                                                                             ACCEPTED
                                                                        04-14-00746-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                    4/9/2015 9:30:00 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     04/9/2015 9:30:00 PM
                                                    KEITH E. HOTTLE
                                                          Clerk

ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT,
                 Appellant,

                            v.

                CATHERINE CLARK,
                    Appellee.


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


            APPELLANT’S REPLY BRIEF


                                 ATTORNEYS FOR APPELLANT

                                 Robert A Schulman
                                 State Bar No. 17834500
                                 Leonard J. Schwartz
                                 State Bar No. 17867000
                                 Bryan P. Dahlberg
                                 State Bar No. 24065113
                                 SCHULMAN, LOPEZ & HOFFER, L.L.P.
                                 517 Soledad Street
                                 San Antonio, Texas 78205
                                 Tel.: (210) 538-5385
                                 Fax: (210) 538-5384


          ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES ................................................................................... v

SUMMARY OF REPLY ......................................................................................... 1

REPLY ...................................................................................................................... 2

    I.       Plaintiff’s “Statement of Facts” contains multiple significant
             misstatements ............................................................................................. 2

              A. That plaintiff was considered by her employer, AHISD, to be a
                 superlative employee with an unblemished employment record
                 prior to her engagement in protected activity is a gross
                 distortion of jurisdictional evidence .................................................... 2

              B. That plaintiff’s supervisor, her principal, was informed of and
                 had been ignoring her complaints against her coworker,
                 Monterrubio, for months prior to her having complained to her
                 principal in writing on May 15, 2008 is another gross distortion
                 of jurisdictional evidence .................................................................... 7

              C. Plaintiff has embellished and invented allegations over the
                 course of this lawsuit and her Brief contradicts her initial May
                 15, 2008 written report ........................................................................ 9

              D. At all times AHISD followed its own sexual harassment
                 policies in responding to plaintiff’s allegations ................................ 12

              E Contrary to her recent and unfounded assertions in her Brief,
                the record evidence demonstrates that plaintiff’s TINA (her
                growth plan) was not issued in retaliation for her having
                complained ........................................................................................ 14

              F. The record evidence does not support plaintiff’s conclusion that
                 AHISD violated its custom or policy in evaluating and
                 recommending plaintiff’s termination in the Spring of 2009............ 18

                                                              ii
II.    Argument and Authorities ....................................................................... 22

       A. Mission Consolidated and the making of a prima facie case
          sufficient to withstand a jurisdictional challenge .............................. 22

III.   Plaintiff has failed to establish the third, fourth and fifth elements
       of her sexual harassment claim ............................................................... 23

       A. Plaintiff has failed to show that the alleged harassment was
          “based on gender” ............................................................................. 23

       B. Plaintiff has failed to show that the alleged harassment was
          severe or pervasive under standards established by the Fifth
          Circuit ................................................................................................ 26

       C. Plaintiff has failed to meet her burden of demonstrating that
          AHISD was negligent in controlling the workplace, and the
          jurisdictional evidence conclusively establishes that AHISD
          responded appropriately to her complaints ....................................... 28

IV.    Plaintiff has failed to show that AHISD’s legitimate nonretaliatory
       reasons for termination were pretextual as required to defeat a
       jurisdictional challenge to her retaliation claim under Mission
       Consolidated ............................................................................................ 29

       A. Under Texas SOAH v. Birch pretext is to be considered in
          engaging in the Mission Consolidated jurisdictional analysis .......... 30

       B. Even were pretext not part of a jurisdictional analysis,
          plaintiff’s retaliation claim fails because her proffered
          circumstantial evidence is insufficient as a matter of law to
          support an inference of causation ...................................................... 32

            1. Plaintiff cannot rely on a theory of temporal proximity
               because her performance deficiencies had been identified
               and addressed by AHISD before she ever engaged in
               protected activity .......................................................................... 33


