence to substantiate her claims of actionable sexual


harassment or of
              of a sexually hostile workplace environment. (Supp. CR, Vol. II,
                                                                           II, 68-


80) Instead,
    Instead, plaintiff
             plaintiff argues that
                              that the conduct she alleges establishes a violation of


    TCHRA because Kershner admitted that,
the TCHRA                           that, if
                                          if her assertions were true,
                                                                 true, such


would violate AHISD’s policy,
                      policy, a policy that clearly
                                            clearly establishes a public school

district
district workplace threshold of
                             of prohibited inappropriate conduct far
                                                                 far less
                                                                     less tolerant


than that
     that which our courts have recognized as actionable. See infra,
                                                              infra, discussion of


AHISD              DIA (Local),
AHISD Board Policy DIA (Local), at
                                at Footnote 17.
                                            17.


      In light
         light of the threshold established through the above-cited authorities,
                                                                    authorities,


plaintiff is
plaintiff is unable to
                    to establish the essential   element of a prima facie
                                                                    facie sexual

harassment claim, that the alleged sexually oriented conduct she alleges was so

“extreme [as]
         [as] to
              to amount to
                        to a change in the terms and conditions of
                                                                of employment.”

Faragher, 524 U.S. at
                   at 788. And thus,
                               thus, plaintiff
                                     plaintiff cannot establish but another of the




                                         59
elements of a primafacie
              prima facie sexual harassment claim required to
                                                           to establish the trial
                                                                            trial


court’s subject matter jurisdiction. See Mission Consol., 372 S.W.3d at
                matterjurisdiction.                                  at 637.


   D. Plaintiff Did Not Report Harassment at or Even Near the Time of the
      Alleged Event.

      AHISD’s anti-harassment policy asks for prompt reporting of sexually

harassing conduct to                               EEO coordinator. (Supp.
                  to a principal or the District’s EEO              (Supp. CR,

Vol. I.
     I. 94,
        94, 101,
            101, 107-11)
                 107-11) Here, the first
                                   first instance of alleged sexually inappropriate


behavior toward plaintiff,
                plaintiff, she contends, occurred on September 20, 2007,

approximately one month after
                        after she had begun her employment at
                                                           at AHISD.


(Supp. CR, Vol. I.
                I. 211) Further, plaintiff
                                 plaintiff asserts that Monterrubio had bullied and


harassed her from then on. Id.
                           Id. It
                               It was not until May 15,
                                          until May 15, 2008, near the end of
                                                                           of that

school year,
       year, nearly eight months after
                                 after the first
                                           first alleged incident of
                                                                  of harassment, that
                                                                                 that


plaintiff made her first                                           (CR 121)
                   first report to Kershner, the campus principal. (CR l2l) Plaintiff

unreasonably failed to
                    to utilize AHlSD’s policy on sexual harassment or to
                       utilize AHISD’s                                to


otherwise avoid conduct she considered harmful. See Faragher, 524 U.S. at
                                                                       at 807.


As such, plaintiff’s
         plaintiff’ s conduct literally           AHISD from taking earlier
                              literally prevented AHISD             earlier remedial


action to
       to eliminate purported discrimination. (Supp. CR, Vol. I.
                                                              I. 183)
                                                                 183) “If the

plaintiff
plaintiff unreasonably failed to
                              to avail herself of the employer’s preventative or


remedial apparatus, she should not recover damages that
                                                   that could have been avoided


had she done so […]”
                [...]” such that an employee’s failure
                                               failure to
                                                       to utilize
                                                          utilize the complaint




                                         60
procedure set
          set forth in
                    in an employer’s anti-harassment policy will normally preclude


recovery on a sexual harassment claim. Faragher, 524 U.S. at
                                                          at 806-808.


   E.    Notwithstanding the Quality of Plaintiff’s
                                           Plaintift’s Mostly Unsupportable
                 AHISD Took Immediate Remedial Actions Calculated to
         Claim, AHISD
         Insure that the Conditions in Its              Were Discrimination
                                       Its Workplace Were
         Free.

        Finally, plaintiffs claims and uncontroverted summary judgment evidence
        Finally, plaintiff’s


                                          of a prima facie
conclusively negates the required element of                         AHISD failed
                                                     facie case that AHISD

to
to take prompt remedial action when notified by plaintiff
                                    notiﬁed by  plaintiff of her sexual harassment

              fact, the summary judgment evidence demonstrates only that in
complaint. In fact,                                                      in each


instance plaintiff
         plaintiff alleged exposure to                    AHISD responded,
                                    to sexual harassment, AHISD


immediately investigating and taking corrective action reasonably calculated to
                                                                             to


prevent discrimination. (Supp.
                        (Supp. CR,
                               CR, Vol. I.
                                        I. 183-188)
                                           183-188)

         1.
         1.   AHISD
              AHISD  adopted and enforced sexual harassment policies
                                                            policies and had
              implemented sexual harassment training.

        While unnecessary as a matter of law, proof that an employer had

promulgated an anti-harassment policy with a complaint procedure is
                                                                 is indicative of


an employer who has exercised reasonable care to prevent and promptly correct

alleged or even actual sexual harassment. See Faragher, 524 U.S. at
                                                                 at 806.


Additionally, an employer who conducts routine,
                                       routine, periodic training of employees on


its
its anti-harassment policies has typically
                                 typically exercised reasonable care to
                                                                     to prevent


harassment. See Williams
                Williams v.            Buffet, Inc.,
                         v. Barnhill’s Buffet,                App’x 759, 763
                                               Inc., 290 Fed. App’x



                                        61
                                        61
(5th
(5th Cir.
     Cir. 2008) (holding that
                         that employer that conducted yearly training regarding


anti-harassment policy and handling of sexual harassment complaints had

exercised reasonable care).
                     care).


       AHISD’s Board Policies prohibit unlawful sexual harassment. (Supp. CR,

Vol. I.
     I. 101,
        101, 107-11)
             107-11) The District considers any allegation of sexual harassment a

serious matter and is
                   is committed upon notice to taking immediate and appropriate


action. Id.      AHISD policy (1)
        Id. This AHISD        (1) describes the type of conduct that constitutes

sexual harassment and prohibited conduct,17
                                 conduct,” (2)
                                            (2) identifies
                                                identifies to whom employees
                                                           to whom


should make a report if
                     if they are subjected to sexual harassment, (3)
                                                                 (3) describes the


                              may be used once a report is
investigative procedures that may                       is made, (4)
                                                                 (4) describes the


potential disciplinary procedures that
potential                         that         may be used in a case of sexual harassment,
                                               may

and (5)
    (5) provides a statement that
                             that retaliation
                                  retaliation against an employee making a report


will not be tolerated.
will                   Id.
            tolerated. Id.


       AHISD’s policy is
                      is distributed annually to
                                              to all
                                                 all District employees, is
                                                                         is posted at
                                                                                   at


each campus and administrative office,
                               office, and is
                                           is readily available to all
                                                                   all employees


online at
       at the District’s website. (Supp. CR, Vol. I.        101) Teachers also receive
                                                  I. 94-95, 101)



yearly training on the District’s anti-harassment policy,
                                                  policy, including the appropriate


17
‘7
    AHISD’s Board Policy DIA (Local) is   is a prophylactic anti-harassment effort
                                                                              effort on the part
                                                                                            part of the
District
District that
         that is
               is designed to
                            to both prohibit and enable an appropriate disciplinary response to      to
conduct that   lies
         that lies  well below the legal
                                   legal threshold  that
                                                    that would   give rise to
                                                                      rise to an  actionable  claim  of
discrimination against the District under a theory of
                                                    of respondeat superior.
                                                                   superior. (Supp. CR, Vol. I. I. 101)
                                                                                                   101)
The policy specifically
              speciﬁcally prohibits conduct “even if if the behavior does not riserise to
                                                                                       to the level of
                                                                                                     of
unlawful conduct.” (Supp. CR, Vol. I.I. 107-111)
                                        107-111)


                                                  62
reporting procedures. Id.
                      Id. AHISD’s policy and practices are consistent with federal

and state                 EEOC guidelines. See 29 C.F.R.
    state law, as well as EEOC                    C.F.R. §
                                                         § 1604.11;
                                                           1604.11; see also

EEOC
EEOC     Notice: Policy Guidance on Current Issues in
         Notice:                                   in Sexual Harassment.
                                                             Harassment.

                AHISD took reasonable care to prevent sexual harassment in
Unquestionably, AHISD                                                   in its
                                                                           its


workplace. See Faragher, 524 U.S. at
                                  at 805.


         2.
         2.    AHISD
               AHISD immediately investigated and took prompt
                                                       prompt remedial action in
               response to   plaintiff’s report.
                          to plaintiffs          Plaintiff did not contest AHISD’s
                                         report. Plaintiff
               investigative conclusions,
                              conclusions, made no further
                                                         further reports of
                                                                          of similar
                                   filed an EEOC
               behavior until she ﬁled      EEOC Charge until several months later
               based on the same allegations.

       As soon as
               as plaintiff
                  plaintiff made her initial
                                     initial report, AHISD conducted a
                                             report, AHISD


comprehensive, exhaustive investigation. (Supp. CR,
                                                CR, Vol. I.
                                                         I. 183)       AHISD
                                                            183) While AHISD

concluded that plaintiffs
               plaintiff’s allegations were not sustained by
                                                          by the investigation,

AHISD took swift remedial action calculated to
AHISD                                       to eliminate any possible, future


discrimination as a safeguard.
                    safeguard. (Supp.
                               (Supp. CR,
                                      CR, Vol. I.
                                               I. 183,          AHISD counseled
                                                  183, 225-226) AHISD

Monterrubio, addressing with her the District’s anti-harassment policies and the

potential adverse result for violations of
potential                               of same. Id.
                                                 Id.        AHISD
                                                            AHISD also met with plaintiff
                                                                                plaintiff to

discuss her claims, Kershner’s investigation findings,                     AHISD
                                             ﬁndings, and her rights under AHISD

Board Policy to
             to appeal those findings
                             ﬁndings if
                                      if she was dissatisfied
                                                 dissatisﬁed with the investigation

                                         18
results.
results. (Supp. CR, Vol. I.
                         I. 183, 193-197)”
                            183, 193-197)   Plaintiff was directed at
                                                                   at such time to



18
13
    AHISD’s anti-harassment policy establishes that
                                                  that “[a]
                                                       “[a] complainant who is  is dissatisfied
                                                                                   dissatisﬁed with
the outcome of                        may appeal through DGBA
               of the investigation may                       DGBA (Local),
                                                                       (Local), beginning at  at the
appropriate level.” (Supp. CR, Vol. I.
                                    I. 193-197)
                                       193-197) Had plaintiff
                                                      plaintiff been unsatisﬁed
                                                                     unsatisfied with the response
of Stephanie Kershner, her campus principal,
                                     principal, she should have requested a conference with the


                                                63
promptly report future incidents. Id.
                                  Id. But, plaintiff
                                           plaintiff did not avail herself of
                                                                           of any such

opportunities to contest the findings
                             ﬁndings or to
                                        to further report.
                                                   report. Rather, it
                                                                   it is
                                                                      is


uncontroverted that plaintiff claimed to
               that plaintiff         to be satisfied      AH1SD’s response.
                                            satisfied with AHISD’s           Id.
                                                                   response. Id.

Plaintiff thanked Kershner for conducting a thorough investigation, and told her

                                                                        AHISD
that she trusted her judgment with respect to these conclusions, and so AHISD
that

reasonably believed that its actions had successfully resolved her concerns, which
                    that its


were not raised again until plaintiff filed
                      until plaintiff         EEOC Charge months later.
                                      ﬁled an EEOC                      Id. As the
                                                                 later. Id.


Fifth Circuit held in            v. Texas Department of
                   in Lauderdale v.                  of Criminal Justice,
                                                                 Justice, 512 F.3d

157
157 (5th
    (5th Cir.
         Cir. 2007), when an employee believes that an initial
                                                       initial complaint was


ineffective,
ineffective, it
             it is
                is unreasonable to not utilize
                                       utilize other avenues provided under the


employer’s policy,
           policy, such as the clear method of appeal contained in AHISD’s Board

       DIA (Local).
Policy DIA (Local). See id.,
                        id., 512 F.3d at
                                      at 164.
                                         164.

      In subsequent reports to
                            to Kershner on January 23,
                                                   23, 30,
                                                       30, and February 6,
                                                                        6, 2009,


plaintiff              Montermbio and Boyer had been “ostracizing” and “bullying”
plaintiff alleged that Monterrubio


her.
her. (Supp.
     (Supp. CR, Vol. I.
                     I. 185-187) By this
                        185-187) By this time, plaintiff
                                               plaintiff had lodged more than 100
                                                                              100

specific
speciﬁc allegations,
         allegations, most of which were completely outlandish, including the


               Montermbio called plays and cheered louder than her at
complaint that Monterrubio                                         at a girls’


basketball game, that
                 that Boyer did not bring her breakfast tacos one morning, and that
                                                                               that


she was offended by
                 by Monterrubio’s conversations involving atheism, abortion, and

superintendent or his designee under Level Two of                                 DGBA
                                               of the procedure established under DGBA
(Local).
(Local). (Supp. CR, Vol. I.
                         I. 198-203)
                            198-203)


                                         64
weight loss
       loss pills. Id. Nevertheless, as it
            pills. Id.                                 AHISD immediately
                                        it had before, AHISD



                           ﬁnd support for these assertions.
investigated but could not find                                  When plaintiff
                                                             Id. When
                                                 assertions. Id.      plaintiff filed
                                                                                ﬁled

a grievance alleging that Monterrubio had assaulted her,                Montemibio
                                                    her, insisting that Monterrubio


be transferred from her assigned campus, the District could not agree with

plaintiff’s
plaintiffs description of
                       of the alleged assault upon her,
                                                   her, but nonetheless, granted


plaintiff’s
plaintiffs requested remedy and transferred Monterrubio to another campus.

(Supp. CR, Vol. I.
                I. 316-320)



      Clearly, AHISD had reasonable policies in
      Clearly, AHISD                         in place to
                                                      to prevent sexual


harassment and took prompt corrective action reasonably calculated to
                                                                   to prevent


future incidents once plaintiff
                      plaintiff reported harassment.
                                         harassment. (Supp. CR, Vol. I.
                                                                     I. 101,
                                                                        101, 107-
                                                                             107-

111)
lll) The undisputed evidence conclusively establishes that AHISD acted swiftly,
                                                      that AHISD       swiftly,


prudently, and appropriately, and as such, cannot be considered negligent in

controlling the working conditions. See Faragher, 524 U.S. at
                                                           at 806; Williams,
                                                                   Williams,

         App’x at
290 Fed. App’x at 763. Accordingly, plaintiff’s
                                    plaintiffs sexual harassment claim must be

dismissed as a matter of law because she cannot establish the fifth
                                                              ﬁfth required element

of her prima facie case.
   herprimafacie   case. See Mission Consol.,
                                     C0ns0l., 372 S.W.3d at
                                                         at 637.




                                         65
                                       PRAYER
                                       PRAYER

                                 AHISD prays that
      For the foregoing reasons, AHISD       that this
                                                  this Court reverse the trial
                                                                         trial


court’s order denying its
                      its Plea to
                               to the Jurisdiction,
                                      Jurisdiction, and dismiss plaintiff’s
                                                                plaintiffs claims for

want of
     of subject matter jurisdiction.
                       jurisdiction.

                                        Respectfully submitted,

                                        SCHULMAN,
                                        S          LOPEZ
                                          CHULMAN, L      &H
                                                     OPEZ & HOFFER, LLP
                                                             OFFER, LLP

                                        /s/
                                        /s/ Robert A. Schulman
                                        Robert A. Schulman
                                        State Bar Number 17834500
                                                            17834500
                                        Email:
                                        Email: rschulman@slh-law.com
                                                rschu1man@slh-law.com
                                        Leonard J.J. Schwartz

                                        State Bar Number 17867000
                                                            17867000
                                        Email:
                                        Email: lschwartz@slh-law.com
                                        Bryan P.
                                               P. Dahlberg
                                                            24065113
                                        State Bar Number 24065113
                                        Email:
                                        Email: bdahlberg@slh-law.com
                                        517 Soledad Street
                                        San Antonio, Texas 78205
                                        Tel.:
                                        Tel.: (210)   538-5385
                                              (210)538-5385
                                        Fax: (210) 538-5384

                                        ATTORNEYS FOR APPELLANT
                                        ATTORNEYS FOR APPELLANT
                                        ALAMO HEIGHTS
                                        ALAMO HEIGHTS ISD




                                          66
                        CERTIFICATE OF SERVICE
                        CERTIFICATE OF SERVICE
      This is
            is to
               to certify
                  certify that
                          that on this
                                  this 2nd day of
                                                of January 2015, a true and correct
copy
copy of the foregoing document has been delivered by    by facsimile to
                                                                      to counsel of
record for Appellee in
                     in this
                        this proceeding as follows:


      Mr. Mr. Matthew R. Pearson, G  GRAVELY
                                       RAVELY && PPEARSON,
                                                   EARSON, L.L.P., 425
      Soledad St.,
              St., Suite 600, San Antonio, Texas 78205, Facsimile:
                                                        Facsimile: (210)
      472-1110.


                                      /s/
                                      /s/ Robert A. Schulman
                                      Robert A. Schulman,
                                      Attorney for Appellant




                                        67
                        CERTIFICATE OF
                        CERTIFICATE    COMPLIANCE
                                    OF COMPLIANCE
       Pursuant toto Texas Rule of Appellate Procedure 9.4(i)(3),
                                                         9.4(i)(3), II hereby certify
                                                                              certify that
this
this Appellant’s Brief contains 14,477
                                    14,477 words (excluding the caption, identity
                                                                              identity of
parties and counsel, table of contents, index of
parties                                         of authorities,
                                                   authorities, statement of the case,
                                                                                     case,
statement regarding oral argument, statement of issues presented, signature,   signature,
certificate
certiﬁcate of
            of service,
               service, certificate
                        certiﬁcate of compliance, and appendix).
                                                      appendix).

       I1 further certify
                  certify that this
                               this is
                                    is a computer-generated document created in       Word
                                                                                  in Word
for Mac, using 13-point
                  13-point typeface for allall text,
                                               text, except for footnotes, which are in 10-
                                                                                        10-
point typeface. In making this this certificate
                                    certiﬁcate of compliance II am am relying on the Word
                                                                                      word
count provided by by the software used to prepare this this document.
                                                            document.

      II understand that a copy
                            copy of this             may be posted on the Court’s
                                     this document may
website and that the electronically filed
                                    ﬁled copy
                                          copy of the document becomes part of
                                                                            of the
Court’s record.

      Copies have been sent to
                            to all
                               all parties associated with this
                                                           this case.
                                                                case.



                                         /s/
                                         /s/ Robert A. Schulman
                                         Robert A. Schulman,
                                         Attorney for Appellant




                                            68
                                  APPENDIX
                                  APPENDIX

@
Tab Document

11   Order Denying Plea to the Jurisdiction,
                               Jurisdiction, dated October 9,
                                                           9, 2014


2                                                          Human Rights Act
     Texas Labor Code, Chapter 21, the Texas Commission on Human

33   Principal Stephanie Kershner’s Letter to
                                           to Superintendent Kevin Brown,
     dated June 23, 2009

4    AHISD’s Notice of Proposed Termination, dated July 14,
                                                        14, 2009


5    Martinez v.       Workforce Commission —
              v. Texas Workforce                – Civil Rights.
                                                        Rights. Division,
                                                                Division,
     No 14-50391
     No  14-50391 (5th
                  (5th Cir.
                       Cir. Dec. 30,
                                 30, 2014) (per
                                           (per curiam)




                                       69
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Appendix

 Tab 11
                                        DOCUMENT SCANNED AS FILED
                                                                                                     I




                                                                                                         illlléﬁlﬁtsﬁfﬁiyg                        I



                                                                                                            .    _.,,zg_Iaqc:_1s§;i __-3285




                                               CAUSE NO. 2009—CI—19821
                                                                                              THE DISTRICT COURT
                                                          '




CATHERINE CLARK
                                                                      '



                                                                                         IN
                                                                  '




                                                              §
            Plaintiff,                                        §
                                                              §
v.                                                            §
                                                                                         285T"   JUDICIAL DISTRICT
                    —
                                                              §
ALAMO HEIGHTS ISD                                             §
‘



            Defendant                                         §                          BEXAR COUNTY, TEXAS
                             ORDER ON DEFENDANT ALAMO HEIGHTS ISD’S
                         ~
                                   '



                                           PLEA TO THE JURISDICTION
            On   this day,    cameto be heard Defendant Alamo Heights ISD’S Plea                                     to the Jurisdiction.
                                                                                                                                              ‘




The Court having considered               the motion, response and supporting evidence                          is   of the opinion that

said      motion does not have merit and should be in                     all   things   DENIED.    It is   accordingly,


            ORDERED that Defendant                    Heights _1SD’s Plea to the Jurisdiction                          is   DENIED.

             Signedthis        E       dayof          .                    ,20l4.




                                                                                         JUDG P                  NG




    459
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Appendix

 Tab 2
LABOR CODE
LABOR CODE CHAPTER
           CHAPTER 21. EMPLOYMENT DISCRIMIN...
                   21 EMPLOYMENT
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                                               LABOR CODE
                                               LABOR CODE

                                    TITLE 2.
                                    TITLE    PROTECTION OF
                                          2. PROTECTION    LABORERS
                                                        OF LABORERS

                               SUBTITLE A.
                               SUBTITLE A. EMPLOYMENT DISCRIMINATION
                                           EMPLOYMENT DISCRIMINATION

                               CHAPTER 21.
                               CHAPTER                DISCRIMINATION
                                           EMPLOYMENT DISCRIMINATION
                                       21. EMPLOYMENT

                                    SUBCHAPTER A.
                                    SUBCHAPTER    GENERAL PROVISIONS
                                               A. GENERAL PROVISIONS

                       2l.00l. PURPOSES.
                Sec. 21.001.
                Sec.                              general purposes
                                 PURPOSES. The general      purposes of this   chapter
                                                                         this chapter
               to:
          are to:
                     (1)
                      (1)  provide for
                           provide   for the  execution of the
                                         the execution            policies of Title
                                                             the policies      Title
          VII                  Rights Act
                        Civil Rights
          VII of the Civil             Act of 1964   and its
                                               I964 and  its subsequent    amendments
                                                              subsequent amendments
          (42
           (42 U.S.C.   Section 2000e
               U.S.C. Section    2000e et seq.);
                                           seg.);
                     (2)
                      (2)   identify and
                           identify   and create      authority that
                                          create an authority          meets the
                                                                  that meets  the
          criteria under
          criteria   under 42           Section 2000e-5(c)
                                U.S.C. Section
                             42 U.S.C.                        and 29 U.S.C.
                                                 2000e—5(c) and               Section
                                                                      U.S.C. Section
          633;
          633;
                     (3)
                      (3)  provide for
                           provide   for the  execution of the
                                         the execution       the policies   embodied in
                                                                  policies embodied
          Title              Americans with
          Title II of the Americans           Disabilities Act
                                        with Disabilities    Act of 1990   and its
                                                                     I990 and  its
          subsequent    amendments (42
          subsequent amendments                  Section 12101
                                         U.S.C. Section
                                     (42 U.S.C.            l2lOl et seq.);
                                                                     seg.);
                     (4)
                      (4)   secure for
                           secure       persons in this
                                    for persons      this state,   including persons
                                                           state, including   persons
          with disabilities,
          with                   freedom from
                disabilities, freedom           discrimination in
                                          from discrimination        certain
                                                                  in certain
          employment transactions,
          employment    transactions, inin order      protect their
                                           order to protect           personal dignity;
                                                               their personal   dignity;
                     (5)
                      (5)  make  available to the
                           make available            state the
                                                the state   the full  productive
                                                                 full productive
          capacities       persons in
          capacities of persons         this state;
                                     in this  state;
                     (6)
                      (6)   avoid domestic
                           avoid   domestic strife
                                             strife and   unrest in this
                                                     and unrest      this state;
                                                                           state;
                     (7)
                      (7)  preserve the
                           preserve       public safety,
                                      the public   safety, health,        general
                                                                     and general
                                                            health, and
          welfare; and
          welfare;     and
                     (8)
                      (8)  promote the
                           promote       interests, rights,
                                     the interests,   rights, and   privileges of
                                                               and privileges
          persons in
          persons       this state.
                    in this   state.

          Acts 1993,
          Acts       73rd Leg.,
               1993, 73rd Leg., ch.         Sec. 1,
                                     269, Sec.
                                ch. 269,          1, eff. Sept. 1,
                                                     eff. Sept.  1, 1993.   Amended
                                                                    1993. Amended
          by Acts 1995,
          by Acts       74th Leg.,
                  1995, 74th Leg., ch.
                                    ch. 76,         9.0l(a), eff.
                                              Sec. 9.01(a),
                                         76, Sec.                  Sept. 1,
                                                             eff. Sept.      1995.
                                                                          1, 1995.



               Sec 21.0015.
               Sec..21 0015.  TEXAS WORKFORCE
                              TEXAS
                                .             COMMISSION CIVIL
                                    WORKFORCE COMMISSION CIVIL RIGHTS
                                                               RIGHTS
                         powers and
          DIVISION. The powers
          DIVISION.             and duties exercised by the Commission
                                    duties exercised        Commission on


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          Human Rights
          Human        under this
                Rights under this chapter      transferred to the Texas
                                   chapter are transferred         Texas
          Workforce Commission
          Workforce Commission civil
                                civil rights division. A
                                      rights division.     reference in
                                                        A reference      this
                                                                     in this
                         "commission" means
          chapter to the "commission"
          chapter                      means the Texas Workforce Commission
                                                 Texas Workforce  Commission
          civil rights
          civil        division.
                rights division.

          Added by
          Added    Acts 2003,
                by Acts       78th Leg.,
                        2003, 78th Leg., ch.
                                         ch. 302, Sec. 1.
                                             302, Sec. 1.


                Sec. 21.002.
                Sec.               DEFINITIONS. In
                       2l.002. DEFINITIONS.                   chapter:
                                                        this chapter:
                                                    In this
                     (1)
                      (1)    "Auxiliary aids
                            "Auxiliary    aids and    services" includes:
                                                and services"     includes:
                           (A)
                            (A)   qualified interpreters
                                 qualified    interpreters or other      effective
                                                                  other effective
                        making aurally
          methods of making
          methods                          delivered materials
                                 aurally delivered      materials available
                                                                    available to
          individuals with
          individuals           hearing impairments;
                          with hearing    impairments;
                           (B)
                            (B)   qualified readers,
                                 qualified                taped texts,
                                              readers, taped                other
                                                                 texts, or other
          effective methods
          effective                  making visually
                       methods of making                 delivered materials
                                             visually delivered      materials available
                                                                                 available
              individuals with
          to individuals      with visual
                                    visual impairments;
                                            impairments;
                           (C)
                            (C)  acquisition         modification of equipment
                                  acquisition or modification           equipment or
                     and
          devices; and
          devices;
                           (D)
                            (D)   services and
                                 services   and actions     similar to those
                                                  actions similar               described
                                                                         those described
              Paragraphs (A)-(C).
          by Paragraphs
          by                 (A)-(C).
                     (2)
                      (2)    "Bona fide
                            "Bona   fide occupational      qualification" means
                                          occupational qualification"       means a
          qualification:
          qualification:
                           (A)
                            (A)  reasonably    related to the satisfactory
                                  reasonably related              satisfactory
          performance of the duties
          performance              duties of a job;     and
                                                  job; and
                           (B)
                            (B)        which a factual
                                  for which
                                 for                       basis exists
                                                 factual basis    exists for       belief
                                                                          for the belief
          that no person
          that                       excluded group
                   person of an excluded                would be able
                                                group would                 satisfactorily
                                                                   able to satisfactorily
          perform the duties
          perform         duties of the job withwith safety        efficiency.
                                                       safety or efficiency.
                     (3)
                      (3)    Repealed by
                            Repealed       Acts 2003,
                                        by Acts          78th Leg.,
                                                  2003, 78th   Leg., ch.
                                                                      ch. 302,        4(2).
                                                                                 Sec. 4(2).
                                                                           302, Sec.
                     (4)
                      (4)    "Complainant" means
                            "Complainant"                individual who
                                             means an individual           brings an
                                                                      who brings
          action       proceeding under
          action or proceeding       under this    chapter.
                                            this chapter.
                     (5)
                      (5)    "Demonstrates" means
                            "Demonstrates"     means meets
                                                       meets the
                                                              the burdens      production
                                                                   burdens of production
               persuasion.
          and persuasion.
          and
                     (6)
                      (6)    "Disability" means,
                            "Disability"              with respect
                                            means, with     respect to an individual,
                                                                            individual, a
          mental or physical
          mental                   impairment that
                       physical impairment             substantially limits
                                                that substantially     limits at least
                                                                                   least
               major life
          one major           activity of that
                       life activity        that individual,        record of such
                                                   individual, a record        such an
          impairment, or being
          impairment,         being regarded
                                     regarded as    having such
                                                as having             impairment. The
                                                             such an impairment.
          term does
          term              include:
                does not include:



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                          (A)
                           (A)   a current    condition of addiction
                                    current condition           addiction to the use  use of
          alcohol, a drug,
          alcohol,                  illegal substance,
                       drug, an illegal       substance, or a federally          controlled
                                                                    federally controlled
          substance; or
          substance;
                          (B)
                           (B)   a currently     communicable disease
                                    currently communicable                       infection as
                                                                   disease or infection       as
          defined in Section
          defined      Section 81.003,      Health and
                                   81.003, Health     and Safety
                                                           Safety Code,          required to
                                                                     Code, or required
             reported under
          be reported    under Section
                                 Section 81.041,      Health and
                                           81.041, Health       and Safety
                                                                     Safety Code,     that
                                                                              Code, that
          constitutes a direct
          constitutes      direct threat                health or safety
                                     threat to the health                         other
                                                                     safety of other
          persons or that
          persons                          affected person
                               makes the affected
                       that makes                       person unable         perform the
                                                                 unable to perform
          duties           person's employment.
          duties of the person's        employment.
                    (7)
                     (7)    "Employee" means
                           "Employee"     means an individual
                                                      individual employed
                                                                     employed by by an
                      including an individual
          employer, including
          employer,                     individual subject
                                                      subject to the civil        service laws
                                                                          civil service     laws
             this state
          of this                  political subdivision
                   state or a political         subdivision of this this state,    except that
                                                                          state, except     that
               term does
          the term               include an individual
                    does not include                           elected to public
                                                individual elected           public office
                                                                                      office in
          this state
          this                 political subdivision
                state or a political       subdivision of this  this state.
                                                                      state.
                    (8)
                     (8)    "Employer" means:
                           "Employer"     means:
                          (A)
                           (A)      person who
                                 a person    who is    engaged in
                                                   is engaged     in an industry     affecting
                                                                         industry affecting
          commerce and
          commerce  and who
                          who has
                                has 15      more employees
                                     15 or more     employees for each       working day in
                                                                      each working
          each of 20
          each     20 or more      calendar weeks
                           more calendar      weeks in the current            preceding
                                                                current or preceding
          calendar year;
          calendar  year;
                          (B)
                           (B)        agent of a person
                                 an agent                     described by
                                                    person described           Paragraph (A);
                                                                          by Paragraph      (A);
                          (C)
                           (C)   an individual      elected to public
                                      individual elected           public office
                                                                            office in    this
                                                                                     in this
          state        political subdivision
          state or a political       subdivision of this this state;
                                                                state; or
                          (D)
                           (D)   a county,    municipality, state
                                    county, municipality,         state agency,         state
                                                                         agency, or state
                                regardless of the number
          instrumentality, regardless
          instrumentality,                                           individuals employed.
                                                        number of individuals        employed.
                    (9)
                     (9)    "Employment agency"
                           "Employment     agency" means         person or an agent
                                                      means a person              agent of thethe
          person who
          person       regularly undertakes,
                  who regularly      undertakes, with           without compensation,
                                                     with or without      compensation, to
          procure:
          procure:
                          (A)
                           (A)    employees for
                                 employees              employer; or
                                               for an employer;
                          (B)
                           (B)         opportunity for
                                 the opportunity            employees to work
                                                       for employees         work for
                                                                                    for an
          employer.
          employer.
                    (10)
                     (10)    "Labor    organization" means
                             "Labor organization"        means a labor     organization
                                                                    labor organization
          engaged in an industry
          engaged                       affecting commerce.
                           industry affecting        commerce. The term term includes:
                                                                                includes:
                          (A)
                           (A)        organization, an agency,
                                 an organization,                             employee
                                                            agency, or an employee
          representation committee,
          representation     committee, group,       association, or plan
                                           group, association,                   engaged in an
                                                                          plan engaged
                    affecting commerce
          industry affecting
          industry                                which employees
                                   commerce in which                   participate and
                                                          employees participate        and that
                                                                                            that
          exists for the purpose,
          exists                            whole or in part,
                             purpose, in whole                          dealing with
                                                             part, of dealing      with


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          employers    concerning grievances,
          employers concerning                       labor disputes,
                                      grievances, labor      disputes, wages,    rates of
                                                                         wages, rates
                              other terms
                hours, or other
          pay, hours,
          pay,                                   conditions of employment;
                                      terms or conditions          employment;
                           (B)
                            (B)   a conference,     general committee,
                                     conference, general                    joint or system
                                                               committee, joint        system
          board, or joint
          board,                council that
                       joint council      that is   subordinate to a national
                                                is subordinate           national or
          international labor
          international             organization; and
                            labor organization;        and
                           (C)
                            (C)       agent of a labor
                                  an agent                  organization.
                                                    labor organization.
                     (11)
                      (11)    "Local   commission" means
                              "Local commission"      means a commission
                                                                 commission on human
                                                                                 human
          relations    created by
          relations created                          political subdivisions.
                                               more political
                                  by one or more                  subdivisions.
                      (ll—a)
                     (11-a)      "Major life
                                 "Major         activity" includes,
                                          life activity"                 but is not
                                                             includes, but            limited
                                                                                 not limited
               caring for
          to, caring
          to,           for oneself,      performing manual
                              oneself, performing      manual tasks,              hearing,
                                                                         seeing, hearing,
                                                                 tasks, seeing,
          eating, sleeping,
          eating,                 walking, standing,
                   sleeping, walking,        standing, lifting,       bending, speaking,
                                                         lifting, bending,      speaking,
          breathing, learning,
          breathing,    learning, reading,       concentrating, thinking,
                                      reading, concentrating,       thinking,
          communicating, and
          communicating,      and working.
                                   working. The term term also
                                                           also includes         operation
                                                                  includes the operation
                major bodily
          of a major    bodily function,       including, but
                                  function, including,                 limited to,
                                                             but not limited    to,
          functions of the immune
          functions              immune system,     normal cell
                                          system, normal     cell growth,    and digestive,
                                                                   growth, and   digestive,
          bowel, bladder,
          bowel,                neurological, brain,
                  bladder, neurological,                                  circulatory,
                                                         respiratory, circulatory,
                                                 brain, respiratory,
          endocrine, and
          endocrine,          reproductive functions.
                        and reproductive       functions.
                     (12)
                      (12)    "Political    subdivision" means
                              "Political subdivision"        means a county
                                                                       county or
          municipality.
          municipality.
                      (l2—a)
                     (12-a)      "Regarded as having
                                 "Regarded       having such         impairment" means
                                                         such an impairment"       means
          subjected to an action
          subjected                      prohibited under
                                action prohibited     under Subchapter
                                                              Subchapter B or C because
                                                                                    because
          of an actual          perceived physical
                 actual or perceived                       mental impairment,
                                            physical or mental                    other than
                                                                    impairment, other     than
              impairment that
          an impairment     that is    minor and
                                   is minor    and is  expected to last
                                                    is expected                 actually
                                                                       last or actually
          lasts less
          lasts         than six
                 less than          months, regardless
                                six months,                      whether the impairment
                                               regardless of whether           impairment
          limits or is
          limits           perceived to limit
                       is perceived                   major life
                                            limit a major           activity.
                                                              life activity.
                     (13)
                      (13)    "Respondent" means
                              "Respondent"     means the   person charged
                                                      the person     charged in a complaint
                                                                                    complaint
          filed  under this
          filed under            chapter and
                         this chapter                include an employer,
                                           and may include                     employment
                                                                   employer, employment
                   labor organization,
          agency, labor
          agency,           organization, or joint       labor—management committee
                                                   joint labor-management      committee
                                 apprenticeship or other
                controls an apprenticeship
          that controls
          that                                                  training or retraining
                                                       other training         retraining
          program, including
          program,                     on—the—job training
                     including an on-the-job         training program.
                                                                 program.
                     (14)
                      (14)    "State agency"
                              "State   agency" means:
                                                 means:
                           (A)
                            (A)               commission, committee,
                                     board, commission,
                                  a board,                   committee, council,
                                                                           council,
                         institution, office,
          department, institution,
          department,                                   agency in
                                           office, or agency              executive branch
                                                                  in the executive    branch
                    government having
              state government
          of state                  having statewide
                                             statewide jurisdiction;
                                                         jurisdiction;
                           (B)
                            (B)         supreme court,
                                  the supreme     court, the court         criminal
                                                                court of criminal
                        court of appeals,
          appeals, a court
          appeals,                                      State Bar
                                    appeals, or the State        Bar of Texas       another
                                                                         Texas or another


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          judicial agency
          judicial           having statewide
                    agency having    statewide jurisdiction;
                                               jurisdiction; or
                         (C)
                         (C)       institution of higher
                               an institution             education as
                                                  higher education     defined by
                                                                    as defined by
          Section 61.003,
          Section            Education Code.
                   61.003, Education    Code.

          Acts 1993,
          Acts         73rd Leg.,
                1993, 73rd   Leg., ch.
                                    ch. 269,    Sec. 1,
                                         269, Sec.   1, eff.   Sept. 1,
                                                         eff. Sept.   1, 1993.   Amended
                                                                         1993. Amended
          by Acts 1995,
          by Acts         74th Leg.,
                   1995, 74th   Leg., ch.
                                        ch. 76,         9.02(a), eff.
                                                  Sec. 9.02(a),
                                             76, Sec.                   Sept. 1,
                                                                  eff. Sept.      1995;
                                                                               1, 1995;
          Acts 1997,
          Acts         75th Leg.,
                1997, 75th   Leg., ch.
                                    ch. 834,    Sec. 1,
                                         834, Sec.   1, eff.   Sept. 1,
                                                         eff. Sept.   1, 1997;   Acts
                                                                         1997; Acts
                 76th Leg.,
          1999, 76th
          1999,        Leg., ch.
                              ch. 872,   Sec. 10,
                                   872, Sec.    10, eff.  Sept. 1,
                                                    eff. Sept.   1, 1999;   Acts 2003,
                                                                    1999; Acts    2003,
          78th Leg.,
          78th  Leg., ch.
                       ch. 302,   Sec. 4(a).
                            302, Sec.   4(a).
          Amended by:
          Amended  by:
               Acts 2009,
               Acts          81st Leg.,
                     2009, 81st           R.S., Ch.
                                   Leg., R.S.,        337 (H.B.
                                                  Ch. 337                Sec. 1,
                                                                  978), Sec.
                                                            (H.B. 978),           eff.
                                                                               1, eff.
          September 1,
          September      2009.
                      1, 2009.


                       21.0021. CONSTRUCTION
               Sec. 21.0021.
               Sec.                                 CERTAIN DEFINITIONS.
                                  CONSTRUCTION OF CERTAIN    DEFINITIONS. (a) (a)  The
                "disability":
          term "disability":
          term
                     (1)
                      (1)   shall     construed in favor
                            shall be construed                broad coverage
                                                    favor of broad   coverage of
          individuals under
          individuals     under Subchapters
                                Subchapters B and
                                               and C,          maximum extent
                                                    C, to the maximum   extent
          allowed under
          allowed   under those                 and
                                  subchapters; and
                            those subchapters;
                     (2)
                      (2)   includes     impairment that
                            includes an impairment            episodic or in
                                                      that is episodic
          remission that
          remission          substantially limits
                       that substantially              major life
                                            limits a major                   when
                                                                   activity when
                                                             life activity
          active.
          active.
               (b)
                (b)         determination of whether
                      The determination       whether an impairment
                                                           impairment substantially
                                                                       substantially
                     major life
          limits a major
          limits                  activity must
                             life activity  must be made   without regard
                                                     made without   regard to the
          ameliorative effects
          ameliorative                 mitigating measures,
                           effects of mitigating              including:
                                                   measures, including:
                     (1)
                      (1)   medication,  medical supplies,
                            medication, medical              medical equipment,
                                                  supplies, medical   equipment,
          medical appliances,
          medical                 prosthetic limbs
                    appliances, prosthetic           and devices,
                                              limbs and             hearing aids,
                                                          devices, hearing   aids,
          cochlear implants
          cochlear   implants and   other implantable
                                and other                hearing devices,
                                           implantable hearing              mobility
                                                                  devices, mobility
                     and oxygen
          devices, and
          devices,                therapy equipment;
                           oxygen therapy  equipment;
                     (2)
                      (2)   devices that
                            devices  that magnify,                otherwise augment
                                                    enhance, or otherwise
                                          magnify, enhance,                  augment a
          visual image,
          visual            other than
                   image, other   than eyeglasses
                                        eyeglasses and   contact lenses
                                                    and contact   lenses that
                                                                          that are
          intended to fully
          intended                       visual acuity
                                correct visual
                          fully correct                     eliminate refractive
                                                acuity or eliminate    refractive
          EIIOI;
          error;
                     (3)
                      (3)   the use
                            the         assistive technology;
                                use of assistive   technology;
                     (4)
                      (4)   reasonable  accommodations and
                            reasonable accommodations        auxiliary aids
                                                         and auxiliary   aids or
          services; and
          services;    and
                     (5)
                      (5)   learned  behavioral or adaptive
                            learned behavioral                neurological
                                                    adaptive neurological



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          modifications.
          modifications.

          Added by
          Added     Acts 2009,
                 by Acts        8lst Leg.,
                         2009, 81st        R.S., Ch.
                                     Leg., R.S.,     337 (H.B.
                                                 Ch. 337  (H.B. 978), Sec. 2,
                                                                978), Sec. 2,
                September 1,
          eff. September
          eff.                2009.
                          l, 2009.


                                   GENERAL POWERS
                       21.003. GENERAL
                Sec. 21.003.
                Sec.                                AND DUTIES
                                            POWERS AND               COMMISSION. (a)
                                                         DUTIES OF COMMISSION.        (a)
               commission may:
          The commission      may:
                     (1)
                      (1)    promote the
                            promote        creation of local
                                       the creation      local commissions         human
                                                                 commissions on human
          rights by
          rights  by cooperating          contracting with
                       cooperating or contracting             individuals or state,
                                                        with individuals         state,
                       other agencies,
          local, or other
          local,                           public or private,
                                agencies, public                  including agencies
                                                       private, including     agencies of
          the federal     government and
               federal government               other states;
                                        and of other   states;
                     (2)
                      (2)    receive, investigate,
                            receive,                   seek to conciliate,
                                        investigate, seek                      and pass
                                                                 conciliate, and    pass on
          complaints    alleging violations
          complaints alleging       violations of this
                                                    this chapter;
                                                           chapter;
                     (3)
                      (3)    file civil
                            file                       effectuate the
                                          actions to effectuate
                                   civil actions                         purposes of this
                                                                    the purposes         this
          chapter;
          chapter;
                     (4)
                      (4)    request and,
                            request    and, if necessary,    compel by
                                                necessary, compel        subpoena:
                                                                     by subpoena:
                           (A)
                            (A)        attendance of necessary
                                  the attendance                   witnesses for
                                                       necessary witnesses      for
          examination under
          examination     under oath;     and
                                  oath; and
                           (B)
                            (B)        production, for
                                  the production,         inspection and
                                                     for inspection    and copying,
                                                                            copying, of
                     documents, and
          records, documents,
          records,                  and other   evidence relevant
                                         other evidence    relevant to the
          investigation of alleged
          investigation          alleged violations
                                          violations of this
                                                           this chapter;
                                                                chapter;
                     (5)
                      (5)    furnish technical
                            furnish    technical assistance    requested by
                                                  assistance requested            person
                                                                           by a person
          subject to this
          subject       this chapter                  compliance with
                                            further compliance
                                chapter to further                 with this   chapter or
                                                                         this chapter
          with a rule
          with                order issued
                   rule or order              under this
                                     issued under   this chapter;
                                                           chapter;
                     (6)
                      (6)    recommend in its
                            recommend            annual report
                                            its annual            legislation or other
                                                         report legislation         other
          action to carry
          action                         purposes and
                       carry out the purposes           policies of this
                                                   and policies       this chapter;
                                                                             chapter;
                     (7)
                      (7)   adopt   procedural rules
                             adopt procedural    rules to carry
                                                            carry out the    purposes and
                                                                        the purposes     and
          policies of this
          policies        this chapter;     and
                                 chapter; and
                     (8)
                      (8)   provide    educational and
                             provide educational         outreach activities
                                                    and outreach    activities to
          individuals who
          individuals                historically been
                                have historically
                          who have                         victims of employment
                                                    been victims        employment
          discrimination.
          discrimination.
                (b)
                (b)         commission by
                      The commission      by rule                     commissioner or
                                                        authorize a commissioner
                                              rule may authorize
          one of its                exercise the powers
                        staff to exercise
                   its staff                       powers stated        Subsection (a)(4)
                                                            stated in Subsection      (a)(4)
             behalf of the commission.
          on behalf              commission.
                (c)
                (C)         commission biennially
                      The commission      biennially shall    develop an inventory
                                                       shall develop       inventory of
                 employment opportunity
          equal employment
          equal                                policies and
                                 opportunity policies         programs adopted
                                                         and programs    adopted and
                                                                                   and



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          implemented by
          implemented         various state
                       by the various        agencies.
                                       state agencies.
               (d)
                (d)      commission at least
                     The commission           annually shall
                                        least annually       make a
                                                       shall make
          comprehensive written
          comprehensive  written report         commission's activities
                                  report on the commission's activities to the
          governor and
          governor             legislature.
                    and to the legislature.
               (e)
                (e)      commission shall
                     The commission        conduct a study
                                     shall conduct                 policies and
                                                     study of the policies  and
          programs of a selected
          programs       selected state  agency if
                                   state agency        commission is
                                                if the commission     directed
                                                                   is directed
             conduct the study
          to conduct      study by  legislative resolution
                                by legislative  resolution or by  executive
                                                              by executive
          order of the governor.
          order         governor.

          Acts 1993,
          Acts        73rd Leg.,
               1993, 73rd   Leg., ch.
                                  ch. 269,    Sec. 1,
                                       269, Sec.   1, eff.   Sept. 1,
                                                       eff. Sept.   1, 1993.   Amended
                                                                       1993. Amended
          by Acts 1995,
          by Acts         74th Leg.,
                  1995, 74th   Leg., ch.
                                      ch. 76,         9.03(a), eff.
                                                Sec. 9.03(a),
                                           76, Sec.                   Sept. 1,
                                                                eff. Sept.      1995;
                                                                             1, 1995;
          Acts 1999,
          Acts        76th Leg.,
               1999, 76th   Leg., ch.
                                  ch. 872,    Sec. 11,
                                       872, Sec.   11, eff.   Sept. 1,
                                                        eff. Sept.      1999.
                                                                     1, 1999.
          Amended by:
          Amended by:
               Acts 2013,
               Acts         83rd Leg.,
                     2013, 83rd         R.S., Ch.
                                 Leg., R.S.,        1312 (S.B.
                                                Ch. 1312   (S.B. 59),  Sec. 77,
                                                                 59), Sec.       eff.
                                                                             77, eff.
          September 1,
          September     2013.
                     1, 2013.