                                                     iii
                  2. Plaintiff was not similarly situated to Monterrubio, as she
                     alone suffered from an astounding and unprecedented
                     variety of consistent and severe, and irremediable,
                     performance deficiencies setting her apart and in a class
                     separate from any other AHISD employee to come before of
                     after her. ....................................................................................... 34

PRAYER................................................................................................................. 36

CERTIFICATE OF SERVICE .............................................................................. 37

CERTIFICATE OF COMPLIANCE ...................................................................... 38

APPENDIX............................................................................................................. 39




                                                           iv
                                   INDEX OF AUTHORITIES

CASES

Arredondo v. Gulf Bend Center,
     No. H-06-1580, 2007 WL 1004051 (S.D. Tex. Mar. 30, 2007) .................. 33

AutoZone, Inc. v. Reyes,
     272 S.W.3d 588 (Tex. 2008) .................................................................. 29, 34

Cantu v. Peacher,
      53 S.W.3d 5 (Tex. App.—San Antonio 2001, pet. denied) ......................... 22

City of Laredo v. Negrete,
       2010 WL 454921 (Tex. App.—San Antonio 2010, pet. denied) ........... 26-27

Doe ex rel. v. Dallas Independent School District,
     220 F.3d 380 (5th Cir. 2000) ....................................................................... 22

E.E.O.C. v. Boh Brothers Construction Co., L.L.C.,
      731 F.3d 444 (5th Cir. 2013) ........................................................................ 24

English v. Pohanka of Chantilly, Inc.,
      190 F. Supp. 2d 833 (E.D.Va. 2002) ........................................................... 25

Faragher v. Boca Raton,
     524 U.S. 775 (1998) .................................................................................... 29

Gulf States Toyota, Inc. v. Morgan,
      89 S.W.3d 766 (Tex. App.—Houston [1st. Dist.] 2002, no pet.) ..... 23, 26, 28

KIPP v. Rosenberg,
     2015 WL 410454 (Tex. App.—Houston [14th Dist.] 2015, pet. filed) ... 29-30

KIPP v. Whitehead,
     466 S.W.3d 99 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ..... 29, 31

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

                                                       v
Lauderdale v. Texas Department of Criminal Justice,
     512 F.3d 157 (5th Cir. 2007) ........................................................................ 15

Little v. Liquid Air Corp.,
       37 F.3d 1069 (5th Cir. 1994) ....................................................................... 32

Love v. Motiva Enterprises LLC,
      349 Fed. App’x 900 (5th Cir. 2009) ............................................................. 25

McDonnell Douglas Corp. v. Green,
    411 U.S. 792 (1973) ............................................................................. passim

Meritor Savings Bank v. Vinson,
      477 U.S. 57 (1986) ...................................................................................... 26

Mission Consolidated Independent School District v. Garcia,
      372 S.W.3d 629 (Tex. 2012) ................................................................. passim

Oncale v Sundowner Offshore Services, Inc.,
     523 U.S. 75 (1998) ................................................................................. 23-27

Ptomey v. Texas Tech University,
     277 S.W.3d 487 (Tex. App.—Amarillo 2009, pet. denied) ............ 15, 30, 32

Quantum Chemical Corp. v. Toennies,
     47 S.W.3d 473 (Tex. 2001) ......................................................................... 30

Texas State Office of Administrative Hearings v. Birch,
      No. 04-12-00681-CV, 2013 WL 3874473
      (Tex. App.—San Antonio July 24, 2013, pet. denied) ........................... 30-31

University of Texas, M.D. Anderson Cancer Center v. Valdizan-Garcia,
     No. 01-12-00386-CV, 2012 WL 5545783
     (Tex. App.—Houston [1st Dist.] November 15, 2012, no pet.) .................. 31

Vance v. Ball State University,
     133 S.Ct. 2434 (U.S. 2013) .......................................................................... 28


                                                       vi
Vickers v. Fairfield Medical Center,
      453 F.3d 757 (6th Cir. 2006) ....................................................................... 24