               Sec. 21.0035.
               Sec.               CIVILIAN WORKFORCE
                      2l.0035. CIVILIAN      WORKFORCE COMPOSITION.
                                                         COMPOSITION. (a)
                                                                        (a)   The
          commission by
          commission   by rule          biennially determine:
                                 shall biennially
                           rule shall                 determine:
                    (1)
                     (1)       percentage of the
                           the percentage
                           the                        statewide civilian
                                                 the statewide             workforce
                                                                 civilian workforce
          composed of:
          composed  of:
                          (A)
                          (A)   Caucasian Americans;
                               Caucasian    Americans;
                          (B)
                          (B)  African Americans;
                               African   Americans;
                          (C)
                          (C)   Hispanic Americans;
                               Hispanic    Americans;
                          (D)
                          (D)   females; and
                               females;     and
                          (E)
                          (E)  males; and
                               males;     and
                    (2)
                     (2)       percentage of the
                           the percentage
                           the                        statewide civilian
                                                 the statewide             workforce of
                                                                 civilian workforce
                       listed in
              groups listed
          the groups               Subdivision (1)
                               in Subdivision     (1) according          following job
                                                       according to the following    job
          categories:
          categories:
                          (A)
                          (A)  state            administration;
                                       agency administration;
                                state agency
                          (B)
                          (B)  professional;
                               professional;
                          (C)
                          (C)   technical;
                               technical;
                          (D)
                          (D)  protective services;
                               protective     services;
                          (E)
                          (E)  paraprofessional;
                               paraprofessional;
                          (F)
                          (F)   administrative support;
                               administrative     support;
                          (G)
                          (G)   skilled craft;
                               skilled    craft; andand
                          (H)
                          (H)   service and
                               service         maintenance.
                                          and maintenance.



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                (b)
                (b)      commission shall
                     The commission shall report      percentages of the
                                           report the percentages
          statewide civilian
          statewide           workforce as
                     civilian workforce     determined under
                                         as determined under this section to
                                                             this section
               governor and
          the governor          legislature not later
                        and the legislature      later than
                                                       than the fifth
                                                                fifth day of
                regular session
          each regular
          each          session of the legislature.
                                        legislature.

          Added by
          Added    Acts 1999,
                by Acts       76th Leg.,
                        1999, 76th Leg., ch.
                                         ch. 872, Sec. 12,
                                             872, Sec. 12, eff. Sept. 1,
                                                           eff. Sept.    1999.
                                                                      1, 1999.


                               CRIMINAL OFFENSE
                     21.004. CRIMINAL
                Sec. 21.004.
               Sec.                     OFFENSE OF INTERFERENCE;
                                                    INTERFERENCE; PENALTY.
                                                                    PENALTY.
          (a)
           (a)  A person
                A person commits
                          commits an offense                 wilfully resists,
                                                     person wilfully
                                     offense if the person            resists,
          prevents, impedes,
          prevents,  impedes, or interferes             performance of a duty
                                              with the performance
                                  interferes with
          under or the exercise
          under          exercise of a power  provided by
                                       power provided   by this chapter.
                                                           this chapter.
               (b)
                (b)  An  offense under
                     An offense  under this  section is
                                       this section                misdemeanor.
                                                           Class B misdemeanor.
                                                     is a Class

          Acts 1993,
          Acts       73rd Leg.,
               1993, 73rd Leg., ch.      Sec. 1,
                                    269, Sec.
                                ch. 269,      1, eff. Sept. 1,
                                                 eff. Sept.    1993.
                                                            1, 1993.



                Sec. 21.005.
                Sec.            CONSTRUCTION WITH
                      21.005. CONSTRUCTION          OTHER LAWS.
                                              WITH OTHER  LAWS. (a)(a)        chapter
                                                                         This chapter
                                                                         This
          does not relieve
          does                  government agency
                     relieve a government              official of the
                                            agency or official
          responsibility to ensure
          responsibility               nondiscrimination in employment
                               ensure nondiscrimination      employment as as
          required under
          required   under another   provision of the state
                            another provision                    federal
                                                       state or federal
          constitutions or laws.
          constitutions       laws.
                (b)
                (b)         chapter does
                      This chapter
                      This           does not             standards for
                                              affect the standards
                                          not affect                   for
          determining eligibility
          determining   eligibility for benefits
                                          benefits under
                                                    under Title         under a state
                                                          Title 55 or under     state
                       disability benefit
              federal disability
          or federal                benefit program.
                                            program.
                (c)
                (C)   Nothing in
                      Nothing  in this  chapter may
                                  this chapter  may be  construed as
                                                     be construed           basis for
                                                                    as the basis  for
                           individual without
            claim by an individual
          a claim                                disability that
                                       without a disability              individual
                                                             that the individual
                            discrimination because
               subject to discrimination
          was subject
          was                                               individual's lack
                                            because of the individual's     lack of a
          disability.
          disability.

          Acts 1993,
          Acts        73rd Leg.,
               1993, 73rd  Leg., ch.
                                  ch. 269,  Sec. 1,
                                      269, Sec.  1, eff.  Sept. 1,
                                                    eff. Sept.     1993.
                                                                1, 1993.
          Amended by:
          Amended by:
               Acts 2009,
               Acts        81st Leg.,
                     2009, 81st        R.S., Ch.
                                 Leg., R.S.,      337 (H.B.
                                              Ch. 337              Sec. 3,
                                                             978), Sec.
                                                       (H.B. 978),          eff.
                                                                         3, eff.
          September 1,
          September     2009.
                     1, 2009.


               Sec.          CONFORMITY WITH
                    21.006. CONFORMITY
               Sec. 21.006.             WITH FEDERAL
                                              FEDERAL STATUTES.
                                                      STATUTES. IfIf a
          provision of this
          provision         chapter is
                       this chapter    held by
                                    is held         Equal Employment
                                             by the Equal Employment
                      Commission to disqualify
          Opportunity Commission
          Opportunity                               commission as
                                    disqualify the commission        deferral
                                                                as a deferral
                            receipt of federal
          agency or for the receipt
          agency                       federal funds,      commission shall
                                                funds, the commission  shall


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          administer this
          administer       chapter to qualify
                      this chapter     qualify for deferral status
                                               for deferral status or the
          receipt of those
          receipt     those funds
                            funds until      legislature meets
                                   until the legislature meets in      next
                                                                   its next
                                                               in its
          session and
          session and has
                       has an opportunity     amend this
                              opportunity to amend       chapter.
                                                    this chapter.

          Acts 1993,
          Acts       73rd Leg.,
               1993, 73rd Leg., ch.
                                ch. 269, Sec. 1,
                                    269, Sec. 1, eff. Sept. 1,
                                                 eff. Sept.    1993.
                                                            1, 1993.


                              PRIVILEGED COMMUNICATION;
                     21.007. PRIVILEGED
               Sec. 21.007.
               Sec.                       COMMUNICATION; IMMUNITY.    An oral
                                                           IMMUNITY. An  oral or
          written statement
          written  statement made       commissioner or an employee
                             made to a commissioner         employee of the
          commission in
          commission                 with the discharge
                         connection with
                      in connection                             commissioner's
                                               discharge of the commissioner's
             employee's duties
          or employee's          under this
                         duties under       chapter may not be the basis
                                       this chapter                 basis for
                                                                          for an
          action for
          action      defamation of character.
                  for defamation     character.

          Added by Acts
          Added    Acts 1995, 74th Leg.,
                        1995, 74th Leg., ch.
                                         ch. 76,      9.08(a), eff.
                                                 Sec. 9.08(a),
                                             76, Sec.               Sept. 1,
                                                               eff. Sept. 1,
          1995.
          1995.


                Sec. 21.008.
               Sec.              LIMITED SEVERABILITY.
                      21.008. LIMITED    SEVERABILITY. (a) (a)           clause,
                                                                 If any clause,
                                                                 If
                      subsection, section,
          sentence, subsection,
          sentence,                 section, or other   provision of this
                                                  other provision             chapter
                                                                        this chapter
                  application of such
          or the application                provision to any person
                                    such a provision            person or
          circumstances is
          circumstances       held invalid
                           is held  invalid or unconstitutional,
                                                unconstitutional, that      invalidity
                                                                      that invalidity
          shall                    other clauses,
                      affect the other
          shall not affect                clauses, sentences,    subsections,
                                                    sentences, subsections,
                          provisions or applications
          sections, or provisions
          sections,                       applications of this    chapter that
                                                            this chapter    that may
                                                                                  may be
          given effect
          given           without the invalid
                 effect without        invalid clause,
                                                clause, sentence,     subsection,
                                                         sentence, subsection,
                         provision or application
          section, or provision
          section,                     application and
                                                     and shall
                                                         shall not affect,
                                                                      affect,
          invalidate, impair,
          invalidate,    impair, or nullify        remainder of this
                                     nullify the remainder              chapter. The
                                                                  this chapter.
                           determination of invalidity
          effect of the determination
          effect                              invalidity shall        confined to the
                                                          shall be confined
                                subsection, section,
                    sentence, subsection,
          clause, sentence,
          clause,                                         provision or application
                                             section, or provision         application
             adjudicated to be invalid
          so adjudicated
          so                       invalid or unconstitutional,
                                               unconstitutional, and and to that   end
                                                                             that end
              provisions of this
          the provisions        this chapter       declared to be severable.
                                     chapter are declared            severable.
               (b)
                (b)           limit on damages
                      If any limit
                      If                         prescribed by
                                        damages prescribed        Section 21.2585
                                                               by Section   21.2585 isis
          invalidated         method other
          invalidated by a method     other than      legislative means,
                                             than by legislative                  amount
                                                                     means, the amount
          of civil   liability for
             civil liability             past and
                                 for all past  and future   noneconomic losses,
                                                    future noneconomic     losses,
          including past
          including   past and
                            and future  pain and
                                 future pain  and suffering,    mental anguish
                                                   suffering, mental    anguish and
                                                                                  and
          suffering, and
          suffering,                   nonpecuniary damage,
                                 other nonpecuniary
                       and any other                  damage, is    limited to an
                                                                is limited
          amount           exceed $150,000.
          amount not to exceed     $150,000.
               (c)
                (C)         limit on damages
                      If a limit
                      If                       prescribed by
                                      damages prescribed        Section 21.2585
                                                            by Section   21.2585 isis
          invalidated         method other
          invalidated by a method     other than      legislative means
                                             than by legislative     means and
                                                                            and if
                                                                                 if the
          alternative civil
          alternative           liability limits
                         civil liability           contained in
                                           limits contained       Subsection (b)
                                                               in Subsection    (b) are



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                invalidated by
           also invalidated
           also                   method other
                             by a method other than
                                               than by legislative means,
                                                    by legislative means,
           Section 21.2585
           Section 21.2585 is  void.
                            is void.

           Added by
           Added    Acts 1995,
                 by Acts       74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.08(a), eff.
                                                  Sec. 9.08(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                 Sec. 21.009.
                 Sec.           JOINDER OF COMMISSION.
                      21.009. JOINDER        COMMISSION. (a) (a)   In any civil
                                                                   In              action
                                                                           civil action
              which the validity
           in which
           in                            provision of this
                          validity of a provision                           Chapter
                                                                chapter or Chapter
                                                         this chapter
                 Government Code,
           461, Government
           461,                       rule adopted
                             Code, a rule            under this
                                            adopted under   this chapter        Chapter
                                                                   chapter or Chapter
                 Government Code,
           461, Government
           461,              Code, or the application              provision or rule
                                            application of the provision           rule
               challenged as
           is challenged
           is                        unconstitutional, or unenforceable,
                              void, unconstitutional,
                           as void,                           unenforceable, the
           commission shall
           commission            made a party
                       shall be made                    proceedings, and,
                                         party to the proceedings,       and, on the
           motion of the commission,
           motion                       venue of the cause
                           commission, venue                            transferred to
                                                       cause may be transferred
                district courts
           the district              Travis County.
                          courts of Travis   County.
                 (b)
                 (b)  An order
                      An        restraining the commission
                          order restraining                         invalidating a
                                                  commission or invalidating
           provision of this
           provision      this chapter      Chapter 461,
                               chapter or Chapter          Government Code,
                                                     461, Government     Code, or a
           commission rule
           commission  rule adopted   under this
                             adopted under                       Chapter 461,
                                                  chapter or Chapter
                                             this chapter                 461,
           Government Code,
           Government                     enforced and
                       Code, may not be enforced     and may not take
                                                                    take effect    until
                                                                          effect until
                commission has
           the commission       answered and
                            has answered       appeared in
                                          and appeared             action and
                                                          in the action    and has
                                                                                has
           exhausted all avenues
           exhausted       avenues of appeal
                                       appeal and        judgment is
                                               and any judgment         final and
                                                                    is final   and
           enforceable.
           enforceable.
                 (c)
                 (C)  Notwithstanding any other
                      Notwithstanding              provision of state
                                             other provision        state law,
                                                                           law,
           including this
           including  this chapter,             commission, if
                            chapter, only the commission,             prevailing party,
                                                                if a prevailing    party,
                recover costs
           may recover   costs and  attorney's fees
                               and attorney's   fees in            declaratory
                                                          such a declaratory
                                                      in such
           proceeding under
           proceeding  under this   section.
                              this section.

           Added by Acts
           Added    Acts 1995, 74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.08(a), eff.
                                                  Sec. 9.08(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                      21.010. EMPLOYMENT
                Sec. 21.010.
                Sec.                        DISCRIMINATION TRAINING
                                EMPLOYMENT DISCRIMINATION   TRAINING FOR
                                                                     FOR STATE
                                                                          STATE
           EMPLOYEES. (a)
           EMPLOYEES.    (a)  Each state
                              Each        agency shall
                                   state agency         provide to employees
                                                 shall provide     employees of
           the agency                 discrimination training
                           employment discrimination
               agency an employment                             program that
                                                       training program  that
           complies with
           complies  with this  section.
                           this section.
                (b)
                 (b)  The training  program must
                           training program       provide the employee
                                             must provide                with
                                                               employee with
           information regarding
           information                  agency's policies
                        regarding the agency's   policies and  procedures relating
                                                           and procedures  relating
              employment discrimination,
           to employment                    including employment
                           discrimination, including              discrimination
                                                       employment discrimination
           involving sexual
           involving          harassment.
                      sexual harassment.


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                (c)
                 (C)   Each employee
                       Each  employee of a state
                                            state agency
                                                   agency shall  attend the training
                                                          shall attend       training
           program required
           program   required by        section not later
                                  this section
                               by this               later than
                                                           than the 30th       after
                                                                     30th day after
                          employee is
               date the employee
           the date                     hired by
                                    is hired  by the agency  and shall
                                                      agency and        attend
                                                                  shall attend
           supplemental training
           supplemental   training every
                                    every two years.
                                               years.
                (d)
                 (d)        commission shall
                       The commission         develop materials
                                        shall develop  materials for  use by
                                                                  for use     state
                                                                          by state
                         providing employment
           agencies in providing
           agencies                              discrimination training
                                    employment discrimination    training as
                                                                          as
           required by
           required            section.
                         this section.
                      by this
                (e)
                 (e)   Each state
                       Each  state agency
                                   agency shall   require an employee
                                           shall require     employee of the agency
                                                                               agency
               attends a training
           who attends
           who                       program required
                            training program  required by        section to sign
                                                           this section
                                                        by this              sign a
           statement verifying
           statement                   employee's attendance
                       verifying the employee's    attendance at the training
                                                                      training
           program. The agency
           program.         agency shall
                                   shall file
                                          file the statement          employee's
                                                    statement in the employee's
           personnel file.
           personnel   file.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 14,
                                              872, Sec. 14, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                           SUBCHAPTER B.
                           SUBCHAPTER B. UNLAWFUL EMPLOYMENT PRACTICES
                                         UNLAWFUL EMPLOYMENT PRACTICES

                                 DISCRIMINATION BY EMPLOYER.
                       21.051. DISCRIMINATION
                Sec. 21.051.
                Sec.                                                employer commits
                                                    EMPLOYER. An employer     commits
              unlawful employment
           an unlawful               practice if because
                          employment practice     because of race,   color,
                                                              race, color,
           disability, religion,
           disability,    religion, sex,  national origin,
                                    sex, national                        employer:
                                                   origin, or age the employer:
                     (1)
                      (1)             refuses to hire
                            fails or refuses
                            fails                hire an individual,    discharges an
                                                          individual, discharges
                             discriminates in any other
           individual, or discriminates
           individual,                                    manner against
                                                   other manner  against an
           individual       connection with
           individual in connection          compensation or the terms,
                                        with compensation          terms,
           conditions,       privileges of employment;
           conditions, or privileges        employment; or
                     (2)
                      (2)   limits, segregates,
                            limits,                  classifies an employee
                                    segregates, or classifies       employee or
           applicant for
           applicant                         manner that
                            employment in a manner
                       for employment                     would deprive
                                                    that would  deprive or tend
                                                                             tend to
           deprive an individual
           deprive      individual of any employment    opportunity or adversely
                                            employment opportunity       adversely
           affect                 manner the status
                            other manner
           affect in any other                status of an employee.
                                                            employee.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                 DISCRIMINATION BY EMPLOYMENT
                       21.052. DISCRIMINATION
                 Sec. 21.052.
                Sec.                                EMPLOYMENT AGENCY.
                                                                AGENCY. AnAn
           employment agency
           employment                      unlawful employment
                                commits an unlawful
                        agency commits                           practice if the
                                                      employment practice
           employment agency:
           employment   agency:
                     (1)
                      (1)  fails     refuses to refer
                            fails or refuses     refer for  employment or
                                                        for employment
           discriminates in any other
           discriminates                 manner against
                                   other manner              individual because
                                                against an individual    because of
           race,  color, disability,
           race, color,                religion, sex,
                          disability, religion,         national origin,
                                                  sex, national  origin, or age;
                                                                             age; or


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                     (2)
                      (2)   classifies or refers
                            classifies              individual for
                                          refers an individual      employment on
                                                                for employment
               basis of race,
           the basis                    disability, religion,
                                 color, disability,
                          race, color,              religion, sex,  national
                                                               sex, national
           origin, or age.
           origin,      age.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                   DISCRIMINATION BY
                        2l.O53. DISCRIMINATION
                 Sec. 21.053.
                 Sec.                                 LABOR ORGANIZATION.
                                                   BY LABOR  ORGANIZATION. A  A labor
                                                                                 labor
           organization commits
           organization                 unlawful employment
                           commits an unlawful                practice if
                                                  employment practice       because of
                                                                        if because
           race,  color, disability,
           race, color,                  religion, sex,
                           disability, religion,          national origin,
                                                    sex, national   origin, or age the
                  organization:
           labor organization:
           labor
                      (1)
                       (1)   excludes or expels
                             excludes     expels from   membership or discriminates
                                                  from membership      discriminates
           in any other
           in              manner against
                   other manner     against an individual;
                                                individual; or
                      (2)
                       (2)   limits, segregates,
                             limits,                                 member or an
                                                       classifies a member
                                      segregates, or classifies
           applicant for
           applicant         membership or classifies
                        for membership       classifies or fails                   refer
                                                                      refuses to refer
                                                            fails or refuses
           for employment
           for                   individual in
                employment an individual           manner that
                                              in a manner  that would:
                                                                would:
                            (A)
                            (A)   deprive or tend
                                 deprive      tend to deprive      individual of any
                                                       deprive an individual
           employment opportunity;
           employment    opportunity;
                            (B)
                            (B)   limit an employment
                                 limit                  opportunity or adversely
                                            employment opportunity       adversely
           affect in
           affect  in any other     manner the status
                             other manner                     employee or of an
                                                status of an employee
           applicant for
           applicant         employment; or
                        for employment;
                            (C)
                            (C)  cause      attempt to cause
                                  cause or attempt      cause an employer       violate
                                                                  employer to violate
                 subchapter.
           this subchapter.
           this

           Acts 1993,
           Acts       73rd Leg.,
                l993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      l, eff. Sept. 1,
                                                  eff. Sept.    l993.
                                                             l, 1993.



                                ADMISSION OR
                       2l.054. ADMISSION
                Sec. 21.054.
                Sec.                          PARTICIPATION IN
                                           OR PARTICIPATION     TRAINING PROGRAM.
                                                             IN TRAINING  PROGRAM.
           (a)
            (a)            training or retraining
                Unless a training
                Unless                 retraining opportunity      program is
                                                   opportunity or program   is
           provided under
           provided            affirmative action
                      under an affirmative               approved under
                                                   plan approved
                                            action plan           under a federal
                                                                           federal
           law, rule,
           law,            order, an employer,
                rule, or order,                 labor organization,
                                     employer, labor  organization, or joint
                                                                         joint
           labor—management committee
           labor-management             controlling an apprenticeship,
                              committee controlling      apprenticeship,
           on—the—job training,
           on-the-job                       training or retraining
                                     other training
                        training, or other                          program
                                                         retraining program
           commits      unlawful employment
           commits an unlawful               practice if
                                 employment practice  if the employer,   labor
                                                              employer, labor
           organization, or committee
           organization,                discriminates against
                              committee discriminates              individual
                                                        against an individual
           because of race,
           because                   disability, religion,
                              color, disability,
                        race, color,              religion, sex,  national origin,
                                                             sex, national  origin,
           or age inin admission       participation in
                       admission to or participation          program.
                                                      in the program.
                (b)
                 (b)       prohibition against
                       The prohibition          discrimination because
                                       against discrimination   because of age in
                                                                                in
                section applies
           this section
           this           applies only     discrimination because
                                  only to discrimination   because of age against
                                                                           against

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              individual who
           an individual who is    least 40
                             is at least 40 years        but younger
                                            years of age but         than 56
                                                             younger than 56
           years of age.
           years    age.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec. 21.055.
                Sec.             RETALIATION. An
                       21.055. RETALIATION.      An employer,  labor union,
                                                    employer, labor  union, or
           employment agency
           employment                       unlawful employment
                                commits an unlawful
                        agency commits                            practice if
                                                       employment practice  if the
                       labor union,
           employer, labor
           employer,                     employment agency
                              union, or employment           retaliates or
                                                     agency retaliates
           discriminates against
           discriminates               person who,
                           against a person         under this
                                              who, under        chapter:
                                                           this chapter:
                     (1)
                      (1)  opposes     discriminatory practice;
                            opposes a discriminatory    practice;
                     (2)
                      (2)  makes or files
                           makes      files a charge;
                                               charge;
                     (3)
                      (3)  files     complaint; or
                            files a complaint;
                     (4)
                      (4)   testifies, assists,
                           testifies,   assists, or participates           manner in
                                                     participates in any manner
              investigation, proceeding,
           an investigation,                     hearing.
                                proceeding, or hearing.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                                AIDING OR
                      21.056. AIDING
                 Sec. 21.056.
                Sec.                      ABETTING DISCRIMINATION.
                                       OR ABETTING  DISCRIMINATION. AnAn employer,
                                                                         employer,
           labor union,
           labor             employment agency
                  union, or employment  agency commits     unlawful employment
                                               commits an unlawful   employment
           practice if
           practice                    labor union,
                             employer, labor
                     if the employer,                   employment agency
                                             union, or employment   agency aids,
                                                                           aids,
           abets,  incites, or coerces
           abets, incites,                person to engage
                                coerces a person     engage in    discriminatory
                                                            in a discriminatory
           practice.
           practice.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                INTERFERENCE WITH
                      21.057. INTERFERENCE
                 Sec. 21.057.
                Sec.                          WITH COMMISSION.
                                                   COMMISSION. An employer,
                                                                    employer,
           labor union,
           labor             employment agency
                  union, or employment                      unlawful employment
                                                commits an unlawful
                                        agency commits               employment
           practice if
           practice                    labor union,
                             employer, labor
                     if the employer,                   employment agency
                                              union, or employment  agency
           wilfully interferes
           wilfully  interferes with       performance of a duty or the exercise
                                 with the performance                    exercise
                 power under
           of a power   under this
                              this chapter     Chapter 461,
                                   chapter or Chapter        Government Code,
                                                       461, Government        by
                                                                        Code, by
                                 commission's staff,
               commission, the commission's
           the commission,                                    commission's
                                               staff, or the commission's
           representative.
           representative.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                               PREVENTION OF COMPLIANCE.
                      21.058. PREVENTION
                 Sec. 21.058.
                Sec.                         COMPLIANCE. An
                                                          An employer, labor
                                                             employer, labor
                      employment agency
           union, or employment
           union,                                  unlawful employment
                                        commits an unlawful
                                 agency commits                        practice
                                                            employment practice


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                             labor union,
                   employer, labor
           if the employer,
           if                                 employment agency
                                    union, or employment         wilfully
                                                          agency wilfully
           obstructs     prevents a person
           obstructs or prevents     person from            with this
                                                  complying with
                                            from complying            chapter or
                                                                 this chapter
                   adopted or order
              rule adopted
           a rule             order issued  under this
                                     issued under       chapter.
                                                   this chapter.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec 21.059.
                Sec..  21 059
                            .   .DISCRIMINATORY NOTICE
                                 DISCRIMINATORY   NOTICE OR  ADVERTISEMENT
                                                          OR ADVERTISEMENT.    (a)
                                                                                (a)   An
                                                                                      An
                                                                                      .




           employer, labor
           employer,                          employment agency,
                              organization, employment
                       labor organization,                                   labor-
                                                                      joint labor-
                                                          agency, or joint
           management committee
           management              controlling an apprenticeship,
                        committee controlling                         on—the—job
                                                    apprenticeship, on-the-job
                                 training or retraining
                           other training
           training, or other
           training,                                       program commits
                                               retraining program   commits an
           unlawful employment
           unlawful               practice if
                     employment practice     if the employer,         organization,
                                                                labor organization,
                                                    employer, labor
           employment agency,
           employment                committee prints
                        agency, or committee               publishes or causes
                                                prints or publishes       causes to be
           printed or published
           printed      published a notice       advertisement relating
                                      notice or advertisement    relating to
           employment that:
           employment   that:
                     (1)
                      (1)   indicates a preference,
                            indicates    preference, limitation,    specification, or
                                                       limitation, specification,
           discrimination based
           discrimination    based on race,   color, disability,
                                       race, color,                religion, sex,
                                                     disability, religion,    sex,
           national origin,
           national  origin, or age;     and
                                  age; and
                     (2)
                      (2)   concerns     employee's status,
                            concerns an employee's             employment, or
                                                      status, employment,
           admission          membership or participation
           admission to or membership         participation in
                                                             in a labor  union or
                                                                   labor union
           training or retraining
           training       retraining program.
                                      program.
                (b)
                 (b)  This   section does
                       This section        not apply if disability,
                                      does not                         religion, sex,
                                                          disability, religion,     sex,
           national origin,
           national  origin, or age is       bona fide
                                       is a bona        occupational qualification.
                                                  fide occupational   qualification.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                               VIOLATION OF
                      21.060. VIOLATION
                Sec. 21.060.
                Sec.                         CONCILIATION AGREEMENT.
                                          OF CONCILIATION  AGREEMENT. A  party to
                                                                       A party
             conciliation agreement
           a conciliation  agreement made  under this
                                     made under        chapter commits
                                                 this chapter  commits an
           unlawful employment
           unlawful             practice if
                     employment practice                violates the terms
                                                 party violates
                                          if the party               terms of the
           conciliation agreement.
           conciliation  agreement.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec.            INSUFFICIENT EVIDENCE
                      21.061. INSUFFICIENT
                Sec. 21.061.                              UNLAWFUL PRACTICE.
                                             EVIDENCE OF UNLAWFUL  PRACTICE. In In
               absence of other
           the absence            evidence of an unlawful
                           other evidence        unlawful employment
                                                           employment practice,
                                                                       practice,
           evidence of the employment
           evidence                            person in
                             employment of one person in place     another is
                                                          place of another  is not
           sufficient     establish an unlawful
           sufficient to establish      unlawful employment
                                                 employment practice.
                                                             practice.



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           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                 SUBCHAPTER C.
                                 SUBCHAPTER    APPLICATION;
                                            C. APPLICATION;      EXCEPTIONS
                                                                 EXCEPTIONS

                Sec 21.101.
                Sec. .21 101 .  AGE
                                  . DISCRIMINATION LIMITED
                                AGE DISCRIMINATION LIMITED TO INDIVIDUALS
                                                              INDIVIDUALS OF
           CERTAIN AGE.
           CERTAIN        Except as
                    AGE. Except      provided by
                                  as provided    Section 21.054,
                                              by Section             provisions
                                                         21.054, the provisions
                    chapter referring
              this chapter
           of this                        discrimination because
                             referring to discrimination because of age or on
                                            discrimination against
               basis of age apply only to discrimination
           the basis                                                  individual
                                                           against an individual
           40 years
           40                   older.
              years of age or older.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                                     BONA FIDE
                          21.102. BONA
                 Sec. 21.102.
                 Sec.                             EMPLOYEE BENEFIT
                                            EIDE EMPLOYEE   BENEFIT PLAN;    PRODUCTION
                                                                     PLAN; PRODUCTION
           MEASUREMENT SYSTEM.
           MEASUREMENT       SYSTEM. (a)(a)   Except as
                                              Except      provided by Subsections
                                                      as provided      Subsections (b)    and
                                                                                      (b) and
           (c),        employer does
            (c), an employer       does not commit        unlawful employment
                                              commit an unlawful                practice by
                                                                    employment practice
                        different standards
           applying different
           applying                                  compensation or different
                                     standards of compensation         different terms,
                                                                                   terms,
                                privileges of employment
           conditions, or privileges
           conditions,                            employment under:
                                                              under:
                        (1)
                         (1)     bona fide
                               a bona         seniority system,
                                        fide seniority            merit system,
                                                          system, merit   system, or an
           employee     benefit plan,
           employee benefit               such as
                                   plan, such         retirement, pension,
                                                as a retirement,                 insurance
                                                                   pension, or insurance
                   that is
           plan, that
           plan,                      subterfuge to evade
                           is not a subterfuge         evade this   chapter; or
                                                              this chapter;
                        (2)
                         (2)      system that
                               a system          measures earnings
                                           that measures   earnings by quantity
                                                                         quantity or
                           production.
           quality of production.
           quality
                 (b)
                  (10)   An employee
                         An              benefit plan
                              employee benefit     plan may      excuse a failure
                                                             not excuse
                                                        may not             failure to hire
                                                                                         hire
                     basis of age.
           on the basis          age. A     seniority system
                                         A seniority   system or employee    benefit plan
                                                                  employee benefit     plan
                                     permit involuntary
                       require or permit
           may not require
           may                                              retirement on the basis
                                              involuntary retirement            basis of
                except as
           age except          permitted by Section
                           as permitted        Section 21.103.
                                                         21.103.
                 (c)
                  (C)           section does
                          This section
                         This             does not
                                                not apply to standards        compensation
                                                               standards of compensation
                                             privileges of employment
                          conditions, or privileges
               terms, conditions,
           or terms,                                         employment that
                                                                          that are
           discriminatory on the basis
           discriminatory                basis of race,           disability, religion,
                                                           color, disability,
                                                    race, color,                religion,
                 national origin,
           sex, national
           sex,                origin, or age.
                                             age.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                 COMPULSORY RETIREMENT
                       21.103. COMPULSORY
                Sec. 21.103.
                Sec.                        RETIREMENT PERMITTED
                                                       PERMITTED FOR CERTAIN
                                                                 FOR CERTAIN
           EMPLOYEES. This
           EMPLOYEES.          chapter does
                          This chapter          prohibit the compulsory
                                       does not prohibit     compulsory
           retirement of an employee
           retirement          employee who
                                        who is:
                                            is:
                     (1)
                      (1)      least 65
                            at least    years of age;
                                     65 years    age;


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                    (2)
                     (2)                bona fide
                          employed in a bona
                          employed                  executive or high
                                              fide executive           policy-
                                                                 high policy-
           making position
           making position for
                            for the two years  preceding retirement;
                                        years preceding                 and
                                                          retirement; and
                    (3)
                     (3)  entitled to an immediate,
                          entitled                    nonforfeitable annual
                                          immediate, nonforfeitable   annual
           retirement benefit
           retirement  benefit from
                               from a pension,  profit—sharing, savings,
                                      pension, profit-sharing,   savings, or
           deferred compensation
           deferred compensation plan        combination of plans
                                  plan or a combination      plans of the
           employee's employer
           employee's  employer that
                                that equals,
                                     equals, in                      least $27,000.
                                                      aggregate, at least
                                              in the aggregate,             $27,000.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    I993.
                                                             1, 1993.


                      2l.l04. AGE
                Sec. 21.104.
                Sec.               REQUIREMENT FOR
                               AGE REQUIREMENT            OEEICERS OR
                                                    PEACE OFFICERS
                                                EOR PEACE              EIRE
                                                                   OR FIRE
           FIGHTERS. An
           FIGHTERS.   An employer
                          employer does                unlawful employment
                                            commit an unlawful
                                   does not commit              employment
           practice by
           practice  by imposing   minimum or maximum
                        imposing a minimum     maximum age requirement
                                                           requirement for  peace
                                                                        for peace
           officers or fire
           officers          fighters.
                        fire fighters.

           Acts 1993,
           Acts       73rd Leg.,
                I993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      l, eff. Sept. 1,
                                                  eff. Sept.    l993.
                                                             l, 1993.



                                DISCRIMINATION BASED
                      2l.l05. DISCRIMINATION
                Sec. 21.105.
                Sec.                           BASED ON DISABILITY. A
                                                     ON DISABILITY.     provision
                                                                      A provision
                    subchapter or Subchapter
              this subchapter
           in this
           in                      Subchapter B referring     discrimination
                                                 referring to discrimination
           because     disability or on the basis
           because of disability                      disability applies
                                             basis of disability  applies only
                                                                          only to
           discrimination because
           discrimination  because of or on the basis                    mental
                                                            physical or mental
                                                 basis of a physical
           condition that
           condition  that does                individual's ability
                                     impair an individual's
                           does not impair                  ability to
           reasonably  perform a job.
           reasonably perform     job.

           Acts 1993,
           Acts       73rd Leg.,
                l993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. l, eff. Sept. 1,
                                                  eff. Sept.    l993.
                                                             l, 1993.


                       2l.l06. SEX
                Sec. 21.106.
                Sec.                  DISCRIMINATION. (a)
                                 SEX DISCRIMINATION.     (a)   A provision in
                                                               A provision     this
                                                                            in this
           chapter referring
           chapter                  discrimination because
                     referring to discrimination    because of sex              basis
                                                                 sex or on the basis
              sex includes
           of sex             discrimination because
                    includes discrimination   because of or on the basis
                                                                      basis of
                         childbirth, or a related
           pregnancy, childbirth,
           pregnancy,                               medical condition.
                                           related medical    condition.
                (b)
                 (b)   A        affected by
                          woman affected
                       A woman               pregnancy, childbirth,
                                          by pregnancy,                      related
                                                          childbirth, or a related
           medical condition
           medical   condition shall      treated for
                                shall be treated             purposes related
                                                   for all purposes   related to
                          including receipt
           employment, including
           employment,                             benefit under
                                     receipt of a benefit    under a fringe  benefit
                                                                     fringe benefit
           program, in
           program,                manner as
                              same manner
                      in the same             another individual
                                           as another                    affected but
                                                       individual not affected    but
           similar in
           similar           individual's ability
                     in the individual's               inability to work.
                                           ability or inability       work.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    I993.
                                                             1, 1993.




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                  Sec. 21.107.
                  Sec. 21.107.   EFFECT    ABORTION BENEFITS.
                                 EFFECT ON ABORTION BENEFITS.             chapter does
                                                                     This chapter
                                                                     This         does
           not:
           not:
                     (1)
                      (1)  require an employer
                           require    employer to pay       health insurance
                                                       for health
                                                   pay for         insurance
           benefits for abortion
           benefits       abortion unless
                                   unless the life          mother would
                                               life of the mother  would be
           endangered if the fetus
           endangered          fetus were carried to term;
                                     were carried     term;
                     (2)
                      (2)  preclude an employer
                           preclude    employer from  providing abortion
                                                 from providing  abortion
           benefits; or
           benefits;
                     (3)
                      (3)  affect   bargaining agreement
                           affect a bargaining  agreement relating
                                                           relating to abortion.
                                                                       abortion.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                DISCRIMINATION BASED
                      21.108. DISCRIMINATION
                Sec. 21.108.
                Sec.                           BASED ON RELIGION.
                                                         RELIGION. A  provision
                                                                    A provision
                    chapter referring
              this chapter
           in this                        discrimination because
                             referring to discrimination             religion or
                                                          because of religion
                             religion applies
                   basis of religion
           on the basis                           discrimination because
                                      applies to discrimination  because of or on
               basis of any aspect
           the basis                    religious observance,
                              aspect of religious  observance, practice,
                                                               practice, or
                    unless an employer
           belief, unless
           belief,                      demonstrates that
                               employer demonstrates           employer is
                                                      that the employer     unable
                                                                         is unable
                          accommodate the religious
           reasonably to accommodate
           reasonably                                 observance or practice
                                           religious observance     practice of
                           applicant without
              employee or applicant
           an employee                without undue  hardship to the conduct
                                              undue hardship         conduct of
               employer's business.
           the employer's  business.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                Sec. 21.109.
                Sec.            EMPLOYMENT BY
                      21.109. EMPLOYMENT        RELIGIOUS ORGANIZATION.
                                            BY RELIGIOUS  ORGANIZATION. (a) (a)  A
                                                                                 A
           religious corporation,
           religious                 association, society,
                      corporation, association,                 educational
                                                   society, or educational
           institution or an educational
           institution         educational organization
                                            organization operated,    supervised, or
                                                           operated, supervised,
           controlled in whole
           controlled                   substantial part
                          whole or in substantial    part by a religious
                                                                religious
           corporation,                    society does
                         association, or society
           corporation, association,                does not commit      unlawful
                                                              commit an unlawful
                       practice by limiting
           employment practice
           employment                limiting employment                preference
                                                              giving a preference
                                               employment or giving
              members of the same
           to members                religion.
                               same religion.
                (b)
                 (b)  Subchapter B does
                     Subchapter       does not                employment of an
                                           not apply to the employment
           individual        particular religion
           individual of a particular    religion by a religious
                                                        religious corporation,
                                                                    corporation,
                                         perform work
                             society to perform
           association, or society
           association,                                connected with
                                                  work connected  with the
           performance of religious
           performance                 activities by the corporation,
                            religious activities           corporation,
           association, or society.
           association,      society.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.




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                               DISCRIMINATION BASED
                      21.110. DISCRIMINATION
                Sec. 21.110.
                Sec.                                    NATIONAL ORIGIN.
                                              BASED ON NATIONAL  ORIGIN. A A
           provision in this
           provision          chapter referring
                         this chapter               discrimination because
                                      referring to discrimination  because of
           national origin
           national  origin or on the basis     national origin
                                      basis of national  origin includes
                                                                includes
           discrimination because
           discrimination  because of or on the basis         national origin
                                                 basis of the national  origin of
              ancestor.
           an ancestor.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                      21.111. PERSON
                Sec. 21.111.
                Sec.                   EMPLOYED OUT
                                PERSON EMPLOYED OUT OF STATE.
                                                       STATE. This   chapter does
                                                               This chapter  does
                                      with respect
                             employer with
           not apply to an employer        respect to the employment       person
                                                          employment of a person
           outside this
           outside  this state.
                         state.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                                EMPLOYEES AT
                      21.112. EMPLOYEES
                Sec. 21.112.
                Sec.                          DIFFERENT LOCATIONS.
                                          AT DIFFERENT  LOCATIONS. An    employer
                                                                      An employer
                                unlawful employment
                     commit an unlawful
           does not commit
           does                                      practice by applying
                                         employment practice       applying to
           employees who
           employees      work in different
                      who work     different locations   different standards
                                              locations different   standards of
           compensation or different
           compensation      different terms,                  privileges of
                                               conditions, or privileges
                                       terms, conditions,
           employment that
           employment                discriminatory on the basis
                       that are not discriminatory           basis of race,  color,
                                                                       race, color,
           disability, religion,
           disability,  religion, sex,  national origin,
                                   sex, national  origin, or age.
                                                              age.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                    IMBALANCE PLAN
                       21.113. IMBALANCE
                Sec. 21.113.
                Sec.                            PLAN NOT
                                                      NOT REQUIRED.
                                                           REQUIRED. This    chapter does
                                                                        This chapter   does
           not require      person subject
               require a person       subject to this     chapter to grant
                                                    this chapter             preferential
                                                                      grant preferential
           treatment to an individual
           treatment            individual or a group
                                                    group on the basis
                                                                   basis of race,   color,
                                                                             race, color,
           disability, religion,
           disability,    religion, sex,     national origin,
                                       sex, national                      because of an
                                                         origin, or age because
           imbalance between:
           imbalance   between:
                     (1)
                      (1)    the total
                            the                        percentage of persons
                                          number or percentage
                                  total number                        persons of that
                                                                                   that
           individual's         group's race,
           individual's or group's                        disability, religion,
                                                 color, disability,
                                          race, color,                  religion, sex,
                                                                                   sex,
           national origin,
           national  origin, or age: age:
                           (A)
                            (A)    employed by
                                  employed            employer;
                                              by an employer;
                           (B)
                            (B)   referred        classified for
                                   referred or classified          employment by
                                                               for employment   by an
           employment agency
           employment                        organization;
                                      labor organization;
                        agency or labor
                           (C)
                            (C)   admitted       membership or classified
                                   admitted to membership         classified by      labor
                                                                               by a labor
           organization; or
           organization;
                           (D)
                            (D)    admitted to or employed
                                  admitted            employed in      apprenticeship,
                                                                in an apprenticeship,


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           on—the—job training,
           on-the-job   training, or other   training or retraining
                                       other training      retraining program;
                                                                       program; andand
                     (2)
                      (2)   the total
                           the                    percentage of persons
                                       number or percentage
                                total number                      persons of that
                                                                              that
           race,          disability, religion,
                  color, disability,
           race, color,                 religion, sex,   national origin,
                                                   sex, national   origin, or age in:
                                                                                    in:
                          (A)
                           (A)  a community,   this state,
                                  community, this    state, a region,      other
                                                               region, or other
           area; or
           area;
                          (B)
                           (B)       available work
                                the available   work force
                                                      force in                this
                                                                  community, this
                                                             in a community,
                                  other area.
                     region, or other
           state, a region,
           state,                        area.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                               PLAN TO END
                      21.114. PLAN
                Sec. 21.114.
                Sec.                        DISCRIMINATORY SCHOOL
                                        END DISCRIMINATORY SCHOOL PRACTICES.
                                                                  PRACTICES. AA
           public school
           public         official does
                  school official                      unlawful employment
                                             commit an unlawful
                                   does not commit              employment
           practice by
           practice  by adopting    implementing a plan
                        adopting or implementing    plan reasonably designed to
                                                         reasonably designed
               discriminatory school
           end discriminatory
           end                        practices.
                               school practices.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                 Sec.             BUSINESS NECESSITY.
                        21.115. BUSINESS
                 Sec. 21.115.               NECESSITY. (a)(a)   Subject     Subsection
                                                                Subject to Subsection
           (b),      employer does
            (b), an employer    does not commit      unlawful employment
                                          commit an unlawful                practice by
                                                                employment practice
           engaging in
           engaging          practice that
                      in a practice   that has     discriminatory effect
                                            has a discriminatory     effect and
                                                                            and that
                                                                                that
           would otherwise
           would                  prohibited by this
                  otherwise be prohibited              chapter if
                                                  this chapter           employer
                                                                 if the employer
           establishes that
           establishes              practice:
                           that the practice:
                      (1)
                       (1)      not intentionally
                             is not                 devised or operated
                                    intentionally devised        operated to
           contravene         prohibitions of this
           contravene the prohibitions                          and
                                                     chapter; and
                                               this chapter;
                      (2)
                       (2)      justified by business
                             is justified     business necessity.
                                                         necessity.
                 (b)
                 (b)        employer may
                       An employer
                       An                 not use
                                     may not         qualification standard,
                                              use a qualification     standard,
           employment test,
           employment              other selection
                         test, or other              criterion based
                                          selection criterion    based on an
           individual's uncorrected
           individual's     uncorrected vision
                                         vision unless
                                                unless the standard,
                                                              standard, test,
                                                                         test, or
           criterion is
           criterion        consistent with
                        is consistent        business necessity
                                       with business   necessity and    job—related for
                                                                    and job-related  for
                position to which
           the position        which the standard,
                                          standard, test,       criterion applies.
                                                     test, or criterion    applies.

           Acts 1993,
           Acts        73rd Leg.,
                1993, 73rd  Leg., ch.
                                   ch. 269,  Sec. 1,
                                       269, Sec.  1, eff.  Sept. 1,
                                                     eff. Sept.     1993.
                                                                 1, 1993.
           Amended by:
           Amended by:
                Acts 2009,
                Acts        81st Leg.,
                      2009, 81st        R.S., Ch.
                                  Leg., R.S.,      337 (H.B.
                                               Ch. 337              Sec. 4,
                                                              978), Sec.
                                                        (H.B. 978),          eff.
                                                                          4, eff.
           September 1,
           September     2009.
                      1, 2009.


                Sec. 21.116.
                Sec. 21.116.    RELIANCE    COMMISSION INTERPRETATION
                                RELIANCE ON COMMISSION INTERPRETATION OR
                                                                      OR


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           OPINION. (a)
           OPINION.    (a)  A person is
                            A person         liable for
                                      is not liable         unlawful employment
                                                     for an unlawful employment
           practice  performed in
           practice performed      good faith
                                in good  faith and
                                               and in  conformity with
                                                    in conformity with and
                                                                        and in
                                                                            in
                           written interpretation
           reliance on a written
           reliance                interpretation or opinion
                                                       opinion of the commission.
                                                                       commission.
                (b)
                 (b)        proceeding alleging
                      In a proceeding
                      In                alleging an unlawful
                                                     unlawful employment
                                                              employment practice,
                                                                          practice,
               respondent has
           the respondent   has the burden     pleading and
                                     burden of pleading      proving the defense
                                                         and proving      defense
           provided by
           provided           section.
                         this section.
                     by this

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                               EMPLOYMENT OF FAMILY
                      21.117. EMPLOYMENT
                Sec. 21.117.
                Sec.                         FAMILY MEMBER.  Subchapter B does
                                                    MEMBER. Subchapter     does
                                              individual by
                             employment of an individual
           not apply to the employment                          individual's
                                                         by the individual's
           parent, spouse,
           parent,             child.
                    spouse, or child.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                     21.118. STATEWIDE
                Sec. 21.118.
                Sec.                      HOMETOWN PLAN.
                               STATEWIDE HOMETOWN          Subchapter B does
                                                   PLAN. Subchapter      does not
                                                                              not
                      labor union,
           apply to a labor  union, firm,
                                    firm, association,      individual
                                           association, or individual
           participating on September
           participating     September 23,  1983, in
                                       23, 1983,                  hometown plan
                                                        statewide hometown
                                                  in a statewide           plan
           approved by the United
           approved         United States  Department of Labor.
                                   States Department      Labor.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec.              BONA FIDE
                       21.119. BONA
                Sec. 21.119.                 OCCUPATIONAL QUALIFICATION.
                                       FIDE OCCUPATIONAL   QUALIFICATION. IfIf
           disability, religion,
           disability,    religion, sex,   national origin,
                                     sex, national  origin, or age is     bona fide
                                                                     is a bona  fide
           occupational    qualification reasonably
           occupational qualification      reasonably necessary
                                                      necessary to the normal
                                                                         normal
           operation           particular business
           operation of the particular      business or enterprise,   performing any
                                                        enterprise, performing
                   following practices
           of the following    practices on the basis
                                                  basis of disability,
                                                            disability, religion,
                                                                         religion,
                national origin,
           sex, national
           sex,                                    employee, member,
                            origin, or age of an employee,                other
                                                              member, or other
           individual is
           individual               unlawful employment
                        is not an unlawful    employment practice:
                                                         practice:
                     (1)
                      (1)   an employer   hiring and
                                employer hiring      employing an employee;
                                                 and employing      employee;
                     (2)
                      (2)       employment agency
                            an employment   agency classifying      referring an
                                                   classifying or referring
           individual for
           individual        employment;
                        for employment;
                     (3)
                      (3)   a labor  organization classifying
                              labor organization   classifying its   members or
                                                                its members
           classifying       referring an individual
           classifying or referring         individual for  employment; or
                                                       for employment;
                     (4)
                      (4)                  labor organization,
                                employer, labor
                            an employer,                                  labor-
                                                                    joint labor-
                                                 organization, or joint
           management committee
           management               controlling an apprenticeship,
                        committee controlling                         on—the—job
                                                    apprenticeship, on-the-job
                                  training or retraining
                           other training
           training, or other
           training,                                       program admitting
                                               retraining program  admitting or


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           employing    individual in
           employing an individual        program.
                                      its program.
                                   in its

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                       21.120. USE
                 Sec. 21.120.
                 Sec.                 OR POSSESSION
                                 USE OR                  CONTROLLED SUBSTANCE.
                                         POSSESSION OF CONTROLLED    SUBSTANCE. (a)(a)
           An employer
           An  employer does                   unlawful employment
                                   commit an unlawful
                         does not commit                             practice by
                                                         employment practice   by
           adopting a policy
           adopting             prohibiting the employment
                        policy prohibiting                           individual who
                                                  employment of an individual     who
           currently uses
           currently   uses or possesses      controlled substance
                                possesses a controlled    substance as  defined in
                                                                     as defined   in
           Schedules I1 and
           Schedules     and II      Section 202,
                              11 of Section        Controlled Substances
                                              202, Controlled  Substances Act,    and
                                                                           Act, and
           their subsequent
           their               amendments (21
                  subsequent amendments                 Section 801
                                                U.S.C. Section
                                            (21 U.S.C.          801 et seq.),   other
                                                                        seq.), other
                             possession of a drug
           than the use or possession
           than                                       taken under
                                                drug taken             supervision of
                                                            under the supervision
                        health care
              licensed health
           a licensed                 professional or any other
                                care professional                         possession
                                                            other use or possession
           authorized by
           authorized           Controlled Substances
                        by the Controlled    Substances Act          other federal
                                                         Act or any other  federal or
           state law.
           state  law.
                 (b)
                 (b)   Subsection (a)
                       Subsection       does not
                                    (a) does  not apply to a policy   adopted or
                                                              policy adopted
           applied with
           applied   with the intent      discriminate because
                               intent to discriminate    because of race,  color,
                                                                     race, color,
                 national origin,
           sex, national
           sex,                      religion, age,
                           origin, religion,             disability.
                                                age, or disability.