Wal-Mart Stores, Inc. v. Itz,
     21 S.W.3d 456 (Tex. App.—Austin 2000, pet. denied) ......................... 26-27

Ysleta Independent School District v. Monarrez,
       177 S.W.3d 915 (Tex. 2005) .................................................................. 34-35

STATUTES AND RULES

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




                                                     vii
                             SUMMARY OF REPLY

      The significance of the Texas Supreme Court’s holding in Mission

Consolidated, which governs this Plea to the Jurisdiction, is that in order to

overcome governmental immunity a plaintiff asserting a public school district’s

violation of the Texas Commission on Human Rights Act (TCHRA), must

“actually allege a violation of the TCHRA by pleading facts that state a claim

thereunder.” Id. at 635-36 (emphasis added). Finding that an “inquiry” into the

substance of a plaintiff’s claims was required, the Mission Court reasoned: “[…] if

TCHRA plaintiffs were allowed to stand on talismanic allegations alone, the

constraining power of pleas to the jurisdiction would practically be eliminated.” Id.

at 638. As such, the Supreme Court’s clear instruction to lower courts is a duty to

examine whether a plaintiff’s claims truly support a cause of action under the

TCHRA and to dismiss claims found lacking.

      Here, the Alamo Heights Independent School District (AHISD or Appellant)

appealed the trial court’s decision that ignored the Mission Consolidated holding.

See Appellant’s Brief. The Appellee responded (see Appellee’s Brief) and AHISD

now files this Reply.

      The thrust of Appellee’s Brief is argument that the trial court did not err in

denying AHISD’s jurisdictional plea because the factual allegations in Appellee’s

pleadings (to be construed always in favor of her claims) coupled with her



                                         1
arguments, made out a prima facie sexual harassment and retaliation case under the

TCHRA, thus meeting her jurisdictional requirements under Mission Consolidated.

      In this Reply, AHISD will show that significant “facts” relied upon by

Appellee in support of this contention were contorted, misrepresented and/or

mischaracterized to such an extent that Appellee has no prima facie case and that

once stripped of these embellishments and misrepresentations, the jurisdictional

evidence clearly demonstrates the material deficiency of her claims that must,

under Mission Consolidated and its prodigy, be dismissed.

      Appellee will also demonstrate that the “issue” of whether the Mission

decision requires a jurisdictional review under the McDonnell Douglas rubric

beyond the existence of a prima facie case, into pretext (Appellant claims it does

not and Appellee asserts the opposite), while relevant, is preceded by the fact that a

plaintiffs’ prima facie burden to have pled facts sufficient to support an inference

of causation, the third required element of her prima facie case. As will be further

developed below, in support of an inference of causation, Appellee/Plaintiff

offered the trial court, as she again offers here, mere unsupported subjective belief

that is wholly insufficient to meet this burden.




                                          2
                                         REPLY

I.     Plaintiff’s “Statement       of    Facts”   contains    multiple    significant
       misstatements.

       To overcome AHISD’s jurisdiction challenge, plaintiff is entitled to and will

surely present only facts favorable to her case. But, in doing so plaintiff is not

entitled to hyperbolize, exaggerate, misrepresent and otherwise distort testimony

and documentary evidence. As such, AHISD points this Court to the following

egregious and significant errors contained in plaintiff’s “Statement of Facts.”

     A. That plaintiff was considered by her employer, AHISD, to be a
        superlative employee with an unblemished employment record prior
        to her engagement in protected activity is a gross distortion of
        jurisdictional evidence.

       In support of her claim to have met the prima facie burden of demonstrating

a causal relationship between her protected activity and subsequent adverse

employment actions, plaintiff would have this court accept as “fact” that she was

considered by AHISD to be a “perfect” employee (see Appellee’s Brief, p. 1), that

she had not before received a “negative evaluation”(id.), and that she was never

instructed to not bring her children to her workplace prior to her having reported

harassing conduct to her supervisor on May 15, 2008 (id. at p. 15).

       Even assuming arguendo that plaintiff’s having made this report was a

protected activity, the evidence submitted to the trial court not only fails to support

these “factual” contentions, it supports a polar opposite result.



                                           3
      A Perfect Employee?

      Plaintiff’s claim to perfection as an employee is with regard to a single 45

minute AHISD assessment, an observation of plaintiff’s classroom that was

conducted 90 days into her first semester of employment. (CR 391-96) But,

AHISD concedes that at the time of her hiring, plaintiff was considered qualified

for her position and the evidence submitted to the trial court was that well prior to

plaintiff’s complaint to her supervisor, Principal, Stephanie Kershner had been

addressing and attempting to correct plaintiff’s performance deficiencies as they

related to her relationship with her peers. (Supp. CR, Vol. I. 181-182)

      The single, “perfect” 45-minute observation of plaintiff’s physical education

class occurring on December 7, 2007 concerned only Plaintiff’s classroom

interactions with her students1 and did not rate her performance and interactions

with peers in any of the areas that ultimately formed the basis of her growth plan,

Domains V-VII, “Professional Communication,” “Professional Development,” and

“Compliance      With      Policies,    Operating       Procedures,       and     Requirements,”

respectively. (CR 391-94)




1
  The four performance areas in which plaintiff was rated during this initial observation
were Domains I-IV, “Active, Successful Student Participation in the Learning Process,”
“Learner-Centered Instruction,” “Evaluation and Feedback on Student Progress,” and
“Management of Student Discipline, Instructional Strategies, Time, and Materials.” (CR
391-96)
2
  See www.merriam-webster.com/dictionary/chutzpah
      noun chutz·pah \ˈhu̇ t-spəә, ˈḵu̇ t spä\. : Yiddish:
                                                    4      personal confidence or courage that allows
      A First and Only Negative Evaluation?

      Plaintiff would have this court accept as fact that it was not until 2009, and

only after her complaint to her Principal, that she received her “first and only

negative evaluation” (see Appellee’s Brief, p. 1), but this again misrepresents the

uncontroverted evidence. Plaintiff’s complaint to her principal was on May 15,

2008, but prior to conducting plaintiff’s March 3, 2008 summative annual

appraisal, plaintiff’s principal had received student reports of her contentious

relationship with her alleged harasser, coach Monterrubio, on which she counseled

plaintiff at the March 3, 2008 summative appraisal conference. (Supp. CR, Vol. I.

181-182) Likewise, during the March 3, 2008 summative annual appraisal, while

rating her as but “proficient” in two performance areas, including “Professional

Communication” plaintiff was directed to “communicate with girls’ athletic

coordinator and administrators,” indicating a concern with plaintiff’s performance

at that time. (CR 399-400)

       Don’t Bring Your Kids to School Ma’am!

      Plaintiff contends as “fact” that it was not until after her complaint to her

Principal that AHISD directed her to stop bringing her children to school during

the workday. See Appellee’s Brief, p. 15. The trial court evidence is that Kershner

had issued this same directive to plaintiff prior to plaintiff’s complaint about



                                         5
Monterubbio. In plaintiff’s own words her principal had “told [her] that [her]

daughter coming to the school twice a week during the last hour [of the workday]

was causing problems in the workplace” instructing her to cease this practice. (CR

333, emphasis added). Kershner also testified that this reprimand and directive to

plaintiff had occurred prior to plaintiff’s complaint, that she, Kershner, was only

enforcing campus policy that plaintiff had repeatedly violated. (Supp. CR, Vol. I.