           Added by Acts
           Added    Acts 1995, 74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.04(a), eff.
                                                  Sec. 9.04(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                                WORK FORCE
                      21.121. WORK
                Sec. 21.121.
                Sec.                       DIVERSITY PROGRAMS.
                                     FORCE DIVERSITY PROGRAMS. An   employer does
                                                                 An employer does
                          unlawful employment
               commit an unlawful
           not commit                          practice by developing
                                    employment practice    developing and
                                                                       and
           implementing personnel
           implementing  personnel policies
                                    policies that incorporate work
                                             that incorporate  work force
                                                                    force
           diversity programs.
           diversity  programs.

           Added by
           Added    Acts 1995,
                 by Acts       74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.04(a), eff.
                                                  Sec. 9.04(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                Sec. 21.122.
                Sec.              BURDEN OF PROOF
                       21.122. BURDEN       PROOF IN  DISPARATE IMPACT
                                                   IN DISPARATE  IMPACT CASES.
                                                                         CASES. (a)
                                                                                  (a)
              unlawful employment
           An unlawful
           An             employment practice   based on disparate
                                      practice based      disparate impact
                                                                    impact is
                                                                            is
           established under
           established    under this  chapter only if:
                                 this chapter       if:
                     (1)
                      (1)      complainant demonstrates
                            a complainant  demonstrates that     respondent uses
                                                          that a respondent   uses a
           particular employment
           particular                practice that
                        employment practice    that causes    disparate impact
                                                    causes a disparate   impact on
               basis of race,
           the basis              color, sex,
                           race, color,        national origin,
                                         sex, national           religion, or
                                                         origin, religion,
           disability and
           disability             respondent fails
                        and the respondent              demonstrate that
                                              fails to demonstrate  that the
           challenged practice
           challenged   practice is   job—related for
                                   is job-related           position in
                                                   for the position      question and
                                                                     in question   and


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           consistent with
           consistent          business necessity;
                         with business    necessity; or
                      (2)
                       (2)        complainant makes
                             the complainant
                             the               makes the  demonstration in accordance
                                                      the demonstration      accordance
           with federal
           with  federal lawlaw as  that law
                                as that       existed June
                                          law existed  June 4,         with respect
                                                                1989, with
                                                             4, 1989,       respect to
           the concept        alternative employment
                concept of alternative      employment practices,            respondent
                                                                     and the respondent
                                                        practices, and
           refuses to adopt
           refuses       adopt such       alternative employment
                                 such an alternative   employment practice.
                                                                   practice.
                 (b)
                 (b)        determine the availability
                       To determine         availability of and   burden of proof
                                                              and burden     proof
           applicable to a disparate
           applicable          disparate impact
                                           impact case  involving age discrimination,
                                                   case involving       discrimination,
                court shall
           the court    shall apply the judicial     interpretation of the Age
                                           judicial interpretation           Age
           Discrimination in
           Discrimination         Employment Act
                              in Employment   Act of 1967  and its
                                                      1967 and       subsequent
                                                                its subsequent
           amendments (29
           amendments     (29 U.S.C.  Section 621
                              U.S.C. Section           seq.).
                                               621 et seq.).
                 (c)
                 (C)        demonstrate that
                       To demonstrate            particular employment
                                         that a particular                practice
                                                              employment practice
                      disparate impact,
           causes a disparate
           causes                               complainant must
                                   impact, the complainant         demonstrate that
                                                              must demonstrate   that
                 particular challenged
           each particular
           each                challenged employment    practice causes
                                            employment practice             disparate
                                                                  causes a disparate
                     except that
           impact, except
           impact,            that if       complainant demonstrates
                                    if the complainant   demonstrates to the
           satisfaction of the court
           satisfaction             court that
                                           that the elements         respondent's
                                                     elements of a respondent's
           decision—making process
           decision-making     process are not capable        separation for
                                                  capable of separation   for analysis,
                                                                              analysis,
                 decision—making process
           that decision-making
           that                      process may be analyzed
                                                      analyzed as       employment
                                                                as one employment
           practice.
           practice.
                 (d)
                 (d)    If the respondent
                       If                    demonstrates that
                                respondent demonstrates    that a specific   practice
                                                                   specific practice
           does not cause
           does                 disparate impact,
                      cause a disparate                  respondent may not be
                                            impact, the respondent
           required        demonstrate that
           required to demonstrate                 practice is
                                        that the practice       consistent with
                                                             is consistent  with
           business necessity.
           business   necessity.

           Added by
           Added    Acts 1995,
                 by Acts       74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                      21.123. SCOPE
                Sec. 21.123.
                Sec.                     DEFENSE. A
                               SCOPE OF DEFENSE.      demonstration that
                                                   A demonstration  that an
                       practice is
           employment practice
           employment            is consistent with business
                                    consistent with  business necessity
                                                              necessity may not
              used as
           be used                under this
                         defense under
                    as a defense             chapter against
                                        this chapter            complaint of
                                                      against a complaint
           intentional discrimination.
           intentional  discrimination.

           Added by Acts
           Added    Acts 1995, 74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                               PROHIBITION AGAINST
                      2l.l24. PROHIBITION
                Sec. 21.124.
                Sec.                                DISCRIMINATORY USE
                                           AGAINST DISCRIMINATORY  USE OF TEST
                                                                       OF TEST
           SCORES. It
           SCORES.   It is    unlawful employment
                        is an unlawful             practice for
                                       employment practice        respondent, in
                                                            for a respondent,  in
           connection with
           connection           selection or referral
                       with the selection                 applicants for
                                             referral of applicants  for


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           employment or promotion,
           employment                     adjust the scores
                          promotion, to adjust       scores of,        different
                                                                  use different
                                                              of, use
           cutoff scores
           cutoff  scores for,     otherwise alter
                          for, or otherwise   alter the results       employment-
                                                         results of employment-
           related tests
           related                basis of race,
                    tests on the basis            color, sex,
                                            race, color,        national origin,
                                                          sex, national   origin,
           religion, age,
           religion,           disability.
                      age, or disability.

           Added by
           Added    Acts 1995,
                 by Acts       74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                                  CLARIFYING PROHIBITION
                       21.125. CLARIFYING
                 Sec. 21.125.
                 Sec.                         PROHIBITION AGAINST      IMPERMISSIBLE
                                                             AGAINST IMPERMISSIBLE
           CONSIDERATION OF RACE,
           CONSIDERATION              COLOR, SEX,
                               RACE, COLOR,          NATIONAL ORIGIN,
                                               SEX, NATIONAL             RELIGION, AGE,
                                                                ORIGIN, RELIGION,    AGE,
           OR  DISABILITY IN
           OR DISABILITY       EMPLOYMENT PRACTICES.
                            IN EMPLOYMENT   PRACTICES. (a) (a)   Except as
                                                                 Except      otherwise
                                                                         as otherwise
           provided by
           provided       this chapter,
                      by this                unlawful employment
                               chapter, an unlawful                   practice is
                                                        employment practice     is
           established when
           established              complainant demonstrates
                          when the complainant     demonstrates that
                                                                  that race,   color,
                                                                        race, color,
                 national origin,
           sex, national
           sex,                      religion, age,
                            origin, religion,             disability was
                                                 age, or disability            motivating
                                                                        was a motivating
           factor for
           factor           employment practice,
                    for an employment                even if
                                         practice, even        other factors
                                                          if other    factors also
                                                                               also
           motivated the practice,
           motivated                    unless race,
                            practice, unless           color, sex,
                                                race, color,          national origin,
                                                                sex, national   origin,
           religion, age,
           religion,             disability is
                       age, or disability    is combined    with objective
                                                 combined with                job—related
                                                                  objective job-related
           factors to attain
           factors               diversity in
                        attain diversity             employer's work
                                            in the employer's     work force.
                                                                        force.
                 (b)
                 (b)   In a complaint
                       In                   which a complainant
                             complaint in which       complainant proves       violation
                                                                     proves a violation
           under Subsection
           under  Subsection (a)           respondent demonstrates
                                    and a respondent
                                (a) and                 demonstrates that
                                                                        that the
           respondent   would have
           respondent would          taken the same
                               have taken              action in
                                                 same action            absence of the
                                                                in the absence
           impermissible    motivating factor,
           impermissible motivating      factor, the court                declaratory
                                                                    grant declaratory
                                                       court may grant
                     injunctive relief
           relief, injunctive
           relief,                relief except
                                          except asas otherwise   provided by
                                                      otherwise provided        this
                                                                            by this
           subsection, and
           subsection,        attorney's fees
                          and attorney's         and costs
                                           fees and          demonstrated to be
                                                      costs demonstrated
                      attributable only to the pursuit
           directly attributable
           directly                                 pursuit of a complaint     under
                                                                    complaint under
           Subsection (a),
           Subsection                       award damages
                              but may not award
                         (a), but                   damages or issue       order
                                                                 issue an order
           requiring an admission,
           requiring                    reinstatement, hiring,
                           admission, reinstatement,                                back
                                                                   promotion, or back
                                                         hiring, promotion,
           PaY«
           pay.

           Added by Acts
           Added    Acts 1995,  74th Leg.,
                          1995, 74th Leg., ch.
                                            ch. 76,       9.05(a), eff.
                                                     Sec. 9.05(a),
                                                76, Sec.                Sept. 1,
                                                                   eff. Sept. 1,
           1995.  Amended by Acts
           1995. Amended      Acts 1997,  75th Leg.,
                                   1997, 75th  Leg., ch.        Sec. 1,
                                                          1126, Sec.
                                                      ch. 1126,         eff.
                                                                     1, eff.
           Sept. 1,
           Sept.    1997.
                 1, 1997.



                               COVERAGE OF
                      21.126. COVERAGE
                 Sec. 21.126.
                Sec.                       PREVIOUSLY EXEMPT
                                        OF PREVIOUSLY          EMPLOYEES OF
                                                       EXEMPT EMPLOYEES   OF THE
           STATE  OR POLITICAL
           STATE OR            SUBDIVISION OF
                     POLITICAL SUBDIVISION OF THE STATE.
                                                   STATE. ItIt is     unlawful
                                                               is an unlawful
                       practice for
           employment practice
           employment                 person elected
                                for a person  elected to public
                                                         public office
                                                                  office in this
                                                                         in this
                       political subdivision
           state or a political
           state                 subdivision of this            discriminate
                                                      state to discriminate
                                                 this state


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           because of race,
           because             color, sex,
                        race, color,         national origin,
                                       sex, national          religion, age,
                                                      origin, religion,  age, or
           disability against
           disability                individual who
                        against an individual    who is                 applicant
                                                           employee or applicant
                                                     is an employee
           for  employment to:
           for employment    to:
                     (1)
                      (1)   serve on the
                           serve      the elected  official's personal
                                           elected official's personal staff;
                                                                        staff;
                     (2)
                      (2)   serve the
                           serve       elected official
                                   the elected                policy—making level;
                                                official on a policy-making   level;
           or
                     (3)
                      (3)   serve the
                           serve       elected official
                                   the elected  official as an immediate  advisor
                                                               immediate advisor
           with respect
           with  respect to the exercise            constitutional or legal
                                  exercise of the constitutional             powers
                                                                       legal powers
                   office.
           of the office.

           Added by
           Added    Acts 1995,
                 by Acts       74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                                  EXPANSION OF RIGHTS
                       21.127. EXPANSION
                Sec. 21.127.
                Sec.                            RIGHTS TO CHALLENGE   DISCRIMINATORY
                                                           CHALLENGE DISCRIMINATORY
           SENIORITY   SYSTEMS
           SENIORI TY SYSTEMS..    With respect
                                   With                seniority system
                                        respect to a seniority           adopted for
                                                                  system adopted  for
              intentionally discriminatory
           an intentionally    discriminatory purpose
                                                purpose in  violation of this
                                                         in violation      this
                     whether that
           chapter, whether
           chapter,                  discriminatory purpose
                               that discriminatory    purpose is  apparent on the
                                                               is apparent
                          seniority provision,
           face of the seniority
           face                                      unlawful employment
                                     provision, an unlawful                practice
                                                              employment practice
           occurs when:
           occurs  when:
                     (1)
                      (1)        seniority system
                            the seniority
                            the             system is adopted;
                                                       adopted;
                     (2)
                      (2)       individual becomes
                            an individual   becomes subject
                                                     subject to the
                                                                 the system;
                                                                     system; or
                     (3)
                      (3)       individual is injured
                            an individual      injured by
                                                        by the  application of the
                                                           the application      the
           system         provision of the system.
           system or a provision             system.

           Added by Acts
           Added    Acts 1995, 74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                  Sec.
                    .             REASONABLE ACCOMMODATION;
                        21.128. REASONABLE
                  Sec 21.128.                 ACCOMMODATION; GOOD
                                                               GOOD FAITH
                                                                    FAITH EFFORT.
                                                                           EFFORT               .



           (a)
            (a)   It is
                  It         unlawful employment
                      is an unlawful              practice for
                                      employment practice   for a respondent   covered
                                                                  respondent covered
           under this
           under          chapter to fail
                   this chapter      fail or refuse      make a reasonable
                                              refuse to make                workplace
                                                                reasonable workplace
           accommodation to a known
           accommodation                             mental limitation
                                        physical or mental
                                  known physical             limitation of an
           otherwise    qualified individual
           otherwise qualified     individual with    disability who
                                               with a disability  who is     employee
                                                                      is an employee
                applicant for
           or applicant     for employment,              respondent demonstrates
                                             unless the respondent
                                employment, unless                  demonstrates
                       accommodation would
           that the accommodation
           that                       would impose            hardship on the
                                                       undue hardship
                                             impose an undue
           operation of the business
           operation            business of the respondent.
                                                 respondent.
                  (b)
                  (b)   A  showing of undue
                        A showing            hardship by
                                      undue hardship          respondent is
                                                      by the respondent   is a
           defense to a complaint
           defense                        discrimination made
                            complaint of discrimination              otherwise
                                                          made by an otherwise

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           qualified individual
           qualified   individual with
                                    with a disability.
                                            disability. In   considering a complaint
                                                          In considering     complaint
           based on a disability,
           based                          commission shall
                         disability, the commission          consider the
                                                       shall consider
           reasonableness of the cost
           reasonableness                         necessary workplace
                                     cost of any necessary              accommodation
                                                             workplace accommodation
                     availability of alternatives
           and the availability
           and                         alternatives or other   appropriate relief.
                                                         other appropriate   relief.
                 (c)
                 (C)         complaint in
                       In a complaint
                       In               in which    discriminatory employment
                                            which a discriminatory  employment
           practice involves
           practice                  provision of a reasonable
                      involves the provision                     workplace
                                                      reasonable workplace
           accommodation under
           accommodation    under this
                                   this chapter,                       awarded under
                                                  damages may not be awarded
                                        chapter, damages                        under
           Subchapter F if
           Subchapter               respondent demonstrates
                            if the respondent   demonstrates good
                                                              good faith
                                                                   faith efforts,
                                                                          efforts, inin
           consultation with
           consultation    with the otherwise   qualified individual
                                     otherwise qualified   individual with
                                                                       with a
           disability who
           disability    who has  informed the respondent
                             has informed       respondent that  accommodation is
                                                            that accommodation   is
                         identify and
           needed, to identify
           needed,                 and make    reasonable workplace
                                       make a reasonable              accommodation
                                                           workplace accommodation
                 would provide
           that would
           that          provide the individual
                                      individual with
                                                  with an equally  effective
                                                           equally effective
           opportunity and
           opportunity        would not cause
                          and would                       hardship on the operation
                                                   undue hardship
                                         cause an undue                     operation
                   business.
           of the business.
                 (d)
                 (d)   A  respondent is
                       A respondent           obligated to make
                                         not obligated
                                      is not                       reasonable
                                                            make a reasonable
           workplace   accommodation to a known
           workplace accommodation                              mental limitation
                                                   physical or mental
                                             known physical             limitation of
           an otherwise    qualified individual
               otherwise qualified    individual under
                                                  under Subsection
                                                         Subsection (a)  if the
                                                                     (a) if
           individual's disability
           individual's    disability is  based solely
                                       is based             being regarded
                                                 solely on being  regarded as   having
                                                                             as having
               impairment that
           an impairment          substantially limits
                            that substantially   limits at least       major life
                                                            least one major   life
           activity.
           activity.

           Added by
           Added      Acts 1995,
                  by Acts         74th Leg.,
                            1995, 74th  Leg., ch.
                                               ch. 76,        9.05(a), eff.
                                                        Sec. 9.05(a),
                                                    76, Sec.                Sept. 1,
                                                                       eff. Sept.  1,
           1995.
           1995.
           Amended by:
           Amended  by:
                 Acts 2009,
                 Acts         81st Leg.,
                       2009, 81st         R.S., Ch.
                                   Leg., R.S.,        337 (H.B.
                                                 Ch. 337               Sec. 5,
                                                                 978), Sec.
                                                           (H.B. 978),         eff.
                                                                            5, eff.
           September 1,
           September      2009.
                       I, 2009.


                                COURT—ORDERED REMEDIES,
                      2l.l29. COURT-ORDERED
                Sec. 21.129.
                Sec.                                     AEEIRMATIVE ACTION
                                              REMEDIES, AFFIRMATIVE   ACTION
                        AND CONCILIATION
           AGREEMENTS, AND
           AGREEMENTS,                    AGREEMENTS NOT
                             CONCILIATION AGREEMENTS      AFFECTED. This
                                                     NOT AFFECTED.         chapter
                                                                      This chapter
           does                court—ordered remedy,
                     affect a court-ordered
           does not affect                            affirmative action
                                             remedy, affirmative   action
                          conciliation agreement
           agreement, or conciliation
           agreement,                   agreement made
                                                  made in
                                                        in accordance  with law.
                                                           accordance with   law.

           Added by Acts
           Added    Acts 1995, 74th Leg.,
                         1995, 74th Leg., ch.
                                          ch. 76,      9.05(a), eff.
                                                  Sec. 9.05(a),
                                              76, Sec.               Sept. 1,
                                                                eff. Sept. 1,
           1995.
           1995.


                                SUBCHAPTER D.
                                SUBCHAPTER          ENFORCEMENT
                                              LOCAL ENFORCEMENT
                                           D. LOCAL




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                                ENFORCEMENT BY ORDINANCE.
                      21.151. ENFORCEMENT
                 Sec. 21.151.
                Sec.                            ORDINANCE. A   political
                                                             A political
           subdivision may adopt
           subdivision       adopt and  enforce an order
                                   and enforce               ordinance that
                                                    order or ordinance  that
           prohibits a practice
           prohibits    practice that
                                  that is  unlawful under
                                        is unlawful  under this
                                                           this chapter,  another
                                                                chapter, another
           state law,
           state          federal law.
                  law, or federal  law.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                 Sec.             CREATION OF LOCAL
                        21.152. CREATION
                 Sec. 21.152.                  LOCAL COMMISSION.
                                                      COMMISSION. (a)(a)   A political
                                                                           A political
           subdivision or two or more
           subdivision                     political subdivisions
                                      more political  subdivisions acting
                                                                    acting jointly
                                                                             jointly
                create a local
           may create             commission to:
                            local commission  to:
                      (1)
                       (1)   promote the
                             promote      purposes of this
                                      the purposes           chapter; and
                                                       this chapter;     and
                      (2)
                       (2)   secure for
                             secure  for all individuals in the
                                         all individuals          jurisdiction of
                                                              the jurisdiction
                 political subdivision
           each political
           each               subdivision freedom
                                           freedom from  discrimination because
                                                   from discrimination     because of
                  color, disability,
           race, color,
           race,                         religion, sex,
                            disability, religion,        national origin,
                                                   sex, national   origin, or age.
                                                                                age.
                 (b)
                 (b)         political subdivision
                       The political    subdivision creating
                                                     creating a local    commission may
                                                                 local commission
           appropriate funds
           appropriate                    expenses of the local
                           funds for the expenses                 commission.
                                                           local commission.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                                   GENERAL POWERS
                        21.153. GENERAL
                 Sec. 21.153.
                Sec.                               AND DUTIES
                                           POWERS AND  DUTIES OF  LOCAL COMMISSION.
                                                               OF LOCAL  COMMISSION.
           (a)
            (a)  A local
                 A          commission may:
                    local commission    may:
                      (1)
                       (1)              executive director
                             employ an executive
                             employ                director and  other employees
                                                             and other  employees and
                                                                                   and
           agents and
           agents             their compensation;
                    and set their    compensation;
                      (2)
                       (2)   cooperate or contract
                             cooperate      contract with
                                                     with a person,   including an
                                                            person, including
           agency of the federal
           agency                     government or of another
                             federal government         another state
                                                                 state or
           municipality; and
           municipality;      and
                      (3)
                       (3)   accept    public grant
                             accept a public            private gift,
                                               grant or private         bequest, or
                                                                 gift, bequest,
           other payment.
           other   payment.
                (b)
                 (b)   A local
                       A          commission shall
                           local commission         prepare at least
                                              shall prepare            annually a
                                                                least annually
           report and
           report        furnish a copy of the report
                    and furnish                                  Commission on Human
                                                  report to the Commission      Human
           Rights.
           Rights.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                INVESTIGATORY AND
                      21.154. INVESTIGATORY
                 Sec. 21.154.
                Sec.                              CONCILIATORY POWERS
                                              AND CONCILIATORY             LOCAL
                                                                POWERS OF LOCAL
           COMMISSION. (a)
           COMMISSION.    (a)         federal government
                              If the federal
                              If                                 Commission on
                                              government or the Commission
           Human Rights
           Human  Rights refers    complaint alleging
                         refers a complaint              violation of this
                                             alleging a violation     this


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           chapter to a local
           chapter                commission or defers
                           local commission              jurisdiction over
                                                 defers jurisdiction   over the
           subject   matter of the complaint
           subject matter            complaint to a local
                                                     local commission,       local
                                                            commission, the local
           commission may receive,
           commission                  investigate, conciliate,
                             receive, investigate,   conciliate, or rule
                                                                      rule on the
           complaint and
           complaint    and may file           action to carry
                                        civil action
                                 file a civil                            purposes of
                                                          carry out the purposes
                 chapter.
           this chapter.
           this
                (b)
                 (b)   The local   commission may request,
                            local commission                 and as
                                                   request, and     necessary,
                                                                 as necessary,
           compel by
           compel       subpoena:
                   by subpoena:
                      (1)
                       (1)       attendance of a witness
                            the attendance
                            the                   witness for  examination under
                                                           for examination  under
           oath; or
           oath;
                      (2)
                       (2)       production for
                            the production
                            the                  inspection or copying
                                             for inspection     copying of a record,
                                                                              record,
           document, or other
           document,              evidence relevant
                           other evidence                    investigation of an
                                           relevant to the investigation
           alleged violation
           alleged   violation of this   chapter.
                                    this chapter.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                   REFERRAL TO LOCAL
                        21.155. REFERRAL
                 Sec. 21.155.
                 Sec.                                  COMMISSION AND
                                                LOCAL COMMISSION        ACTION ON
                                                                   AND ACTION
           COMPLAINTS. (a)
           COMPLAINTS.      (a)       Commission on Human
                                  The Commission      Human Rights
                                                             Rights shall  refer a
                                                                     shall refer
           complaint concerning
           complaint                 discrimination in
                        concerning discrimination                     because of race,
                                                          employment because
                                                      in employment               race,
           color, disability,
           color,                  religion, sex,
                   disability, religion,            national origin,
                                              sex, national                   that is
                                                              origin, or age that   is
                  with that
           filed with
           filed                commission to a local
                         that commission                 commission with
                                                  local commission  with the necessary
                                                                              necessary
           investigatory and
           investigatory          conciliatory powers
                             and conciliatory   powers if:
                                                         if:
                      (1)
                       (1)        complaint has
                             the complaint
                             the                        referred to the
                                                  been referred
                                             has been                    Commission on
                                                                     the Commission
           Human Rights
           Human  Rights by         federal government;
                           by the federal    government; or
                      (2)
                       (2)   jurisdiction over
                             jurisdiction   over the
                                                  the subject  matter of the
                                                      subject matter          complaint
                                                                          the complaint
                been deferred
           has been
           has                           Commission on Human
                      deferred to the Commission          Human Rights
                                                                Rights by      federal
                                                                        by the federal
           government.
           government.
                 (b)
                 (b)   The local    commission shall
                             local commission   shall take   appropriate action
                                                       take appropriate   action to
           remedy the practice
           remedy                   alleged as
                         practice alleged       discriminatory in
                                             as discriminatory           referred
                                                                 in the referred
           complaint.
           complaint.
                 (c)
                 (C)    If the local
                       If              commission does
                                 local commission         not act on the complaint
                                                    does not              complaint
           within 60
           within                   longer time
                        days or a longer
                    60 days                 time that
                                                  that is                   Commission
                                                           reasonable, the Commission
                                                       is reasonable,
               Human Rights
           on Human   Rights shall              responsibility for
                                      reassume responsibility
                                shall reassume                            complaint and
                                                                 for the complaint   and
                 appropriate action
           take appropriate
           take                  action on the complaint.
                                                complaint.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                     21.156.
                Sec. 21.156.
                Sec.            REFERRAL BY
                                REFERRAL BY LOCAL COMMISSION TO STATE
                                            LOCAL COMMISSION    STATE


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           COMMISSION. A
           COMMISSION.  A local  commission may refer
                          local commission              matter under
                                                refer a matter under its
                                                                     its
           jurisdiction to the Commission
           jurisdiction         Commission on Human
                                              Human Rights.
                                                    Rights.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                              SUBCHAPTER E.
                              SUBCHAPTER    ADMINISTRATIVE REVIEW
                                         E. ADMINISTRATIVE REVIEW

                                   FILING OF COMPLAINT;
                        21.201. FILING
                 Sec. 21.201.
                 Sec.                                        FORM AND
                                               COMPLAINT; FORM    AND CONTENT;
                                                                       CONTENT;
           SERVICE. (a)
           SERVICE.     (a)      person claiming
                              A person
                              A                           aggrieved by an unlawful
                                         claiming to be aggrieved           unlawful
           employment practice
           employment                        person's agent
                         practice or the person's      agent may
                                                              may file    complaint with
                                                                  file a complaint    with
                commission.
           the commission.
                 (b)
                 (b)         complaint must
                       The complaint     must be in   writing and
                                                  in writing   and made  under oath.
                                                                   made under   oath.
                 (c)
                 (c)         complaint must
                       The complaint     must state:
                                               state:
                      (1)
                       (1)             unlawful employment
                             that an unlawful
                             that                             practice has
                                                 employment practice         been
                                                                        has been
           committed;
           committed;
                      (2)
                       (2)   the             which the
                                  facts on which
                             the facts                  complaint is based,
                                                    the complaint              including
                                                                       based, including
                date, place,
           the date,             and circumstances
                        place, and                            alleged unlawful
                                      circumstances of the alleged     unlawful
           employment practice;
           employment    practice; and and
                      (3)
                       (3)           sufficient to enable
                             facts sufficient
                             facts                   enable the  commission to identify
                                                             the commission       identify
                respondent.
           the respondent.
                 (d)
                 (d)         executive director
                       The executive     director or the executive     director's
                                                           executive director's
           designee shall
           designee                        respondent with
                              serve the respondent
                      shall serve                      with a copy          perfected
                                                               copy of the perfected
           complaint not later
           complaint         later than
                                    than the 10th        after the date
                                               10th day after                  complaint
                                                                    date the complaint
              filed.
           is filed.
           is
                 (e)
                 (e)   A   complaint may
                       A complaint             amended to cure
                                       may be amended            technical defects
                                                           cure technical   defects or
                         including a failure
           omissions, including
           omissions,                   failure to verify        complaint or to
                                                     verify the complaint
           clarify and
           clarify   and amplify        allegation made
                           amplify an allegation     made in      complaint.
                                                          in the complaint.
                 (f)
                 (f)        amendment to a complaint
                       An amendment           complaint alleging
                                                         alleging additional
                                                                   additional facts
                                                                                facts
                 constitute unlawful
           that constitute
           that                 unlawful employment    practices relating
                                           employment practices   relating to or
           arising from
           arising                         matter of the original
                                 subject matter
                     from the subject                     original complaint
                                                                    complaint relates
                                                                                relates
           back to the date
           back                       complaint was
                           date the complaint                received by the commission.
                                                      first received
                                                 was first                     commission.
                 (g)
                 (g)          perfected complaint
                        If a perfected
                       If                  complaint is
                                                      is not  received by
                                                         not received   by the
           commission within
           commission    within 180                  alleged unlawful
                                       days of the alleged
                                  180 days                    unlawful employment
                                                                        employment
                             commission shall
           practice, the commission
           practice,                       shall notify       respondent that
                                                 notify the respondent    that a
           complaint has
           complaint         been filed
                        has been   filed and
                                           and that
                                               that the process       perfecting the
                                                         process of perfecting
           complaint is
           complaint            progress.
                            in progress.
                        is in




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           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.         Sec. 1,
                                      269, Sec.
                                 ch. 269,         1, eff.  Sept. 1,
                                                      eff. Sept.  1, 1993.   Amended
                                                                     1993. Amended
           by Acts 1995,
           by Acts       74th Leg.,
                   1995, 74th Leg., ch.
                                     ch. 76,         9.06(a), eff.
                                               Sec. 9.06(a),
                                          76, Sec.                  Sept. 1,
                                                              eff. Sept.      1995.
                                                                           1, 1995.


                 Sec.          STATUTE OF
                      21.202. STATUTE
                 Sec. 21.202.              LIMITATIONS. (a)
                                        OE LIMITATIONS.   (a)  A  complaint under
                                                               A complaint   under
                 subchapter must
           this subchapter
           this             must be filed
                                     filed not later
                                               later than
                                                      than the 180th       after
                                                               180th day after
                         alleged unlawful
                date the alleged
           the date              unlawful employment   practice occurred.
                                           employment practice   occurred.
                 (b)
                 (b)      commission shall
                      The commission        dismiss an untimely
                                      shall dismiss     untimely complaint.
                                                                  complaint.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff.       1993.
                                                       Sept. 1993.
                                                  eff. Sept.


                Sec.             ALTERNATIVE DISPUTE
                       21.203. ALTERNATIVE
                 Sec. 21.203.                  DISPUTE RESOLUTION;
                                                       RESOLUTION; OFFICE.
                                                                      OFFICE. (a)
                                                                                (a)
                        alternative means
           The use of alternative     means of dispute
                                                dispute resolution,   including
                                                         resolution, including
           settlement negotiations,
           settlement                   conciliation, facilitation,
                        negotiations, conciliation,     facilitation, mediation,
                                                                       mediation,
           fact—finding, minitrials,
           fact-finding,   minitrials, and    arbitration, is
                                         and arbitration,      encouraged to resolve
                                                            is encouraged      resolve
                      arising under
           disputes arising
           disputes            under this  chapter. The settlement
                                      this chapter.                          disputed
                                                           settlement of a disputed
           claim under
           claim  under this   chapter that
                         this chapter         results from
                                        that results                    traditional
                                                      from the use of traditional
              alternative means
           or alternative   means of dispute    resolution is
                                       dispute resolution      binding on the
                                                            is binding
           parties to the claim.
           parties           claim.
                (b)
                 (b)       commission shall
                       The commission          establish an office
                                        shall establish                 alternative
                                                             office of alternative
           dispute resolution.
           dispute   resolution. At any time
                                           time after     complaint is
                                                 after a complaint      received
                                                                     is received
           under Section
           under  Section 21.201,            request of a party
                           21.201, at the request                            direction
                                                           party or at the direction
           of the commission         matter may
                    commission the matter           referred to the office
                                            may be referred           office of
           alternative dispute
           alternative   dispute resolution.
                                   resolution.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.         Sec. 1,
                                      269, Sec.
                                 ch. 269,          1, eff. Sept. 1,
                                                      eff. Sept.  1, 1993.   Amended
                                                                     1993. Amended
              Acts 1995,
           by Acts       74th Leg.,
                   1995, 74th Leg., ch.
                                     ch. 76,         9.06(b), eff.
                                               Sec. 9.06(b),
                                          76, Sec.                  Sept. 1,
                                                              eff. Sept.      1995.
                                                                           1, 1995.



                Sec.             INVESTIGATION BY
                       2l.204. INVESTIGATION
                 Sec. 21.204.                      COMMISSION. (a)
                                                BY COMMISSION.   (a)       executive
                                                                      The executive
           director or a staff
           director               member of the commission
                            staff member                     designated by
                                                 commission designated  by the
           executive   director shall
           executive director          investigate a complaint
                                 shall investigate    complaint and  determine if
                                                                 and determine  if
           there is
           there      reasonable cause
                  is reasonable            believe that
                                  cause to believe  that the respondent  engaged in
                                                              respondent engaged   in
              unlawful employment
           an unlawful               practice as
                          employment practice     alleged in
                                               as alleged         complaint.
                                                          in the complaint.
                (b)
                 (b)   If the federal
                       If              government has
                               federal government      referred the complaint
                                                   has referred      complaint to
               commission or has
           the commission       has deferred  jurisdiction over
                                    deferred jurisdiction   over the subject  matter
                                                                     subject matter
                    complaint to the commission,
           of the complaint           commission, the executive   director or the
                                                       executive director
           executive   director's designee
           executive director's    designee shall  promptly investigate
                                             shall promptly  investigate the


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           allegations stated
           allegations stated in     complaint.
                              in the complaint.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                 Sec 21.205.
                 Sec.
                    .  2l 205
                            .   . LACK     REASONABLE CAUSE;
                                   LACK OF REASONABLE           DISMISSAL OF
                                                       CAUSE; DISMISSAL    OE
           COMPLAINT. (a)
           COMPLAINT.     (a)   If after
                                If        investigation the executive
                                    after investigation                  director or
                                                              executive director
           the executive    director's designee
                executive director's              determines that
                                         designee determines        reasonable cause
                                                               that reasonable  cause
           does not exist
           does                  believe that
                      exist to believe    that the respondent   engaged in
                                                   respondent engaged    in an
           unlawful employment
           unlawful                 practice as
                      employment practice       alleged in
                                             as alleged        complaint, the
                                                         in a complaint,
           executive   director or the executive
           executive director                       director's designee
                                          executive director's   designee shall
                                                                           shall issue
                                                                                 issue
             written determination,
           a written                     incorporating the finding
                       determination, incorporating          finding that
                                                                     that the
           evidence does
           evidence                           complaint and
                                 support the complaint
                      does not support                        dismissing the
                                                         and dismissing
           complaint.
           complaint.
                 (b)
                 (b)        executive director
                       The executive    director or the executive   director's
                                                         executive director's
           designee shall
           designee   shall serve
                              serve a copy         determination on the
                                       copy of the determination
           complainant, the respondent,
           complainant,         respondent, and  other agencies
                                             and other  agencies as  required by
                                                                  as required  by law.
                                                                                  law.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                 Sec. 21.206.
                 Sec.              DETERMINATION OF
                        21.206. DETERMINATION        REASONABLE CAUSE;
                                                  OF REASONABLE           REVIEW BY
                                                                 CAUSE; REVIEW    BY
           PANEL. (a)
           PANEL.    (a)    If after
                            If        investigation the executive
                                after investigation      executive director
                                                                    director or the
           executive    director's designee
           executive director's      designee determines
                                               determines that  there is
                                                          that there      reasonable
                                                                       is reasonable
                      believe that
           cause to believe
           cause                 that the respondent  engaged in
                                          respondent engaged         unlawful
                                                               in an unlawful
           employment    practice as
           employment practice         alleged in
                                    as alleged                       executive
                                                     complaint, the executive
                                                in a complaint,
           director or the executive
           director                       director's designee
                                executive director's  designee shall   review with
                                                                shall review   with a
           panel of three
           panel               commissioners the evidence
                      three commissioners         evidence in      record.
                                                           in the record.
                 (b)
                 (b)    If after
                       If              review at least
                            after the review                        three
                                                  least two of the three
           commissioners determine
           commissioners     determine that  there is
                                        that there     reasonable cause
                                                    is reasonable            believe
                                                                   cause to believe
           that the respondent
           that                     engaged in
                      respondent engaged           unlawful employment
                                            in an unlawful  employment practice,
                                                                         practice, the
           executive director
           executive    director shall:
                                   shall:
                      (1)
                       (1)   issue             determination incorporating
                                      written determination
                             issue a written                  incorporating the
                                                                              the
           executive    director's finding
           executive director's      finding that      evidence supports
                                             that the evidence   supports the
           complaint; and
           complaint;      and
                      (2)
                       (2)   serve a copy of the
                             serve                 determination on the
                                               the determination          complainant,
                                                                      the complainant,
                respondent, and
           the respondent,          other agencies
                                and other agencies as  required by law.
                                                    as required     law.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



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                 Sec. 21.207.
                Sec.            RESOLUTION BY INFORMAL
                      21.207. RESOLUTION       INFORMAL METHODS.
                                                        METHODS. (a)
                                                                   (a)   If a
                                                                         If
           determination of reasonable
           determination      reasonable cause
                                          cause is
                                                is made under Section
                                                   made under  Section 21.206,
                                                                        21.206, the
           commission shall
           commission         endeavor to eliminate
                       shall endeavor                    alleged unlawful
                                           eliminate the alleged  unlawful
                       practice by
           employment practice
           employment            by informal  methods of conference,
                                    informal methods     conference,
           conciliation, and
           conciliation,       persuasion.
                          and persuasion.
                (b)
                 (b)  Without the written
                      Without      written consent         complainant and
                                            consent of the complainant   and
           respondent,       commission, its
           respondent, the commission,        executive director,
                                          its executive director, or its    other
                                                                       its other
           officers or employees
           officers     employees may       disclose to the public
                                   may not disclose                 information
                                                             public information
           about the efforts
           about                    particular case
                      efforts in a particular                       alleged
                                                        resolve an alleged
                                                case to resolve
           discriminatory practice
           discriminatory  practice by               conciliation, or persuasion,
                                        conference, conciliation,
                                     by conference,                     persuasion,
           regardless     whether there
           regardless of whether   there is    determination of reasonable
                                          is a determination     reasonable cause.
                                                                              cause.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                NOTICE OF
                       21.208. NOTICE
                 Sec. 21.208.
                 Sec.                      DISMISSAL OR
                                        OF DISMISSAL     UNRESOLVED COMPLAINT.
                                                     OR UNRESOLVED  COMPLAINT. IfIf
                commission dismisses
           the commission                complaint filed
                            dismisses a complaint         under Section
                                                   filed under  Section 21.201
                                                                         21.201 or
           does not resolve
           does                   complaint before
                      resolve the complaint  before the 181st      after the date
                                                         181st day after      date
                complaint was
           the complaint   was filed,      commission shall
                               filed, the commission         inform the
                                                      shall inform
           complainant of the dismissal
           complainant          dismissal or failure
                                              failure to resolve      complaint in
                                                          resolve the complaint
           writing by
           writing      certified mail.
                    by certified  mail.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                Sec. 21.210.
                Sec.             TEMPORARY INJUNCTIVE
                       2l.2l0. TEMPORARY    INJUNCTIVE RELIEF.
                                                        RELIEF. (a)
                                                                  (a)   If the
                                                                        If
           commission concludes
           commission   concludes from     preliminary investigation
                                   from a preliminary   investigation of an
           unlawful employment
           unlawful  employment practice    alleged in a complaint
                                  practice alleged        complaint that   prompt
                                                                      that prompt
           judicial action
           judicial  action is   necessary to carry
                              is necessary                    purpose of this
                                               carry out the purpose       this
                          commission shall
           chapter, the commission
           chapter,                   shall file     petition seeking
                                             file a petition            appropriate
                                                               seeking appropriate
           temporary relief
           temporary   relief against
                               against the respondent   pending final
                                            respondent pending          determination
                                                                 final determination
                proceeding under
           of a proceeding    under this  chapter.
                                    this chapter.
                (b)
                 (b)       petition shall
                      The petition             filed in
                                     shall be filed        district court
                                                      in a district   court in
                                                                            in a
           county in which:
           county      which:
                     (1)
                      (1)       alleged unlawful
                            the alleged
                           the           unlawful employment   practice that
                                                   employment practice   that is the
                                                                                  the
           subject           complaint occurred;
           subject of the complaint    occurred; or
                     (2)
                      (2)  the  respondent resides.
                            the respondent  resides.



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                (c)
                (C)  A court
                     A   court may not  issue temporary
                                    not issue            injunctive relief
                                               temporary injunctive relief unless
                                                                           unless
               commission shows:
           the commission   shows:
                    (1)
                     (1)   a substantial  likelihood of success
                              substantial likelihood     success on the merits;
                                                                    the merits;
           and
           and
                    (2)
                     (2)   irreparable harm
                           irreparable  harm to the  complainant in the
                                                 the complainant        absence of
                                                                    the absence
               preliminary relief
           the preliminary           pending final
                             relief pending         determination on the merits.
                                              final determination        merits.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                ELECTION OF REMEDIES.
                      21.211. ELECTION
                 Sec. 21.211.
                Sec.                        REMEDIES. A   person who
                                                        A person  who has
                                                                      has
           initiated an action
           initiated     action in a court
                                      court of competent  jurisdiction or who
                                               competent jurisdiction      who has
                                                                               has
                      pending before
              action pending
           an action                     administrative agency
                               before an administrative          under other
                                                         agency under  other law
                                                                             law
                  order or ordinance
           or an order                     political subdivision
                            ordinance of a political  subdivision of this  state
                                                                      this state
           based on an act that
           based                  would be an unlawful
                             that would       unlawful employment            under
                                                                    practice under
                                                        employment practice
                 chapter may not file
           this chapter
           this                   file a complaint under this
                                         complaint under       subchapter for the
                                                          this subchapter
                 grievance.
           same grievance.
           same

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                               SUBCHAPTER F.
                               SUBCHAPTER             ENFORCEMENT
                                             JUDICIAL ENFORCEMENT
                                          F. JUDICIAL

                Sec.    2l.25l. CIVIL
                 Sec. 21.251.           ACTION BY COMMISSION.
                                  CIVIL ACTION     COMMISSION. (a)(a)       commission
                                                                        The commission
               bring a civil
           may bring
           may                   action against
                           civil action            respondent if:
                                        against a respondent   if:
                      (1)
                       (1)       commission determines
                             the commission
                             the             determines that
                                                         that there      reasonable
                                                              there is reasonable
                      believe that
           cause to believe
           cause                         respondent engaged
                                that the respondent                   unlawful
                                                     engaged in an unlawful
           employment practice;
           employment    practice;
                      (2)
                       (2)   the commission's efforts
                             the commission's  efforts to resolve
                                                           resolve the
                                                                     the
           discriminatory practice
           discriminatory                      satisfaction of the complainant
                              practice to the satisfaction            complainant and
                                                                                  and
           respondent through
           respondent             conciliation have
                         through conciliation        been unsuccessful;
                                                have been  unsuccessful; andand
                      (3)
                       (3)     majority of the
                             a majority         commissioners determines
                                            the commissioners  determines that
                                                                            that the
                                                                                 the
           civil  action may
           civil action     may achieve      purposes of this
                                achieve the purposes           chapter.
                                                          this chapter.
                (b)
                 (b)         complainant may intervene
                       The complainant        intervene in    civil action
                                                        in a civil           brought
                                                                      action brought
                    commission.
           by the commission.
           by

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                     2l.252.
                Sec. 21.252.
                Sec.            NOTICE    COMPLAINANT'S RIGHT
                                NOTICE OF COMPLAINANT'S RIGHT TO FILE CIVIL
                                                                 FILE CIVIL


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           ACTION. (a)
           ACTION.     (a)    complainant who
                            A complainant
                            A                  receives notice
                                           who receives         under Section
                                                         notice under  Section
           21.208 that
           21.208             complaint is
                   that the complaint           dismissed or resolved
                                         is not dismissed     resolved is  entitled
                                                                        is entitled
              request from
           to request    from the commission    written notice
                                  commission a written   notice of the
           complainant's right
           complainant's    right to file    civil action.
                                      file a civil action.
                (b)
                 (b)        complainant must
                        The complainant  must request
                                              request the notice
                                                           notice in  writing.
                                                                  in writing.
                (c)
                 (c)        executive director
                        The executive  director may issue
                                                    issue the notice.
                                                               notice.
                (d)
                 (d)    Failure to issue
                        Failure    issue the notice        complainant's right
                                              notice of a complainant's   right to
                           action does
                    civil action
           file a civil
           file                   does not affect       complainant's right
                                            affect the complainant's         under
                                                                       right under
                subchapter to bring
           this subchapter
           this                  bring a civil  action against
                                          civil action  against the respondent.
                                                                     respondent.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                   EXPEDITED NOTICE
                       21.253. EXPEDITED
                 Sec. 21.253.
                Sec.                                     COMPLAINANT'S RIGHT
                                             NOTICE OF COMPLAINANT'S     RIGHT TO FILE
                                                                                   FILE
           CIVIL ACTION.
           CIVIL  ACTION. (a) (a)   On receipt       written request
                                       receipt of a written    request by
                                                                        by a
                                commission shall
           complainant, the commission
           complainant,                     shall issue   before the 181st
                                                   issue before                   after
                                                                      181st day after
                           complaint was
               date the complaint
           the date                        filed a notice
                                       was filed    notice of the right
                                                                    right to file
                                                                              file a
           civil  action if:
           civil action    if:
                     (1)
                      (1)         complainant alleges
                            the complainant
                            the                             unlawful employment
                                               alleges an unlawful   employment
           practice based
           practice                   complainant's status
                     based on the complainant's      status as      individual with
                                                              as an individual   with a
           life—threatening illness,
           life-threatening     illness, as   confirmed in
                                          as confirmed       writing by
                                                         in writing        physician
                                                                     by a physician
           licensed to practice
           licensed                  medicine in
                          practice medicine       this state;
                                               in this  state; or
                     (2)
                      (2)   the executive
                            the             director certifies
                                  executive director   certifies that   administrative
                                                                  that administrative
           processing of the complaint
           processing             complaint cannot      completed before
                                            cannot be completed    before the 181st
                                                                               181st
               after the date
           day after                   complaint was
                            date the complaint    was filed.
                                                       filed.
                (b)
                 (b)        commission shall
                      The commission     shall issue       expedited notice
                                                issue the expedited   notice by
                                                                              by
           certified mail
           certified   mail not later
                                   later than             business day after
                                                   fifth business
                                         than the fifth                  after the date
                                                                                    date
               commission receives
           the commission                   written request.
                             receives the written    request.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                      21.254. CIVIL
                 Sec. 21.254.
                Sec.                  ACTION BY
                                CIVIL ACTION  BY COMPLAINANT.   Within 60
                                                 COMPLAINANT. Within       days
                                                                       60 days
           after the date
           after              notice of the right
                      date a notice          right to file
                                                      file a civil  action is
                                                              civil action  is
                          complainant may
           received, the complainant
           received,                       bring a civil
                                       may bring           action against
                                                    civil action  against the
           respondent.
           respondent.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.




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                Sec.              COMMISSION'S INTERVENTION
                       21.255. COMMISSION'S
                Sec. 21.255.                    INTERVENTION IN
                                                             IN CIVIL  ACTION BY
                                                                CIVIL ACTION
           COMPLAINANT.     After receipt
           COMPLAINANT. After      receipt of a timely
                                                 timely application,
                                                        application, a court
                                                                        court may
           permit       commission to intervene
           permit the commission        intervene in a civil  action filed
                                                        civil action        under
                                                                      filed under
           Section 21.254
           Section  21.254 if:
                             if:
                     (1)
                      (1)        commission certifies
                            the commission
                            the              certifies that
                                                       that the
                                                            the case        general
                                                                 case is of general
           public importance;
           public  importance; and and
                     (2)
                      (2)   before  commencement of the
                            before commencement          action the
                                                     the action      commission
                                                                 the commission
           issued    determination of reasonable
           issued a determination        reasonable cause     believe that
                                                     cause to believe  that this
                                                                            this
           chapter was
           chapter        violated.
                    was violated.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                STATUTE OF LIMITATIONS.
                      21.256. STATUTE
                Sec. 21.256.
                Sec.                       LIMITATIONS. A A civil action may not
                                                            Civil action     not
              brought under
           be brought  under this  subchapter later
                              this subchapter later than             anniversary
                                                              second anniversary
                                                     than the second
                  date the complaint
           of the date                 relating to the action
                             complaint relating         action is filed.
                                                               is filed.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.         Sec. 1,
                                      269, Sec.
                                 ch. 269,          1, eff. Sept. 1,
                                                      eff. Sept.  1, 1993.   Amended
                                                                     1993. Amended
              Acts 1995,
           by Acts       74th Leg.,
                   1995, 74th Leg., ch.
                                     ch. 76,         9.07(a), eff.
                                               Sec. 9.07(a),
                                          76, Sec.                  Sept. 1,
                                                              eff. Sept.      1995.
                                                                           1, 1995.



                               ASSIGNMENT TO EARLY
                      21.257. ASSIGNMENT
                Sec. 21.257.
                Sec.                         EARLY HEARING.
                                                   HEARING. The court
                                                                 court shall
                                                                       shall
                          brought under
                  action brought
           set an action          under this                hearing at the
                                             subchapter for hearing
                                        this subchapter
           earliest  practicable date
           earliest practicable          expedite the action.
                                 date to expedite     action.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec.    21.258. INJUNCTION;
                Sec. 21.258.                     EQUITABLE RELIEF.
                                  INJUNCTION; EQUITABLE      RELIEF. (a)
                                                                       (a)      finding
                                                                             On finding
           that a respondent
           that                  engaged in an unlawful
                    respondent engaged           unlawful employment    practice as
                                                            employment practice    as
           alleged in a complaint,
           alleged                        court may:
                           complaint, a court    may:
                      (1)
                       (1)  prohibit by
                            prohibit      injunction the
                                      by injunction         respondent from
                                                       the respondent         engaging
                                                                        from engaging
                  unlawful employment
           in an unlawful     employment practice;
                                          practice; andand
                      (2)
                       (2)  order  additional equitable
                             order additional   equitable relief
                                                            relief as may be
           appropriate.
           appropriate.
                (b)
                 (b)   Additional equitable
                       Additional   equitable relief
                                                relief may include:
                                                             include:
                      (1) hiring        reinstating with
                             hiring or reinstating             without back
                                                      with or without   back pay;
                                                                              pay;
                             upgrading an employee
                      (2) upgrading        employee with       without pay;
                                                      with or without   pay;
                             admitting to or restoring
                      (3) admitting            restoring union   membership;
                                                           union membership;
                      (4) admitting           participating in a guidance
                             admitting to or participating           guidance program,
                                                                               program,


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                                 on—the—job training
           apprenticeship, or on-the-job
           apprenticeship,                   training or other   training or
                                                          other training
           retraining program,
           retraining             using objective
                        program, using              job—related criteria
                                        objective job-related    criteria in
                                                                          in
           admitting an individual
           admitting      individual to a program;
                                            program;
                     (5)
                      (5)  reporting on the
                           reporting          manner of compliance
                                         the manner      compliance with
                                                                     with the  terms
                                                                          the terms
                        order issued
                 final order
           of a final                 under this
                               issued under  this chapter;   and
                                                  chapter; and
                     (6)
                      (6)  paying  court costs.
                           paying court  costs.
                 (c)
                 (C)  Liability           back pay
                                  under a back
                       Liability under               award may not
                                                pay award           accrue for
                                                               not accrue  for a
                 more than
           date more
           date        than two years  before the date
                                 years before              complaint is
                                                   date a complaint      filed with
                                                                      is filed  with
                               Interim earnings,
                commission. Interim
           the commission.                        workers’ compensation
                                       earnings, workers'   compensation benefits,
                                                                          benefits,
           and unemployment
           and                 compensation benefits
                unemployment compensation    benefits received
                                                       received operate
                                                                 operate to reduce
                                                                             reduce
                back pay
           the back       otherwise allowable.
                     pay otherwise   allowable.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                    .   2l 2585
                 Sec 21.2585.
                Sec.        .   .   COMPENSATORY AND
                                    COMPENSATORY       PUNITIVE DAMAGES.
                                                   AND PUNITIVE   DAMAGES    (a)
                                                                              (a).  On
           finding that
           finding                         engaged in
                              respondent engaged
                     that a respondent                     unlawful intentional
                                                    in an unlawful   intentional
           employment    practice as
           employment practice          alleged in
                                    as alleged   in a complaint,     court may,
                                                      complaint, a court    may, asas
           provided by
           provided        this section,
                      by this              award:
                                section, award:
                      (1)
                       (1)   compensatory damages;
                             compensatory              and
                                            damages; and
                      (2)
                       (2)   punitive damages.
                             punitive   damages.
                (b)
                 (b)   A   complainant may recover
                       A complainant                  punitive damages
                                             recover punitive             against a
                                                                 damages against
                           other than
           respondent, other
           respondent,                    respondent that
                                 than a respondent    that is     governmental entity,
                                                            is a governmental     entity,
                    complainant demonstrates
           if the complainant
           if                     demonstrates that
                                                  that the respondent   engaged in
                                                            respondent engaged     in a
           discriminatory practice
           discriminatory     practice with   malice or with
                                         with malice      with reckless   indifference
                                                               reckless indifference
                    state—protected rights
           to the state-protected                     aggrieved individual.
                                        rights of an aggrieved    individual.
                (c)
                 (c)    Compensatory damages
                       Compensatory              awarded under
                                        damages awarded   under this  section may not
                                                                 this section         not
           include:
           include:
                      (1)
                       (1)   back pay;
                             back  pay;
                      (2)
                       (2)   interest on back
                             interest      back pay;
                                                 pay; or
                      (3)
                       (3)   other relief
                             other          authorized under
                                    relief authorized    under Section
                                                                Section 21.258(b).
                                                                         21.258(b).
                (d)
                 (d)         sum of the amount
                       The sum                       compensatory damages
                                          amount of compensatory             awarded
                                                                    damages awarded
           under this
           under         section for
                  this section     for future  pecuniary losses,
                                        future pecuniary            emotional pain,
                                                           losses, emotional    pain,
           suffering, inconvenience,
           suffering,                      mental anguish,
                         inconvenience, mental     anguish, loss      enjoyment of
                                                             loss of enjoyment
                  and other
           life, and
           life,               nonpecuniary losses
                        other nonpecuniary            and the amount
                                              losses and                   punitive
                                                               amount of punitive
           damages   awarded under
           damages awarded     under this   section may not exceed,
                                      this section                          each
                                                                       for each
                                                              exceed, for
           complainant:
           complainant:



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                     (1)
                      (1)  $50,000 in the
                           $50,000                    respondent that
                                           case of a respondent
                                       the case                   that has  fewer
                                                                       has fewer
           than 101
           than      employees;
                101 employees;
                     (2)
                      (2)  $100,000 in the
                           $100,000                    respondent that
                                            case of a respondent
                                        the case                   that has  more
                                                                         has more
           than 100
           than      and fewer
                100 and   fewer than
                                than 201  employees;
                                      201 employees;
                     (3)
                      (3)  $200,000 in the
                           $200,000                    respondent that
                                            case of a respondent
                                        the case                   that has  more
                                                                         has more
           than 200
           than      and fewer
                200 and   fewer than
                                than 501
                                      501 employees;   and
                                          employees; and
                     (4)
                      (4)  $300,000 in the
                           $300,000                    respondent that
                                            case of a respondent
                                        the case                   that has  more
                                                                         has more
           than 500
           than      employees.
                500 employees.
                (e)
                 (e)           purposes of Subsection
                      For the purposes      Subsection (d),
                                                        (d), in  determining the
                                                              in determining
           number of employees
           number      employees of a respondent,       requisite number
                                       respondent, the requisite   number of
                       must be employed
           employees must
           employees           employed by       respondent for
                                         by the respondent       each of 20
                                                             for each           more
                                                                          20 or more
           calendar weeks
           calendar  weeks in
                            in the current     preceding calendar
                                    current or preceding   calendar year.
                                                                    year.

           Added by
           Added    Acts 1995,
                 by Acts        74th Leg.,
                          1995, 74th Leg., ch.
                                            ch. 76,       9.07(b), eff.
                                                     Sec. 9.07(b),
                                                76, Sec.                 Sept. 1,
                                                                    eff. Sept. l,
           1995.  Amended by
           1995. Amended      Acts 1999,
                           by Acts        76th Leg.,
                                   1999, 76th  Leg., ch.
                                                      ch. 872, Sec. 13,
                                                          872, Sec.      eff.
                                                                     13, eff.
           Sept. 1,
           Sept.    1999.
                 1, 1999.


                 Sec. 21.259.
                Sec.             ATTORNEY'S FEES;
                       21.259. ATTORNEY'S            COSTS. (a)
                                             EEES; COSTS.      (a)  In    proceeding
                                                                    In a proceeding
           under this
           under  this chapter,     court may allow
                        chapter, a court                   prevailing party,
                                               allow the prevailing            other
                                                                        party, other
           than the commission,
           than       commission, a reasonable    attorney's fee
                                     reasonable attorney's    fee as   part of the
                                                                   as part
           costs.
           costs.
                (b)
                 (b)                 state agency,
                           state, a state
                       The state,                         political subdivision
                                            agency, or a political     subdivision is
                                                                                   is
           liable for
           liable   for costs,
                        costs, including  attorney's fees,
                                including attorney's                        extent as
                                                                       same extent
                                                       fees, to the same           as
             private person.
           a private   person.
                (c)
                 (c)      awarding costs
                       In awarding
                       In                      attorney's fees
                                          and attorney's
                                    costs and                            action or a
                                                            fees in an action
           proceeding under
           proceeding   under this
                               this chapter,
                                    chapter, the court,    in its
                                                   court, in       discretion, may
                                                              its discretion,
           include   reasonable expert
           include reasonable    expert fees.
                                        fees.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.         Sec. 1,
                                      269, Sec.
                                 ch. 269,          1, eff. Sept. 1,
                                                      eff. Sept.  1, 1993.   Amended
                                                                     1993. Amended
              Acts 1995,
           by Acts       74th Leg.,
                   1995, 74th Leg., ch.
                                     ch. 76,         9.07(c), eff.
                                               Sec. 9.07(c),
                                          76, Sec.                  Sept. 1,
                                                              eff. Sept.      1995.
                                                                           1, 1995.



                               RELIEF FOR
                      21.260. RELIEF
                Sec. 21.260.
                Sec.                       DISABLED EMPLOYEE
                                       FOR DISABLED  EMPLOYEE OR  APPLICANT. If
                                                              OR APPLICANT.   If
               affected employee
           the affected               applicant for
                         employee or applicant       employment has
                                                for employment         disability,
                                                                 has a disability,
             court shall
           a court        consider the undue
                    shall consider            hardship defense,
                                        undue hardship            including the
                                                        defense, including
           reasonableness of the cost
           reasonableness                  necessary workplace
                                   cost of necessary             accommodation and
                                                      workplace accommodation   and
               availability of alternatives
           the availability     alternatives or other   appropriate relief.
                                                 other appropriate   relief.



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           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                 Sec. 21.261.
                Sec.           COMPELLED COMPLIANCE.
                      21.261. COMPELLED   COMPLIANCE. If      employer,
                                                        If an employer,
           employment agency,
           employment  agency, or labor organization fails
                                  labor organization                    with a
                                                                comply with
                                                       fails to comply
                  order issued
           court order
           court               under this
                        issued under                                    action or
                                                          party to the action
                                           subchapter, a party
                                     this subchapter,
                                   written request
               commission, on the written
           the commission,                  request of a person  aggrieved by
                                                          person aggrieved  by the
                     may commence
           failure, may
           failure,               proceedings to compel
                         commence proceedings             compliance with
                                                   compel compliance with the
           order.
           order.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec.           TRIAL DE NOVO.
                      21.262. TRIAL
                 Sec. 21.262.           NOVO. (a)
                                                (a)  A          proceeding under
                                                       judicial proceeding
                                                     A judicial            under
           this  chapter is
           this chapter        trial de novo.
                            by trial
                         is by          novo.
                (b)
                 (b)  A commission finding,
                      A commission finding, recommendation,  determination, or
                                            recommendation, determination,
           other action
           other  action is     binding on a court.
                         is not binding       court.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                                      SUBCHAPTER G.
                                      SUBCHAPTER    RECORDS
                                                 G. RECORDS

                                   RECORDKEEPING; REPORTS.
                        21.301. RECORDKEEPING;
                 Sec. 21.301.
                 Sec.                                REPORTS. A   person under
                                                                A person  under
           investigation in
           investigation        connection with
                             in connection   with a charge
                                                     charge filed  under this
                                                             filed under        chapter
                                                                          this chapter
           and who
           and  who is   subject to this
                     is subject             chapter shall:
                                      this chapter   shall:
                      (1)
                       (1)   make and
                             make  and keep
                                        keep records   relevant to the
                                              records relevant          determination
                                                                   the determination
               whether unlawful
           of whether    unlawful employment     practices have
                                    employment practices                      being
                                                                 been or are being
                                                            have been
           committed;
           committed;
                      (2)
                       (2)   preserve the
                             preserve       records for
                                        the records  for the  period required
                                                          the period  required by
                                                                                by
           commission rule
           commission              court order;
                         rule or court             and
                                          order; and
                      (3)
                       (3)   make reports
                             make  reports from
                                            from the
                                                  the records     prescribed by
                                                       records as prescribed  by
           commission rule
           commission    rule or court    order as
                                   court order      reasonable, necessary,
                                                 as reasonable,  necessary, or
           appropriate for
           appropriate              enforcement of this
                           for the enforcement             chapter or a rule
                                                     this chapter                  order
                                                                         rule or order
           issued  under this
           issued under           chapter.
                            this chapter.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                Sec.  21.302. RECORDS;
                Sec. 21.302.             TRAINING PROGRAM.
                               RECORDS; TRAINING                commission by
                                                  PROGRAM. The commission  by
           rule shall
           rule        require that
                shall require         person subject
                               that a person subject to this chapter who
                                                        this chapter who


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           controls an apprenticeship,
           controls                        on—the—job training,
                         apprenticeship, on-the-job   training, or other   training
                                                                    other training
              retraining program:
           or retraining   program:
                    (1)
                     (1)   keep all
                           keep  all records  reasonably necessary
                                     records reasonably  necessary to carry
                                                                        carry out
                                                                              out
               purposes of this
           the purposes      this chapter,   including a list
                                   chapter, including             applicants for
                                                         list of applicants   for
           participation in
           participation           program and
                           in the program                        chronological
                                                  record of the chronological
                                            and a record
           order in
           order    which applications
                 in which   applications for       program were
                                           for the program  were received;   and
                                                                 received; and
                    (2)
                     (2)   furnish to the
                           furnish          commission on request
                                        the commission               detailed
                                                           request a detailed
           description of the manner
           description          manner in   which individuals
                                         in which individuals are selected
                                                                   selected to
           participate in
           participate          program.
                         in the program.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.
                                 ch. 269, Sec. 1,
                                     269, Sec. 1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.


                                CONFORMITY TO FEDERAL
                      21.303. CONFORMITY
                Sec. 21.303.
                Sec.                           FEDERAL LAW.
                                                       LAW. AA report
                                                                report or record
                                                                       Or record
           required by
           required          commission under
                     by the commission  under this  subchapter must
                                               this subchapter       conform to a
                                                                must conform
           similar record
           similar  record or report  required under
                               report required  under 42         Section
                                                         U.S.C. Section
                                                      42 U.S.C.
           2000e—8(c).
           2000e-8(c).

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                Sec. 21.304.
                Sec.           CONFIDENTIALITY OF
                     21.304. CONFIDENTIALITY       RECORDS. An
                                                OF RECORDS.      officer or
                                                              An officer
                            commission may
           employee of the commission
           employee                             disclose to the public
                                       may not disclose          public
           information obtained
           information obtained by the commission
                                        commission under
                                                    under Section
                                                           Section 21.204  except
                                                                   21.204 except
              compliance with
           in compliance
           in            with Section
                               Section 21.305
                                       21.305 and
                                              and as
                                                   as necessary          conduct
                                                      necessary to the conduct
                proceeding under
           of a proceeding under this  chapter.
                                  this chapter.

           Acts 1993,
           Acts        73rd Leg.,
                1993, 73rd  Leg., ch.
                                   ch. 269,  Sec. 1,
                                       269, Sec.  1, eff.  Sept. 1,
                                                     eff. Sept.      1993.
                                                                 1, 1993.
           Amended by:
           Amended by:
                Acts 2011,
                Acts        82nd Leg.,
                      2011, 82nd        R.S., Ch.
                                  Leg., R.S.,      1012 (H.B.
                                               Ch. 1012        2463), Sec.
                                                         (H.B. 2463),  Sec. 1, eff.
                                                                            1, eff.
           September 1,
           September     2011.
                      1, 2011.


                      2l.305. ACCESS
                Sec. 21.305.
                Sec.                       COMMISSION RECORDS.
                                ACCESS TO COMMISSION  RECORDS. (a)(a)  Except as
                                                                       Except as
           provided by
           provided     Subsection (c),
                     by Subsection            commission shall
                                     (C), the commission        adopt rules
                                                          shall adopt  rules
           allowing a party
           allowing                complaint filed
                       party to a complaint         under Section
                                              filed under  Section 21.201
                                                                    21.201
           reasonable access
           reasonable             commission records
                       access to commission           relating to the complaint.
                                              records relating          complaint.
                (b)
                 (b)  Except as
                      Except     provided by
                             as provided      Subsection (c),
                                           by Subsection       unless the
                                                          (C), unless
           complaint is
           complaint     resolved through
                      is resolved  through a voluntary   settlement or
                                              voluntary settlement
                                  written request
           conciliation, on the written
           conciliation,                   request of a party       executive
                                                         party the executive


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           director shall
           director            allow the party
                      shall allow          party access            commission records:
                                                  access to the commission       records:
                      (1)
                       (1)    after the
                             after   the final  action of the
                                          final action            commission; or
                                                             the commission;
                      (2)
                       (2)          civil action
                             if a civil            relating to the
                                           action relating            complaint is filed
                                                                  the complaint        filed
              federal court
           in federal
           in            court alleging       violation of federal
                                  alleging a violation        federal law.
                                                                        law.
                 (c)
                 (c)   Notwithstanding Section
                       Notwithstanding      Section 552.023,    Government Code,
                                                     552.023, Government      Code, the
           following    information is
           following information               considered public
                                       is not considered             information for
                                                             public information     for the
           purposes of Chapter
           purposes        Chapter 552,    Government Code,
                                     552, Government                              disclosed
                                                               and may not be disclosed
                                                        Code, and
                                 complaint filed
                 party to a complaint
           to a party                              under Section
                                            filed under   Section 21.201:
                                                                    21.201:
                      (1)
                       (1)   identifying    information of persons
                              identifying information         persons other
                                                                        other than
                                                                                than the
                                                                                      the
           parties and
           parties         witnesses to the complaint;
                     and witnesses             complaint;
                      (2)
                       (2)   identifying    information about
                              identifying information             confidential
                                                          about confidential
                         including any confidential
           witnesses, including
           witnesses,                      confidential statement
                                                          statement given
                                                                      given byby the
           witness;
           witness;
                      (3)
                       (3)   sensitive    medical information
                              sensitive medical    information about
                                                                  about the   charging
                                                                         the charging
           party         witness to the complaint
           party or a witness               complaint that
                                                        that is:
                                                              is:
                            (A)
                             (A)   provided by
                                   provided        person other
                                             by a person    other than         person
                                                                   than the person
           requesting the information;
           requesting          information; and
                                              and
                            (B)
                             (B)        relevant to issues
                                   not relevant
                                   not                        raised in
                                                      issues raised             complaint,
                                                                       in the complaint,
           including    information that
           including information             identifies injuries,
                                       that identifies                impairments,
                                                          injuries, impairments,
           pregnancies,     disabilities, or other
           pregnancies, disabilities,                   medical conditions
                                                other medical     conditions that
                                                                                that are not
           obviously    apparent or visible;
           obviously apparent          visible;
                      (4)
                       (4)   identifying    information about
                              identifying information               person other
                                                          about a person     other than
                                                                                    than the
                                                                                           the
           charging party
           charging   party that
                               that is   found in
                                     is found  in sensitive    medical information
                                                   sensitive medical     information
           regardless        whether the information
           regardless of whether            information is    relevant to the complaint;
                                                          is relevant             complaint;
                      (5)
                       (5)    nonsensitive medical
                             nonsensitive    medical information
                                                       information that         relevant to
                                                                     that is relevant
                complaint if
           the complaint     if the disclosure     would result
                                      disclosure would    result in       invasion of
                                                                   in an invasion
           personal privacy,
           personal   privacy, unless          information is
                                   unless the information         generally known
                                                              is generally    known or hashas
           been previously
           been                  reported to the public;
                 previously reported               public;
                      (6)
                       (6)   identifying    information about
                              identifying information     about other    respondents or
                                                                  other respondents
           employers not a party
           employers             party to the complaint;
                                               complaint;
                      (7)
                       (7)    information relating
                             information    relating to settlement
                                                          settlement offers
                                                                        offers or
           conciliation agreements
           conciliation     agreements received
                                          received from
                                                    from one party
                                                               party that
                                                                      that was
                                                                             was not
           conveyed to the other
           conveyed              other and  information contained
                                       and information    contained in       separate
                                                                      in a separate
           alternative dispute
           alternative               resolution file
                           dispute resolution           prepared for
                                                  file prepared         mediation
                                                                   for mediation
           purposes; and
           purposes;    and
                      (8)
                       (8)   identifying    information about
                              identifying information               person on whose
                                                          about a person         whose


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           behalf a complaint
           behalf     complaint was   filed if
                                 was filed         person has
                                            if the person      requested that
                                                           has requested that the
           person's identity
           person's   identity as     complaining party
                                as a complaining         remain confidential.
                                                  party remain  confidential.
                (d)
                 (d)      this section,
                       In this
                       In       section, "identifying   information" has
                                          "identifying information"  has the
           meaning assigned
           meaning   assigned by  Section 32.51,
                               by Section         Penal Code.
                                           32.51, Penal  Code.

           Acts 1993,
           Acts        73rd Leg.,
                1993, 73rd  Leg., ch.
                                   ch. 269,  Sec. 1,
                                       269, Sec.  1, eff.  Sept. 1,
                                                     eff. Sept.      1993.
                                                                 1, 1993.
           Amended by:
           Amended by:
                Acts 2011,
                Acts        82nd Leg.,
                      2011, 82nd        R.S., Ch.
                                  Leg., R.S.,      1012 (H.B.
                                               Ch. 1012        2463), Sec.
                                                         (H.B. 2463),  Sec. 2, eff.
                                                                            2, eff.
           September 1,
           September     2011.
                      1, 2011.


                Sec.            SUBPOENA OF RECORD
                      21.306. SUBPOENA
                 Sec. 21.306.                 RECORD OR
                                                      OR REPORT.
                                                         REPORT. (a)(a)         person
                                                                          If a person
                                                                          If
                     permit access,
           fails to permit
           fails             access, examination,    photographing, or copying
                                      examination, photographing,         copying or
           fails to make,
           fails     make, keep,      preserve a record
                            keep, or preserve                make a report
                                                  record or make       report in
                                                                               in
           accordance  with this
           accordance with                           commission may issue
                                   subchapter, the commission
                             this subchapter,                          issue a
           subpoena  requiring compliance.
           subpoena requiring    compliance.
                (b)
                 (b)       failure to comply
                      On a failure              with a subpoena
                                        comply with     subpoena of the commission,
                                                                           commission,
               commission shall
           the commission   shall apply for             directing compliance
                                                 order directing
                                         for an order              compliance to the
           district court
           district  court of the county
                                    county in  which the person
                                            in which      person is            resides,
                                                                       found, resides,
                                                                  is found,
              transacts business.
           or transacts  business.

           Acts 1993,
           Acts       73rd Leg.,
                1993, 73rd Leg., ch.      Sec. 1,
                                     269, Sec.
                                 ch. 269,      1, eff. Sept. 1,
                                                  eff. Sept.    1993.
                                                             1, 1993.



                  SUBCHAPTER H.
                  SUBCHAPTER    DISCRIMINATORY USE
                             H. DISCRIMINATORY USE OF
                                                   OF GENETIC INFORMATION
                                                      GENETIC INFORMATION

                Sec. 21.401.
                Sec.                DEFINITIONS. In
                       21.401. DEFINITIONS.                   subchapter:
                                                        this subchapter:
                                                     In this
                     (1)
                      (1)    "DNA" means
                            "DNA"             deoxyribonucleic acid.
                                      means deoxyribonucleic    acid.
                     (2)
                      (2)    "Family health
                            "Family              history" means
                                         health history"   means a history
                                                                   history taken
                                                                             taken by
                                                                                    by a
                                       professional to ascertain
                           genetic professional
           physician or genetic
           physician                                     ascertain genetic       medical
                                                                    genetic or medical
           information about
           information                 individual's family.
                          about an individual's       family.
                     (3)
                      (3)   "Genetic       characteristic" means
                             "Genetic characteristic"                scientifically or
                                                            means a scientifically
           medically identifiable
           medically   identifiable genetic           chromosomal variation,
                                          genetic or chromosomal   variation,
           composition,         alteration that:
           composition, or alteration          that:
                           (A)
                            (A)    is   scientifically or medically
                                   is scientifically                   believed to:
                                                            medically believed    to:
                                  (i)
                                  (i)     predispose an individual
                                         predispose      individual to a disease,
                                                                           disease,
           disorder, or syndrome;
           disorder,       syndrome; or
                                  (ii)
                                  (ii)     be associated  with a statistically
                                              associated with     statistically
           significant    increased risk
           significant increased                  developing a disease,
                                         risk of developing               disorder, or
                                                                disease, disorder,


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           syndrome;
           syndrome;    and
                        and
                           (B)
                           (B)    may or may not            associated with
                                                  not be associated       with any symptom
                                                                                     symptom of
              ongoing disease,
           an ongoing   disease, disorder,                         affecting an individual
                                                       syndrome affecting
                                    disorder, or syndrome                          individual
                   date the genetic
           on the date                     information is
                               genetic information             obtained regarding
                                                            is obtained    regarding the
           individual.
           individual.
                     (4)
                      (4)   "Genetic information"
                            "Genetic     information" means        information that
                                                            means information     that is:
                                                                                         is:
                           (A)
                           (A)    obtained from
                                  obtained                based on a scientific
                                               from or based             scientific or
           medical  determination of the presence
           medical determination                 presence or absence               individual
                                                                  absence in an individual
                 genetic characteristic;
           of a genetic   characteristic; or
                           (B)
                           (B)    derived from
                                  derived     from the results             genetic test
                                                           results of a genetic      test
           performed on,
           performed                         health history
                                   family health
                       on, or a family                            obtained from,
                                                       history obtained      from, an
           individual.
           individual.
                     (5)
                      (5)   "Genetic test"
                            "Genetic     test" means         presymptomatic laboratory
                                                 means a presymptomatic        laboratory test
                                                                                             test
                  individual's genes,
           of an individual's                gene products,
                                   genes, gene                       chromosomes that:
                                                    products, or chromosomes        that:
                           (A)
                           (A)    analyzes           individual's DNA,
                                  analyzes the individual's           DNA, RNA,   proteins, or
                                                                            RNA, proteins,
           chromosomes; and
           chromosomes;     and
                           (B)
                           (B)        performed to identify
                                  is performed
                                  is                                      genetic variation,
                                                         identify any genetic      variation,
                               alteration that
           composition, or alteration
           composition,                        that is    associated with
                                                      is associated                individual's
                                                                        with the individual's
           having                        increased risk
                     statistically increased
           having a statistically                      risk of:
                                                              of:
                                 (i)
                                 (i)    developing a clinically
                                        developing                       recognized disease,
                                                           clinically recognized       disease,
           disorder, or syndrome;
           disorder,      syndrome; or
                                 (ii)
                                 (ii)     being a carrier
                                         being       carrier of a clinically        recognized
                                                                      clinically recognized
                     disorder, or syndrome.
           disease, disorder,
           disease,                    syndrome.
                     term does
                The term    does not    include a blood
                                   not include         blood test,     cholesterol test,
                                                               test, cholesterol      test,
           urine test,
           urine             other physical
                  test, or other      physical test       used for a purpose
                                                   test used            purpose other
                                                                                  other than
                                                                                          than
           determining a genetic
           determining      genetic or chromosomal
                                            chromosomal variation,         composition, or
                                                             variation, composition,
           alteration in a specific
           alteration          specific individual.
                                            individual.
                     (6)
                      (6)   "RNA" means
                            "RNA"            ribonucleic acid.
                                     means ribonucleic        acid.

           Added by
           Added     Acts 1997,
                  by Acts        75th Leg.,
                           1997, 75th  Leg., ch.  1215, Sec.
                                              ch. 1215,  Sec. 1,
                                                               1, eff.  Sept. 1,
                                                                  eff. Sept.  1,
           1997.   Amended by
           1997. Amended       Acts 2001,
                            by Acts         77th Leg.,
                                    2001, 77th   Leg., ch.  1215, Sec.
                                                        ch. 1215,  Sec. 1,  eff.
                                                                         1, eff.
           Sept. 1,
           Sept.  1, 2001;   Acts 2003,
                     2001; Acts          78th Leg.,
                                  2003, 78th   Leg., ch.  1276, Sec.
                                                      ch. 1276,        11.001(a),
                                                                 Sec. 11.001(a),
                 Sept. 1,
           eff. Sept.
           eff.            2003.
                       1, 2003.


                               DISCRIMINATORY USE
                      2l.402. DISCRIMINATORY
                Sec. 21.402.
                Sec.                          USE OF GENETIC  INFORMATION
                                                     GENETIC INFORMATION
           PROHIBITED. (a)
           PROHIBITED.    (a) An employer
                              An employer commits    unlawful employment
                                          commits an unlawful  employment



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           practice if
           practice           employer fails
                     if the employer               refuses to hire,
                                         fails or refuses             discharges, or
                                                               hire, discharges,
           otherwise   discriminates against
           otherwise discriminates                  individual with
                                       against an individual    with respect
                                                                      respect to
           compensation or the terms,
           compensation                                     privileges of employment:
                                           conditions, or privileges
                                   terms, conditions,                      employment:
                     (1)
                      (1)       the basis
                            on the                     information concerning
                                              genetic information
                                    basis of genetic                 concerning the
                                                                                 the
           individual; or
           individual;
                     (2)
                      (2)   because of the
                            because          refusal of the
                                         the refusal          individual to submit
                                                          the individual      submit to
             genetic test.
           a genetic   test.
                (b)
                 (b)  A labor
                      A          organization commits
                          labor organization                unlawful employment
                                               commits an unlawful    employment
           practice if
           practice  if the labor    organization excludes
                              labor organization    excludes or expels
                                                                 expels from
                                                                         from
           membership or otherwise
           membership                  discriminates against
                            otherwise discriminates    against an individual:
                                                                    individual:
                     (1)
                      (1)       the basis
                            on the                     information concerning
                                              genetic information
                                    basis of genetic                 concerning the
                                                                                 the
           individual; or
           individual;
                     (2)
                      (2)   because of the
                            because          refusal of the
                                         the refusal          individual to submit
                                                          the individual      submit to
             genetic test.
           a genetic   test.
                (c)
                 (C)       employment agency
                      An employment    agency commits       unlawful employment
                                               commits an unlawful    employment
           practice if
           practice           employment agency
                     if the employment             classifies or refers
                                           agency classifies      refers for
                                                                          for
           employment, fails
           employment,              refuses to refer
                          fails or refuses      refer for                   otherwise
                                                            employment, or otherwise
                                                       for employment,
           discriminates against
           discriminates    against an individual:
                                         individual:
                     (1)
                      (1)       the basis
                            on the                     information concerning
                                              genetic information
                                    basis of genetic                 concerning the
                                                                                 the
           individual; or
           individual;
                     (2)
                      (2)   because of the
                            because          refusal of the
                                         the refusal          individual to submit
                                                          the individual      submit to
             genetic test.
           a genetic   test.
                (d)
                 (d)                  labor organization,
                           employer, labor
                      An employer,                              employment agency
                                             organization, or employment    agency
           commits      unlawful employment
           commits an unlawful                 practice if
                                   employment practice    if the employer,  labor
                                                                 employer, labor
           organization,       employment agency
           organization, or employment      agency limits,   segregates, or
                                                    limits, segregates,
           classifies an employee,
           classifies                               applicant for
                                       member, or applicant
                            employee, member,                       employment or
                                                               for employment
           membership in
           membership                   would deprive
                                   that would
                        in a way that          deprive or tend
                                                            tend to deprive
                                                                     deprive the
                                    applicant of employment
                       member, or applicant
           employee, member,
           employee,                                           opportunities or
                                                   employment opportunities
           otherwise adversely
           otherwise   adversely affect
                                   affect the status
                                               status of the employee,    member, or
                                                               employee, member,
           applicant:
           applicant:
                     (1)
                      (1)       the basis
                            on the                     information concerning
                                              genetic information
                                    basis of genetic                 concerning the
                                                                                 the
           employee, member,
           employee,                applicant; or
                       member, or applicant;
                     (2)
                      (2)   because of the
                            because          refusal of the
                                         the refusal      the employee,  member, or
                                                              employee, member,
           applicant to submit
           applicant                     genetic test.
                           submit to a genetic   test.

           Added by
           Added    Acts 1997,
                 by Acts       75th Leg.,
                         1997, 75th Leg., ch. 1215, Sec.
                                          ch. 1215, Sec. 1,
                                                         1, eff. Sept. 1,
                                                            eff. Sept.    1997.
                                                                       1, 1997.




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                 Sec.              CONFIDENTIALITY OF GENETIC
                        21.403. CONFIDENTIALITY
                 Sec. 21.403.                           GENETIC INFORMATION.
                                                                 INFORMATION. (a) (a)
           Except as
           Except       provided by
                    as provided       Section 21.4031,
                                   by Section  21.4031, genetic   information is
                                                         genetic information    is
           confidential and
           confidential          privileged regardless
                            and privileged   regardless of the source
                                                                 source of the
           information.
           information.
                 (b)
                  (b)   A  person who
                        A person   who holds
                                       holds genetic   information about
                                              genetic information   about an
           individual may
           individual     may not disclose          compelled to disclose,
                                   disclose or be compelled       disclose, by
                                                                             by
           subpoena or otherwise,
           subpoena        otherwise, that   information unless
                                       that information                disclosure is
                                                          unless the disclosure      is
           specifically     authorized as
           specifically authorized          provided by
                                        as provided      Section 21.4032.
                                                      by Section  21.4032.
                 (c)
                  (C)   This section
                        This                          redisclosure of genetic
                                       applies to a redisclosure
                               section applies                          genetic
           information by
           information           secondary recipient
                           by a secondary                      information after
                                            recipient of the information    after
           disclosure             information by
           disclosure of the information              initial recipient.
                                               by an initial   recipient.
                 (d)
                  (d)   Redesignated as
                        Redesignated   as V.T.C.A.,   Labor Code
                                           V.T.C.A., Labor   Code Sec.  21.4031 by
                                                                  Sec. 21.4031        Acts
                                                                                 by Acts
           2003,   78th Leg.,
           2003, 78th     Leg., ch.  1276, Sec.
                                 ch. 1276,        ll.00l(d).
                                            Sec. 11.001(d).
                 (e)
                  (e)      person who
                        A person
                        A          who discloses            information in
                                                   genetic information
                                       discloses genetic                    violation
                                                                         in violation
                      section is
               this section
           of this                 liable for a civil
                                is liable               penalty of not more
                                                  civil penalty          more than
                                                                              than
           $10,000. The attorney
           $10,000.                   general may
                            attorney general        bring an action
                                               may bring      action in the name
                                                                             name of
                            recover the penalty,
                state to recover
           the state                                plus reasonable
                                          penalty, plus               attorney's fees
                                                         reasonable attorney's     fees
           and court
           and  court costs.
                        costs.

           Added by
           Added     Acts 1997,
                  by Acts        75th Leg.,
                          1997, 75th  Leg., ch.          Sec. 1,
                                                  1215, Sec.
                                              ch. 1215,        1! eff. Sept. 1,
                                                                  eff. Sept.  1,
           1997.   Amended by
           1997. Amended      Acts 2003,
                           by Acts         78th Leg.,
                                    2003, 78th   Leg., ch.
                                                        ch. 965,  Sec. 1,
                                                             965, Sec. 1, eff.   June
                                                                          eff. June
           20, 2003;
           20,         Acts 2003,
                2003; Acts         78th Leg.,
                            2003, 78th   Leg., ch.  1276, Sec.
                                                ch. 1276,        11.001(b) to (e),
                                                           Sec. 11.001(b)       (e),
                 Sept. 1,
           eff. Sept.
           eff.           2003.
                       1, 2003.


                Sec.   21 4031
                Sec. 21.4031.
                            .   . EXCEPTIONS TO CONFIDENTIALITY.
                                  EXCEPTIONS       CONFIDENTIALITY. (a)
                                                                      (a)   Subject to
                                                                           Subject
           Subchapter G,
           Subchapter       Chapter 411,
                        G, Chapter         Government Code,
                                     411, Government          genetic information
                                                       Code, genetic  information may
                                                                                    may
              disclosed without
           be disclosed                authorization required
                          without an authorization     required under
                                                                 under Section
                                                                       Section
           21.4032           disclosure is:
           21.4032 if the disclosure      is:
                     (1)
                      (1)   authorized under
                            authorized   under a state
                                                  state or federal  criminal law
                                                            federal criminal  law
           relating to:
           relating  to:
                           (A)
                           (A)       identification of individuals;
                                the identification        individuals; or
                           (B)
                           (B)     criminal or juvenile
                                a criminal       juvenile proceeding,
                                                           proceeding, an inquest,
                                                                           inquest,
                 child fatality
           or a child             review by a multidisciplinary
                        fatality review                             child—abuse team;
                                                multidisciplinary child-abuse     team;
                     (2)
                      (2)   required under
                            required           specific order
                                      under a specific   order of a state      federal
                                                                     state or federal
           court;
           court;
                     (3)
                      (3)       the purpose
                            for the
                            for                   establishing paternity
                                     purpose of establishing    paternity as


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           authorized under
           authorized    under a state     federal law;
                                  state or federal   law;
                      (4)
                       (4)           provide genetic
                            made to provide
                            made                        information relating
                                              genetic information   relating to a
           decedent and
           decedent            disclosure is
                      and the disclosure   is made           blood relatives
                                               made to the blood   relatives of the
           decedent for
           decedent        medical diagnosis;
                      for medical   diagnosis; or
                      (5)
                       (5)  made to identify
                            made     identify a decedent.
                                                 decedent.
                 (b)
                 (b)    Genetic information
                       Genetic                        disclosed without
                                information may be disclosed     without an
           authorization under
           authorization    under Section
                                   Section 21.4032
                                           21.4032 if:
                                                     if:
                      (1)
                       (1)       disclosure is for
                            the disclosure
                            the                      information from
                                                for information           research
                                                                  from a research
           study in
           study  in which        procedure for
                      which the procedure        obtaining informed
                                             for obtaining            written consent
                                                             informed written   consent
           and the use
           and                    information is
                     use of the information       governed by
                                               is governed      national standards
                                                             by national  standards
                protecting participants
           for protecting
           for               participants involved
                                           involved in    research projects,
                                                      in research  projects,
           including guidelines
           including    guidelines issued  under 21
                                    issued under              Part 50
                                                      C.F.R. Part
                                                  21 C.F.R.           and 45
                                                                   50 and     C.F.R.
                                                                           45 C.F.R.
           Part 46;
           Part  46;
                      (2)
                       (2)       information does
                            the information
                            the               does not
                                                    not identify    specific
                                                         identify a specific
           individual; and
           individual;     and
                      (3)
                       (3)  the information
                            the                  provided to the
                                 information is provided       the Texas  Department
                                                                   Texas Department
               Health to comply
           of Health       comply with  Chapter 87,
                                   with Chapter       Health and
                                                 87, Health   and Safety
                                                                  Safety Code.
                                                                          Code.

           Added by
           Added     Acts 1997,
                 by Acts         75th Leg.,
                          1997, 75th  Leg., ch.  l2l5, Sec.
                                             ch. 1215,  Sec. 1,
                                                             1, eff.   Sept. 1,
                                                                 eff. Sept.   1,
                   Redesignated from
           1997. Redesignated
           1997.                      Labor Code Sec.
                                 from Labor             2l.403(c), (d)
                                                  Sec. 21.403(c),    (d) and amended
                                                                         and amended
           by Acts 2003,
           by Acts        78th Leg.,
                    2003, 78th  Leg., ch.  1276, Sec.
                                      ch. 1276,        ll.00l(d), eff.
                                                 Sec. 11.001(d),         Sept. 1,
                                                                   eff. Sept.    1,
           2003.
           2003.


                                   AUTHORIZED DISCLOSURE.
                        21.4032. AUTHORIZED
                 Sec. 21.4032.
                Sec.                           DISCLOSURE. An   individual or the
                                                             An individual
                  representative of an individual
           legal representative
           legal                           individual may authorize
                                                           authorize disclosure
                                                                      disclosure of
                     information relating
           genetic information
           genetic                                   individual by
                                   relating to the individual         written
                                                                by a written
           authorization that
           authorization          includes:
                            that includes:
                      (1)
                       (1)     description of the
                            a description          information to be disclosed;
                                               the information         disclosed;
                      (2)
                       (2)  the  name of the
                            the name      the person     whom the
                                              person to whom       disclosure is
                                                              the disclosure
                   and
           made; and
           made;
                      (3)
                       (3)  the  purpose for
                            the purpose   for the disclosure.
                                              the disclosure.

           Added by Acts
           Added     Acts 1997,  75th Leg.,
                          1997, 75th  Leg., ch.         Sec. 1,
                                                  1215, Sec.
                                             ch. 1215,        1, eff.  Sept. 1,
                                                                 eff. Sept.  1,
                   Redesignated from
           1997. Redesignated
           1997.                      Labor Code
                                 from Labor  Code Sec.  21.403(b) and
                                                   Sec. 21.403(b)       amended by
                                                                   and amended
           Acts 2003,
           Acts        78th Leg.,
                 2003, 78th Leg., ch.               11.001(e), eff.
                                              Sec. 11.001(e),
                                       1276, Sec.
                                   ch. 1276,                          Sept. 1,
                                                                eff. Sept.      2003.
                                                                            1, 2003.



                     21.404.
                Sec. 21.404.
                Sec.            DISCLOSURE OF
                                DISCLOSURE OF TEST            INDIVIDUAL
                                                   RESULTS TO INDIVIDUAL
                                              TEST RESULTS


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           TESTED. An
           TESTED.        individual who
                    An individual     who submits       genetic test
                                           submits to a genetic  test has      right
                                                                      has the right
              know the results
           to know        results of the test.           written request
                                           test. On the written   request by
                                                                          by the
                               entity that
           individual, the entity
           individual,                      performed the test
                                      that performed      test shall  disclose the
                                                                shall disclose
           test results to:
           test results    to:
                     (1)
                      (1)   the  individual; or
                            the individual;
                     (2)
                      (2)   a physician  designated by
                               physician designated  by the individual.
                                                        the individual.

           Added by
           Added     Acts 1997,
                  by Acts       75th Leg.,
                          1997, 75th Leg., ch.  1215, Sec.
                                            ch. 1215,  Sec. 1,
                                                            1, eff.  Sept. 1,
                                                                eff. Sept. 1,
           1997.   Amended by
           1997. Amended      Acts 2003,
                           by Acts        78th Leg.,
                                   2003, 78th  Leg., ch.  1276, Sec.
                                                      ch. 1276,       11.001(f),
                                                                 Sec. 11.001(f),
                 Sept. 1,
           eff. Sept.
           eff.           2003.
                       1, 2003.


                                    DESTRUCTION OF
                        21.405. DESTRUCTION
                 Sec. 21.405.
                Sec.                                SAMPLE MATERIAL;
                                                 OE SAMPLE               EXCEPTIONS. A
                                                            MATERIAL; EXCEPTIONS.       A
           sample                 material obtained
                        genetic material
           sample of genetic                 obtained from      individual for
                                                       from an individual   for a
           genetic test
           genetic   test shall                   promptly after
                                       destroyed promptly
                            shall be destroyed                         purpose for
                                                            after the purpose    for
           which the sample
           which        sample was    obtained is
                                 was obtained      accomplished unless:
                                                is accomplished   unless:
                      (1)
                       (1)    the sample
                             the              retained under
                                  sample is retained    under a court
                                                                 court order;
                                                                        order;
                      (2)
                       (2)   the  individual authorizes
                              the individual               retention of the
                                               authorizes retention            sample for
                                                                          the sample   for
           medical treatment
           medical                    scientific research;
                     treatment or scientific      research;
                      (3)
                       (3)        sample was
                              the sample
                             the               obtained for
                                          was obtained        research that
                                                         for research            cleared
                                                                        that is cleared
                  institutional review
           by an institutional
           by                                board and
                                     review board       retention of the sample
                                                   and retention           sample is:
                                                                                   is:
                            (A)
                             (A)            requirement the institutional
                                   under a requirement
                                  under                       institutional review
                                                                              review
           board imposes
           board                    specific research
                  imposes on a specific       research project;
                                                        project; or
                            (B)
                             (B)   authorized by
                                  authorized   by the research   participant with
                                                       research participant    with
           institutional review
           institutional              board approval
                             review board    approval under
                                                       under federal
                                                             federal law;
                                                                      law; or
                      (4)
                       (4)        sample was
                              the sample
                             the               obtained for
                                          was obtained          screening test
                                                         for a screening   test
           established by
           established              Texas Department
                           by the Texas                   Health under
                                          Department of Health    under Section
                                                                         Section 33.011,
                                                                                  33.011,
           Health and
           Health  and Safety
                         Safety Code,
                                  Code, and   performed by
                                         and performed            department or a
                                                            that department
                                                         by that
           laboratory    approved by
           laboratory approved                department.
                                        that department.
                                     by that
           Added by Acts
           Added     Acts 1997, 75th Leg.,
                          1997, 75th Leg., ch.         Sec. 1,
                                                1215, Sec.
                                            ch. 1215,        1! eff.  Sept. 1,
                                                                eff. Sept.  1,
           1997.   Amended by Acts
           1997. Amended      Acts 2003,  78th Leg.,
                                   2003, 78th  Leg., ch.               ll.OOl(g),
                                                                 Sec. 11.001(g),
                                                           1276, Sec.
                                                      ch. 1276,
                 Sept. 1,
           eff. Sept.
           eff.           2003.
                       1, 2003.