184, 227-231)

         The Principal’s 2009 recommendation as Plaintiff’s First and Only
         Negative Evaluation

         The uncontroverted evidence before the trail court was that in June of 2009,

plaintiff’s principal prepared a letter to her Superintendent recommending that

plaintiff be terminated for cause. The letter was accompanied by a profoundly

deficient evaluation, that plaintiff would have this court accept as her “first and

only negative evaluation.” See Appellee’s Brief, p. 1. In some circles the term of

art for this sort of contention is “chutzpah.”2 The uncontested record evidence is

that in August, September, and October of 2008, Kershner and AHISD

administrators held numerous meetings with plaintiff in an attempt to remediate the

significant performance issues, including her failure to follow previous directives


2
    See www.merriam-webster.com/dictionary/chutzpah
         noun chutz·pah \ˈhu̇ t-spəә, ˈḵu̇ t spä\. : Yiddish: personal confidence or courage that allows
         someone to do or say things that may seem shocking to others.



                                                    6
to not leave her children unattended at work, a growing and obvious inability to

perform duties and function cooperatively with others, and failures to comply with

AHISD’s policies. (Supp. CR, Vol. I. 227-231; see also Appellant’s Brief, pp. 13-

15) The record is also replete with significant efforts made by AHISD to have

plaintiff remediate these severe performance deficiencies (id.) including placing

her on a growth plan and issuing her a written reprimand. (Supp. CR, Vol. I. 184-

185, 236-237) It is conceded that plaintiff filed an EEOC charge on October 7,

2008, three weeks prior to the implementation of the growth plan, but it is also

uncontested that her growth plan was based on plaintiff’s conduct identified by

AHISD and addressed with her months prior. Id.

      Once rectified, plaintiff’s distorted statement of “facts” belies her contention

that she was a perfect employee with no performance deficiencies prior to her

engagement in protected activity, and as such she cannot successfully contend that

she has proffered evidence supporting her having demonstrated a causal

relationship between her protected activity and subsequent adverse employment

action, which is the third prima facie element of her retaliation claim.

   B. That plaintiff’s supervisor, her principal, was informed of and had
      been ignoring her complaints against her coworker, Monterrubio, for
      months prior to her having complained to her principal in writing on
      May 15, 2008 is another gross distortion of jurisdictional evidence.

      In support of her claim to have met the prima facie burden of demonstrating



                                          7
AHISD’s negligence in controlling the workplace, plaintiff would have this court

accept as “fact” that plaintiff’s supervisor, her principal, had been informed of and

had been ignoring her complaints against her coworker, Monterrubio, for months

prior to her having complained to her principal in writing on May 15, 2008 (see

Appellee’s Brief, p. 4) when in fact, the jurisdictional evidence demonstrated only

that Plaintiff’s May 15, 2008 letter was the first time she reported sexually oriented

conduct to her principal.

       According to plaintiff’s “facts” her principal was informed of her allegations

against Monterrubio on numerous occasions and for months during the Spring of

2008 (see Appellee’s Brief, pp. 3-5), a good trick in that plaintiff also states that

she had not, previous to her May 15, 2008 allegations, brought these complaints to

her supervisor’s attention.3 In fact, in her May 15, 2008 written report to her

principal plaintiff explains that she “had major hesitation about writing this very

complaint” (CR 341), and included a list of reasons to explain “why I am just now

reporting this to you.” (CR 340, emphasis added) These are not the words of

someone who has previously reported the same behavior to Kershner, much less

done so on numerous occasions.

       The closest plaintiff gets to alleging prior knowledge of her supervisor in her

letter is her suggestion that because her principal addressed her relationship with

3
 There is no evidence, nor is there allegation, that plaintiff’s alleged Fall 2007 report to a
“friend,” Annette Kessler, ever reached Kershner.