                       SUBCHAPTER I.
                       SUBCHAPTER    PERSONNEL POLICIES
                                  I. PERSONNEL          AND PROCEDURES
                                               POLICIES AND PROCEDURES

                Sec. 21.451.
                Sec.           DEFINITION. In
                      21.451. DEFINITION.    In this             "state agency"
                                                     subchapter, "state
                                                this subchapter,        agency"
           does not include
           does                public junior
                     include a public junior college
                                              college as defined by
                                                      as defined    Section
                                                                 by Section


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                   Education Code.
           61.003, Education
           61.003,           Code.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                               DEVELOPMENT AND
                      2l.452. DEVELOPMENT
                Sec. 21.452.
                Sec.                            IMPLEMENTATION OF PERSONNEL
                                            AND IMPLEMENTATION     PERSONNEL
           POLICIES  AND PROCEDURES.
           POLICIES AND               Each state
                         PROCEDURES. Each                       develop and
                                                         shall develop
                                                  agency shall
                                            state agency                and
           implement  personnel policies
           implement personnel  policies and  procedures that
                                         and procedures  that comply  with this
                                                               comply with  this
           chapter, including
           chapter,            personnel selection
                     including personnel  selection procedures
                                                    procedures that  incorporate
                                                                that incorporate
             workforce diversity
           a workforce  diversity program.
                                  program.

           Added by Acts
           Added    Acts 1999, 76th Leg.,
                         1999, 76th Leg., ch.      Sec. 15,
                                              872, Sec.
                                          ch. 872,      15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.



                Sec. 21.453.
                Sec.            REVIEW. (a)
                      21.453. REVIEW.      (a)       commission shall
                                                 The commission         review the
                                                                  shall review
           personnel policies
           personnel  policies and   procedures of each
                                and procedures       each state   agency on a
                                                           state agency
           six—year cycle
           six-year  cycle to determine   whether the policies
                               determine whether         policies and  procedures
                                                                   and procedures
           comply  with this
           comply with        chapter.
                         this chapter.
                (b)
                 (b)       commission by
                      The commission      rule shall
                                       by rule          establish a system
                                                 shall establish     system to
           stagger the reviews
           stagger       reviews of state           personnel policies
                                            agency personnel
                                     state agency               policies and
                                                                         and
           procedures required
           procedures  required under
                                 under this    section.
                                        this section.
                (c)
                 (C)          commission determines
                      If the commission
                      If                  determines that         personnel policies
                                                        that the personnel   policies
           and procedures of a state
           and procedures               agency do not comply
                                 state agency                    with this
                                                         comply with  this chapter,
                                                                           chapter,
               commission shall
           the commission          recommend appropriate
                            shall recommend    appropriate revisions
                                                            revisions to the
           personnel policies
           personnel  policies and   procedures.
                                and procedures.
                (d)
                 (d)  The state  agency shall
                           state agency          take these
                                         shall take          recommendations into
                                                      these recommendations    into
           consideration and
           consideration                  whether to revise
                               determine whether
                           and determine                            personnel
                                                        revise the personnel
           policies and
           policies       procedures.
                     and procedures.
                (e)
                 (e)       review of a state
                      The review                agency's personnel
                                        state agency's    personnel policies
                                                                     policies and
                                                                               and
           procedures shall
           procedures            completed within
                       shall be completed    within one year.
                                                          year.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                                COMPLIANCE REPORT.
                      2l.454. COMPLIANCE
                Sec. 21.454.
                Sec.                                Not later
                                           REPORT. Not   later than
                                                               than 60        after
                                                                        days after
                                                                     60 days
               commission completes
           the commission   completes the review
                                          review of a state  agency's personnel
                                                      state agency's   personnel
           policies and
           policies      procedures as
                     and procedures     required by
                                     as required    Section 21.453
                                                 by Section  21.453 and  provides
                                                                     and provides
               review and
           its review
           its                  recommendations to the agency,
                       and any recommendations                       agency shall
                                                       agency, the agency    shall
           submit to the commission,
           submit         commission, the governor,                     and the
                                                          legislature, and
                                           governor, the legislature,
           Legislative Budget
           Legislative          Board a report
                        Budget Board    report detailing:
                                               detailing:


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                    (1)
                     (1)  whether the
                          whether  the agency  implemented the
                                       agency implemented       recommendations of
                                                            the recommendations
                             and
               commission; and
           the commission;
                    (2)
                     (2)     the agency
                          if the         did not
                                  agency did      implement all
                                              not implement  all of the
                                                                    the
           commission's recommendations,
           commission's  recommendations, the reasons
                                                reasons for  rejecting those
                                                        for rejecting   those
           recommendations.
           recommendations.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                 Sec. 21.455.
                Sec.             REIMBURSEMENT; AUDIT.
                      21.455. REIMBURSEMENT;      AUDIT. (a)(a) A state
                                                                A state agency
           shall reimburse
           shall                  commission through
                  reimburse the commission    through interagency
                                                       interagency contract
                                                                   contract for
                                                                             for the
           reasonable and
           reasonable       necessary expenses
                       and necessary             incurred by
                                       expenses incurred          commission in
                                                           by the commission  in
           conducting             under Section
                          review under
           conducting a review          Section 21.453.
                                                 21.453.
                (b)
                 (b)       commission shall
                      The commission          maintain a record
                                       shall maintain     record of the time
                                                                        time
           expended and
           expended            actual costs
                     and the actual          and travel
                                      costs and                   incurred by
                                                         expenses incurred
                                                 travel expenses            by the
           commission in
           commission  in conducting             under Section
                                          review under
                           conducting a review          Section 21.453.
                                                                21.453.
                (c)
                 (c)       amount of reimbursement
                      The amount                     paid by
                                      reimbursement paid                      under
                                                                state agency under
                                                           by a state
           Subsection (a)
           Subsection   (a) and              maintained by
                                     record maintained
                            and the record                      commission under
                                                         by the commission  under
           Subsection (b)
           Subsection           subject to audit
                            is subject
                        (b) is              audit by
                                                  by the state  auditor in
                                                          state auditor in
                       with Chapter
           accordance with
           accordance        Chapter 321,   Government Code.
                                      321, Government   Code.

           Added by Acts
           Added    Acts 1999,  76th Leg.,
                          1999, 76th Leg., ch.       Sec. 15,
                                                872, Sec.
                                            ch. 872,       15, eff. Sept. 1,
                                                               eff. Sept. 1,
           1999.  Amended by Acts
           1999. Amended      Acts 2003,  78th Leg.,
                                   2003, 78th  Leg., ch.       Sec. 61,
                                                          785, Sec.
                                                     ch. 785,           eff.
                                                                    61, eff.
           Sept. 1,
           Sept.    2003.
                 1, 2003.



                       21.456. FAILURE
                 Sec. 21.456.
                Sec.                         COMPLY WITH
                                 FAILURE TO COMPLY   WITH SUBCHAPTER;
                                                           SUBCHAPTER;
           ADMINISTRATIVE PENALTY.
           ADMINISTRATIVE    PENALTY. (a)
                                        (a)          commission determines
                                              If the commission
                                             If                  determines that
                                                                             that a
                  agency has
           state agency
           state               failed to comply
                           has failed             with this
                                          comply with        subchapter, the
                                                        this subchapter,
           commission shall
           commission          certify that
                        shall certify        determination to the comptroller.
                                        that determination           comptroller.
                (b)
                 (b)   On receipt        certification by
                           receipt of a certification           commission under
                                                         by the commission  under
           Subsection (a),
           Subsection             comptroller shall
                         (a), the comptroller         notify the state
                                                shall notify             agency that
                                                                  state agency   that
           is the subject
           is                        certification that
                    subject of the certification    that funds  appropriated to the
                                                          funds appropriated
           agency are subject
           agency                      reduction in
                        subject to a reduction            amount of $5,000
                                                  in the amount      $5,000 as
                                                                            as
           provided by this
           provided            section unless,
                          this section               later than
                                        unless, not later   than the 30th       after
                                                                      30th day after
                                  receives notice
                           agency receives
               date the agency
           the date                         notice from       comptroller under
                                                    from the comptroller   under this
                                                                                  this
                              agency submits
           subsection, the agency
           subsection,                                comptroller proof
                                      submits to the comptroller   proof that
                                                                          that the
           agency has
           agency       complied with
                   has complied   with this   subchapter. If
                                        this subchapter.           agency fails
                                                            If the agency  fails to
                            comptroller the proof
           submit to the comptroller
           submit                            proof required
                                                    required by this   subsection,
                                                                 this subsection,


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               comptroller shall:
           the comptroller      shall:
                     (1)
                      (1)   if the     state agency
                                 the state                        develop or implement
                                                       failed to develop
                                              agency failed                    implement
           personnel policies
           personnel   policies and      procedures as
                                    and procedures        required by
                                                      as required       Section 21.452:
                                                                     by Section   21.452:
                           (A)
                            (A)    reduce the funds
                                   reduce               appropriated to the agency
                                                 funds appropriated             agency for
                                                                                         for
               fiscal year in
           the fiscal               which the agency
                                in which        agency fails                with this
                                                                   comply with
                                                         fails to comply          this
           subchapter by
           subchapter             amount of $5,000;
                        by the amount          $5,000; or
                           (B)
                            (B)    if  all funds
                                   if all          appropriated to the agency
                                            funds appropriated             agency for
                                                                                    for the
           fiscal year in
           fiscal             which the agency
                          in which         agency fails                with this
                                                               comply with
                                                    fails to comply          this
           subchapter have
           subchapter                 distributed to the agency,
                                been distributed
                        have been                                      reduce the funds
                                                             agency, reduce          funds
           appropriated to the agency
           appropriated                       during the next
                                     agency during               fiscal year by
                                                           next fiscal         by the
           amount of $5,000;
           amount      $5,000; or
                     (2)
                      (2)        the state
                            if the            agency failed
                                       state agency               reimburse the
                                                       failed to reimburse    the
           commission as
           commission       required by
                        as required          Section 21.455:
                                         by Section   21.455:
                           (A)
                            (A)    transfer the amount
                                   transfer                         reimbursement from
                                                   amount of the reimbursement       from
                                   commission's appropriations
               agency to the commission's
           the agency                              appropriations andand reduce
                                                                         reduce the funds
                                                                                       funds
           appropriated to the agency
           appropriated              agency for         fiscal year in
                                              for the fiscal             which the agency
                                                                      in which        agency
           fails     comply with
           fails to comply      with this    subchapter by
                                      this subchapter            amount that
                                                          by an amount         equals the
                                                                         that equals
           difference   between the amount
           difference between                             reimbursement and
                                         amount of the reimbursement      and $5,000;
                                                                               $5,000; or
                           (B)
                            (B)    if  all funds
                                   if all          appropriated to the agency
                                            funds appropriated             agency for
                                                                                    for the
           fiscal year in
           fiscal             which the agency
                          in which         agency fails                with this
                                                               comply with
                                                    fails to comply          this
           subchapter have
           subchapter   have been     distributed to the agency:
                                been distributed             agency:
                                  (i)
                                  (i)   during the next
                                        during        next fiscal
                                                            fiscal year,   transfer the
                                                                    year, transfer
           amount           reimbursement from
           amount of the reimbursement         from the funds    appropriated to the
                                                          funds appropriated
           agency for
           agency       that fiscal
                   for that                             commission's appropriations;
                                fiscal year to the commission's        appropriations; and  and
                                  (ii)
                                  (ii)    reduce the funds
                                          reduce              appropriated to the agency
                                                       funds appropriated              agency
           during the next
           during               fiscal year by
                        next fiscal                   amount that
                                               by an amount                       difference
                                                                     equals the difference
                                                              that equals
           between the amount
           between                           reimbursement and
                          amount of the reimbursement        and $5,000.
                                                                  $5,000.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                                  SUBCHAPTER J.
                                  SUBCHAPTER    HIRING PRACTICES
                                             J. HIRING PRACTICES

                                WORKFORCE ANALYSIS.
                      21.501. WORKFORCE
                 Sec. 21.501.
                 Sec.                                 Each state
                                          ANALYSIS. Each    state fiscal
                                                                  fiscal biennium,
                                                                          biennium,
           each state
           each        agency shall
                 state agency        analyze its
                               shall analyze  its current  workforce and
                                                  current workforce       compare
                                                                      and compare
           the number     African Americans,
                number of African              Hispanic Americans,
                                   Americans, Hispanic               and females
                                                        Americans, and   females
           employed by the agency
           employed          agency in each job
                                    in each  job category         available
                                                 category to the available
           African Americans,
           African              Hispanic Americans,
                    Americans, Hispanic              and females
                                         Americans, and   females in      statewide
                                                                  in the statewide


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                    workforce to determine
           civilian workforce
           civilian                            percentage of exclusion
                                 determine the percentage    exclusion or
           underutilization by
           underutilization    each job
                            by each     category.
                                    job category.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                                RECRUITMENT PLAN.
                      21.502. RECRUITMENT
                 Sec. 21.502.
                Sec.                                 Based upon
                                              PLAN. Based          workforce
                                                           upon a workforce
           avai1abi1ity analysis
           availability             under Section
                         analysis under   Section 21.501
                                                   21.501 that  demonstrates the
                                                          that demonstrates
           exclusion or underutilization
           exclusion                            African Americans,
                         underutilization of African                Hispanic
                                                        Americans, Hispanic
           Americans, and
           Americans,  and females,      court—ordered remedies,
                            females, or court-ordered                 supervised
                                                        remedies, or supervised
           conciliations or settlement
           conciliations      settlement agreements,   each state
                                          agreements, each   state agency,  other
                                                                   agency, other
                   public junior
           than a public
           than            junior college
                                   college as  defined by
                                           as defined     Section 61.003,
                                                       by Section  61.003,
           Education Code,
           Education                develop and
                             sha11 develop
                      Code, shall           and implement     p1an to recruit
                                                 implement a plan     recruit
           qualified  African Americans,
           qualified African               Hispanic Americans,
                               Americans, Hispanic   Americans, and
                                                                 and females.
                                                                     females. The
           p1an must
           plan  must comply  with this
                      comply with                       commission shall
                                         chapter. The commission
                                    this chapter.                          monitor
                                                                    shall monitor
           state agencies
           state               determine compliance
                  agencies to determine   compliance with
                                                      with this  section.
                                                           this section.

           Added by Acts
           Added    Acts 1999, 76th Leg.,
                         1999, 76th Leg., ch.      Sec. 15,
                                              872, Sec.
                                          ch. 872,      15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.



                 Sec. 21.503.
                Sec.           EFFECT ON
                      21.503. EFFECT   ON REMEDIES  UNDER OTHER
                                          REMEDIES UNDER  OTHER LAWS.   This
                                                                 LAWS. This
           subchapter does
           subchapter           affect a remedy,
                       does not affect                         settlement, or
                                                   agreement, settlement,
                                          remedy, agreement,
           affirmative action
           affirmative         plan that
                        action plan  that has       ordered or approved
                                               been ordered
                                          has been              approved by a
           court or that
           court     that has
                          has been  adopted in
                              been adopted      accordance with
                                            in accordance   with other
                                                                 other law.
                                                                       law.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                                ANNUAL REPORT.
                      2l.504. ANNUAL
                 Sec. 21.504.
                 Sec.                             Not later
                                        REPORT. Not   later than  November 11 of
                                                             than November
           each  calendar year,
           each calendar         each state
                           year, each        agency shall
                                       state agency         report to the
                                                     shall report
           commission the total
           commission                        African Americans,
                                  number of African
                            total number                          Hispanic
                                                      Americans, Hispanic
           Americans, females,
           Americans,  females, and   other persons
                                 and other           hired for
                                            persons hired       each job
                                                            for each       category
                                                                      job category
                   agency during
           by the agency
           by                          preceding state
                           during the preceding         fiscal year.
                                                  state fiscal  year. The
           commission shall
           commission         compile this
                       shall compile        information and
                                       this information  and submit
                                                              submit a report   based
                                                                        report based
                   information to the governor
           on the information           governor and      Legislative Budget
                                                  and the Legislative           Board
                                                                        Budget Board
                later than
           not later  than January             subsequent calendar
                            January 11 of the subsequent  calendar year.
                                                                     year.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                     SUBCHAPTER K.
                     SUBCHAPTER          EMPLOYMENT OPPORTUNITY
                                   EQUAL EMPLOYMENT
                                K. EQUAL            OPPORTUNITY REPORTS
                                                                REPORTS


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                Sec. 21.551.
                Sec.           DEFINITION. In
                      21.551. DEFINITION.   In this             "racial and
                                                    subchapter, "racial
                                               this subchapter,          and
           ethnic group" means
           ethnic group"        Caucasian American,
                          means Caucasian           African American,
                                          American, African American, or
           Hispanic American.
           Hispanic  American.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                                   EQUAL EMPLOYMENT
                        21.552. EQUAL
                 Sec. 21.552.
                 Sec.                                 OPPORTUNITY REPORT
                                          EMPLOYMENT OPPORTUNITY   REPORT REQUIRED.
                                                                            REQUIRED.
           (a)
            (a)       later than
                 Not later
                 Not                November 11 of each
                              than November        each year,   each state
                                                         year, each          agency
                                                                      state agency
                  report equal
           shall report
           shall                   employment opportunity
                            equal employment                information for
                                               opportunity information     for the
           preceding fiscal
           preceding                          commission as
                        fiscal year to the commission         required by this
                                                          as required       this
           subchapter. The report
           subchapter.                  must be made
                                 report must     made in the form    prescribed by the
                                                               form prescribed
           commission and
           commission                  information compiled
                              include information
                         and include                                 monthly basis.
                                                     compiled on a monthly     basis.
                 (b)
                 (b)   Each             commission shall
                        Each year the commission           compile equal
                                                     shall compile          employment
                                                                     equal employment
                           information reported
           opportunity information
           opportunity                  reported to the commission
                                                          commission by a state
                                                                             state
                            information must
           agency. The information
           agency.                        must include:
                                               include:
                      (1)
                       (1)   the total
                             the         number of employees
                                  total number      employees of the
                                                                  the agency    and the
                                                                       agency and    the
                  number of new
           total number
           total               new employees   hired since
                                    employees hired   since the date
                                                                 date of the last
                                                                                last
           report  made by the agency;
           report made             agency;
                      (2)
                       (2)   the total
                             the         number of employees
                                  total number      employees of the
                                                                  the agency    listed by
                                                                       agency listed
                         ethnic group
                   and ethnic
           racial and
           racial                 group and      percentage of the total
                                        and the percentage                   number of
                                                                      total number
                   employees for
           agency employees
           agency                    each racial
                                 for each  racial and  ethnic group,
                                                  and ethnic           including a
                                                               group, including
           distinction for
           distinction         those categories
                           for those              between the total
                                      categories between               number of
                                                                total number
           employees and
           employees    and the total   number of employees
                                  total number                 hired since
                                                   employees hired    since the date
                                                                                  date of
                last report
           the last            made by the agency;
                      report made            agency;
                      (3)
                       (3)   the total
                             the         number of male
                                  total number      male employees
                                                         employees and
                                                                     and the   total
                                                                          the total
           number of female
           number               employees of the agency,
                        female employees           agency, including       distinction
                                                            including a distinction
                those categories
           for those
           for                       between the total
                        categories between               number of employees
                                                  total number                   and the
                                                                     employees and
                  number of employees
           total number
           total                           hired since
                               employees hired   since the date
                                                            date of the last     report
                                                                           last report
           made by the agency;
           made            agency;
                      (4)
                       (4)   the total
                             the         number of male
                                  total number      male employees
                                                         employees and
                                                                     and the   total
                                                                          the total
           number of female
           number               employees of the agency
                        female employees           agency for   each racial
                                                           for each   racial and   ethnic
                                                                               and ethnic
           group, including
           group,                  distinction for
                    including a distinction          those categories
                                                for those               between the
                                                           categories between
                  number of employees
           total number
           total                           and the total
                               employees and              number of employees
                                                   total number                   hired
                                                                      employees hired
           since the date
           since        date of the last
                                      last report  made by the agency;
                                            report made                    and
                                                                 agency; and
                      (5)
                       (5)    the total
                              the         number of employees
                                   total number      employees of the
                                                                    the agency   listed
                                                                        agency listed
                    classification and
           by job classification      and the total   number of employees
                                               total number      employees for    each
                                                                             for each


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               and racial
           sex and
           sex      racial and ethnic group
                           and ethnic group listed
                                             listed by      classification,
                                                       job classification,
                                                    by job
           including    distinction for
           including a distinction      those categories
                                    for those              between the total
                                               categories between      total
           number of employees
           number               and the total
                      employees and            number of employees
                                        total number                hired since
                                                         employees hired   since
               date of the last
           the date         last report made by
                                 report made         agency.
                                              by the agency.

           Added by
           Added     Acts 1999,
                 by Acts         76th Leg.,
                           1999, 76th  Leg., ch.
                                              ch. 872,   Sec. 15,
                                                   872, Sec.   15, eff.  Sept. 1,
                                                                   eff. Sept.      1999.
                                                                                1, 1999.
           Amended by:
           Amended  by:
                Acts 2005,
                Acts         79th Leg.,
                      2005, 79th  Leg., Ch.   1301 (H.B.
                                         Ch. 1301          2716), Sec.
                                                    (H.B. 2716),   Sec. 2,
                                                                         2, eff.  June
                                                                            eff. June
               2005.
           18, 2005.
           18,
                Acts 2013,
                Acts         83rd Leg.,
                      2013, 83rd         R.S., Ch.
                                  Leg., R.S.,        1312 (S.B.
                                                Ch. 1312    (S.B. 59),  Sec. 78,
                                                                  59), Sec.       eff.
                                                                             78, eff.
           September 1,
           September      2013.
                       1, 2013.


                                COOPERATION WITH
                       21.553. COOPERATION
                Sec. 21.553.
                Sec.                              COMPTROLLER AND
                                             WITH COMPTROLLER      UNIFORM
                                                               AND UNIFORM
           STATEWIDE   ACCOUNTING SYSTEM;
           STATEWIDE ACCOUNTING            REPORT. (a)
                                  SYSTEM; REPORT.    (a)      commission shall
                                                          The commission   shall
                         information reported
           compile the information
           compile                                     commission under
                                      reported to the commission  under this
                                                                         this
                        with the assistance
           subchapter with
           subchapter                                comptroller and
                                 assistance of the comptroller             uniform
                                                                 and the uniform
           statewide   accounting system.
           statewide accounting   system.
                (b)
                 (b)       commission shall
                       The commission        conduct an analysis
                                       shall conduct     analysis of the
           information reported
           information                    commission under
                         reported to the commission   under this subchapter and
                                                            this subchapter   and
           report the results
           report       results of that  analysis to the legislature,
                                   that analysis          legislature, the
           Legislative Budget
           Legislative   Budget Board,          governor not later
                                        and the governor
                                Board, and                                 January 11
                                                                     than January
                                                              later than
                     odd—numbered year.
              each odd-numbered
           of each                year. The report    required under
                                              report required  under this
                                                                      this
           subsection must
           subsection           written in
                        must be written     plain language.
                                         in plain language.

           Added by Acts
           Added     Acts 1999,  76th Leg.,
                           1999, 76th  Leg., ch.        Sec. 15,
                                                   872, Sec.
                                              ch. 872,        15, eff.  Sept. 1,
                                                                  eff. Sept.      1999.
                                                                               1, 1999.
           Amended by:
           Amended by:
                Acts 2013,
                Acts         83rd Leg.,
                      2013, 83rd         R.S., Ch.
                                  Leg., R.S.,        1312 (S.B.
                                                Ch. 1312   (S.B. 59),  Sec. 79,
                                                                 59), Sec.       eff.
                                                                            79, eff.
           September 1,
           September     2013.
                      1, 2013.
                Acts 2013,
                Acts         83rd Leg.,
                      2013, 83rd         R.S., Ch.
                                  Leg., R.S.,        1312 (S.B.
                                                Ch. 1312   (S.B. 59),  Sec. 80,
                                                                 59), Sec.       eff.
                                                                            80, eff.
           September 1,
           September     2013.
                      1, 2013.



                 Sec. 21.554. FORM.
                 Sec. 21.554.          Not later
                                FORM. Not  later than December 15
                                                 than December        each year,
                                                               15 of each  year,
                commission shall
           the commission   shall notify each state
                                  notify each                      form to be
                                                    agency of the form
                                              state agency
           used to make
           used     make a report  under this
                            report under      subchapter for
                                         this subchapter          following year.
                                                         for the following  year.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.




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           CHAPTER 21. EMPLOYMENT DISCRIMIN...
                   21 EMPLOYMENT
                        .                                 http://www.statutes.legis.state.tx .us/Docs/LA/htm/LA.21 .htm
                                                          http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.21.htm



                                    FAILURE TO FILE
                        2l.555. FAILURE
                 Sec. 21.555.
                 Sec.                                REQUIRED REPORT;
                                                FILE REQUIRED             ADMINISTRATIVE
                                                                REPORT; ADMINISTRATIVE
           PENALTY. (a)
           PENALTY.     (a)            commission determines
                               If the commission
                               If                  determines that
                                                                that a state   agency has
                                                                        state agency    has
           failed to file
           failed       file a report    required under
                                  report required  under this   subchapter, the
                                                          this subchapter,
           commission shall
           commission             certify that
                         shall certify          determination to the comptroller.
                                          that determination            comptroller.
                 (b)
                 (b)   On receipt           certification by
                            receipt of a certification             commission under
                                                           by the commission    under
           Subsection (a),
           Subsection                comptroller shall
                          (a), the comptroller          notify the state
                                                  shall notify               agency that
                                                                      state agency   that
           is the subject
           is                          certification that
                    subject of the certification      that funds   appropriated to the
                                                            funds appropriated
           agency are subject
           agency                        reduction in the amount
                         subject to a reduction             amount of $2,000
                                                                        $2,000 as
                                                                                as
           provided by
           provided               section unless,
                           this section
                      by this                          later than
                                          unless, not later   than the 30th         after
                                                                         30th day after
                                     receives notice
                            agency receives
                date the agency
           the date                            notice from       comptroller under
                                                      from the comptroller     under this
                                                                                       this
                                agency submits
           subsection, the agency
           subsection,                                   comptroller proof
                                        submits to the comptroller     proof that
                                                                              that the
                    filed the report
           agency filed
           agency                        required under
                                  report required  under this   subchapter. If
                                                          this subchapter.     If the
           agency fails
           agency   fails to submit             comptroller the proof
                                submit to the comptroller         proof required
                                                                         required byby
           this subsection,
           this                       comptroller shall:
                 subsection, the comptroller       shall:
                      (1)
                       (1)    reduce the
                             reduce              appropriated to the
                                           funds appropriated
                                      the funds                         agency for
                                                                    the agency  for the
                                                                                     the
           fiscal year in which
           fiscal              which the agency
                                          agency fails
                                                  fails to file
                                                            file the report    required
                                                                       report required
           under this
           under         subchapter by
                  this subchapter              amount of $2,000;
                                       by the amount      $2,000; or
                      (2)
                       (2)   if all          appropriated to the
                                      funds appropriated
                                  all funds                        agency for
                                                               the agency   for the
                                                                                the
           fiscal year in which
           fiscal              which the agency
                                          agency fails
                                                  fails to file
                                                            file the report    required
                                                                       report required
           under this
           under         subchapter have
                  this subchapter      have been  distributed to the agency,
                                             been distributed                    reduce
                                                                        agency, reduce
                        appropriated to the agency
                funds appropriated
           the funds                                   during the next
                                                agency during             fiscal year by
                                                                     next fiscal         by
                amount of $2,000.
           the amount        $2,000.

           Added by
           Added    Acts 1999,
                 by Acts       76th Leg.,
                         1999, 76th Leg., ch.
                                          ch. 872, Sec. 15,
                                              872, Sec. 15, eff. Sept. 1,
                                                            eff. Sept.    1999.
                                                                       1, 1999.


                       2l.556. REQUIRED
                 Sec. 21.556.
                Sec.                       COMPLIANCE TRAINING
                                  REQUIRED COMPLIANCE  TRAINING FOR  STATE
                                                                 FOR STATE
           AGENCIES. (a)
           AGENCIES.     (a)   A state
                               A       agency that
                                 state agency       receives three
                                              that receives            more
                                                              three or more
           complaints of employment
           complaints                   discrimination in a fiscal
                             employment discrimination        fiscal year,  other
                                                                     year, other
           than complaints
           than                determined to be without
                 complaints determined           without merit,        provide a
                                                                 shall provide
                                                         merit, shall
           comprehensive equal
           comprehensive     equal employment opportunity training
                                   employment opportunity            program to
                                                           training program
           appropriate supervisory
           appropriate    supervisory and  managerial employees.
                                       and managerial  employees.
                (b)
                 (b)   The training          provided by
                             training may be provided          commission or by
                                                       by the commission      by
           another entity
           another   entity or person   approved by
                                 person approved                      including a
                                                         commission, including
                                                  by the commission,
           state agency.
           state  agency.
                (c)
                 (C)         state agency shall
                       The state                         documentation of the
                                                provide documentation
                                          shall provide
           training to the commission
           training                               training is
                               commission if the training          conducted by
                                                           is not conducted   by the


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LABOR CODE
LABOR CODE CHAPTER
           CHAPTER 21. EMPLOYMENT DISCRIMIN...
                   21 EMPLOYMENT
                        .                               http://www.statutes.legis.state.tx .us/Docs/LA/htm/LA.21 .htm
                                                        http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.21.htm



                               documentation shall
           commission. The documentation
           commission.                               include the dates
                                              shall include                   training
                                                                   dates the training
                provided, the names
           was provided,
           was                                         attending the training,
                                              persons attending
                                names of the persons                   training, an
           agenda for
           agenda            training program,
                    for the training             and the name
                                      program, and                     entity or
                                                          name of the entity
           person  providing the training.
           person providing        training.
                 (d)
                 (d)       commission by
                       The commission      rule shall
                                       by rule   shall adopt   minimum standards
                                                       adopt minimum   standards for
                                                                                   for
           a training   program described
              training program   described by   Subsection (a)
                                            by Subsection        and shall
                                                             (a) and        approve an
                                                                     shall approve
                       person to provide
           entity or person
           entity                 provide a training   program if
                                             training program           program
                                                                 if the program
                                minimum standards
                      with the minimum
           complies with
           complies                                 adopted by
                                        standards adopted            commission under
                                                              by the commission   under
                 subsection.
           this subsection.
           this
                 (e)
                 (e)   An agency               participate in
                                  required to participate
                          agency required                          program under
                                                              in a program  under this
                                                                                   this
           section shall
           section   shall pay      cost of attending
                           pay the cost                       program or shall
                                             attending the program       shall
                            commission or state
           reimburse the commission
           reimburse                              agency providing
                                           state agency                  program
                                                          providing the program
           through interagency
           through   interagency contract.
                                  contract. The cost
                                                   cost of providing        program
                                                            providing the program
                      determined and
           shall be determined
           shall                      approved by
                                  and approved          commission or state
                                                 by the commission      state agency.
                                                                               agency.
                       auditor may audit
                state auditor
           The state                            commission's expenditure
                                    audit the commission's     expenditure of fees
                                                                               fees
           collected under
           collected   under this           based on a risk
                                   section based
                              this section                                 performed
                                                               assessment performed
                                                        risk assessment
                          auditor and
                    state auditor
           by the state
           by                      and subject          approval by
                                       subject to the approval             legislative
                                                                   by the legislative
           audit committee
           audit                 including the audit
                  committee of including         audit in       audit plan
                                                       in the audit         under
                                                                      plan under
           Section 321.013,
           Section             Government Code.
                     321.013, Government   Code.

           Added by
           Added    Acts 1999,
                 by Acts        76th Leg.,
                          1999, 76th Leg., ch.
                                            ch. 872, Sec. 15,
                                                872, Sec.  15, eff. Sept. 1,
                                                               eff. Sept. 1,
           1999.  Amended by
           1999. Amended      Acts 2003,
                           by Acts        78th Leg.,
                                   2003, 78th  Leg., ch.
                                                     ch. 785,  Sec. 62,
                                                          785, Sec.     eff.
                                                                    62, eff.
           Sept. 1,
           Sept.    2003.
                 1, 2003.




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Appendix

 Tab 3
                                          Alamo Heights Junior School
                                          Alamo
                                    7607 N. New Braunfels
                                         N. New Braunfcls                        18209
                                                              San Antonio, Texas 78209
                                          Phune2l0—824-323i
                                          Phone                FAX:2l0—832-S825
                                                21 0-824-323 1 FAX: 210-832-5825



                 2009
        June 23, 2009


                 Brown
       Dr. Kevin Brown          .




       Superintendent of
                      of Schools
       Alamo Heights Independent School District
       Alamo
            Broadway
       7101 Broadway
                          78209
       San Antonio, Texas 7$209

       RE:
       RE:      Catherine Clark

       Dear Dr. Brown:
       Dear

        Cathaine
        Catherine Clark isis employed as a teacher/coach on    on the Alamo
                                                                       Alamo Heights ISD   [SD Junior School
       Campus. Six other teacher coaches work    work with Ms. Clark, conducting P.E. classes and/or
                       tearm. On
       coaching sport teams.       May 15,
                                On May   l S, 2008, Ms.
                                                    Ms. Clark informed meme ﬁn
                                                                             fur the first  time of
                                                                                     first tiine of complaints
                         rnembua of
       she held against members                      staﬁ (see Exhibit A). Thereafter, I conducted a series
                                   of her coaching staff
       of interviews, investigating her 52             charge. On
                                          52 separate charges.    On May         2008 I issued the attached
                                                                      May 23, 2008
       letter ofdetcrmination
      ‘letter                                              generally finding
              of determination regarding her complaints, generaJly                    no evidence to support
                                                                     ﬁnding little to no
       Ms. Clark's contentions. (See EXhibit
                                       Exhibit B).

       That list of charge  addressed matters alleged to have occurred as early as September 20, 2007.
                    charges addrssed                                                                    2007.
       Subsequent to mymy May               determination letter, Ms.
                           May 23, 2008 determinatfon.            Ms. Clark continued to forward similar
                                                                                                       similar
      complaints      me As
      complajuts to me.    As you  know, our giievance
                              you know,        grievance policy n:iquires work place complaints to be
                                                                requires work                         be filed
      within 15 working
      witlrin     working days  of their inception, but Ms. Clark had not
                          days of                                       not utilized the District's
                                                                                         District’: grievance
      policy to lodge any
      policy                of her complaints. Explaining the purpose of
                       any ofher                                          of the District grievance system,
      on October 29, 2008, I placed Ms. Clark on   on a growth plan as a Teach:
                                                                           Teacher Inin Need
                                                                                        Need ofof Assistance,
      directing her to improve peer ugnnnunication,                                   employml concerns
                                       communication, and to first communicate employment            conoems
      directly to Michelle :6oyer,
      directly              Boyer, he:  Campus Coaching Coordinator, and thereafter if
                                    her Campus                                            if needed, through
          Dish-iet’s grievance Policy. (See Exhibit
      the District's                          Exlubit C).

  AA                                 DGBA
     copy of Board Policy DGBA (Local), describing
     copy                                                                filing requirement and the
                                                 descnbing the 15-day ﬁling
  grievance procss,  was first
            process, was                  Ms. Clark‘:
                         ﬁrst placed in Ms.    Clark's private mailbox on    May 23, 2008. She
                                                                        on May                She was
                                                                                                  was
  provided with another copy
                        copy of                             mermrandum dated September
                               of the Policy, along with a memorandum            Septerriber 17, 2008.
  A                    was again handed to Ms.
    copy of the Policy was
  A copy                                          Clark in our meeting on
                                              Ms. Clerk                on October 29, 2008.

         Additionally, a copy
  (Note: Additionally,.         of the Policy was
                          copy of                           Ms. Clad:
                                              was handed to Ms.                      oflanuary
                                                                Clark in our meeting of January 29,
             yet another at our meeting of
                                                                               ‘
  2009, and
        iµid yet                         of April 8, 2009.)             ·

  On January 23, 2009 Mr.
  On                                      to me
                        Ms.. Clark issued fo riie a second series of complaints, again outside the
                              he’ complaints included allegations that:
  grievance Policy. This time her

         •0   Her cell phone
              Her                      been removed
                       phone had twice been         liom her desk and hidden in the trash can by
                                            removed from                  '
                                                                                              by
              other coaches
                    ooaches.                                      ·


                                           EXHIBIT D-07
                                           EXHIBITD-7
129
129




                                                                                                                 Page 11 of 8
                •         Her keys had been removed from
                          Her                               ﬁom herha desk twice, and hidden
                                                                                           Iµdden under the trash can
                          by other ooachm.
                          by         coaches.
                                     “reported” the removal of her keys ﬁom
                     •- She had "reported"                                   from her desk by    by other roaches.
                                                                                                             coaches.
                          She was
                     •- She                               by Coach Annie Monterrubio
                                                    “hit" by
                               was intentionally "hit"                         Monte:-rubio as she carried a box     box out
                          of the supply room
                                           room.    _


                    •0 That II . "blindsided"             when I directed her to attend a meeting where
                                      ‘1)lindsided” her when                                                      where wewe
                          discussed two grievances filed  ﬁled against her by   by her fellow coaches, as well as
                         missing student athletic funds for  fbr which she had responsibilities because  hecausell did not
                                                  Campus Athletic Director and Assistant Principal would also
                         inform her that the Campus
                         infurm
                         attend such meeting.
                   •- That itit isis my
                                      my responsibility to pnsinﬁarm
                                                            pre-inform her of my  my agenda whenever she is asked
                                       meeting with me.
                         to attend a ineet1ng
                  -• That there were witnesses to a verbal attaek      attack onon ha’  by Coaches Michelle
                                                                                    her by                 Nﬂchelle Boyer
                         and Christi Gonzales.                                               -
                 •- That all                       “snapping” at her, and she was
                               all coaches were "snapping"                         was being "buliied"
                                                                                                  "bullied" by them.
                •I She   She had been "yelled"
                                          ﬁrelled" at and "treated
                                                           “treated terribly byby three co-workers
                                                                                         no-workers in a row."
               0• That Michelle Boyer brings breakfast    breitlcfast tacos in the morning fur              eoachm except
                                                                                                       all coaches
                                                                                                  list all
                        her.                            ·
              •I That Michelle Boyer holds coaches meetings that exclude her.
              • That the ‘lather     "either coaches”         looked her out of the coaching ofﬁee
                                              coaches" had locked                                                 on three
                                                                                                           office o.n
                        specified dates.
                        speciﬁed                                                               ·
             •0 That Michelle Boyer, should be                  be required to report her                         Boyer’s]
                                                                                                 he: . [Coach Boyer's]
                        whereabouts to her [Ms.  [Ms. Clark], and that it it is “shocking
                                                                                 "shocking ......”                   'idon‘t
                                                                                                  " to her that I "don't
                       agtee that the head ofa
                       agree                    of a department should let  let he
                                                                                her employees know   know where she is    is
                       and when     she' JI be out."
                             when she'll                                                                    '




            •I That she       she“had            for the District yievance
                                   "had to ask ﬁ:rtheDistrict                  ﬁmn seven
                                                                  grievance fonn     se'venh'mes."
                                                                                             times."
            • That on ﬁve         five separate occasions, print jobs which she had prepared were "wadded        “wedded
                       up"
                       lip" and thrown away by    by others.
           •0 That she does not need to improve her communication      co:tnmunication skills,
                                                                                          skills, it's                 who
                                                                                                     it’a the others who
                            at fuult.
                       are at  ﬁmlt.
          -• That all         all the above was in·                     ﬁr her having previously filed a sexual
                                                     in "retaliation" fur
                       harassment charge.

      Manyof
      Many of the above complaints were also the subject of e-mail reprimands Ms. Clark had
      forwarded directly to colleagues.
      {forwarded                                     again, I investigated such charges, but was unable
                                                Once agam,
         End support fur
      to find        lbr her claims.

      On                  Ms Clark fo!Warded
      On February 6, 2009 Ms.                    me a third set of cxqmpiainta,
                                   ﬁwrwarcled to me                complaints, again not using ·                         <




      DGBA (Local).
      DGBA                time, among
            (Local). This time, among her claims she alleged:                                    .




          -•    · That Michelle Boyer has ruiked           away "balls and Frisbees" that were not
                                          asked her to put away
                    hers.
           0•       That all
                         all coaches were ignoring her request for coaching assistance.

          •0        That none
                         Iione of the coaches
                                      ooadles would speak to her.




130
130




                                                                                                                               Page 2 of 8
                 •  That Michelle Boyer   was playing loud music and reﬁrsed
                                    Boyer was                             refused to tum     down when
                                                                                          it down
                                                                                     turn it       when
                    she requested.
                    she.requested.
                 • That "last minute"         changes had intentionally not been oornrnunicatecl
                               minute" venue .changes                                 coinmunicated to
                   her.
                • That Coach                                at her “bottom”
                                             was "staring" at.her
                         Coach Monterubbio was                      "bottom."
                • That her desk                            two clipboards
                                                      and two
                             de8k had been ransacked aud        clipboan:ls taken.
                • }hat   Coach Gonzales blocked her way
                   That Coach                         way at the door one morning.
                                                                             rooming.
                • That coaches were talking about missing student activity monies in front
                                                                                         that of her.
                            of the above was
                • That all of                                 liar her having previously filed a sexual
                                                “retaliation” for
                                         was in "retaliation"
                   harassment charge.

                       had again sent e-mail messages regarding the above to colleagues
           Ms. Clark had                                                          colleagues. II also
                                                         unable to ﬁnd
           investigated these claims and was, once more, linable                fur her allegations.
                                                                   find support ﬁor

           On
           On             2009, Ms. Clark used the grievance Policy to tile
                      X5, 2009,
                April 15,                                              file a grievance .against
        Coach
        Coach Monterubbio ﬁir ror assault. SheShe alleged that Coach
                                                                  Coach Monteruhbio
                                                                          Monterubbio .iiitentionally
                                                                                          intentionally
        sho_ved    from behind when
        shoved her from                      were both
                                 when they were                                during an exercise run.
                                                         supervising students during
                                                   bothsuper\tising
        Coach Montcrubbio
        Coich                admitted to having shoved her [Ms.
               Monterubbio admittai                             [Ms. Clark],         that she.
                                                                     Clark), stating that  she thought
            Cfark was
       Ms. Clark  was one of                 who she was
                            of the students who                                               end of
                                                      was ushering into the building at the and    ofaa
             She said she apofogized
       run. She           apologized on              Ms Clark acknowledged the apology,
                                       on the spot. Ms.                             apology, insisting
       that    the incident was  w;is    an intentional       assault and was   was intended         to
                          She claimed that the act was
       intimidate" her. She                            was in retaliation ﬁar
                                                                          fu:r her having
                                                                                   having previously
       reported that she had
                         bad been sexually harassed by  by the Coach. The
                                                                       The grievance resobztion
                                                                                       resolution she
               was either her transfer or the transfer of Coach
       sought was                                         Coach Monterubbio to another campus.

       On                         attpt to better understand her grievanee
       On April 21, 2009, in an attempt                           grievance charge ofof intentional
                                                                                        intenﬁonal
       assault, I posed a set                                 Exlubit B
                          set of inquires to Ms. Clark. (See Exhibit     attached).. On
                                                                      E attached).       April 22,
                                                                                     On Apri,l  22,
       2009, Ms. Clark responded to my my inquiries by describing an additional set of
                                                                  ai1additionalset     complaints
                                                                                    ofcomplaints
            Exhibit F
       (see Bxlubit F attached), which are summarized as follows:
                                                          ﬁsllowsz

       l.
       l.         Coach
                  Coach Monterubbio has a"        a "....... history of    her unpredictable and
                                                                        ofberunpredictable       and miss
                                                                                                      crass behavior."
       2.         Coach   Monteruhbio "“...
                  Coach Monterubbio                      bullied ... [her] ... for 18 months."
                                             .. . has bullied
      33.         Coach
                  Coach Monterubbio .told told herher".      : . that she has harmed others in the past who
                                                          “._..                                                who tattled
                                                                                                                     tattlod
                  on
                  on her."                                   .              -




      4,          M; Clark is"
                  Ms.             ... constantly feeling ill
                              is "...                                                           every morning
                                                                             [is] so nervous every
                                                                    ill and [is]                                  when ...
                                                                                                       morning when
                 [she]      comes to work."
                  [she] ... comes       work"
      5.          She has "“...an    extreme amount
                             ...an extrane        amount of           stress and ill
                                                                  ofstrcss          ill health because ... (she       is]
                                                                                                               [she is]
                 :frightened  of. .. " Coach
                 ﬁightened of..."      Coach Monterubbio.
                                                 Monten¢bi0.
      6.         Coach
                 Coach Monterubbio ""....     .. aoowls
                                                 scowls and grunts when      when walking past ...      "her.
                                                                                                     ..." her.
      7.         "Within earshot of
                 "Within                of students, parents, substitute teachers,           teachers, and staff,
                                                                                                                staff,    . ..
                 [Coach Monterubbio] ... continues to cuss and threaten."         threaten.”
      8.         Coach
                 Coach Monterubbio "“....        makes fun
                                             .. inakes        ﬁm ofof not
                                                                        notjust
                                                                            just'[her]            studentS, parents, and
                                                                                 [her] . .. , but students,
                                                                                         ,

                           on a daily basis.''
                 teachers ona           basis.”         .




      9.         Coach   Montenlbbio "“.....1·bad
                 Coach Mqnterubbio               bad mouths
                                                       inouths others and has no           concern for discretion."
                                                                                        no concem         discretion."
      10.        Coach   Montembbio "...
                 Coach Monterilbbio       " ... exhibits unprofessional behaviorduring
                                                                                     behavior.during class, at games,
                                                                                                                   games,
                and during praotioa."
                           practices."




131




                                                                                                                                 Page 3 of 8
                  11.                  In the athletic oﬂioe,
                                       Ih              office, ... [Coach Monterobbio]                 on a daily basis by
                                                                          Monterubbio] ... is hostile on                by
                                       saying derogatory things about ... [her] ... to others which are meant for ... [her]
                                                                                    l0'OthC1S                         [her]
                                       ... to hear.”
                                              hear."                       ·           ·
             12.                       Coach
                                       Coacb.N[onterubbiois     .. . known
                                               Monterubbio is "“...        to habitually snap at
                                                                     khownto                  at. ..
                                                                                                  .... [her]. .. , other coaches,
                                                                                                       [her]...    .

                                                 and parents."
                                       students, ahd parents.”                                                                     ·
         13.                           Coach Monferubbio
                                       Coach  Monterubhio teases"   ... students and staff ... ,, causing trouble."
                                                            teases “...
         14.                           Coach Monterubbio "“...
                                       Coach                 ... shouts at students and fellow coaches."
         15.      Coach Monterubbio uses"
                  Coach                    uses "... ... profanity and/or talks about barhopping and having
                  sexual relations the previous night" in the presence
             .oo§.’c?.7$.iT=:;




                                                                       praence of students.
                                                                                     students
        16.       She feels "“...
                  She          ... that her [Coach Monterubbio's]
                                                            Monterubbio’s]...  ... aggressive and unpredictable
                                                                                                      unpredictal:>le
                  nature is a concern regarding our     bur students."
        17.       Coach Montenibbio
                  Coach   Monterubbio "“...       exhibits inappropriate language and gestures ... showing
                                             ... exlubits
                  the children ofof this community that it               okay to bully,
                                                                   it is okay                     dirty, and to be
                                                                                    bully, talk dirty,            be
                 outspokenly negative."
        18.
        ..       Coach
                 Coach Monterruhio
                          Monterrubio "...
                                 I
                                                  falks about sex and female body
                                           "... talks                                body parts ... in the girls’
                                                                                                              girls'
                         room every day
                 locker room                  among our children."
                                       day among
        19.      The                   [rig] was ripped oﬁ_‘
                       ..• antennae [sic}
                 The "“...                                           of ... [her]
                                                                off of             car the very
                                                                            [her} cat      very evening that ...
"                [she)                [me] that ... [Coach Monterubbio] ... pushed ... [her] ... in the
                 [she] reported to [me]
            . rback.
              -back. AndAnd ... [she is]
                                       is] ... fearful
                                                 fearfulthat                            will occur.“
                                                          that additional retaliation will   occur."
       20.      Coach
                Coach Monterubbio         cli.ased her in her car on an unspecified
                        Monte:-ubbio chased                                  unspeciﬁed date at 11:35:35 P.M.
       21.      Pornography was was"“...... displayed on  on ... [Coach
                                                                  [Coach Monterubbio's] ...   . . cellphone
                                                                                                  cell phone to .. ....
                                                                                                               .




                [her] ... and the other touchescoaches on Valentine's Day    Day 2008, and the dirty pictures
                and  oft‘-colored jokes ... were e-mailed from
                and off-colored                                                         Monte:-ubbio's] District
                                                                     from her [Coach Monterubbio's)
               computer (that is,     one District e-mail address to another District e-mail address) to
                                  is, one
                ..• [her] .,. and to others and ‘this             ·this is    “... another example
                                                                         is "...               example of  of her
                         Monterubbio 's] disturbing character."
               [Coach Monterubbio’s]                         characta.”
       22.     Coach    Monterubhio "“...
               eoach Monterubbio                                                               twice; with a box,
                                                               [her] ... (with her shoulder twice,
                                           ... touched .. . {her]
               and now
                     now with both
                                 ooth hands when  when pushing ... [her] ... in the back). When    When walking
                                            oﬁce, Coach
               past ... [her] ... in the office,       Coach Monterrubio
                                                               Montenubio purposeﬁllly        “brushes” ... [her]
                                                                               purposefu11y "brushes"         [ha]
               ... body."
       23.                           Coach MonterubbiO
                                     Coach Monterubbio "...
                                                        “. .. is no doubt retaliating against
                                                              is no                                   [her] . . . and has
                                                                                        against . . . [her]
                                     become
                                     become more aggressive because ... [she] ... tattled on
                                            more aggremive                                       Coach for
                                                                                          on the Coach    br her sexual
                                  harassment last year when               cm1id not stop herself
                                                             when she could                           irom commenting about ......
                                                                                             herilelf from
                                  [hedbodypartsto
                                  [her] body parts to ... [her]          and other coarhes.”
                                                              [her] ... andother     coaches."
      24.                         Coach Monterubbio'sh...
                                           Monterubbio’s"... behavior .. . seems to be overlooked by                      by both
                                  Michelle  Boya and by
                                  Miehelle Boyer            by you
                                                                you [me]."
      25.                         When "··-
                                  When   "... parents and other campuses report . .. [Coach          [Coach Monterubbio's]
                                                                                                               Monta:ubbio's]
                                  unproiicsional
                                  unprofessional behavior to Michelle Boyer,    Boyer, it  is not addrmed."
                                                                                        it is     addressed."
      26.                         "As athletic supervisor, Michelle Boyer
                                  "AB                                       Boyer does not treat the coaches eqilally."
                                                                                                                   equally.”
      27.                                                        harassment by
                                  Since reporting sexual harassment              by Michelle BoyerBoyer against .. . [her]
                                                                                                                        [her] ... ,,
                                  Coach Boyer
                                  Coach  Boyer"  “....
                                                    .. has picked on    on ... [her] and treated ... [her)
                                                                                                        [her] ... unprofessionally
                                 on
                                 on a        basis ..'.”
                                     a daily ha.Sis         and "“....
                                                     .. '." and.                             slammed aa drawer and a door that
                                                                    .. [Coach Boyer] ... slammed

                                 rwllyhurt
                                 really hurt ... [herJ                   ﬁightened ... [her]."
                                                 [her] . . ;eari; and frightened
      28.                                   Boyer "...
                                 Michelle Boyer"                 made a verbal
                                                      .. . also m.ade                     to" [her].
                                                                           vt;rbal threat to"  [her].




132




                                                                                                                                       Page 4 of 8
              29.      Other unspecified "“...                                were reported to [me]
                                             . .. incidents ... occurred, and were             [me] ... in ...
                                                             (May 2008), [and] in letters e-mailed to ... [me)
                       [her] ... report [to me] last Spring (May                                          [me]
                           on several occasions."
                       ... on

             On                               communique to Ms.
             On April 22, 2009, I prepared a conunuoique                                             of
                                                               lvfs. Clark regarding the disposition of
             these 29             complaints. (See Exhibit G)
                   29 additional complaints.                     M5. Clark added these allegations to
                                                           G).. Ms.
             her originai grievance. (See Exhibit HJ
             heroriginal                          H).

         . Meanwhile, onon April 29, 2009 Ms. Clark was                    TAKS testing as part of her
                                                          was monitoring TAKS
           teaching msignment.
                    assignment. A  A cell phone rang during the test. AsAs you know, itit is a violation of
           TAKS
           TAKS protocol   ii): a student to have a cell phone
                  pmtocol fur                             phone during the tests. A A diligent search was
                                                                                                       was
           made
           made to determine the source of of the phone  ringer — it
                                                  phone ringer-   it was     lbund. Then
                                                                     was not foilnd.                   was
                                                                                      Then the phone was
          heard again, at least twice more.            This time another teacher/monitor identified
                                                                                                 identiﬁed
          Ms.           phOne as the source of
          Ma. Clark's phone                                            same day Ms.
                                                         ring. That same
                                                 of the ring.                     Ms. Clark prepared a
          handwritten explanation of  of these events. (See attached Exhibit I).  1).   She subsequently
                                                                                        She
          attempted to clarify her earlier explanation through a typed report. (See Exhibit 1).  J).

         In the weeks ensuing, the administration
                                     administration and                        Coach Monterubbio
                                                    antllI decided to transfer Coach Monteruhbio to
         another campus, the re111ecl.y Ms. Clark requested to her grievances. I assumed, or hoped,
                               remedy Ms.                                                    hoped.
              by this action -— separating Ms.
         that by                            Ms. Clark from
                                                        Ii-uni Coach   Montaubbio -— would have a
                                                               Coach Monterubbio
         calming effect
                  eifect on                             office —
                         on the Junior School coaching olﬁce     it did not.
                                                               - it

        Almost immediately following
        Almost                           Coach Monterubbio's
                              iiollowing Coach Montcrubbio’s reassignment, Ms. Clark began a
        new campaign of
        new                             of Coaches Boyer and Gonzales. Among
                        of complaining of                              Among her allegations
        Ms. Clark
        Ms. Gia.ck claimed:

         l.
         1.           That she was
                                 was intentionally snubbed by     Coach Boyer when
                                                             by Coach             when she "turned her back"
                    . on  her at a
                      on her.                     coaches' oﬁce
                                 a meeting in the coaches’ office on on April 28, 2009;
        2.            That she was                      "lying" by
                                 was falsely accused of “lying,"      Coach Boyer when
                                                                   by Coach                     was questioned
                                                                                     when she was
                                         of Coach Boyu”s
                      as to the location ofcoach   Boyer's missing keys, which Ms. Clark admittedly
                                                                                                 adm.\ttedly last
                      possessed at a meeting in the coaching office  oﬂice on               2009 (which I also
                                                                            on April 29, 2009
                      attended);
                      attended);                                 ·
        3.            That she waswas falsely accused of of "lying" whenwhen Coach     Boyer questioned her
                                                                                Coach Boyer
                      statement at that meeting that she waswas "the     first person in the oﬁico
                                                                    “the first                 office (at work)
                      every moming";
                             morning";
        4.           And            same meeting she had "“...
                     And at that same                        ... answered each of...       [my] questions in a
                                                                                    of ... [my]
                     polite manner and acted professional ....."  "

         On
         On April 29, 2009, I presented Ms.    Ms. Clark with a set of                            new
                                                                       of inquiries about these new
         complaints, as well as others meviously         lodged. (See Exlnlait
                                             previously Iodged.                           K
                                                                         EXhibit K attached). My            My
         communique recognized that where
         communique                                                ditfering descriptions of the same
                                         where there are repeated differing                      same
                   determination of
         events, a dete.mrillation of the dependability of one source over the other will one:wm
                                                                                          often lie in
                                          ctedﬂaility of the accuser to that of
        judging, and comparing the .credibility                                        accused. My
                                                                               of the accused,              My
        communique
        communique also recognized that I had been present at certain events made    made subject of
        this latest list of Ms.
                            Ms. Clark‘:
                                 Clark's complaints. ByBy eomparing
                                                           comparing Ms.   Clark's recitations of the
                                                                      Ms; Clark’s
      . facts of those occasions to my
        ﬁrcts of                      my recollection of the same
                                                             same events she depicted, I was
                                                                                          was able to.




133
133




                                                                                                                    Page 5 of 8
               some general conclusions regarding Ms. Clark's
        reach some                                     Clark’s credibility. I concluded that her
                                   were mostly not credible. Thus, as an
        depictions of these events were                                 an immediate a solution to
                         was the earmark of the coaching office
        the tension that was                                                                    on
                                                         oﬁlce at the Junior School this year, on
        May l,I, 2009, Ms.
        May                      was placed on
                       Ms. Clark was                          leave,'a
                                            on administrative leave,' a status which she continues
                                      L attached).
        to occupy today. (See Exhibit L

       II then enlisted the aid of     Dana Bashara to investigate and
                                of Dr. Dana                        and determine a response to the
       remainder ofof Ms.
                      Ms. Clark's
                           Clark’s multiple grievance allegations. From  May 12, 2009
                                                                   From May               May 28,
                                                                                  2009 to May
       2009 Dr. Bashara interviewed coaches, teachers andand students, as well as Ms. Clark.

                Ms. Clark's
       Despite Ms.    Clark‘s grievance allegations, the investigation did not find   evidenm to
                                                                                 ﬁnd evidence
       conclude that she had been intentionally assaulted by  by Coach                Nor did the
                                                                 Coach Monterrubio. Nor
                                     for the remainder of
       investigation yield support fur                          claims, Nevertheless, we
                                                        of her claims.                we did not
       disturb our denision
                     decision to transfor   Coach Monterrubio to another campus
                                   transfer Coach                              campus setting as
       Ms. Clark had previously requested in her grievance. The    The Level I grievance decision
                               had requested is attached as Exhibit M.
       granting the relief she had                                  M.

       However, one of of the teachers on.
                                       oThmy  campus met with me
                                           my campus                                           she
                                                                      describe a conversation she
                                                                me to de!;cribe
       had held with Ms. Clark on on April Q3,         According to that teacher's
                                            23, 2009, According                           Briggs’)
                                                                         teachcr’s (Janet Briggs')
                                          made the following statements to her:
                               Ms. Clark made
       unsolicited statement, Ms.


              "-   Coach
                   Coach Monterubbio had                                    campus and
                                           had been transferred to another campus             now "no
                                                                                    and could now
                          push people around";
                   longer push           aroun ";
               •- Junior School coaches are having sexual affairs with one one another;
                   Iunior School girls'
               ., Junior                               “lesbian dikes [sic]"
                                   girls‘ coaches are "lesbian               who "get
                                                                      ﬂsicj” who  “get drunk and
                                                                                             and share
                   men;”
                   men;"
              •- Certain named               were making
                            named coaches were    making "rude
                                                           “rude gestures" behind her back;
              • Coach
                   Coach Monterubbio had cursed at a referee refereeat
                                                                     .at a meet, and at another time
                   “ﬂipped off'
                   "flipped                                       been reported to Coach
                             off’ a parent. These incidents had been                              who
                                                                                    Coach Boyer, who
                  “did nothing about it";
                  "did                  it”;

              • Either or both Coach                 Coach Monterubbio
                                   Coach Boyer and Coach     Monterubbi9 had
                                                                          bad vandalized her vehicle;
              • She had attended a                            Basham that she was
                                        a meeting with Dr. Bashara                               keep
                                                                                 was directed to keep
                  conﬁdential;                 shewould
                  confidential; nevertheless she                                        meeting if the
                                                   would answer questions about that :meeting
                               was, addressing would
                  teacher she was               would only ask.

      Other Dr. Bashara interviewees provided interview testimony regarding Ms.
      other                                                                        Ms. Clark's
                                                                                       Clark's
                                                 classroom and
                                       name1y.c1essroom
      teacher/coaching performance, namely.                                   management and
                                                           and instructional management     and
      coaching perfurmance
                pertbrrnance issues, almost all of which had
                                                of which had not previously been            my
                                                                            been brought to my
                                               oonoems:
      attention. These included the following concerns:

         •         At the morning and                                 was often not on
                                                  practiees Ms. Clark was
                                   and afternoon practices                          on the ﬁeld  or in
                                                                                           field or
                   the gym                                  was engaged with her laptop oomputer
                                               roaches, but was
                       gym assisting the head coaches,                                   computer or
                   the computer in the criaching
                                       coaching office.
                                                 office,
         •I        Despite having been instructed by me                                         work,
                                                         me to not have her daughter attend work,
                   Ms. Clark had continued,    on at least two occasions, to care for
                                   continued, on                                   fur her daughter
                          wo rking hours.
                   during working




134
134




                                                                                                         Page 6 of 8
             •    Ms. Clark                                                         Montenrbhio and
                       Clark told at least two District employees that Coaches Monterubbio
                         were sexually involved.
                  Boyer were
             •                                                               PE. classes.
                  Ms. Clark frequently permits her students to not dress for P.E.
             •    Ma. Clark complained of
                  Ms.                     of her treatment by other        to her students.
             •    Ms                                                    Montmrbhio had stolen and
                  Ms. Clark told her students that Coaches Boyer and Monterubbio
                  disposed oflter
                           of her keys.
             •                                                          Mcntenubio had stolen and
                 Ms. Clark told her students that Coaches Boyer and Montenubio
                 disposed of
                           of her cell phone.
          •                 commonly shares her private life with her students.
                 Ms. Clark commonly
          •
          3000
                 Ms. Clark has not followed lesson plans.
          •      Ms. Clark has
                            bas not maintained daily grades for her students.
          •      Ms. Clark has not maintained reasonable orderliness in her section of the
                 coaching office, or her desk and cabinets.

      On
      On May                      was interviewed by Dr. Bashara II have carefully .considered
                   2009 Ms. Clark was
          May 28, 2009                                                              considered
      her interview responses, along with the interview responses and statements, and
      responses of                                                                       have
                 of other interviewees, as well as other investigation materials, and ]lave
                  bllowing significant
      reached the following            ﬁndings concemingMs.
                            signiﬁcant findings                  Clark: _
                                                oonca'n.ing\M\a. Clark;
                                                                      '            ....
         •                     AHISD teacher Janet
                She stated to AHISD
                She                               Jariet Biggs on
                                                               on April 23, 2009 and to Coach    Coach Debbie
                Cathey on                                 lbund it
                        on another occasion, that she found       it "                  work in the coaches’
                                                                       ... difficult to work
                                                                     “...diﬂicult                     coaches'
                oﬁice
                office with lesbian dike [sic]
                                          [Zvic] coaches who    gd drunk and share men.”
                                                          who get                         nien."
          • She She stated to teacher Janet Biggs on  on April 23, 2009, and to Coach  Coach Debbie
                                                                                                Oebbie Cathey     ‘




                on another occasion, that
                on                    that Coaches Monterubbio and Boyer are sexually involved.
          • She       also stated to teacher Janet Big:
                She abc                                          Biggs on    on April 23, 2009 that
                Coaches Monterubbio and Boyer were "making  “making rudemde gestures" behind ... [her)[her] ...
               back.                                                                                   .
          • On On April 29, 2009 her cell phone                 audthly during a TAKS
                                                 phone rang audibly                              examination..
                                                                                        T AKS examination.
                          was aware that
               Ms. Clark was            t4at exam   oﬁcials and others were
                                             exam officials                   were attempting to learn the
                         of the phone. She
               location of                       was also aware that test protocol does not permit
                                           She was                                                       peimit
                           posts: aa phone during testing. Her
               students to possess                               Her phone rang at least one more time
               during the testing period. She was     was aware ofthc
                                                                    of the fact that it   it had rung. She  She
               provided conflicting, and therelbre           statcnmits regarding this
                                           therefure false statements                   this event.
                                 repeatedly claimed that Coach
                                                                                          '
         • Ms. Clark has repeat<;Xlly                          Coach Boyer has ignored        red oomplaints
                                                                                                   complaints
              received regarding Coach        Monterubbic’s conduct. There :Is
                                     Coach Monterubbio's                                     no evidence to
                                                                                         is no
              support these claims
                             claims.
        • Ms. Clark has repeatedly claimed to others,          othas, including her students, that
              Coaches Boyer
             ·Coaches   Boyer and Monterubbio vandalized her automobile. There is no reason
              to believe this allegation of
                                          of crllninal
                                             criminal wrongdoing.
        • Ms. Clark has           repeatedly claimed to others, including her ..s_tude|1tS,
                            ha5 repe<itedly                                                    students, that
                                                                                                           that
              Coaclm
              Coaches Boyer          Montemhbio stole her keys and cell phone
                        Boyer and Monterubbio                                         phone. · There is  is no
                              asserted, or to believe these allegations of
             reason to have asserted.                                                       wrongdoing.
                                                                                 criminal wrongdoing.
                                                                               ofcriminal
        • Ms. Clark is distrustful      of Coaches Cathey and Elliot. She
                            distrustful of                                     She distrusts Coach Cathay
                                                                                                      Cathey
             because she behaves     that she [Coach Cathey]
                           believes that                 Cathay] "hangs              bars.'; She stated that
                                                                   “hangs out in bars."
           ."she                ﬁom unidentified
             she learned this from   unidentiﬁed "students."




135
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                                                                                                                      Page 7 of 8
               111       She            Coach Cathey of having "gone
                         She accused Coach                           “gone through"        “belongings” in the
                                                                            through” her "belongings"
                                   oﬁice.
                         coaching office.
               "         She further does not "trust"      Coach Cathey because she has seen the coach
                                                  “trust" Coach
                                          class.”
                         "texting during class."
            ..                               Coach Cathey "snickers"
                         She claims that Coach                 “snickers” at her, and then "runs“runs over to
                         Coach Boyer
                         Coach  Boyer   with a
                                             a smile on
                                                     on her face.”
                                                            face."                     -




            "           In the morning andand afternoon
                                               attemoon coaching sessions, she spends a sjgnificant     amount
                                                                                            signiﬁcant amount
                        of time in the coaches'           on the computer or sitting on
                                         coaches’ office on                             on the bench with her
                                           when she was to be
                        laptop computer, when                be actively assisting the head coaches.
           •            She claims she had
                        She                                            “paperwork person," spending time in
                                         had been designated as the "paperwork
                        front of the computer in the coaches'
                        ﬁont of                        coaches‘ office, or with her laptop computer because
                             was the "white
                       she was        “white coach,"                                                  Gonzales
                                              coach,” and was also instructed to do so. Coaches Gonzales
                             Boyer disagree with both contentions, and I find
                        and Boyer                                              ﬁnd their explanation ofof these
                       matters to be the credible versions.
           "              directed her to not have her daughter with her on
                       I dkected                                               campus during working
                                                                            on campus          working hours.
                       On                                                               my directive.
                                                             thereaiter, she disobeyed niy
                       On at least two separate occasions thereafter,
           •           She has not consistently required her students to dress in gym
                       She                                                                                 PE.
                                                                                         gym clothes for P.E.
                       activities:
                       activities. In one  of her classes, fuur
                                       one of                                           permitted to not dress
                                                           four students are regularly perrm"tted
                 · ‘

                                    gym clothing.
                       in required gym                                                          '           .-

       My conclusion isis that Ms.
      My                         Ms. Clark's                  been the primary cause of
                                       Ciark‘s conduct has been                          of extreme
                                                                                             extreme
      disruption to the workplace, and an unacceptable disturbance to the educational goals of     of
      the Junior School coaching office and campus. I also find    ﬁnd that      teadiing/coaching
                                                                        ﬂint her teaching/coaching
      perfbrmance has been severely substandard. I find
      perfurmance                                         ﬁnd that she has not been truthful
                                                                                     tiruthﬁil in the
      course of
              of this investigation. WeWe have tried bard
                                                       hard but have been unable to resolve these
      matters over the course of                                my opinion, Ms. Clark's
                                of this instructional year. In my                Cisrk’s conduct is
      irremediable. I am
      irrernediable.    am proposing the termination of of her teaching/coaching                good
                                                               teaclﬁng/coaching contract for good
      cause.
      CHIJSS.


      Sincerely,


                Kersimer
      Stephanie Kershner                   .




      Principal




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                                                                                                                  Page 8 of 8
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Appendix

 Tab 4
                       Alamo Heights Independent School District
                       Alamo
                       Broadway - San Antonio, Texas 78209
                  7101 Broadway•                     78209 •Phone
                                                           - Phone 210-824-2483
                                                                   210-824-2483




         2009
July 14, 2009


Ms. Catherine Clark
Ms.

San Antonio, Texas 78209

Re:    Alamo Heights
       Alamo         independent School
             Heights Independent School District

Dear Ms. Clark:
Dear

                                     Alamo Heights Independent
                        you that the Alamo
This letter will notify you                        Independent School
                                                                School District BoarQ
                                                                                Board_ of Trustees
met on
met        June 25, 2009, at a duly noticed meeting, and
      on June                                                 and received andand accepted the
Superintendents recommendation
Superintendent's                                                        employment contract for
                    recommendation to propose the termination of your employment
good cause, as
good           as authorized by    Texas Education Code, Chapter
                               by Texas                              and as
                                                         Chapter 21, and  as supported by    Board
                                                                                          by Board
          DF (Legal), DFD
Policies DF                               DH (Legal), DH
                            DFD (Local), DH            DH (Local), DH
                                                                    DH (Exhibit), DFDDFD (Legal),
DFD (Local), DFCA
DFD             DFCA (Legal), DCC               DCC (Local), DFCA
                                  DCC (Legal), DCC                            DGBA (Legal), and
                                                             DFCA (Legal), DGBA                and
DGBA (Local) (Policies attached).
DGBA

The proposal to terminate your employment
The                                          made for the following specific reasons,
                               employment is made
individually and
             and collectively:

       1.       Repeated failures to work
                Repeated             work cooperatively with your teacher colleagues.

       2.                                                                     and good
                Repeated failures to maintain effective working relationships and
                Repeated                                                          good rapport
                with colleagues.

       3.                                  work place and
                Causing disruptions to the work       and teaching environment.

       4.                                as a teacher.
                Diminished effectiveness as

       5.       Repeated unprofessional and
                Repeated                and inappropriate conduct, and
                                                                   and conduct breaching the
                               Code of Ethics.
                Texas Educator Code
                Texas

       6.       Repeated failure in the performance of duties.
                Repeated

       7.       lnsubordination.
                Insubordination.

       8.       Failure to complete                                      2008 Intervention Plan
                           complete the requirements of your October 29, 2008
                    Teacher in need
                for Teacher    need of Assistance.

       9.                          an official District investigation.
                False reporting in an

       10.      Repeated and
                Repeated   and continuing failure to comply
                                                      comply with Board Policies, administrative
                                        and directives.
                regulations, procedures and



                                         EXHIBIT D-9
                                         EXHIBIT D-9

138
138
         2009
July 14, 2009
Page 22
Page




        11.     Your deficiencies pointed out in observation reports, appraisals or evaluations,
                Your
                                       memoranda, or other communications.
                write—ups, directives, memoranda,
                write-ups,                                 communications.

        12.     Examples                         one or more
                Examples of conduct illustrating one    more of items 1-11
                                                                      1-11 above, include but are
                not limited to:

                -      voicing complaints about your teaching colleagues to students;
                -      informing students andand faculty that colleagues were      engaged in sexual
                                                                              were engaged
                       relationships;
                -      informing students and  and faculty that your teaching colleagues were      were
                       stealing your personal property;
                -      informing students and and faculty that your teaching colleagues were       were
                                     your motor vehicle;
                       vandalizing your
                -      failure to prepare lesson plans;
                -      failure to maintain daily grades;
                -      failure to consistently apply dressing rules for your P.E. classes;
                -                 complete special education documentation
                       failure to complete                                                   classroom
                                                                  documentation regarding classroom
                       modifications;
                -                              management;
                       ineffective classroom management;
                -                                                                September 17, 2008
                                   comply with your Principal's directive of September
                       failure to comply                                                           2008
                                       presence of your child(ren) in the workplace;
                       regarding the presence
                -      false reporting in an official District investigation;
                -      failure to complete the requirements of your October       October 29, 2008 2008
                                                           Need of Assistance;
                                              Teacher in Need
                       Intervention Plan for Teacher
                -      failure to comply with the no-cell-phone                                   TAKS
                                                     no-ce|l—phone prohibition for monitors of TAKS
                       examinations in Spring semester, 2009;
                -                                new teacher brunch meetings as directed;
                       failure to attend weekly new
                -      failure to comply       campus sign-out
                                  comply with campus     sign—out procedures in Fall semester, 2008;
                •-                                             September 17, 2008
                                                   copy of a September
                       failure to return a signed copy                         2008 letter as directed;
                -                 meet Teacher
                       failure to meet  Teacher Choice    Day deadlines;
                                                  Choice Day
                -      failure to cooperate in a District investigation;
                -      failure to meet   Code of Ethics Standards
                                   meet Code              Standards 1.7, 2.1 and    23. Board
                                                                                and 2.3.  Board Policy
                       DH (Exhibit).
                       DH

If                            proposed action, you
If you desire to contest this proposed              must notify the Board
                                                you must                               and the
                                                                    Board of Trustees and
Commissioner of Education in writing pursuant to Education Code
Commissioner                                                    Code §§21.159(a)  and 21.253.
                                                                      §§21.159(a) and  21.253‘
                Board of Trustees,
Notice to the Board                 and all
                          Trustees and              communications in this matter, should be
                                        all further communications                          be
                                                      517 Soledad
                                       Schulman, at 517
directed through our attorney, Robert Schulman,                            San Antonio,
                                                          Soledad Street, San            Texas
                                                                               Antonio; Texas
78205.

If you do not contest the Board
If you                                                                                       and
                           Board action, the Board shall proceed on the proposed termination and
                     deems appropriate. Education Code
take the action itit deems                        Code §21.159(c).




139
139
     14, 2009
July i4, 2009
Page 3
Page




 ylC&r
 Yours



 Lo
         truiy,




 Craig Clayton
 President, Board ol
                  of Trustees

Enclosures:
        Board Policies
        Board Policles OF             DFD (Local), DH
                         DF (Legal), DFD                       DH (Local), DH
                                                   DH (Legal), DH           DH (Exhibit),
                                                                                (Exhlbll),
                     DFD (Local), DFCA
        DFD (Legal), DFD
        DFD                                      DCC (Legal), DCC
                                   DFCA (Legal), DCC          DCC (Local), DFCA
                                                                           DFCA (Legal),
        DGBA (Legal), and
        DGBA               DGBA (Local)
                       and DGBA




140
140
       Alamo Heights ISO
         t 5901
       0015901

       TERMINATION OF
       TERMINATION    EMPLOYMENT
                   OF EMPLOYMENT                                                                 DF
                                                                                                 OF
                                                                                             (LEGAL)



                               Note:     For a detailed treatment of termination and nonrenewai
                                                                                     nonrenewal
                                            educator contracts.
                                         of-educator
                                         of          contracts,              DFAA and DFAB
                                                               see policies DFM        DFAB
                                                                   DFBA and DFBB
                                         (Probationary Contracts), DFBA        DFBB (Tenn
                                                                                     (Term Con-
                                                      DFCA (Continuing Contracts).
                                         tracts), and DFCA
                                         tracts).


      WITHHOLDING
      WITHHOLDING             An         by any District employee to encourage or coerce a child
                              An attempt by
      INFORMATION
      INFORMATION             to withhold information from the child's parent is
                                                                              is grounds for
                                                                                          tor dis-
                              charge or suspension under Education Code Code 21
                                                                             21.104
                                                                                 .104 (probationary
                                          21.156
                              contracts), 21 .156 (continuing contracts).
                                                              contracts), and 21.211 (term con-
                              tracts). Education Code
                              tracts).                  26. 008(b)
                                                  Code26.00B(b)
      DISCHARGE OF
      DISCHARGE OF            The
                              The District shall discharge an employee iiif the District
                                                                                District obtains in-
      CONVICTED
      CONVICTED               formation through a criminal history record information
                                                                          inlormation (CHRI)
                                                                                      (CHRI) re-
      EMPLOYEES
      EMPLOYEES               view that:                             ~




                              1.
                              1.    The employee has been convicted of:
                                    The                             of:
                                    a.
                                    a.   AA felony under Penal Code_Title
                                                               Code Title 5;
                                    b.   An offense requiring registration as a sex offender under
                                         An otlense
                                         Code oi
                                         Code  of Criminal Procedure Chapter 62; or
                                    c.   An
                                         An oitense
                                            offense under the laws of another state or federal law
                                         that is equivalent to                    paragraphs a or b;
                                                                 an offense under paragraphs
                                         and
                              2.    At the time the offense occurred, the victim oi              was
                                                                                  of the offense was
                                                              was enrolled in
                                    under 18 years of age or was            in a public school.

        EXCEPTION
        EXCEPTION             However. the District is not required to zﬁscharge
                              However,                                 discharge an employee
                                                                                      employee ifIf
                              the person committed an oilense                          Code. and:
                                                                              5. Penal Code,
                                                                        Title 5,
                                                        offense under Title
                              1.                            is more than 30 years
                                    The date of the offense is              years before June 15,
                                                                                              15.
                                    2007; and
                                    2007;and
                              2.   The employee satisﬁed                               eritereq on
                                                          all terms of the court order entered
                                                satisfied all
                                   conviction.

        CERTIFICATION TO
        CERTIFICATION TO      Each                                                      Commis-
                              Each school year, the Superintendent shall certify to the Commis-
        SBEC
        SBEC                                               complied with the above provisions.
                                              District has compiled
                              sioner that the District

        SANCTIONS
        SANCTIONS             The
                              The State Board for Educator Certification (SB_EC) may
                                                           Certification (SB.EC) may impose a a
                              sanction on an educator who
                                                      who does not discharge an employee if      it

                                                                  known. through a criminal his-
                              the educator knows or should have known,
                                          intormation review, that the employee has been con
                              tory record information                                    con-
                              vtoted of an oitense
                              victed       offense described above.
                                                              above.
        OPTIONAL
        OPTIONAL              The District may
                              The          may discharge an employee itif the District obtains in-
        TERMINATION
        TERMINATION           formation of the employee's conviction of a  felony or of a misde~
                                                                        a felony.         misde-
                              meanor
                              meanor involving moral turpitude that the employee did not midis-
                                                                                             dis-
                              close to SBEC         District. An
                                       SBEC or the District.  An employee
                                                                 employee so discharged is  is



      DATE         6/2/2008
      DATE ISSUED: 6/212008                                                                     1015
                                                                                                1 of 5
      UPDATE 83
      UPDATE83         .
      DF(LEGAL)-P
      DF(LEGAL)-P




141
       Alamo         ISD
       Alamo Heights ISO
       015901
       015901

                   OF EMPLOYMENT
       TERMINATION OF
       TERMINATION    EMPLOYMENT                                                                 DF
                                                                                                 OF
                                                                                             (LEGAL)


                              considered to have been discharged tor
                                                                 for misconduct for purposes
                              of       Code 207.044
                              oi Labor Code                          compensation).
                                             207.044 (unemployment compensa_   tion).
                                         Code 22.085 [See DBAA]
                               Education Code22.085       DBAA]
      CERTAIN OFFENSES
      CERTAIN OFFENSES        A district that receives notice under Education Code
                              A                                                Code 21   .D58(b) of
                                                                                      2 1.058(b)
      AGAINST CHILDREN
      AGAINST CHILDREN        the revocation of     certiilcate Issued under Chapter 21, Subohapter
                                               oi a certificate                           Subchapter
                              B,
                                                                                                         '

                              8. shall:

                              1.    immediately remove the person whose
                                    Immediately                       whose certificate has been
                                                   campus or from
                                              irom campus
                                    revoked from                                      otfice. as ap-
                                                              trom an administrative office,
                                                                                any contact with aa
                                    plicable. to prevent the person from having any
                                    plicable,
                                                       and
                                    student [see DK]; and
                              2.   As
                                   As soon as practicable,
                                              practicable. terminate the employment of the per-
                                   son in accordance with the person's contract and with Educa-
                                        Code Chapter 21,
                                   tion Code          21. Subchapter B.
                                                                      8.
                               These removal and                               apply only to a con-
                                               and termination requirements apply
                              viction of a felony under Penal Code   Title 5
                                                              Code ‘l1tle  5 or an ottense
                                                                                   offense tor
                                                                                           for which
                              the person must register as a sex offender.
                                                                  offender, and only if the victlrn
                                                                                       it   victim of
                                                                                                    oi
                              the ottense
                                   offense is       18 years of age.
                                           is under 18
                                        Code 21.058
                              Education Code 21.058
      FAILURE OF
      FAILURE OF              An
                              An employee‘:
                                 employee's probationary, term, or continuing contract under
      CERTIFICATION
      CERTIFICATION                     Code Chapter 21 is
                              Education Code             is void itif the employee:
                              1.   Does not hold a certificate                 by SBEC;
                                                   oeniticate or permit issued by SBEC; or
                              2.            iuliiii the requirements necessary to extend the em-
                                   Fails to fulfill                                          em-
                                   pIoyee‘s
                                   ployee's temporary or emergency certificate or permit.
        DiSTRlCT'S
        DISTRICT'S                                                       employee’: contract is
                              After an employee receives notice that the employee's          is
        OPTIONS
        OPTIONS               void the District may:
                              1.   Terminate the employee:
                                                 employee;
                              2.   Suspend the employee with or without pay;
                                                                        pay; or
                              3.
                              3.   Retain the employee for the remainder ofoi the school year
                                                                                         year on
                                   an at-will employment basis in a position other than class-
                                   an                                                   class
                                   room teacher at the employee's existing rate of
                                                                                 oi pay
                                                                                    pay or at a re-
                                   duced rate.
                              An employee Whose
                              An                                   is not entitled to the minimum
                                            whose contract is void is                     minimum
                              salary prescribed by            Code 21.402.
                                                by Education Code   21 .402.
        NO
        NO APPEAL OR‘'
           APPEAL OR          The                                     Code 21.0031
                              The District's decision under Education Code  21 .0D31(b)
                                                                                    (b) is not
        CHAPTER
        CHAPTER 21                                               Code Chapter 21, and the no-
                              subject to appeal under Education Code
        HEARING
        HEARING               tice and hearing requirements of that chapter do not apply to the
                              decision.

                                        Code 21.0031
                              Education Code

      DATE ISSUED: 6/2/2008
      DATE                                                                                      22of 5
                                                                                                  oi 5
      UPDATE 83
      UPDATE83
      DF(LEGAL)-P
      DF(LEGAL)-P




142
                     [SD
       Alamo Heights ISO
       015901
       Oi5901

       TERMINATION OF
       TERMINATION    EMPLOYMENT
                   OF EMPLOYMENT               .                                                   DF
                                                                                                  OF
                                                                                              (LEGA L)
                                                                                              (LEGAL)


         APPLICABILITY        These void contract provisions do not affect the rights and reme-
                              These
                              dies ot
                                    of a             at-will employment relationship and do not ap-
                                       a party in an at-will
                              ply to a
                                     a certified teacher assigned to teach a subject for which the
                                                                   Code 21.0031;
                              teacher is not certified. Education Code             Nunez v.v. Simms,
                                                                         21,0031; Nunez       Simrns,
                              341 Fad 385 (5th Cir. 2003)
                              341F.3d385
      REPORT TO
      REPORT TO SBEG
                SBEC          In addition to the reporting requirement under Family CodeCode
                              261.101 [see FFGJ,                                               SBEG
                                               FFG1, the Superintendent shall promptly notify SBEC
                              in writing by                                       days of the date
                                         by filing a report within seven calendar days
                              the Superintendent first
                                                     first obtains or has knowledge of information
                                                                                       information
                              indicating that:
        CRIMINAL HISTORY
        CRIMINAL HIS TORY     1.     An                            a certificate issued by
                                     An applicant for or holder of a                       SBEC has
                                                                                        by SBEC
                                     a reported criminal history;
        ASSESSMENT
        ASSESSMENT            2.     The certificate holder engaged in conduct that violated the
                                     The
        INSTRUMENT
        INSTRUMENT                   assessment instrument security procedures established under
                                                 Code 39.0301;
                                     Education Code   39.0301 or
                                                               ;




        RESIGNATION
        RESIGNATION           3.    The certificate holder resigned and reasonable evidence sup-
                                    The
                                    ports a
                                          a recommendation by by the Superintendent to terminate
                                    the educator based on a determination that the educator en-
                                    gaged in  misconduct described in
                                           ln misconduct                4(a)—(f), below [see DFE];
                                                                     in 4(a}-(f},

        TERMINATION
        TERMINATION           4.    A certificate holder's employment at the District was
                                    A                                                  was termi-
                                    nated based on a detennination
                                                       determination that the certificate holder:
                                    a.    Sexually or physically abused or otherwise committed an
                                          unlawful act with a student or minor;
                                    b.    Possessed, transferred, sold, or distributed a controlled
                                          substance, as defined by                     Code Chap-
                                                                by Health and Safety Code
                                          ter 481 or by
                                                     by 21 U.S.C. Section 801 et seq.;
                                   c.     llfegally
                                          Illegally transferred, appropriated.
                                                                 appropriated, or expended funds or
                                          other property of the District;

                                   d.     Attempted by fraudulent or unauthorized meansmeans to ob-
                                          tain or alter
                                                  aiter a professional certificate or permit fOi   s
                                                                                             tortthe
                                          purpose of promotion or addttiona!
                                                                    additional compensation;

                                   e.     Committed aa criminal offense or any part of a criminal of-
                                                                                                  ot-
                                                                           school-sponsored
                                          lense on school property or at a school-sponsored
                                          fense
                                          event;
                                          event: or                         ·
                                   f.t.   Solicited or engaged in sexual conduct or a romantic re-
                                          lationship with a
                                          lationship      a student
                                                            stu<leni or minor.
        DEFINITIONS
        DEFINITIONS           “Abuse” has the meaning assigned by
                              "Abuse"                                       Code 261.001 and
                                                                  by Family Code
                                                                                    a student or
                              includes any sexual conduct involving an educator and a
                              minor.

      DATE ISSUED:
      DATE ISSUED: 6/212008
                   6/2/2008                                                                     3ot5
                                                                                                3 of 5
      UPDATE 83
      UPDATE
      DF(LEGAL)-P
      DF(LEGAL}-P



143
143
       Alamo         lSD
       Alamo Heights !SD
       015901

       TERMINATION OF
       TERMINATION    EMPLOYMENT
                   OF EMPLOYMENT                                                                     DF
                                                                                                     DF
                                                                                              (LEGAL)


                               "Solicitation    a romantic relationshipu
                               “Solicitation of a                         means deliberate or re-
                                                           relationship" means
                               peated acts that can be reasonably interpreted as soliciting a rela-
                               tionship characterized byby an ardent emotional attachment or pat-
                               tern of exclusivity. Acts that constitute the solicitation of a romantic
                               relationship include:
                               i.
                               1.   Behavior, gestures, expressions, communications, or a pat-
                                    tern of communication with a student that is  is unrelated to the
                                    educators job duties and
                                    educator's                       may reasonably be
                                                            and that may               be interpreted
                                    as encouraging the student to fonnform an ardent or exclusive
                                    emotional attachment lo  to the educator, including statements of
                                                                    When evaluating whether com-
                                    love, affection, or attraction. When                        com-
                                    munications constitute the solicitation of a romantic relation-
                                                         may be
                                    ship, the following may   be considered:
                                    a.    The nature of the communications;
                                          The
                                    bb.   The liming
                                          The timing of
                                                     oi the communications;

                                    c.    The extent of
                                          The        oi the communications;

                                    d
                                    d.                                    made openly or se-
                                          Whether the communications were made
                                          cretly;
                                    e.    The extent to which the educator attempted to conceal
                                          The
                                          the communications;
                                    Li.   It                                                   TEA
                                           If the educator claims to be counseling aa student, TEA
                                                 may consider whether the educator's job duties in·
                                          staff may                                              in-
                                          cluded counseling, whether the educator reported the
                                          eluded
                                                                           students guardians or to
                                          subject of the counseling to the student's
                                          the appropriate school personnel, or, in the case of al-
                                          leged abuse or neglect, whether the educator reported
                                                                                        entorcement
                                          the abuse or neglect to the appropriate law enforcement
                                          agencies; and
                                    g.    Any other communications tending to showshow that the edu-
                                          ca!o(                                        a student
                                          cator solicited a romantic relationship with a student.

                               2.                        comments about a student's body.
                                    Making inappropriate comments
                               3.   Making sexually demeaning comments to a student.
                                                    demeaning comments
                               4.          comments about a student's potential sexual perform-
                                    Making comments
                                    ance.                                                        I




                               5.   Requesting details of a student's sexual history.
                               6.   Requesting a date.
                               7.   Engaging in conversations regarding the sexual problems,
                                    preferences, or fantasies
                                                    lantasies of either party.

      DATE ISSUED:
      DATE  ISSUED: 6/212008
                    8/2/2008                                                                     44oi5
                                                                                                   of 5
      UPDATE 83
      UPDATE83
      DF(LEGAL)-P
      DF(l.EGAL)-P



144
144
       Alamo Heights ISO
       Alamo         lSD
       015901

       TERMINATION OF EMPLOYMENT
       TERMINATION OF EMPLOYMENT                                                                       DF
                                                                                                       OF
                                                                '

                                                                                              (LEGAL)


                              8.                  hugging, kissing, or excessive touching.
                                    Inappropriate hugglng,                       touching‘

                              9.   Suggestions that a romantic relationship is desired
                                                                               desired after the
                                   student graduates, including post-graduation plans for dating
                                   or marriage.
                                                            show that the educator solicited a
                              10. Any other acts tending to show
                                  romantic relationship with the student, including providing the
                                  student with drugs or alcohol.
        REPORTS
        REPORTS               A superintendent who
                              A                  who is required to file
                                                                    tile a report, but fails to timely
                              do so, is subject to sanctions.
                              do
                              The Superintendent shall notify the Board of the District and the
                              The
                                       ot the filing
                              educator of     tiling of
                                                     ol the report.

           IMMUNITY
           IMMUNITY           A superintendent who
                              A                    who in good faith and
                                                                     and while acting in an official
                                                            SBEC is immune
                              capacity files a report with SBEC      immune from civil or criminal
                                                                            imposed‘
                              liability that might otherwise be incurred or imposed.
                                        Code 21.006;
                              Education Code            TAC 249.14
                                             21.005; 19 TAC




      DATE ISSUED:
      DATE ISSUED: 6/2/2008
                   e/242003                                                                      5 of 5
      UPDATE 53
      UPDATE83
      DF(LEGAL)»P
      DF(LEGAL)·P




145
145
       Alamo         ISD
       Alamo Heights ISO
       015901
       01590i

                   OF EMPLOYMENT
       TERMINATION OF
       TERMINATION    EMPLOYMENT                                                                 DFD
                                                                                                DFD
       HEARINGS BEFORE HEARING
       HEARINGS BEFORE          EXAMINER
                        HEARING EXAMINER                                                     (LOCAL)


       TIME LIMITS
       TIME        FOR
            LIMITS FOR         The Board shall consider the hearing examiner's record and
                               The                                                       and rec-
       ORAL ARGUMENT
       ORAL  ARGUMENT          ommendaiion at !he
                               ommendation      lhe firs1
                                                    lirst Board meeting for              can be
                                                                        lor which notice can
                                                               open meetings laws.
                                      in compliance with the open
                               posted in
                               The Board shall
                                           shaii allow ten minutes per party for oral argument.
                               Administration shall be offered the opportunity to present argument
                               first     may use a portion of the designated time for
                               first and may                                        lor rebuttal after
                               the other party has presented argument.
                               The Board reserves the right to grant additional time in
                               The                                                   In equal
                               amount to both parties, depending onon the complexity of the issues
                               and solely al
                                          at the Board's discretion.




       DATE ISSUED:
       DATE ISSUED: 3/2/1998
                    3/2/1998                          ADOPTED:
                                                      ADOPTED:                                  11 of
                                                                                                   oi 1
                                                                                                      1
       UPDATE 58
       UPDATE  58
       DFD(LOCAL)-A
       DFD(LOCAL)-A




‘I46
146
      Alamo
      Alamo Heights ISD
      015901
      015901           -

      EMPLOYEE STANDARDS
      EMPLOYEE           OF CONDUCT
               STANDARDS OF CONDUCT                                                                DH
                                                                                                  DH
                                                                                              (LEGAL)
                                                                                              (LEGAL)


      EDUCATOR ETHICS
      EDUCATOR ETHICS                                                         and ethical conduct
                               Educators shall comply with standard practices and
                               toward students, professional colleagues, school ofﬁcials,
                                                                                officials, parents,
                                                                                           parents.
                                   members of the community and shall safeguard academic
                               and members
                               freedom.
                               The State Board for Educator Certification
                               The                                          (SBEC) shall provide for
                                                              Certllication (SBEC)
                                    adoption. amendment, and enforcement
                               the adoption,                    enlorcement olof an educator's code
                                                              SBEO isis solely responsible for en-
                                              DH(EXHIBlT)]. SBEC
                               of ethics [see DH(EXHIBIT)).
                               oi                                                                en—
                               forcing the ethlcs
                                           ethics code for purposes related to cenlficatlon
                                                                                certification discipli-
                               nary
                               nary proceedings.
                               Education Code21.041(8);    TAC247.1,
                                         Oode21.041{B); 19 TAC 247.1, 247.2
      REPORT TO
      REPORT TO SBEC
                SBEC OF
                     OF        The                                     SBEG in writing by
                                   Superlntendem shall promptly notify SBEC
                               The Superintendent                                      by filing
                                                                                          llling a
      EDUCATOR
      EDUCATOR                             SBEC not later than the seventh day
                               report with SBEC                              day after the Superin-
      MISCONDUCT
      MISCONDUCT               tendent first
                                       first learns about a criminal record or an alleged incident of
                               misconduct. as described at DF, involving a certified
                               misconduct,                                   certllled educator.

                               The                                    name of
                               The Superintendent shall include the name     ol aa student or minor
                               M10 is
                               who  Is the victim of abuse or unlawful conduct by    an educator.
                                                                                 by an  educator, but
                               the name
                                   name of the student or minor isis not public lntonnetlon
                                                                                information under
                                              Code. Chapter 552
                               Government Code,              552 [see GBAA].
                               Education Code            TAG 249.14
                                         Code 21.006; 19 TAC 249. 14

      PUBUC  SERVANTS
      PUBLIC SERVANTS          All District employees are ‘public
                                                           "public servants" and therefore  subject to
                                                                                  therelore sublect
                               Title VIII of the Penal Code, regarding oltenses           publlc ad-
                                                                         offenses against public
                               ministration, including restrictions on the acceptance of illegal gifts,
                                                                                                 gifts,
                               honoraria and expenses, and
                               honorarla                  and abuse of office.         Code
                                                                          olﬂce. Penal Code
                               1.07(a)(41), Title VIII [See DB0
                                                             DBD and BBFA]
      TOBACCO USE
      TOBACCO  USE             The Board shall prohibit smoking or using tobacco products at a
                               The
      PROHIBITED
      PROHIBITED               school-related or school-sanctioned activity on or off school prop-
                               erty.
                               erty,

        ENFORCEMENT
        ENFORCEMENT        The Board shall ensure that District personnel enforce
                                                                          entorce the policies
                           on school
                              school property.

                                         Code 38.006(1)(3)
                               Education Code 3B.006‘(1)(3) [See      FNCD and GKA]
                                                            [See also FNCD     GKA]
      DRUG AND
      DRUG AND ALCOHOL
               ALCOHOL     The
                           The Board shall prohibit the use ot
                                                            of alcoholic beverages at school-
      ABUSE PROGRAM
      ABUSE PROGRAM        related or school-sanctioned activities on or oil
                                                                         off school property.
                                       Code 38.00l(a)
                           Education Code   38.007(a)
                           AA district that receives a federal grant must agree to provide aa
                           drug-tree workplace by:
                           drug-free
                           1.       Pubilshlng'a
                                    Publishing· a statement notifying
                                                             notilying employees of
                                                                                 at the
                                                                                    the require-
                                    ments of the federal Drug-Free                  (DFWA) and
                                                          Prug-Free Workplace Act (DFWA)
                                    requiring that each employee be given a copy
                                                                              copy of the state-
                                                Dl(EXHlBlT)];
                                    ment [see Dl(EXHIBIT));

      DATE
      DATE ISSUED: 1/28/2008                                                                     1tot2
                                                                                                   of 2
      UPDATE 82
      UPDATE  52
      DH(LEGAL)-P




147
147
      Alamo Heights !SD
      Alamo         180
      015901
      Oi5901

       EMPLOYEE STANDARDS
       EMPLOYEE STANDARDS OF CONDUCT
                          OF CONDUCT                                                                DH
                                                                                                    DH
                                                                                             (LEGAL)
                                                                                             {LEGAL)


                               2.                  drug—tree awareness program for employees
                                    Establishing a drug-free
                                                    DFWA;
                                    pursuant to the DFWA;
                               3.   Notifying the granting agency within ten days after receiving
                                    notice that an employee has been convicted under a criminal
                                    drug statute;
                                          statute:

                               4.                                      who is
                                    Imposing a sanction on an employee who is convicted of such
                                                 and
                                    a violation; and
                               5.   Making a good faith effort                         a drug-free
                                                        etiort to continue to maintain a drug—tree
                                    workplace.
                               41 us. 0. 702(a)(1);
                               41 U.S.C.             49 CFR
                                         702{a)(1),' 49           32
                                                             Pan‘ 32
                                                        OFF? Part
                               A district that has 15
                               A                          more employees shall adopt a policy for
                                                    15 or more                                    lor
                               elimination of drug abuse and must provide their employees with aa
                               copy of              on or before the flrsi
                                      oi the policy on                     day of employment. Dis-
                                                                     first day                   Dis~
                               tricts
                               trtcts that comply with the DFWA            amend their policies to in-
                                                            DF\NA must amend
                               clude alcoholic beverages. 28      TAC 169.1, 169.2
                                                              28 TAC           169.2

      DlETARY
      DIETARY                                                  Code 38.011(b),
                               Except as provided at Education Code                       em-
                                                                    38.0t1(b), a District em·
      SUPPLEMENTS
      SUPPLEMENTS                     may not:
                               ployae may
                               ployee
                               1.   Knowingly sell, market, or distribute a dietary supplement that
                                                                       compounds to a primary or
                                    contains performance-enhancing compounds
                                                                        whom the employee has
                                    secondary education student with whom
                                    contact as part of the employee's duties; or
                               2.   Knowingly endorse or suggest the ingestion, Intranasal
                                                                                   Intranasai appli-
                                    cation, or inhalation of a dietary supplement that contains per-
                                                          ot a
                                    fonnance-enhancing     compounds by
                                    tormance-enhancing compounds        by a primary or secondary
                                                  whom the employee has contact as part of the
                                    student with whom
                                    employee's duties.
                           An employee who
                           An                                                             C
                                       who violates items 11 or 2, above, commits a Class C
                           misdemeanor offense.
                                       ottenser

                                         Code 38.011
                               Education Code




      DATE ISSUED:
      DATE ISSUED: 1/28/2008                                                                         2
                                                                                                2 of 2
                                                                                                2of
      UPDATE 82
      UPDATE  82                                                                                ’




      DH(LEGAL)—P
      DH(LEGAL)-P




148
148
      Alamo         ISD
      Alamo Heights ISO
      015901
      015901

      EMPLOYEE
      EMPLOYEE STANDARDS    CONDUCT
                         OF CONDUCT
               STANDARDS OF                                                                         DH
                                                                                                    DH
                                                                                              (LOCAL)
                                                                                              (LOCAL)


                                  District employees shall perform .their
                              All District                           their duties in accordance with
                              state and federal law, District policy, and ethical standards. [See
                              DH(EXHiBlT)]
                              DH(EXHIBIT}]
                              All District employees shall recognize and respect the rights oi
                              All                                                             of stu-
                                                                      members oi
                              dents, parents, other employees, and members      of the community
                              and shall work cooperatively
                                               cooperativety with others to serve the best interests
                              of
                              oi the District.
                                     District.
                                                                                                    V
                                                                                                     ,
                              Employees wishing toto expre,ss
                                                     express concern.
                                                              concein, complaints, or criticism
                                                                         [See DGBA]
                              shall do so through appropriate channels. (See   DGBA]

      VIOLATIONS OF
      VIOLATIONS OF           Employees shall comply with the standards oi    of conduct set out in
      STANDARDS
      STANDARDS OF
                OF            this policyand        any other policies, regulations, and guidelines
                                         and with any
      CONDUCT
      CONDUCT                 that impose duties, requirements,
                                                    requirements, or standards attendant to their
                              status as District
                              slams     District employees. Violation of    any policies.
                                                                         oi any  policies, regulations,
                                                                                           regulations,
                                             may result in
                              or guidelines may          in disciplinary action, including termination
                              oi employment. [See
                              of                 [See DOD
                                                      DCD and DF OF series)
                                                                     series]

      SAFETY
      SAFETY                  All
                              Allemployees shall adhere to District   safety rules and regulations
                                                             District safely
      REQUIREMENTS
      REQUIREMENTS            and shall report unsafe conditions or practices to the appropriate
                              supervisor.
                              supervisor:

      HARASSMENT OR
      HARASSMENT OR           Employees shall not .engage
                                                   engage in
                                                          in prohibited harassment, including
      ABUSE
      ABUSE                   sexual harassment, oi:
                                                 of:
                              1.     Other employees. [See DlA]
                                                           DIA]
                              2.     Students. [See
                                               [See FFH;     FFG regarding child abuse and
                                                    FFH; see FFG                       and
                                     neglect]
                              While acting in the course of their employment, employees
                                                                              employees shall
                              not engage In
                                          in prohibited harassment, including sexual harassment,
                              of other persons, including Board members,
                                                                members, vendors, contractors.
                                                                                  contractors,
                                                                ‘
                              volunteers,
                              volunteers. or parents.
                                             parents.         ·
      RELATIONSHIPS WITH
      RELATIONSHIPS WITH                  shalt not form romantic or other inappropriate social
                              Employees shall
      STUDENTS
      STUDENTS                                             Any sexual relationship between a
                                                 students. Any
                              relationships with students.
                              student and a District employee
                                                     ermloyee is
                                                               is always prohibited, even
                                                                  always prohibited. even ifit
                              consensual. [See    FFH]
                                            [See FFH}
      TOBACCO USE
      TOBACCO USE             Employees shall not use tobacco products on District premises, in
                              Employees
                              District vehicles, or at school or schoolreiated
                              District                           school-related activities.
                                                                                activities. [See also
                              GKA]
                              GKA]
      ALCOHOL AND
      ALCOHOL     DRUGS
              AND DRUGS       Employees shall not manufacture, distribute.
                                                                  distribute, dispense. possess.
                                                                              dispense, possess,
                              use,                  inliuence of any
                              use. or be under the influence     any of
                                                                     oi the following
                                                                            ioiiowing substances
                              during working hours while at school or at school-related activities
                              during or outside of usual working hours:



      DATE ISSUED: 5/9/2007
      DATE         5/9/2007                                                                      1oi3
                                                                                                 1 of 3
      UPDATE 80
      UPDATE80
      DH(LOCAL)—X
      DH(LOCAL)·X




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       Alamo Heights ISO
       Alamo         lSD
       015901
       Oi590i

       EMPLOYEE STANDARDS
       EMPLOYEE STANDARDS OF CONDUCT
                          OF CONDUCT                                                              DH
                                                                                                  DH
                                                                                              (LOCAL)


                               1.
                               1   .   Any controlled substance or dangerous drug as defined by
                                       Any
                                       law, including but not limited to marijuana, any narcotic drug,
                                       hallucinogen,
                                       hailucinogen, stimulant, depressant, amphetamine, or
                                       barbiturate.
                              2.                                beverage,
                                       Alcohol or any alcoholic beverage.
                              3.       Any abusable
                                       Any ahusable glue, aerosol paint, or any other chemical
                                       substance for inhalation.
                              4.       Any
                                       Any other intoxicant, or mood-changing, mind-altering, or
                                       behavior-altering drugs.
                              An
                              An employee need not be legally intoxicated to be considered
                                         intiuence“ of a controlled substance.
                              "under the influence"
        EXCEPTIONS
        EXCEPTIONS            An employee who
                              An              manuiactures, possesses, or dispenses a sub·
                                          who manufactures,                           sub-
                              stance listed above as part of the employee's job responsibilities,
                                 who uses a drug aulhorized
                              or who              authorized byby a licensed physician prescribed
                                      emp|oyee’s personal use shall not be considered to have
                              for the employee's
                              violated this policy.
        NOTICE
        NOTICE                Each employee shall be given a copy of the District's notice regard-
                              Each
                                                     {See Dl(EXHIBlT)]
                              ing drug-free schools. [See Dl(EXH|8lT)]

                              Acopy                                           eliminate drug abuse
                              A copy of this policy, a purpose of which is to eliminate
                                                                        each employee at the
                              from the workplace, shall be provided to each
                              beginning of each year or upon employment.
      ARRESTS AND
      ARRESTS AND             An          who is
                              An employee who                     lelony or any
                                                              any felony
                                              is arrested for any           any offense involv-
      CONV|CTiONS
      CONVICTIONS             ing moral turpitude
                                        turpifude shall report                               imme-
                                                        repcn the arrest to the principal or imme-
                                    supewisor within three calendar days of
                              diate supervisor                              oi the arrest. An
                                                                                           An
                              employee who
                              empioyee        is convicted of or receives deferred adjudication for
                                         who Is
                              such an offense shall also report that event to the principal or
                              immediate supervisor within three calendar days of the event.
      ARRESTS,
      ARRESTS,                An employee shall notify his or her principal or immediate supeNi-
                              An                                                             supervi-
      lNDlGTMENTS.
      INDICTMENTS,                                        days of any ‘arrest,
                              sor within three calendar days           arrest, indictment, conviction,
      CONVICTIONS, AND
      CONViCTi0NS, ANO                       guilty plea, or other adjudication of the employee for
                              no contest or guilty
      omen
      OTHER                   any felony, any
                              any              oilense involving moral turpitude, and
                                           any offense                                   any of
                                                                                     and any at the
      ADJUDICATIONS
      ADJUDICATIONS           other ollenses
                                    offenses as indicated below:
                              1.       Crimes involving school property or funds;
                              2.       Crimes involving attempt byby fraudulent or unauthorized
                                       means to obtain or alter any
                                       means                    any certificate or permit that would
                                       entitle any
                                               any person to hold or obtain a position as an educator;
                                       or

                              3.
                              3,       Crimes that occur wholly or in part on school property or at a
                                       school-sponsored activity.
                                                         activity.


      DATE ISSUED:
      DATE ISSUED: 5/9/2007                                                                      2ol3
                                                                                                 2 of 3
      UPDATE SO
      UPDATE  80
      DH(LOCAL)-X
      DH(LOCAL)-X




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      Alamo Heights lSD
      Alamo         [SD
      015901
      Oi5901

       EMPLOYEE STANDARDS
       EMPLOYEE STANDARDS OF CONDUCT
                          OF CONDUCT                                                               DH
                                                                                            (LOCAL)
                                                                                            (LOCAL}


         MORAL TURPITUDE
         MORAL TURPITUDE      Moral turpitude includes but is not limited to dishonesty; fraud;
                              deceit; theft; misrepresentation; deliberate violence; base, vile,
                                                                                            vile, or
                              depraved acts that are intended to arouse or gratify sexual desire
                                             drug« or alcohol-related
                              of the actor; drug-     alcohol-related offenses; or acts constituting
                              abuse under the Texas Family Code.
                              Examples. but not by
                              Examples,             way of llmitalion,
                                                 by way    limitation, of offenses that involve
                              moral turpitude are:
                              t1    Arson
                              2
                              2.    Forgery
                              33.   Public lewdness
                              4.    Prostitution
                              5
                              5.    Theft (in           $500 in value)
                                          (in excess of $500

                              6
                              6.    Sexual offense (various)
                              7
                              7.    Swindling
      LANGUAGE
      LANGUAGE                                observe appropriate standards of
                              Educators shall obse!Ve                       oi language in the
                              presence of students.
      DRESS AND
      DRESS AND               The        and grooming of District employees shall be·
                              The dress and                                        beclean,
                                                                                      clean, neat,
      GROOMING
      GROOMING                     manner appropriate for their assignments, and in accordance
                                 a manner
                              in a
                              with any                                  by their supervisors and
                                   any additional standards established by
                                        by the Superintendent.
                              approved by      Superintendent,




      DATE ISSUED: 5/9/2007
      DATE                                            ADOPTED:
                                                      ADOPTED:                                 3 of 3
                                                                                               3of3
      UPDATE 80
      UPDATE80
      DH(LOCAL)—X
      DH(LOCAL)-X




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       Alamo         lSD
       Alamo Heights ISD
       015901
       015901

       EMPLOYEE STANDARDS
       EMPLOYEE STANDARDS OF CONDUCT
                          OF CONDUCT                                                                    DH
                                                                                                        DH
                                                                                                  (EXHIBFD
                                                                                                  (EXHIBl1)


                               CODE OF
                               CODE OF ETHlCS
                                       ETHICS AND STANDARD PRACTICES
                                              AND STANDARD PRACTICES
                                        FOR TEXAS
                                        FOR       EDUCATORS
                                            TEXAS EDUCATORS
      The
      The Texas educator shall comply with standard practices and ethical conduct toward stu-
      dents, professional colleagues, school ollicials.                   members of the community and
                                                 officials, parents, and members
      shall safeguard academic freedom. The   The Texas educator, in  in maintaining the dignity of the pro-
                                                                                                          pro«
      tession. shall respect and obey
      fession,                     obey the law, demonstrate personal integrity,
                                                                           integrity, and exemplify hon-
             The Texas educator, in
      esty. The                     in exemplifying ethical relations with colleagues, shall extend just
      and equitable treatment to allall members
                                        members of                     The Texas educator, in accepting
                                                  oi the profession. The
                                        measure success by
      a position of public trust, shall measure              by the progress of each student toward re-
      alization of his or her potential as an effective
                                               etfective citizen. The Texas educator, in tuttilling
                                                                                           fulfilling re-
      sponsibilities in the community, shall cooperate with parents and others to improve the public
      schools of the community.

      1.   Professional Ethical Conduct, Practices, and Performance.
           Standard i1.1.    The educator shall not knowingly engage in deceptive practices regard-
                        .1. The
           ing official policies
                        policies of the school district or educational institution.
           Standard 1.2. The
                         The educator shall not knowingly misappropriate, divert,
                                                                           divert. or use monies,
           personnel, property, or equipment committed to his or her charge for personal gain or
           advantage.
                         The educator shall not submit fraudulent requests for reimbursement,
           Standard 1.3. The
           expenses, or pay.
                          The educator shall not use institutional or professional privileges for per-
           Standard 1.4. The
           sonal or partisan advantage.
                           The educator shall neither accept nor otter
           Standard 1.5. The                                      offer gratuities,
                                                                        gratuities, gifts,
                                                                                    gifts, or favors that
           impair professional judgment or to obtain special advantage. This standard shall not re-
           strict the acceptance of gifts
           strict                   gifts or tokens offered
                                                    offered and accepted openly from students, par-
           ents, or other persons or organizations
                                      organizations in recognition or appreciation of service.
                         The educator shall not falsify records, or direct or coerce others to do so.
           Standard 1.6. The
           Standard 1. 7. The
                     1.7. The educator shall comply with state regulations, written local school
           board policies, and other applicable state and federal laws.
                         The educator shall apply for,
           Standard 1.8. The                      for, accept, offer, or assign a position or a re-
           sponsibility
           sponsibitity   on the basis of professional qualifications.
      2.   Ethical Conduct Toward Professional Colleagues.
           Standard 2.1. The educator shall not reveal confidential health or personnel information
           concerning colleagues unless disclosure serves lawful professional purposes or is re-
           quired by
                  by law.
                           The educator shall not harm others by knowingly making false state-
           Standard 2.2. The
           ments about aat colleague or the school system.                                              i




      DATE ISSUED: 1212/2002
      DATE           1'22/2002                                                                         11 of 22
      UPDATE 59
      UPDATE  69
      DH(EXHlBtT)-P
      DH(EXHI BIT)-P




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152
      Alamo         lSD
      Alamo Heights !SD
      015901

      EMPLOYEE STANDARDS
      EMPLOYEE STANDARDS OF CONDUCT
                         OF CONDUCT                                                                      DH
                                                                                                         DH
                  ’


                                                                                              (EXHIBIU
                                                                                              (EXHIBIT)


                                                                                           and state
                          The educator shall adhere to written local school board policies and
           Standard 2.3. The
           and federal laws regarding the hiring, evaluation, and dismissal of personnel.
                          The educator shall not interfere with a colleague's
           Standard 2.4. The                                         colleagues exercise of political,
           professional, or citizenship rights and responsibilities.
           Standard 2.5. The
                          The educator shall not discriminate against or coerce a colleague on the
           basis of race, color, religion, national origin, age, sex, disability, or family status.
                                                               means or promise of special treat-
                          The educator shall not use coercive means
           Standard 2.6. The
           ment in order to influence professional decisions or colleagues.
           ment
                                                                                  who has filed a
                          The educator shall not retaliate against any individual who
           Standard 2.7. The
                              SBEC under this chapter.
           complaint with the SBEC
      3.   Ethical Conduct Toward Students.
           Standard 3.    The educator shall not reveal confidential information concerning stu-
                       1. The
                    3.1.                                                                    stu~
                                          lawlul professional purposes or is required by law.
           dents unless disclosure serves lawful
                     32. The
           Standard 3.2.  The educator shall not knowingly treat a student in a   manner that ad-
                                                                               a manner
           versely affects the student's learning, physical health, mental health, or safety.

                                                                                             re
                         The educator shall not deliberately or knowingly misrepresent facts re-
           Standard 3.3. The
           garding a student.
                           The educator shall not exclude a student from participation in a program,
           Standard 3.4. The
           deny benefits to a student, or grant an advantage to a student on the basis of race,
           deny
           color, sex, disability, national origin,
                                            origin. religion, or family status.

                         The educator shall not engage
           Standard 3.5. The                    engage in physical mistreatment of a student.
                           The educator shall not solicit or engage
           Standard 3.6. The                                 engage in sexual conduct or a
                                                                                         a romantic
           relationship with a student.
                         The educator shall not furnish alcohol or lillegallunauthorized
           Standard 3.7. The                                                             drugs to any
                                                                   illegal/unauthorized dn.!QS
                                                     consume alcohol or illegal/unauthorized drugs
           student or knowingly allow any student to consume
           in the presence of the educator.
         TAC 247.2
      19 TAC247.2




      DATE ISSUED:
      DATE ISSUED: 1212/2002
                    12/2/2002                                                                           2
                                                                                                   2 ol 2
                                                                                                   2of
      UPDATE 69
      UPDATE
      DH(EXHlBlT)~P
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      Alamo Heights ISD
      ·Alamo
       015901
       015901
                                                                                  I




      TERMINATION OF
      TERMINATION    EMPLOYMENT
                  OF EMPLOYMENT                                                                   DFD
               BEFORE HEARING
      HEARINGS BEFORE
      HEARINGS         HEARING EXAMINER
                               EXAMINER                                                      (LEGAL)


      APPLICABILITY
      APPLICABILITY         This hearing process applies only ifif an employee requests a hear-
                                                                                          hear»
                            ing after receiving notice of a proposed decision to:
                                                                              to‘.


                            i.
                            1.   Terminate a continuing contract at any time;

                            2.   Terminate a probationary or term contract before the end of
                                 the contract period; or
                            3.   Suspend without pay.
                            it does not apply to a decision to:
                            It
                            1.                                            end of the contract
                                 Terminate a probationary contract at the end
                                 term; or
                            2.   Not renew a term contract, unless the Board has adopted this
                                             nonrenewais.
                                 process for nonrenewals.
                                      Code 21.251
                            Education Code
      REQUEST FOR
      REQUEST FOR           Not later than the 15th day after the date the employee receives
      HEARING
      HEARING               notice of one
                                      one of the proposed contract actions listed above, the
                            employee must filefile a written request with the Commissioner for a
                            hearing before a hearing examiner. The  The employee must provide
                                              a copy
                            the District with a                                            Com-
                                                 copy of the request and must provide the Com-
                                                copy of the notice. The
                            missioner with a copy                               may agree in writ-
                                                                    The parties may
                                                    more than ten days the deadline for requesting
                                           by not more
                            ing to extend by
                            a hearing. Education CodeCode21.253
                                                            21.253
      ASSIGNMENT OF
      ASSIGNMENT OF        The          may agree to select a hearing examiner from the Hst
                           The parties may                                                   list
      HEARING EXAMINER
      HEARING EXAMINER     maintained by the Commissioner or a person who   who is not certified to
      BY AGREEMENT
      BY AGREEMENT         serve as a hearing examiner, provided that person is licensed to
                                                                         on a hearing examiner
                           practice law in Texas. itIf the parties agree on
                                       shall. before the date the Commissioner is permitted lo
                           the parties shall,                                                     to
                                                                                                          ~
                           assign a hearing examiner, notify the Commissioner in writing of
                           the agreement, including the namename of the hearing examiner se-
                           lected.
                                                                          ~
                                                   -




      BAY APPOINTMENT
      BY  APPOiNTMENT      If                             hear~~
                           if the parties do not select a heaiing  exam ‘ by
                                                                g examiner      agreement, the
                                                                             by agreement,
                                                                              ~


                           Commissioner shall assign the hearing examiner not earlier
                                                                                   earlier than
                                                    and not later than the tenth business day
                                     business day and
                           the sixth buslness
                           after the date on which the Commissioner receives the request for
                           a            When a hearing examiner has been
                           a hearing. When                              been assigned, the
                           Commissioner shall notify the parties immediately.
        REJECTION
        REJECTION          T             may agree to reject a hearing examiner for any reason
                               e parties may
                           and either party is   entitled to reject an assigned hearing examiner
                                              is entitled
                           for cause. A
                           tor          A rejection must be in writing and tiled              Com»
                                                                               fired with the Com-
                           mlssioner not later
                           missioner              than the third day
                                           laterthan             day. after the date of notification of
                                         examiners assignment
                           the hearing examiner's      assignment. Ifif the parties agree to reject
                           the hearing examiner or if the Commissioner determines that one
                                                       if




      DATE ISSUED:
      DATE ISSUED: 11/29/2005                                                                    iiof4
                                                                                                   of 4
      UPDATE 77
      UPDATE
      DFD(LEGAL)-P
      DFD(LEGAL)-P




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154
      Alamo
      Alamo Heights ISD
      015901
      Oi5901

      TERMINATION OF EMPLOYMENT
      TERMINATION OF EMPLOYMENT                                                                  DFD
                                                                                                DFD
      HEARINGS BEFORE HEARING
      HEARINGS BEFORE  HEARING EXAMINER
                               EXAMINER                                                      (LEGAL)


                            party has good cause for the rejection, the Commissioner shall as-
                            sign another hearing examiner.
      FINALITY OF
      FINALITY OF           After the employee receives notice of the proposed contract action,
      DECISION
      DECISION                          may agree in writing that the hearing examiner's deci-
                            the parties may
                                                                   an  some issues.
                            sion be final and nonappealable on all or some

                            Education Code 21.254
      POWERS OF
      POWERS OF HEARING
                HEARING     The hearing examiner may
                            The                    may issue subpoenas, administer oaths,
      EXAMINER
      EXAMINER                                                                          deco
                            rule on motions and the admissibility of evidence, maintain deco-
                            rum, schedule and recess the proceedings, allow the parties to
                                                                                   make any
                                                          means of discovery, and make
                            take depositions or use other means
                            other orders as provided by
                                                     by Commissioner rule.
      CONDUCT OF
      CONDUCT OF            The hearing and any depositions must be held within the geo-
                            The
      HEARING
      HEAR!NG               graphical boundaries of                   at the regional education
                                                   ot the District or at
                                                serves the District.
                            service center that se!Yes                                        ·
                                      Code 21.255
                            Education Code
        SCHEDULE
        SCHEDULE            AA hearing before                                    on a Satur-
                                                                 may not be held on
                                       betore a hearing examiner may
        RESTRICTION
        RESTRICTION         day, Sunday, or a state
                            day.              stale or federal holiday, unless all
                                                                               all parties agree.

                                      Code 21.257(c)
                            Education Code
        PRIVATE
        PRIVATE             AA hearing before a hearing examiner shall be
                                                                       be private unless the
                                       makes a written request for a public hearing.
                            employee makes
          EXCEPT ION
          EXCEPTION                                                                may close
                            if necessary to maintain decorum, the hearing examiner may
                            If
                                      that an employee has requested be public.
                            a hearing lhal
          PROTECTION OF
          PROTECTION OF                                         who Is
                           To protect the privacy of a witness who        child. the hearing ex-
                                                                     is a child,             ex·
          WITNESSES
          WITNESSES                may close the hearing to
                           aminer may                      to receive the testimony or order that
                           the testimony be presented byby procedures in Article 38.071     Code
                                                                                   38.071, Code
                                                                                             ,

                           of Criminal Procedure.

        EMPLOYEE RIGHTS
        EMPLOYEE RIGHTS           hearing. the employee has the right to:
                           At the hearing,

                            1.
                            1..   Be represented by                         employee's choice;
                                                 by a representative of the employee's
                           2
                           2.     Hear the evidence on which the charges are based;
                           3.     Crossvexamine
                                  Cross-examine each adverse witness; and
                           44.    Present evidence.
                           The hearing is
                           The         is not subject to the Administrative Procedure Act.


                           The hearing shall be conducted in
                           The                                          same manner
                                                                in the same   manner as aa trial with
                                                                                           trial with-
                           out a jury in
                                      in state district court. A  certified shorthand reporter shall
                                                               Acertitied
                           record the hearing.



      DATE ISSUED: 11/29/2005
      DATE         It/29/2005                                                                    22ot4
                                                                                                   of 4
      UPDATE 77
      UPDATE77
      DFD(LEGAL)-P
      DFD(LEGAL)·P



155
       Alamo Heights ISD
       Alamo
       0t590t
       Oi 590i

      TERMINATION OF
      TERMINATION    EMPLOYMENT
                  OF EMPLOYMENT                                                                    DFD
      HEARINGS BEFORE HEARING
      HEARINGS BEFORE  HEARING EXAMINER
                               EXAMINER                                                         (LEGAL)


         EVIDENCE
         EVIDENCE             The Texas Rules of Civil Evidence shall apply at the hearing. An
                              The                                                              An
                                                      oi‘ the teacher is presumed to be admissible
                              evaluation or appraisal of
                              at the hearing. The                        ﬁndings of fact and conclu-
                                              The hearing examiner's findings
                                                    presumed to be
                              sions of law shall be presumed      be based only on admissible
                              evidence.
         BURDEN OF
         BURDEN OF PROOF
                   PROOF      The District has the burden of proof by
                              The                                  by a
                                                                      a preponderance of the evi-
                              dence at the hearing.
                                        Code 21.256
                              Education Code
         COSTS
         COSTS                The Dis!rict
                              The                                                                exam-
                                   District shall bear the cost of the services of the hearing exam-
                              iner and certiﬁed
                                        certified shorthand reporter and the production of any
                              original hearing transcript. Each party shall bear itsits costs of dis-

                              covery, if any, and ils
                                      ii           its attorney's fees.            Code 21.255(e)
                                                                  tees. Education Code

      RECOMMENDATION
      RECOMMENDATION                                                                    Commis-
                                                Goth day after the date on which the Commis-
                             Not later than the 60th
                             sioner receives a request for              betore_a hearing examiner,
                                                         tor a hearing before.a
                             the hearing examiner shall complete the hearing and make  make a writ-
                             ten recommendation. The The recommendation must include.findings
                                                                                   include-lindings
                                tact and
                             of fact                           The recommendation may
                                     and conclusions of law. The                       may include aa
                             proposal tor
                                       lorgranting retiet, including reinstatement, back pay, or
                                          granting relief,
                             employment benefits. The                          may not include at-
                                                     The proposal for relief may
                                      fees or other costs associated with the hearing or appeals
                             torney's tees
                             from the hearing. The
                                                The hearing examiner shalt      send a copy of
                                                                          shall send        ol the
                             recommendation to each party,                            and the
                                                        patty, the Board President, and
                             Commissioner.
        WAIVER OF
        WAIVER OF                        may agree in writing to extend by not more
                             The parties may
                             The                                               more than 45
                                                                                          45
        DEADLINE
        DEADLINE             days the right to
                                            to a recommendation byby the date specified above.
                                        Code 21.257
                              Education Code 21.257
      CONSIDERATION
      CONSIDERATION          The Board or a designated subcommittee shall consider the hear-
                             The
                             ing examiner's record and recommendation at the first
                                                                                lirst Board meet-
                                 ior which notice can be posted in compliance with the open
                             ing for                                                    open
                                              The meeting must be held not later than the 20th
                             meetings laws. The
                             day after the date that the Board President receives the hearing
                             examiner's recommendation and record.
      ORAL ARGUMENT AND
      ORAL ARGUMENT AND             meeting. the Board or subcommittee shall allow each party
                             At the meeting,
      RECORDING
      RECORDlNG              to present an oral argument to the Board or subcommittee. The    The
                                    may. by written policy, limit the amount
                             Board may,                               amount of time for
                                                                                     tor oral argu-
                                    Ptovided equal time is allotted each party. Acertitled
                             ment, provided                                      A certified short-
                                                                                            ‘


                             hand reporter shall record any
                                                         any such oral argument.            ·
        LEGAL ADVICE
        LEGAL ADVICE                                     may obtain advice from an
                             The Board or subcommittee may
                             The                                                an attorney
                             who has not been
                             who         been involved in the proceedings.
                                       Code 21.258,
                             Education Code 21 4258, 21.260

      DATE ISSUED:
      DATE  ISSUED: 11/29/2005
                    ‘I1/29/2005                                                                   3of44
                                                                                                  3of
      UPDATE 77
      UPDATE77
      DFD(LECnAL)-P
      DFD{LEGAL)-P




156
156
       Alamo Heights ISD
       Alamo         lSD
       0159t)t
       015901

       TERlVllNATlON
       TERMINATION OFOF EMPLOYMENT
                        EMPLOYMENT                                                                              DFD
                                                                                                               DFD
       HEARINGS   BEFORE HEARING
       HEARlNGS BEFORE            EXAMINER
                          HEARING EXAMINER                                                                  (LEGAL)


       DECISION
       DECISION                            Not later than the tenth day after the date on which the meeting to
                                                     the hearing examiner's recommendation is held, the
                                           consider !he
                                           Board or subcommittee shall announce ils  its decision, which must

                                                                                                  may include a
                                           include findings of fact and conclusions of law, and may
                                           grant of relief.
                                                    relief.


                                   The Board or subcommittee may
                                   The                         may adopt, reject, or change the hear-
                                   ing examiner's conclusions of law or proposal for granting relief.
                                   The        may reject or change a finding
                                   The Board may                      ﬁnding of facl made by
                                                                                fact made  by the hear-
                                   ing examiner:
                                           1.
                                           1.    Only after reviewing the record of the proceedings; and
                                                                                                     and
                                        2.                                     is not supported by
                                                 Only ifif the finding of fact Is               by substantial evi-
                                                 dance.
                                                 dence.
                              The Board or subcommittee shall state in writing the reason for and
                              The                                                             and
                              legal basis for a change or rejection.
        RECORDING
        RECORDING                                                             announcement of the
                             A certified shorthand reporter shall record the announcement
                             Acertilied
                                        The District shall bear the cost of !he
                             decision. The                                  the reporter's services.

                                             Code 21.259, 21.260
                                   Education Code
      RECORD OF
      RECORD OF              The Commissioner shall consider the appeal solely on the basis of
                             The
      PROCEEDINGS
      PROCEEDINGS                                 may not consider any additional evidence or
                             the local record and may
                                                Code 21.301(c)
                             issue. Education Code
                             The record of the proceedings before the independent hearing ex-
                             The
                             aminer shall
                                    shail include:

                             1.                  The transcripts of
                                                 The             cl proceedings at the local level;

                             2.                  All evidence admitted;
                             3.
                             .“'':'”*.‘*’!‘3*‘
                                                 All offers
                                                     otters of proof;

                             4.                                                  and intermediate rulings;
                                                 All written pleadings, motions, and
                            5.                   AA description of matters oiticialty
                                                                           official!y noticed;
                             6.
                             F"                  !fif applicable, the recommendation of the independent hearing
                                                 examiner;

                            7.                   The transcript of the oral argument before the Board or Board
                                                 The
                                                 subcommittee;
                            8.                   The decision of the Board or Board subcommittee; and
                                                 The                                              and
                            9.
                            9,                   IfIt applicable, the Board or Board sub-commilt-ee's       rea
                                                                                     subcommittee's written rea-
                                                 sons for changing the recommendation of the independent
                                                 hearing examiner.
                                TAC 157.1072(e)
                             19 TAC T57.1072{e)
      DATE ISSUED:
      DATE  ISSUED: 11/29/2005
                    11/29/2065                                                                                 4 of 4
                                                                                                               4of4
      UPDATE 77
      UPDATE
      DFD(LEG/\L)«P
      DFD(LEGAL)-P




157
157
        Alamo         ISD
        Alamo Heights ISO
        015901

                    OF EMPLOYMENT
        TERMINATION OF
        TERMINATION    EMPLOYMENT                                                               DFD
                                                                                               DFD
        HEARINGS BEFORE HEARING
        HEARINGS BEFORE          EXAMINER
                         HEARING EXAMINER                                                   (LOCAL)
                                                                                            (LOCAL)


       TIME        FOR
       TIME LIMITS FOR                    shalt consider the hearing examiner's record and
                               The Board shall                                           and rec-
                                                                                             rec.
       ORAL ARGUMENT
       ORAL  ARGUMENT          ommendation at 1he   first Board meeting for which notice can be
                                                the first
                                                                              Iaws.
                               posted in compliance with the open meetings laws.
                               The Board shall allow ten minutes per party for oral argument.
                               The
                               Administration shall be offered
                                                       offered the opportunity to present argument
                               first
                               Iirst and may use a portion of the designated time for rebuttal after
                                     and may
                               the other party has presented argument.
                               The Board reseJVes
                               The         reserves the right to grant additional time in
                                                                                       in equal
                               amount to both parties,                                        Issues
                                               parties. depending on the complexity of the issues
                                                 Boards discretion.
                               and solely at the Board's




       DATE ISSUED:
       DATE ISSUED: 3/2/1998                          ADOPTED:
                                                      ADOPTED:                                 11 of 11
       UPDATE 58
       UPDATE58
       DFD(LOCAL)-A
       DFD(LOCAL)-A




‘I58
158
       Alamo Heights ISD
       Alamo
       015901
       015901

                  CONTRACTS
       CONTINUING CONTRACTS
       CONTINUING                                                                                  DFCA
                                                                                                   DFCA
       SUSPENSIONFFERMINATION
       SUSPENSIONffERMINATION                                                                   (LEGAL)
                                                                                                {LEGAL)


       DISCHARGE
       DISCHARGE             A teacher employed under aa continuing contract may
                             A                                                   may be
                                                                                     be dis-
                             charged at any lime         good cause as determined by
                                               time for good                       by the Board.
                             “Good cause"
                             "Good    cause" is the failure to meet
                                                               meet the accepted standards of con-
                                                                                               con-
                             duct for the profession as generally recognized andand applied in simi-
                             larly situated school districts in this state.
      SUSPENSION
      SUSPENSION             The          may suspend
                             The District may suspend a teacher without pay          a period
                                                                             and for a
                                                                         pay and
                                                      end of the current school year in lieu of
                             not to extend beyond the end
                                            good cause as defined above.
                             discharge, for good
                                       Code 21.
                             Education Code 21.156
                                                156
      REDUCTION    FORCE
      REDUCTION IN FORCE     Continuing contract employees may may be released from employment
                                                                                     employment
                             by the District at the end of a school year
                             by                                     year because of necessary
                             reduction of personnel.                 ·
                             Necessary reduction of personnel shall be      made In
                                                                        be made  in the reverse or-
                             der of seniority in the specific teaching fields.
                                       Code 2t
                             Education Code 21,157
                                               157
      NOTICE
      NOTICE                 Before any empl9yee_Lgnd_er_,a_cgn_tjg3_ui_ri_g contract is dischargep,
                                                                                           discharged,
                             suspeﬁ£:ié‘d‘WHrTcut‘pay
                             suspenC!eifwrrhout                                                because of
                                                   pay in lieu of discharge, or released because
                             a necessary reduction in personnel, the employee shall be
                             a                                                                 be notified
                             in writing by the B0                                    and the
                                                                           actic;?ll_and     grounds for
                                                                                         the grounds   for
                            '_t_J__L&__Educafion      Coo‘e21.158(a)
                                         __ Education Code   21.158(a)
                            An
                            An employee who who is discharged or suspended
                                                                     suspended without paypay for ac-
                            tions related
                                   reiated to the inability or failure of the employee to perform
                            assigned duties is entitled, as                         a copy of each
                                                           as a matter of right, to a
                                                                       memorandum that concerns
                                                   any other written memorandum
                            evaluation report or any
                            the fitness or conduct of the employee, by    by requesting in writing a
                            copy of these documents. Education Code     Code 21.158(b)
      HEARING
      HEARING                    upon written notification of the proposed
                             If, upon
                            If,                                   proposed action, the employee
                            desires to contest the same, the employee                        Board In
                                                                 employee shall notify the Board    in
                                                               day after
                            writing not later than the tenth day   alter the date of receipt of the
                                            and must
                            official notice and  must provide the Commissioner with aa copy of
                                          A timely request for a hearing entitles the employee to
                                  notice, A
                            the notice.
                            a hearing before aa hearing examiner.
                            The parties may
                            The         may agree in writing to extend by      more than ten
                                                                        by not more
                            days the deadline for requesting a hearing.
                                      Code21.251(a)(1),
                            Education Code                                   DFD}
                                           21.251(a)(1), 21.253, 21.159 [See DFDJ
      HEARINf; NOT
      HEARING NOT                    employee fails to request a hearing not later than the tenth
                            Ifif the employee
      REQUEST ED
      REQUESTED             day after receiving notice of the proposed action, the Board shall
                            take the appropriate action andand notify the employee in writing of the
                                                                                    Board sent the
                            action not later than the 30th day after the date the Board
                            notice of the proposed action. Education Code Code 21.159(c)
                                                                                21. 159(c)

      DATE ISSUED:
      DATE ISSU ED: 12/16/2003                                                                     1oi2
                                                                                                   1of2
      UPDATE 72
      UPDATE72
      DFCA(LEGAL)-P
      DFCA(LEGAL)-P




159
159
      Alamo         ISD
      Alamo Heights ISD
      015901
      Oi5901

      CONTINUING CONTRACTS
      CONTINUING CONTRACTS                                                              DFCA
                                                                                        DFGA
      SUSPENSION/TERMINATION
      SUSPENSION/TERMINATION                                                         (LEGAL)
                                                                                     (LEGAL)



                            Note:   See DF regarding circumstances under which a certiﬁed
                                    See OF                                       certified
                                    employee's                      the year shall
                                                 termination during ‘the
                                    employee's terrninauon                         be reported
                                                                             shal! be
                                    to the Slate
                                           State Board for Educator Certification
                                                                     Cedificatlon (SBEC).




      DATE iSSUED: 12/16/2003
      DATE lSSUED: 12/16/2003                                                           2 of 2
                                                                                        2    2
      UPDATE 72
      UPDATE72
      DFCA(LEGAL)-P
      DFCA(LEGAL)-P




160
160
      Alamo         ISD
      Alamo Heights !SD
      015801
      015901

      EMPLOYMENT PRACTICES
      EMPLOYMENT  PRACTICES                                                                         DCC
                                                                                                    DCC
      CONTINUING CONTRACTS
      CONTINUING CONTRACTS                                                                       (LEGAL)


      CONTINUING
      CONllNUING                  An
                                  An employee of the District       who completes the required probation-
                                                           District who
      CONTRACTS
      CONTRACTS                                       DCA(LEGAL)] and
                                  ary period [see DCA(LEGAL}]              who is elected to employment
                                                                      and who
                                  under a continuing contract by    by the Board for the succeeding year,
                                  shall be notified
                                             notilied in writing of election to continuing contract status,
                                  and such employee shall, not later than the 30th day after such no-
                                  tification, file with the Superintendent written notification of accep-
                                  tiilcation, tile
                                  tance ofot the continuing contract. Faiture
                                                                          Failure of the employee to accept
                                  the contract within such 30-day period shall be     be considered a
                                                                                                    a re-
                                  tusal on the part of the employee to accept the contract. Education
                                  fusal
                                   Code 27.153
                                  Code21.153
      FORMER
      FORMER                The Board may
                            The           may grant to a person whowho has served as a principal or
      ADMINISTRATORS
      ADMINISTRATORS        in another administrative position for which certiflcation
                                                                             certification is required,
                            at the completion of service in such capacity, a continuing contract,
                            ifit the person qualities
                                            qualifies for that position under criteria adopted by the
                          · Board. The                                                               be
                          '

                                                                     administrative capacity shalf
                                       The period of service in an admintstrative              shall be
                            construed as contract service as an employee. Education Code
                            21.155
             UNDER
      STATUS UNDER
      STATUS                      Each employee with whom whom aa continuing contract has been  made
                                                                                          been made
      CONTINUING
      CONTINUING                        be entitled to continue in the employee's position or a position
                                  shall be
      CONTRACT
      CONTRACT                    with the District for future school years without the necessity for
                                  annual nomination or reappointment, until such time as the person:
                                  1.                DFE, or retires under the Teacher Retirement
                                       Resigns [see DFE],
                                       System:
                                       System;
                                  2.   Is                                                 end of a
                                       is released from employment by the District at the end
                                       school year because of necessary reduction of personnel [see
                                       DFCA];
                                  3.   is discharged for
                                       Is                good cause, as defined in Section 21.156
                                                     ior good                              21.156 of
                                                                                                  oi
                                                      Code [see DFCAJ
                                       the Education Code       DFCA] and
                                                                       and in accordance with the
                                                                 DF and
                                       procedures provided [see OF  and DFD];
                                  4.   is discharged for a
                                       Is                a reason stated in the teacher's contract that
                                                                                 and pursuant to the
                                                                           1995 and
                                       existed on or before September 1, 1995
                                                   provided [see DFDJ;
                                       procedures provided       DFD]; or
                                  5.   is returned to probationary status, as authorized in Section
                                       Is
                                                                Code [see DNB].
                                       21.106 of the Education Code
                              A




                                            Code 21.154
                                  Education Code




      DATE ISSUED:
      DATE ISSUED: 7/1/1996                                                                            of11
                                                                                                    11 of
      UPDATE 51
      UPDATE51
      DCC(LEGAL)-C
      DCC(LEGAL)-C




161
161
       Alamo         [SD
       Alamo Heights !SD
       015901

      EMPLOYMENT PRACTICES
      EMPLOYMENT  PRACTICES                                                              DCC
                                                                                         DCC
      CONTINUING CONTRACTS
      CONTINUING CONTRACTS                                                            (LOCAL)


      EUGIBLE  POSITIONS
      ELIGIBLE POSITIONS    Continuing contracts governed by Chapter 21 of 0! the Education
                            Code shall be provided to teachers and
                            Code                               and librarians.




      DATE ISSUED:
      DATE !SSUED: 11/26/2007                     ADOPTED:
                                                  ADOPTED:                               11 of 11
      LDU 2007.04
      LOU
      DCC(LOCAL)—C
      DCC{LOCAL)-C




162
       Alamo         ISD
       Alamo Heights ISO
       015901

                  CONTRACTS
       CONTlNUlNG CONTRACTS
       CONTINUING                                                                              DFCA
                                                                                               DFCA
       SUSPENSlON/TERMINATION
       SUSPENSION/TERMINATION                                                               (LEGAL)


       DISCHARGE
       DISCHARGE            A teacher employed under a continuing contract may
                            A                                                 may be
                                                                                   be dis-
                            charged at any time for good
                                                       good cause as determined by the Board.
                            "Good cause"
                            "Good   cause" is the failure to meet the accepted standards of con-
                            duct for the profession as generally recognized and applied in simi-
                                                                                            simi~
                            larly situated school districts in this state.
      SUSPENSION
      SUSPENSION            The District may
                            The          may suspend
                                             suspend a teacher without pay  and for a period
                                                                        pay and
                                          beyond the end
                            not to extend beyond     end of the current school year in lieu of
                            discharge, for good cause as defined above.
                                      Code 21.
                            Education Code 21.156‘
                                               156
      REDUCTION    FORCE
      REDUCTION IN FORCE    Continuing contract employees may may be released from employment
                            by the District at the end of a school year because of necessary
                            reduction of personnel.
                            Necessary reduction of personnel shall be      made in the reverse or-
                                                                       be made
                            der of seniority in the specific teaching fields.
                                      Code 21.157
                            Education Code 21. 157

      NOTICE
      NOTICE                         any employee under a continuing contract is discharged,
                             Before any                                               discharged.
                             suspended Without
                             suspended             pay in lieu of discharge, or released because of
                                           without pay                                             oi
                            aa necessary reduction in personnel,
                                                         personnel. the employee shall bebe notified
                            in writing by       Board of the
                                       l;>y the Board    the proposed action and the grounds for tor
                                                      Code21.158{a)
                             the action. Education Code      21.15B(a)
                           An             who is discharged or Sl,lspended
                               employee, who
                           An employee                             suspended without paypay for ac-
                           tions related to the inability or failure of the employee to perform
                           assigned duties is entitled, as a matter of right, to a  copy of each
                                                                                  a copy
                                                                     memorandum that concerns
                                                 any other written memorandum
                           evaluation report or any
                           the fitness or conduct of the employee, by                    writing a
                                                                        by requesting in writ!ng a
                                                                      Code 21. 1580:)
                           copy of these documents. Education Code21.158(b)
                           copy
      HEARING
      HEARING                    upon written notification of the proposed action, the employee
                             if, upon
                            If,
                                                                 employee shall notify the Board in
                                                      same. the emproyee
                            desires to contest the same,
                            writing not later than the tenth day             data of receipt of the
                                                               day after the date
                            cfficiar
                            olticial notice and must provide the Commissioner with a copy
                                            and must                                       copy of
                                  notice‘ A
                            the notice.                                    entities the employee to
                                            ﬁmely request for a hearing entitles
                                          A timely
                           aa hearing before a hearing examiner.
                           The         may agree in writing to extend by
                           The parties may                                    more than ten
                                                                       by not more
                           days the deadline for requesting a hearing.
                                     Code21.25l(a)(1),
                           Education Code                                   DFD]
                                          21.251(a)(1), 21.253, 21.159 [See DFDJ
      HEARING  NOT
      H EARING NOT         lf the employee fails to request a hearing not later
                           if                                                    than the tenth
                                                                            laterthan
      REQUESTED
      REQUESTED            day after receiving notice of the proposed action.
                           day                                          action, the Board shall
                           take the appropriate action and notify the employee in writing of the
                           action not later than the 30th day
                                                          day after the date the Board sent the
                                                                       Code 21.159{c)
                           notice of the proposed action. Education Code      21.159(c)

      DATE ISSUED:
      DATE ISSUED: 12/16/2003
                   12/16/2003                                                                  1of2
                                                                                               1of2
      UPDATE 72
      UPDATE
      DFCA(LEGAL)~P
      DFCA(LEGAL)-P




163
163
                     [SD
       Alamo Heights !SD
       015901

                  CONTRACTS
       CONTINUING CONTRACTS
       CONTINUING                                                                      DFCA
                                                                                       DFCA
       SUSPENSION/TERMINATION
       SUSPENS!ON!fERMINAT!ON                                                       (LEGAL)
                                                                                    (LEGAL)



                            Note:   See  DF regarding circumstances under which a certified
                                    See DF                                           cenified
                                    employee's termination during the year shall be
                                                                                  be reported
                                    to the State Board for          Germination (SBEC).
                                                       (or Educator Certification




      DATE ISSUED:
      DATE ISSUED: 12/16/2003                                                          2 of 2
                                                                                       2
      UPDATE 72
      UPDATE72
      DFCA(LEGAL)~P
      DFCA(LEGAL)-P




164
       Alamo
       Alamo Heights ISD
       015901

       PERSONNEL~MANAGEMENT  RELATIONS
       PERSONNEL-MANAGEMENT RELATIONS                                                                 DGBA
                                                                                                      DGBA
       EMPLOYEE
       EMPLOYEE COMPLAINTS/GRIEVANCES
                COMPLAINTS/GRIEVANCES                                                               (LEGAL)


              STATES
       UNITED STATES
       UNITED                 The District shall take no action abridging the freedom of speech or
                              The
       CONSTITUTION
       CONSTITUTION           !he right of the people to petition the Board for redress of griev-
                              the
                                             Canst. Amend,
                              ances. U.S. Const.    Amend. I,l.XIV
                                                                XIV
                              The         may confine its
                              The Board may              its meetings to specified subject matter and

                              may
                              may hold nonpublic sessions lo                                when the
                                                                   transact business. But when
                                                                to 1ransact
                              Board sits in public meetings to conduct pubHcpublic business and hear
                                                        may not discriminate between speakers on
                              the views of citizens, it may
                                                       it

                                                                                   message itit conveys.
                              the basis of the content of their speech or the message           conveys,
                              Rosenberger v.
                              Ftosenberaer              & Visitors
                                                Flector &
                                             V. Rector     Wsitors of Univ. of Virginia,  515 U.S. 819,
                                                                                 Wain/‘a, 515        B19,
                              B28 (1995); Cilv
                              828          City of             \/.Vlﬂs. Emg.
                                                 Q! Madison v. Wis.     Emp. Rel.  Comm’n, 429 U.S.
                                                                             Ftel. Comm'n,         U.S,
                                        (1976); Pickering v.
                               167, 174 {1976);                         Educ, 391
                                                             v. Bd. of Educ.,       US. 563, 568
                                                                               .391 U.S.        568
                                            DG]
                              (1968) [See DG]
                              {1968)
      TEXAS CONSTlTUTl0N
      TEXAS CONSTITUTION      Employees shall have the right, inin a                      assem-
                                                                   a peaceable manner, to assem-
                                                     common good and to apply to those invested
                              ble together for their common
                              with lhe
                                   the powers ofat government for redress of grievances or other
                              purposes, by                                            Canst. Art. I,
                                         by petition, address, or remonstrance. Tex. Const.                 I,

                              Sec. 27
                              Sec.27
                              There is no requirement that the Board negotiate or even respond
                              to complaints. However, the Board must stop, look, and listen and
                              must consider the petition, address,    rernonstrance. Prof’/Ass‘n
                                                          address. or remonstrance.    Prof'/ Ass'n
                              of College Educators v. El Easo  Cgugtg Cmtv.
                                                         Paso Countv
                                                        ll.            Qmty [Coflegel
                                                                             [COIlegel District,
                              678    W.2d 94 (Tex. App.——EI
                                   S.W.2d
                              678 S.                         Paso 1984, writ ref‘d
                                                   App.-Ef Paso              ref'd n.r.e.)
      FEDERAL LAWS
      FEDERAL LAWS            A district that receives federal financial
                              A                                tinancial assistance, direc!ly
                                                                                     directly or indi-
        SECTION
        SECTION 504           rectly, and that employs 15 or more persons shall adopt grievance
                              rectly,
                              procedures that incorporate appropriate due process standards
                              and that provide for the prompt and equitable resolution of com-com-
                              plaints alleging any action prohibited by           504 of the Reha-
                                                                       by Section 504
                              bilitation Act of 1973. 34
                              bilitation                 CFFi 104.l(b),
                                                      34 CFR              104,11
                                                               104.7(b), 104.11

        AMERICANS WITH
        AMERICANS   WITH      A district that employs
                              Adistrict                50 or more persons shall        and publish
                                                                           shalt adopt and
        DISABILITIES ACT
                     ACT      grievance procedures providing for prompt and equitable resolution
                                                                                          by the
                              of complaints alleging any action that would be prohibited by
                              Code of
                              Code                                28. Part 35 (Americans v.iith
                                    ot Federal Regulations, Title 28,                      with
                                                             28 CFR
                              Disabilities Act regulations). 28 CFFt 35.      35140
                                                                         107, 35.140
                                                                     35.107,

        TITLE IX              A district
                              A  district that receives federal financial
                                                                  tinancial assistance, directly or indi-
                                                                                                    indi«
                              rectly, shall adopt and
                              rectly,               and publish grievance procedures providing for
                              prompt and equitable resolution of employee complaints alleging
                                                           title IX
                              any action prohibited by Title               Education/Rmendntents
                                                                 lX of the Education Amendments of
                              1972. 34      CFR 106.B(b);
                                       34 CFR     106,8{b): North Haven Board of Education v. Bell,1/.


                              456   Us. 512
                              456 U.S.     512 (1982)
                                                (1982)
                                                                                               '

                                                                                 -




      DATE ISSUED: 9/6/2007
      DATE                                                                                               1ol4
                                                                                                         1of4
      UPDATE 81
      UPDATE81
      DGBA(LEGAL)-P
      OGBA(LEGAL)-P




165
165
      Alamo
      Alamo Heights ISD
      015901

      PERSONNEL-MANAG EMENT RELATIONS
      PERSONNEL-MANAGEMENT  RELATIONS                                                            DGBA
                                                                                                 DGBA
      EMPLOYEE COMPLAINTS/GRIEVANCES
      EMPLOYEE COMPLAlNTS/GRiEVANCES                                                           (LEGAL)


      STATE LAWS
      STATE LAWS              The prohibition against collective bargaining and strikes [see DGA]
                              The                                                             DGA]
        wAGES_ HOURS,
        WAGES, HOURS_         does not impair the right of employees to present grievances con-
        CONDITIONS OF
        CONDH-IONS OF         cerning their wages, hours of employment, or conditions of work,
        WQRK
        WO Rf<                either individually or through a representative that does not claim
                              eilher
                                                         Code 617.005
                                                   Govt Code
                              the right to strike. Gov't
                              The      “conditions of
                              The term "conditions    work‘ should be construed broadly to in-
                                                   oi work"                                in»

                                     any area of wages, hours or conditions of
                              clude ahy                                     ot employment, and
                                                    is appropriate for communications from
                              any other matter that is                                      em«
                                                                                       trom em-
                              ployees to employer concerning an aspect of their relationship.
                              Atty. Gen. Op. JM-177 (1984); Corpus Christi Fed. of Teachers v.
                                         Op, JM-177                                                 1/.


                              CUIQUS Christi ISD,
                              Corpus         /SD, 572    W.2d 663
                                                  572 S. W2d   563 (Tex. 1978)
                              The statute protects grievances presented individually or individual
                              The
                              grievances presented collectively. Lubbock           Fireﬁghters v.
                                                                            Froi’I Firefighters
                                                                  Lubbock Prof'/                v.

                              Cit't.           742
                              City of Lubbock, 742 S. W. 2d 413 (Tex. App.—Ar-narlllo
                                                    S.Vi/.2d                             1987. writ
                                                                      App. -Amarillo 1987,
                              rel’d n.r.e.)
                              ref'd
                              The District cannot deny an employee's representative, including
                              The
                              an attorney, the right to represent the employee at any stage of   ot the
                              grievance procedure, so long as the employee designates the rep-     rep‘
                              resentative and the representative does not claim the right to strike.
                                               I-Treliglrters v.
                                        Prof’! Firefighters
                              Lubbock Prof'/                                      742
                                                                 City of Lubbock, 7
                                                              v. Citv              42 S. W222’ 413
                                                                                      5. W.2d
                              (Tex. /lpp.—Aman'Ilo 1987, writ ref'd n.r.e.); Savre
                              (Tex, App.-Amari/lo                              Sayre v. Mullins, 681
                                                                                      i/.


                                 W.2d 25
                              s. W2d
                              S.      25 (Tex.
                                          (rex. 1984)

                              The District should meet with employees or their designated repre-
                              The
                              sentatives at reasonable times and   and places to hear grievances con~
                                                                                                   con·
                              cerning wages, hours of work, and conditions of work. The    The right to
                              present grievances is               if employees have access to those
                                                       satistied if
                                                    is satisfied
                                 a posttion
                              in a position of authority to air
                                                             air their grievances. However, that au-
                              thority is under no legal compulsion to take action to rectify the
                                                        H-422 (1974);
                              matter. Atty. Gen. Op. H-422                               ISD v.
                                                                 (1.974); Corpus Christi ISO V. Padilla,
                                                                                                Padilla
                              709 S. W2d
                              709               {Text App.—Corpus
                                      W.2d 700 (Tex.   App.--Corpus Christi, 1986, no  no writ)
        EMPLOYMENT
        EMPLOYMENT            The District's employment policy must provide each employee with
                              The
        POLICY
        POLICY                the right to present grievances to the Board.
                              The         may not restrict the ability of an employee to communi-
                              The policy may                                              communi-
                                                   member or
                              cate directly with a member    of the Board regarding a matter relat-
                                                                                           may pro-
                              ing to the operation of the District, except that the policy may
                              hibit ex parte communication relatlng
                                                              relating to:

                              1.   A hearing under Edl!cation
                                   A                 Education Code                        E
                                                               Code Chapter 21, Subchapter E
                                         Contracts) or F
                                   (Term Contrp.cts)    F (Hearing Examiners); and
                              2.   Another appeal or hearing in which ex parte  communication
                                                                          parie communicalion
                                   would be inappropriate
                                            inappropriate pending a final decision by
                                                                                   by the Board.
                                        Code 11.1513
                              Education Code

      DATE ISSUED:
      DATE ISSUED: 9/6/2007                                                                       2 at 4
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166
      Alamo         tSD
      Alamo Heights ISO
      015901
      Oi 5901

       PERSONNELMANAGEMENT RELATIONS
       PERSONNEL-MANAGEMENT  RELATIONS                                                          DGBA
                                                                                                DGBA
       EMPLOYEE COMPLAINTS/GRIEVANCES
       EMPLOYEE COMPLNNTS/GRIEVANCES                                                          (LEGAL)


        GRIEVANCE POLICY
        GRIEVANCE POLICY      The Dfstrfct's
                              The  District's grievance policy must permit an employee to report a
                              grievance against a supervisor to a different supervisor if     em-
                                                                                       if the em·

                              ployee alleges that the supervisor:
                               i,
                               1.   violated the law in the workplace; or·
                                    Violated                           or-

                              2.    Unlawfully
                                    Unlawtully harassed the employee.

                                         Code 11.
                               Education Code 11.171
                                                  171
        FINALITY OF
        F|NALITY OF           An
                              An examination or course grade issued by   by a classroom teacher is
        GRADES
        GRADES                final     may not be
                                    and may
                              ttnal and          be changed
                                                    changed unless the grade is arbitrary, errone-
                              ous, or not consistent with the District's grading policy applicable to
                              the grade, as determined byby the board of the district in which the
                              teacher is employed.
                              The Board's determination is not subject to appeal.
                              The
                                        Code 28.0214
                              Education Code 28. 0214

      OPEN MEETINGS
      OPEN          ACT
           MEETINGS ACT       The Board is not required to conduct an open meeting to hear aa
                              The
                              complaint or charge against an employee. However, the Board
                              may not conduct a closed meetlng
                              may                                                  who is the sub-
                                                         meeting ifit the employee who
                                                                                    Code 551.074
                                                                              Gov’! Code
                              ject of the hearing requests a public hearing. Gov't
                                    EEC]
                              [See BEG]
        CLOSED MEETING
        CLOSED MEETING        The Board may
                              The          may conduct a                                  com—
                                                         a closed meeting on an employee com-
                              plaint to the extent required or provided by !aw.      BEC]
                                                                           law. [See BEG]

      RECORD OF
      RECORD OF               An appeal of the Board's decision to the Commissioner of Educa-
                              An                                                             Educa~
      PROCEEDINGS
      PROCEEDJNGS             tion shall be                 one review ‘of
                                         be decided based on·a           'Of the record developed at
                                                  “Record” includes, at a minimum, an aupible
                              the District level. "Record"                                audible
                                                                                                  an
                              electronic recording or written transcript of all oral testimony or ar-
                              gument. Education CodeCode 7.057(c),
                                                          7.057(0), (Q
                                                                    (f)

                                                                       make and
                              Itit is the District's responsibility to make and preserve the records of
                              the proceedings before the Board. Ifit the District fails to create and
                              preserve the record without good cause, all    all substantial evidence
                                                                               record for resolution
                              issues that require missing portions of the recOid
                                          deemed against !he
                              shall be deemed                             The record shall include:
                                                            the District. The

                              i.
                              1.    AA tape recording or a transcript of
                                                                      oi the hearing at the local lev-
                                                                                                  |ev—
                                    el. it a tape recording is
                                    el. If                  is used:


                                    a.    The tape recording must be complete, audible, and
                                          The
                                          clear; and                         ·
                                                                                 ‘




                                    b.    Each speaker must be clearly identified.
                                          Each                         identilied.

                              2.    All evidence admitted;
                              3.    All offers of
                                               ot proof;
                                                  proot;


      DATE ISSUED:
      DATE iSSUED: 9/6/2007                                                                     3 ot4
                                                                                                  of 4
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      UPDATE
      DGBA(LEGAL)-P
      DGBA(LEGAL)-P




167
      Alamo
      Alamo Heights ISD
       015901
       015901

       PERSONNEL-MANAGEMENT RELATIONS
       PERSONNEL-MANAGEMENT  FtELAT|ONS                                                                DGBA
                                                                                                       DGBA
       EMPLOYEE COMPLAINTS/GRIEVANCES
       EMPLOYEE COMPLAINTSIGRIEVANCES                                                               (LEGAL)


                              4.           All
                                           Ali written                         intemediate rulings:
                                               wrilfen pleadings, motions, and intermedlate rulings;

                              5.           A description of matters officially noticed;
                                           A
                              .".°’S".*>




                              6.           IfIf applicable,
                                                appiicabie, the decision of the hearing examiner;

                              7.           Atape
                                           A tape recording or transcript of the oral argument before the
                                           Board; and
                              8.           The decision of the Board.
                                           The
                                        TAG 157.1073(d)
                                     19 TAC
      WHISTLEBLOWER
      WHISTLEBLOWER                              suit, an employee who
                               Before bringing suit,                           reiief under Govern-
                                                                     who seeks relief
      COMPLAINTS
      COMPLAINTS                     Code Chapter 554
                              ment Code               554 (whistleblowers)
                                                           (whistieblowers) must initiate action under
                              the District's
                                   Districts grievance or appeal procedures relating to suspension
                              or termination of employment or adverse personnel action. Gov't   Gov?
                              Code 554.005 [See DG]
                              Code                     DG]




      DATE ISSUED: 9/6/2007
      DATE                                                                                             4of4
                                                                                                       4 of 4
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      UPDATE
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      DGBA{LEGAL)-P




168
       Alamo Heights ISO
       Alamo         ISD
      4015901
       015901

      PERSONNEL-MANAG EMENT RELATIONS
      PERSONNEL-MANAGEMENT  RELATIONS                                                            DGBA
                                                                                                 DGBA
      EMPLOYEE COMPLAINTS/GRIEVANCES
      EMPLOYEE COMPLAINTS/GRIEVANGES                                                          (LOCAL)


      GUIDING PRINCIPLES
      GUIDING PRINCIPLES      The Board encourages employees to discuss their concerns and
                              The
         INFORMAL
         INFORMAL             complaints through informal conferences with their supervisor,
         PROCESS
         PROCESS              principal, or other appropriate administrator.
                              Concerns should be be expressed as soon as possible to allow earry
                                                                                           early
                              resolution at the lowest possible administrative level.

        DIRECT
        DIRECT                Employees shall not be prohibited from communicating with a
        COMMUNICATION
        COMMUNICATION         member of the Board regarding District operations except when
                              member                                                   when
        WITH BOARD
        WITH BOARD            communication ootween                              member would
                                                                    and a Board member
                                              between an employee and
        MEMBERS
        MEMBERS               be inappropriate because of a pending hearing or appeal related to
                              the employee.
        FORMAL PROCESS
        FORMAL PROCESS        Ifit an informal conference regarding a complaint fails to reach the
                              outcome requested by the employee, he or she may  may initiate the
                              formal process described below by timely filing a written complaint
                              form.
                              Even after inltiating
                              Even        initiating the formal complaint process, employees are
                                                      iniormal resolution cif
                              encouraged to seek informal                                    An em-
                                                                          of their concerns. An em~
                                      whose concerns are resolved may
                              ployee whose                                                     com«
                                                                        may withdraw a formal com-
                              plaint at any time.
                              The process described in this policy shall not be construed to cre-
                              The
                                   new or additional rights beyond those granted by law or Board
                              ate new
                              policy, nor to require a full
                                                       lull evidentiary hearing or "mini-trial" at any
                              level.
             TO
      NOTICE TO
      NOTICE                  The District shall inform employees of this policy.
                              The
      EMPLOYEES
      EMPLOYEES
      FREEDOM  FROM
      FREEDOM FROM                                  any District employee shall unlawfully retali-
                              Neither the Board nor any
      RETALIATION
      RETALIATION                                                  a concern or complaint.
                              ate against an employee for bringing a
      WHISTLEBLOWER
      WHISTLEBLOWER           Whistlebiower complaints shall be filed
                              Whistleblower                        tiled within the time specified by by
      COMPLAINTS
      COMPLAINTS                        may be
                              law and may       made to the Superintendent or designee beginning
                                             be made
                                        Two...Time
                              at Level Two    Time fines
                                                   lines for the employee and the District set out
                                             may be shortened to allow the Board to make
                              in this policy may                                        make i'a1 final
                                               60 calendar days of the initiation of the complaint.
                              decision within 60
                                     DG]
                              [See DG]
      COMPLAINTS
      COMPLAINTS                                  a violation of law by
                              Complaints alleging a                                            made
                                                                                      may be made
                                                                     by a supervisor may
      AGAINST
      AGAINST                 to the Superintendent or designee. Complaints alleging a   a violation
      SUPERVISORS
      SUPERVISORS             of law by                     may be
                                     by the Superintendent may       made directly to the Board or
                                                                  be made
                              designee.
      COMPLAINTS
      COMPLAINTS              In
                              in this policy, the terms "complaint" and "grievance" shall have the
                              same meaning. This policy shall apply to,all
                              same                                                     complaints.
                                                                       torall employee complaints,
                              except asas provided below.



      DATE ISSUED:
      DATE ISSUED: 6/2/2008                                                                      tots
                                                                                                 1of6
      UPDATE 83
      UPDATE83
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      DGBA(LOCAL)-A




169
169
      Alamo         ISD
      Alamo Heights lSD
      015901

      PERSONNEL-MANAGEMENT RELATIONS
      PERSONNEL-MANAGEMENT  RELATIONS                                                            DGBA
                                                                                                 DGBA
      EMPLOYEE COMPLAINTS/GRIEVANCES
      EMPLOYEE COMPLAINTS/GRIEVANCES                                                           (LOCAL)
                                                                                               (LOCAL)


        EXCEPTIONS
        EXCEPTIONS            This policy shall not apply to:
                                                          to:

                              1.    Complaints alleging discrimination, including violations of Title
                                    lX (gender),
                                    IX (gender). Title VII
                                                       Vil (sex, race, color, religion, national origin),
                                    ADEA {age),
                                    ADEA                      504 (disability). [See DIA]
                                           (age), or Section 504                       DlA]

                              2.                                lorms of harassment, including
                                    Complaints alleging certain forms
                                    harassment by a supervisor and                 "File Vil.
                                                                 and violations of Tiiie Vll. [See
                                    DIAJ
                                    DIA]           ·
                                                   ‘




                              3.    Complaints concerning retaliation relating to discrimination
                                    and harassment. [See DIA]
                                                          DlA]

                              4.                          instructional materials. [See EFA]
                                    Complaints concerning instruclional                 EFA)
                              5.                                                       who is
                                    Complaints concerning a commissioned peace officer who
                                    an employee of the District. {See CKE]
                                                                 [See CKE]
                              6.                                          nonrenewai of
                                    Complaints arising from the proposed nonrenewal  oi a term
                                    contract issued under Chapter 21 of the Education Code.
                                         DFBB]
                                    [See DFBB]
                              7.   Complaints arising from the proposed termination or suspen-
                                                     ol an employee on a probationary, term, or
                                                 pay of
                                   sion without pay
                                   continuing contract issued under Chapter 21 of
                                                                                oi the Education
                                   Code during the contract term. {See
                                   Code                                                   DFCA,
                                                                   [See DFAA, DFBA, or DFCA,
                                   respectively]
      GENERAL
      GENERAL                 Complaint forms                    may be filed by
                                        lorms and appeal notices may          by hand-delivery,
                                                                                 l'rand—dellvery,
      PROVISIONS
      PROVISIONS              fax,
                              fax, or U.$.                      ﬁlings shall be timely filed if re-
                                      U.S. Mail. Hand-delivered filings                          it


        HLING
        FIUNG                 ceived by the appropriate administrator or designee by   by the close ofoi
                              business on the deadline. Fax filings                          if they
                                                               iilings shall be timely filed it
                                                 betore the deadline, as Indicated
                              are received on or before                                by the
                                                                             indicated by
                              date/time shown
                                         shown on the fax               lilings shall be timely filed if
                                                       tax copy. Mail filings                         it

                              they are postmarked by         Mailon or before the deadline and
                                                    by U.S. Mail.on                              and
                                        by the appropriate administrator or designated represen-
                              received by
                                        more than three days after
                              tative no more                   alter the deadline.

        RESPONSE
        RESPONSE              At Levels One One and Two, "response" shall mean
                                                                          mean a written communi-
                                                                                          communi-
                              cation to the employee from the appropriate administrator. Re-Re~
                              sponses may  may be hand-delivered
                                                   handdeiivered or sent by
                                                                         by U.S.            em-
                                                                            US. Mail to the em-
                              ployee's mailing address of record. Mailed responses shall be
                              timely ifit they are postmarked by US. Mail on
                                                              by U.S.                       dead
                                                                           on or before the dead-
                              line.
        DAYS
        DAYS                                 mean District business days, unless otherwise noted.
                              "Days" shall mean
                              "Days"
                              In                                               day a document is
                              in calculating time lines under this policy, the day             is

                              filed                The following
                              tiled is "day zero." The                              “day one."
                                                                             day is "day
                                                       lollowirig business day           one.“




      DATE ISSUED: 6/2/2008
      DATE         6/212008                                                                           2 of
                                                                                                        oi 6
      UPDATE 33
      UPDATE83
      DGBA(LOCAL)—A
      DGBA{LOCAL)-A




170
          Alamo Heights ISO
                        ISD
          015901
          Oi590i

          PERSONNEL-MANAGEMENT RELATIONS
          PERSONNEL-MANAGEMENT  RELATIONS                                                               DGBA
                                                                                                        DGBA
          EMPLOYEE COMPLAINTS/GRIEVANCES
          EMPLOYEE COMPLAINTS/GRiEVANCES                                                             (LOCAL)


            REPRESENTATIVE
            REPRESENTATIVE                               mean any person who
                                  “Representative” shall mean
                                  "Representative"                            who or an organization
                                  that does not claim the right to strike and
                                  !hat                                                             em-
                                                                          and is designated by the em-
                                  ployee lo
                                         to represent him or her in the complaint process.

                                  The employee may
                                  The              may designate a representative through written no-
                                                          any fevel
                                  tice to the District at any                        if the employee des-
                                                              level of this process. lf
                                  ignates aa representative with fewer than three days’
                                                                                      days' notice to the
                                  District before a scheduled conference or hearing, the District may  may
                                  reschedule the conference or hearing to a later date, ifif desired, in
                                  reschedufe
                                  order to include the District's             The District may
                                                         Districts counsel. The            may be
                                                                                                be repre-
                                  sented by                any level of the process.
                                           by counsel at any
            CONSOLIDATING
            CONSOLIDATING         Complaints arising out of an event or a series of related events
            COMPLAINTS
            COMPLAINTS            shall be addressed in
                                                      In one complaint. Employees shall not bring
                                  separate or serial complaints arising from any event or series of
                                  events that have been or could have been addressed in a previous
                                  complaint.
                                  When two or more
                                  When                                                              and
                                                 more complaints are sufficiently similar in nature and
                                                                                     one proceeding,
                                  remedy sought to permit their resolution through one
                                  remedy
                                               may consolidate the complaints.
                                  the District may
            UNTIMELY FIUNGS
            UNTIMELY FILINGS      All time Hmits
                                  All      limits shall be strictly followed unless modilied by
                                                                                             by mutual
                                  written consent.

                                                                                                  com-
                                       a complaint form or appeal notice is not timely filed, the com-
                                  IfIt a
                                           may be
                                  plaint may   be dismissed, on written notice to the employee, at any
                                  point during the complaint process. The  The employee maymay appeal the
                                  dismissal byby seeking review in writing
                                                                    Writing within ten days from the date
                                  of the written dismissal notice,
                                                            notice. starting at the level at which the
                                              was dismissed. Such appeal shall be limited to the issue
                                  complaint was
                                  of timeliness.
            COSTS INCURRED
            COSTS INCURRED        Each party shall pay
                                  Each             pay its own costs incurred in the course of the
                                                       its own

                                  complaint.

            COMPLNNT FORM
            COMPLAINT FORM                                                                   on a form
                                  Complaints under this policy shall be submitted in writing on
                                           by the District.
                                  provided by
                                             any documents that support the complaint should be at-
                                  Copies of any
                                  tached to the complaint form. IfIf the employee does not have cop-
                                                               may be
                                      ot these documents, they may
                                  ies of                                                         One
                                                                       be presented at the Level One
                                                              One conference, no new
                                  conference. After the Level One                   new documents
                                  may be submitted by
                                  may               by the employee unless the employee did not
                                  know the documents existed before the Level One
                                  know                                            One conference.
                                  A complaint form that is
                                  A                        is incomplete in anyany material aspect may     be
                                                                                                      may be
                                  dismissed, but maymay be refiled
                                                             reitled with all
                                                                          all the required information lfif the

                                           is within the designated time for
                                  reliling is
                                  refiling                                   for filing aacomplaint.
                                                                                           complaint.


          DATE ISSUED:
          DATE rssuso: e/2/2005
                       6/2/2008                                                                         3 of 6
          UPDATE as
          UPDATE83
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          DGBA(LOCAL)-A




171
       Alamo         ISD
       Alamo Heights ISO
       015901
       Oi5S01

       PERSONNEL~MANAGEMENT RELATIONS
       PERSONNEL-MANAGEMENT  RELATIONS                                                          DGBA
                                                                                                DGBA
       EMPLOYEE COMPLAINTS/GRIEVANCES
       EMPLOYEE COMPLAINTS/GRIEVANCES                                                        (LOCAL)


      LEVEL ONE
      LEVEL ONE                                     be fifed:
                                               must be
                               Complaint forms mus!    fited:

                               i.
                               1.   Within 15 days ofoi the date the employee first
                                                                                 first knew, or with
                                    reasonable diligence should have known, of the decision or
                                    action giving rise to the complaint
                                                              oornplaint or grievance; and

                              2.                                        who has the authority lo
                                    With the lowest level administrator who                   to
                                    remedy the alleged problem.
                                                                                    campus shall
                                    In most circumstances, employees on aa school campus
                                    file       One complaints with the campus
                                    file Level One                      campus principal; other
                                    District employees shall file       One complaints with their
                                                             file Level One

                                    immediate supervisor.
                                                                who has authority .to
                                    IfIt the only administrator who                to remedy the al-
                                                                                                 at-
                                                            Superintendent or designee, !he
                                    leged problem is the Superintendent                       com-
                                                                                          the com-
                                                                 Two following the procedure, includ-
                                             may begin at Level Two
                                    plaint may
                                    ing deadlines, for filing the complaint form at Level One.
                              If the complaint is not filed with the appropriate administrator, the
                              If
                              receiving administrator must note the date and time the complaint
                              form was             and immediately forward the complaint form to
                                    was received and
                              the appropriate administrator.
                              The appropriate administrator shaU
                              The                                                            and
                                                              shall investigate as necessary and
                              hold a conference with the employee within ten days after receipt
                                                                            may set reasonable
                                                         The administrator may
                              of the written complaint. The
                              time limits for the conference.
                              The administrator shall provide the employee a written response
                              The
                              within ten days following the conference. TheThe written response
                              shall set forth the basis of the decision. In reaching a decision, the
                                                                                              One
                                              may consider information provided at the Level One
                              administrator may
                              conference and any other relevant documents or information the
                              administrator
                              administrator believes will
                                                     will help resolve the complaint.
            TWO
      LEVEL TWO
      LEVEL                                                                                   One or
                              IfIf the employee did not receive the relief requested at Level One
                              ifif the time for a response has expired,               may request a
                                                               expired. the employee may
                              conference with the Superintendent or designee to appeal the
                              Level One One decision.
                              The                                            atorm
                                                     be filed in writing, on a
                              The appeal notice must be                        form provided by
                                  District. within ten days of the date of the written Leve!
                              the District,                                                  One re-
                                                                                       Level One re»
                              sponse or,    if no
                                       or, if              was received, within ten days of the
                                               no response was
                                     One response deadline.
                              Level One               deadline‘

                              After receiving notice of the appeal,           One administrator
                                                            appeal. the Level One administrator
                                                                               One complaint to
                              shall prepare and forward a record of the Level One
                                        Two administrator. The
                              the Level Two                                 may request a copy
                                                             The employee may              copy of
                              the Level One
                                        One record.

      DATE ISSUED:
      DATE rssueo; 6/2/2008                                                                     44 of 6
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172
172
                     ISD
       Alamo Heights ISO
       015901
       015901

       PERSONNELMANAGEMENT RELATIONS
       PERSONNEL-MANAGEMENT  RELATIONS                                                           DGBA
                                                                                                 DGBA
       EMPLOYEE COMPLAINTS/GRIEVANCES
       EMPLOYEE COMPLAINTSIGRIEVANCES                                                  '
                                                                                               (LOCAL)


                                          One record shall include:
                                The Level One
                                The
                                1.    The original complaint form and
                                      The                         and any
                                                                      any attachments.
                                2.    All other documents submitted by the employee at Level One.
                                                                    by !he
                                3.    The                                  One and any attach-
                                      The written response issued at Level One
                                      ments.
                                      merits.

                                4.                                                 One administra-
                                      All other documents relied upon by the Level One
                                                                One decision.
                                      tor in reaching the Level One
                                The Superintendent or designee shall hold a conference within ten
                                The
                                days alter the appeal notice is filed. The conference shall be lim-
                                                                filed. The
                                ited lo
                                     to the issues presented by                         One and
                                                              by the employee at Level One
                                                        Two appeal notice. At the conference, the
                                identified in the Level Two
                                employee may may provide information concerning any documents or
                                information relied upon by the administration for the Level One
                                information                                                      de
                                                                                            One de-
                                cision. The
                                         The Superintendent or designee maymay set reasonable time
                                limits for the conference.
                                                                                                      ‘




                                The Superintendent or designee shall provide the employee a writ-
                                The
                                ten response within ten days following the conference. TheThe written
                                                                                    in reaching a
                                response shall set forth the basis of the decision. In
                                                                           may consider the Level
                                decision, the Superintendent or designee may
                                One record, information provided at the Level Two
                                One                                             Two conference, and
                                any other relevant documents or information the Superintendent or
                                designee believes will help resolve the complaint.
                                                         One and Level Two
                                Recordings of the Level One            Two conferences, if any,
                                                                                              if

                                                                                 Two records.
                                                                   One and Level Two
                                shall be maintained with the Level One
            THREE
      LEVEL THREE
      LEVEL                                                                                     Two or
                                Ifif the employee did not receive the relief requested at Level Two
         .
                                                                                        may appeal
                                ifit the time for a response has expired, the employee may
                                the decision to the Board.
                                The appeal notice must be filed in
                                The                                In writing, on a form provided byby
                                                                                                Two re-
                                the District, within ten days of the date of the written Level Two
                                sponse or,  if              was received, within ten
                                        or, if no response was                     ‘ten days of the

                                      Two response deadline.
                                Level Two
                                The Superintendent or designee shall inform the employee of the
                                The
                                date, time, and place of the Board meeting at which the complaint
                                wlll
                                will be on the agenda for presentation to the Board.

                                The
                                The Superintendent or designee shall provide the Board the record
                                             Two complaint. The
                                oi the Level Two
                                of                                        may request a copy
                                                            The employee may             copy of
                                          Two record.
                                the Level Two
                                The Level Two
                                The       Two record shall include:
                                1.   The       One record.
                                     The Level One
      DATE ISSUED:
      DATE           5/2/2003
           lSSl_JED: 6/212008                                                                      5 of 6
      UPDATE 83
      UPDATE83
      DGBA{LOCAL)-A
      DGBA(LOCAL)-A




173
                     lSD
             Heights ISO
       Alamo Heighls
       015901
       015901

       PERSONNELMANAGEMENT RELATIONS
       PERSONNEL-MANAGEMENT  RELATIONS                                                          DGBA
                                                                                                DGBA
       EMPLOYEE COMPLAINTS/GRIEVANCES
       EMPLOYEE COMPLAINTS/GRIEVANCES                                                        (LOCAL)


                              2.    The                                  Two and
                                    The written response issued at Level Two and any attach-
                                    ments.
                              3.
                              3,    All other documents relied upon by
                                    AH                              by the administration in
                                                       Two decision.
                                    reaching the Level Two
                              If
                               if at the Level Three hearing the administration intends to rely on

                                                                   Two record, the administration
                              evidence not included in the Level Two
                                                                                   the evidence at
                              shall provide the employee notice of the nature of lhe
                                                 before the hearing.
                              least three days oefore
                              The District shall determine whether the complaint will
                              The                                                will be pre-
                              sented in open or closed meeting in accordance with the Texas
                              Open Meetings Act and other applicable law.
                              Open                                     law, [See BE]

                             The presiding officer may
                           . The                    may set reasonable time limits and guidelines
                             for the presentation including an opportunity for the employee and
                                                     make aa presentation and provide rebuttal
                             administration to each make
                             and an opportunity for questioning by the Board. TheThe Board shall
                                                      may request that the administration provide
                             hear the complaint and may
                             an explanation for
                             an              for the decisions at the preceding levels.

                              In
                              in addition to any other record of the Board meeting required by
                              law, the Board shall prepare a separate record of
                                                                              at the Level Three
                                             The Level Three presentation, including the presen-
                              presentation. The
                                        the employee or the employee's representative,
                              tation by !he                                              any pres-
                                                                         representative. any
                              entation from the administration, and questions from the Board with
                                                be recorded by audio recording, video/audio re-
                              responses, shall be
                              cording, or court reporter.
                              The Board shall then consider the complaint. Itit may
                              The                                                  may give notice of
                              its decision orally or in writing at any time up to and including the
                              next regularly scheduled Board meeting. Ifit the Board does not
                              make a decision regarding the complaint by
                              make                                         by the end of the next
                              regularly scheduled meeting, the lack of a response by the Board
                              upholds the administrative decision at Level Two.




      DATE ISSUED:
      DATE ISSUED: 6/212008
                   6/2/2008                           ADOPTED:
                                                      ADOPTED:                                      6
                                                                                               6 of 6
                                                                                               6of
      UPDATE 83
      UPDATE83
      DGBA(LOCAL)-A
      DGBA(LOCAL)-A




174
174
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Appendix

 Tab 5
     Case: 14-50391
     Case:                 Document: 00512885589
                           Document:                       Page: 1
                                                           Page:       Date Filed: 12/30/2014




               THE UNITED
            IN THE
            IN     UNITED STATES COURT OF
                          STATES COURT  OF APPEALS
                                           APPEALS
                     FOR THE
                     FOR THE FIFTH
                             FIFTH CIRCUIT
                                   CIRCUIT

                                      No.
                                      NO‘ 14-50391
                                          1 4'     1                          United
                                                                              United States
                                                                                     States Court _of
                                                                                                   of Appeals
                                    Summary
                                    Summary    Calendar                                Fifth °"°“"
                                                                                        F””‘ Circuit

                                                                                      FILED
                                                                             December 30, 2014
RODOLFO MARTINEZ,
RODOLFO MARTINEZ,                                                                     W. Cayce
                                                                                 Lyle W. Cayce
                                                                                      Clerk
               Plaintiff - Appellant
                           —




v.
V.


TEXAS WORKFORCE COMMISSION
TEXAS WORKFORCE COMMISSION -- CIVIL RIGHTS
                                    RIGHTS DIVISION,
                                           DIVISION,

               Defendant - Appellee
                               -




                    Appeal from the United States District Court
                         for the Western District of Texas


       KING, JOLLY,
Before KING,            HAYNES, Circuit Judges.
             JOLLY, and HAYNES,
PER CURIAM:
PER CURIAM:
       Rodolfo Martinez appeals the district                        summary
                                    district court’s order granting summary

judgment in favor of the Texas Workforce Commission-Civil Rights Division
(“TWC”) on Martinez’s claims of national origin discrimination under Title VII,
                                                                           VII,
42 U.S.C.    2000e-2(a).11 Martinez,
   U.S.C. §§ 2000e-2(a).   Martinez, a Mexican-American,                 TWC
                                       Mexican-American, argues that the TWC
                          when it
discriminated against him when it appointed Janet Quesnel, a white Woman,
                                                             White woman,



       11We note that Martinez was represented by
         We                                          by counsel at various points below, but he
proceeds with this appeal pro se.            we review his brief and other filings
                               se. As such, we                             filings liberally.
                                                                                   liberally. See
Abdul-Alim Amin v. 1). Universal
                       Universal Life
                                  Life Ins.     of Memphis,
                                       Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 n.1 (5th (5th
Cir.
Cir. 1983).
     1983).
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                                   No. 14-50391
                                       14-50391
to   management position over him in May
to a management                                    TWC counters that itit
                                     May 2011. The TWC
                             was more qualified and performed better
promoted Quesnel because she was
during the interview process than Martinez. A magistrate judge issued a
                                  Martinez. A
Report and Recommendation (“R&R”) recommending that the district
                                                        district court

grant summary                          TWC because Martinez failed to
      summary judgment in favor of the TWC                         to show

         TWC’s reasons for
that the TWC’s         for promoting Martinez were a pretext for
                                                             for unlawful

discrimination; the district
                    district court agreed.                            we agree
                                   agreed. For the following reasons, we
         district court and AFFIRM
with the district                               summary judgment.
                            AFFIRM the grant of summary
                                         I.
                                         I.


         We review the district
         We                                      summary judgment de novo and
                       district court’s grant of summary

apply     same standard as the district
apply the same                 district court. Day
                                               Day v.
                                                   U. Wells       Bank Nat’l
                                                      Wells Fargo Bank
Ass’n, 768 F.3d 435, 435 (5th Cir.
                              Cir. 2014).
                                   2014). The district
                                              district court is
                                                             is entitled to
                                                                         to grant

summary judgment only “if the movant shows that there is
summary                                               is no genuine dispute

as to
   to any
      any material fact and the movant is          to judgment as a matter of
                                       is entitled to

law.”
law. Fed. R. Civ.
    77
             Civ. P.
                  P. 56(a).        summary judgment stage,
                     56(a). At the summary                 we “review the
                                                    stage, we

facts
facts in the light most favorable to
                                  to the non-movant.” Price v.
                                                            v. Fed.
                                                               Fed. Express
Corp., 283
       288 F.3d
           F.8d 715, 719 (5th Cir.
                              Cir. 2002).
                                   2002).
         As Martinez presents a Title VII claim based on circumstantial evidence,
we review the case in accordance with the traditional burden-shifting
we
framework for
          for such claims.
                   claims. See Meinecke v. H&R Block of
                                        v. H&R       of Houston, 66 F.3d
77,
77, 83 (5th Cir.
            Cir. 1995) (citing McDonnell Douglas Corp.
                 1995) (citing                   Corp. v.
                                                       v. Green,
                                                          Green, 411 U.S. 792,
802 (1973)).
    (1973)).       The plaintiff must first
                                      first present a prima facie case of

discrimination, and if
                    if the plaintiff
                           plaintiff does so,
                                          so, the defendant must respond by
                                                                         by
offering a legitimate,
           legitimate, non-discriminatory reason behind its
                                                        its decision. Id.
                                                                      Id. If
                                                                          If the

defendant satisfies
          satisfies its
                    its burden,
                        burden, the burden shifts
                                           shifts back to
                                                       to the plaintiff to
                                                                        to

demonstrate that the defendant’s proffered reason is
                                                  is a pretext for
                                                               for

discrimination. Id.
                Id.



                                         2
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                                  No. 14-50391
                                      14-50391
                                       II.
                                       II.

                                               made out a prima facie
      The parties do not dispute that Martinez made             facie case of

national origin discrimination based on a failure to
                                                  to promote theory.          See
Haynes v.
Haynes U. Pennzoil Co.,
                   Co., 207 F.3d 296, 300 (5th Cir.
                                               Cir. 2000) (identifying the prima

facie
facie elements of a failure to
                            to promote claim).     TWC then proffered a non-
                                       claim). The TWC

discriminatory reason for
                      for failing
                          failing to
                                  to promote Martinez—Quesnel was more

qualified than Martinez.
               Martinez. Specifically,     TWC pointed to
                         Specifically, the TWC         to Quesnel’s extensive

                      TWC and in state government—she had over thirty
experience within the TWC
years of state government experience,
                          experience, she had worked for     TWC
                                                     for the TWC

continuously for
             for over seventeen years,         was already employed
                                years, and she was         employed in a
managerial capacity at the time of her promotion. Additionally, Quesnel out-
scored Martinez during the interview process.         We must decide whether
                                                      We
Martinez produced sufficient evidence to              TWC’s reasons were
                                      to suggest that TWC’s

pretext for
        for discrimination.
            discrimination.
      Martinez argues that he has shown pretext because “the evidence in the
                           was substantially more qualified for
record establishes that he was                              for the position of

           May 2011 than [Quesnel].”
Manager in May
Manager                              We have held that a plaintiff
                         [Quesnel].” We                            may
                                                         plaintiff may

establish pretext by                       was “clearly better qualified” such
                  by demonstrating that he was
that “the qualifications are so widely disparate that no reasonable employer
           made the same
would have made     same decision.” Moss
                                    Moss v.       BMC
                                         12. BMC Software,
                                                 Software, Inc.,
                                                           Inc., 610 F.3d
                                                                     F.8d
917, 923 (5th Cir.                           marks omitted).
              Cir. 2010) (internal quotation marks omitted). Martinez does not
cite
cite the record on appeal, nor does he identify such qualifications in his brief.
                                                                           brief.
                    we turn to
      For guidance, we             R&R, in which the magistrate judge noted
                            to the R&R,

that Martinez claimed he had four superior qualifications: (1)
                                                           (1) he had more

supervisory experience; (2)
                        (2) he had higher-level experience; (3)
                                                            (3) he had spent

more years as an investigator; and (4)
                                   (4) he had more education. We agree with
                                                   education. We
                                                                     was
the magistrate judge that these factors do not suggest that Martinez was
clearly more qualified than Quesnel.
                            Quesnel. Even accepting that Martinez had more
                                        33
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                                 No. 14-50391
                                     14-50391
supervisory experience and higher-level
                           higher—level experience generally,
                                                   generally, an employer

may discount both years of service and general experience in favor of specific
may                                                                   specific

qualifications.                   923-24. As the magistrate judge noted,
                Moss, 610 F.3d at 923–24.
qualifications. Mass,                                             noted,
                                  came from 1990
Martinez’s supervisory experience came      1990 through 1997,
                                                         1997, whereas
Quesnel was currently working in a supervisory role        TWC when
                                               role at the TWC when she was
promoted. Indeed, it
                  it is                                TWC valued Quesnel’s
                     is clear from the record that the TWC

                                    TWC, which included regular promotions
strong record of service within the TWC,
from investigatory to supervisory roles.
                                  roles. See Nichols v.
                                                     v. Lewis Grocer, 138 F.3d

563, 567-69 (5th Cir.
563, 567–69      Cir. 1998)                           was not clearly more
                      1998) (finding that an employee was
qualified than another in part because the employee selected had experience
in the department of the available position).
                                   position).

      We also reject
      We      reject the notion that the magistrate judge weighed the evidence

in reaching his conclusion. Instead,
                            Instead, our precedents recognize that employers
are generally free to
                   to weigh the qualifications of prospective employees,
                                                              employees, so long
as they are not motivated by
                          by race. Indeed, an employee’s “better education,
                                                                 education,
work experience,                            company do not establish that he
     experience, and longer tenure with the company
is
is clearly better qualified.” Price,
                              Price, 283 F.3d at 723. Here, Quesnel had the
                     TWC, a strong service record at the TWC,
longer tenure at the TWC,                                TWC, a supervisory
                TWC, and a stronger performance than Martinez in her
position at the TWC,
interview.
interview.   We cannot say
             We                                                 make him
                       say that Martinez’s other qualifications make him
clearly more qualified than Quesnel. See id.                               was
                                         id. (concluding that the employer was

entitled to
         to summary          when it
            summary judgment when it valued a candidate’s military

experience and other skills
                     skills over the plaintiff’s
                                     plaintiffs college degree, greater

management experience,
management experience, and other qualifications).
                                 qualifications).

                                       TWC improperly relied on the results
      Second, Martinez argues that the TWC
of a “subjective” interview score to                     him. An employer may
                                  to select Quesnel over him.             may
rely
rely on subjective reasons to
                           to select
                              select one candidate over another,
                                                        another, however, “such
as a subjective assessment of the candidate’s
                                  candidates performance in an interview.”
                                       4
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                                            No. 14-50391
                                                14-50391
Alvarado v.
         U. Tex.
            Tex. Rangers,
                 Rangers, 492 F.3d 605, 616 (5th Cir.
                                                 Cir. 2007).           TWC
                                                      2007). Here, the TWC
                                                              them based on
asked the candidates an identical set of questions and scored them
the similarity of their answers to
                                to a model answer.
                                           answer. Cf.
                                                   Cf. id.
                                                       id. at 617 (finding that

there was no evidence as to how the interviewers
                         to how     interviewers arrived at their scores).
                                                                  scores).

            TWC has provided some evidence demonstrating how
Because the TWC                                          how it
                                                             it scored the

applicants in the interview process, we conclude that the subjective assessment
                            process, we

may serve as a legitimate,
may            legitimate, non-discriminatory reason for
                                                     for its
                                                         its decision, and the

use of the subjective assessment does not serve as evidence of pretext.
      Finally,                          TWC “misrepresented the bases for
      Finally, Martinez claims that the TWC                           for the

selection of [Quesnel],
             [Quesnel], rather than truthfully stating that the only basis for
                                                                           for

promotion of [Quesnel] was . . . the subjective scoring during the interview.”
             [Quesnel] was      .   .   .




We see no evidence of a misrepresentation.
We                                                      TWC consistently
                        misrepresentation. Instead, the TWC
stated that it
            it selected Quesnel based both on her qualifications, namely her
                                                  qualifications, namely

              TWC, and her performance in the interview.
record at the TWC,                            interview?2
                                                III.
                                                III.

      In sum,
         sum, Martinez has failed to
                                  to show that he was clearly better qualified

for                                  TWC’s bases for
for the manager position or that the TWC’s       for its
                                                     its decision were

otherwise affected by
                   by his national origin.
                                   origin.                 Accordingly, the district
                                                           Accordingly,     district court

                                  R&R granting summary
properly adopted the magistrate’s R&R          summary judgment in favor
       TWC.
of the TWC.
                                                                              AFFIRMED.




      2  We note that the magistrate judge also considered and rejected a number
         We                                                                   number of
additional arguments in      R&R. Although Martinez has not raised those issues here,
                      in his R&R.                                                      we
                                                                                 here, we
                               R&R and the record evidence and have found no error.
have nonetheless reviewed the R&R                                            error.
                                           55