                                              8
Monterrubio at the March 3, 2008 summative conference, she “must have been

aware of problems in the workplace.” (CR 340, emphasis added) Moreover her

principal’s testimony was that the March 3, 2008 summative conference discussion

with plaintiff about her relationship with Monterrubio was about, and only about, a

disagreement between the two over an instructional approach, namely where to

hold classes, and how to discipline students who refused to dress for physical

education classes. (CR 239)

      Thus, plaintiff’s own words at the time of her report, bolstered by her

supervisor’s consistent testimony, reject plaintiff’s unsupported “factual” assertion

that her principal had long known of the alleged sexual harassment and thus

undermines her contention that AHISD failed to control the workplace by taking

earlier corrective action, the fifth required prima facie element of her sexual

harassment claim.

   C. Plaintiff has embellished and invented allegations over the course of
      this lawsuit and her Brief contradicts her initial May 15, 2008 written
      report.

      As just described and as will follow, plaintiff’s Statement of Facts falsely

depicts a severe, pervasive and offensive work environment of sexual advances,

which plaintiff offers in support of her argument that she met the third and fourth

required prima facie elements of her sexual harassment claim: (3) that the

harassment constituted discrimination based on her gender, and (4) that it altered



                                         9
the terms and conditions of her employment. See Appellee’s Brief, pp. 2-4.

Plaintiff’s current allegations are materially different from those she first reported

to her principal in her May 15, 2008 letter.

      Plaintiff’s May 15, 2008 letter characterized Monterrubio’s behavior as

“rude,”   “abrasive,”   “inappropriate,”    “bullying,”   “harassing,”   “offensive,”

“derogatory,” “threatening,” and “intimidating” (CR 328-341), but never alleged

that Monterrubio’s conduct was discrimination based on plaintiff’s gender. (CR

328-341) Instead, plaintiff described Monterrubio as “jealous” of her (CR 329),

and that Monterrubio was snubbing her because plaintiff was one of the “Alamo

Heights mothers” thought of as “smug, wealthy, and snotty,” and that Monterrubio

had called her daughters “trust-fund babies.” (CR 333-334) These reasons have

nothing whatsoever to do with plaintiff’s gender, but give every indication that

Monterrubio simply did not like plaintiff and allegedly bullied her for reasons not

protected by law.

      Plaintiff also never alleged, as she now asserts in her Brief, that Monterrubio

or Boyer were sexually attracted to her, nor that they made sexual advances

towards her, nor that their subsequent bullying was a response to unreciprocated

sexual interest (Appellee’s Brief, p. 2). Today, plaintiff claims that Monterrubio

and Boyer grabbed her buttocks while posing for a picture during the faculty

Christmas party in 2007 (see Appellee’s Brief, p. 3). This allegation is significantly



                                           10
embellished and materially different from plaintiff’s initial report, where she

reported that unidentified “coaches” were “grabbing their private areas of their

bodies for photographs next to a Christmas tree.” (CR 330, emphasis added) For

“factual” support, plaintiff cites her deposition testimony taken on March 22,

2013, several years after the alleged incident, and several years into this

pending litigation, where she, for the first time, alleged that she had been

grabbed sexually. (Sec. Supp. CR 190-91)

      Plaintiff also cites this same deposition testimony for not just embellished,

but entirely new allegations of Monterrubio’s conduct that she had never before

reported (see Appellee’s Brief, pp. 16-17, citing Sec. Supp. CR 195-197). Plaintiff

was a prolific complainant with over 100 separate and combined allegations of

bullying and harassing behavior found in multiple reports in 2008-2009. While a

few of these allegations could be considered complaints of inappropriate behavior,

the vast majority involved matters such as her not being brought breakfast tacos,

wadded up print jobs in the trash cans, and radios played at too loud a volume (see

Appellant’s Brief, p. 16, citing Supp. CR, Vol. I. 250-253). But now, through her

Brief and only though her Brief, plaintiff goes to great lengths to make her

allegations seem severe, pervasive, and discriminatory while the allegations she

originally made during the course of her employment, and throughout the first

three years of this lawsuit that compose the juridictional records in this appeal,



                                        11
were nothing of the sort. It is inconceivable that such bombshell allegations as two

co-workers sexually grabbing her buttocks could have slipped this plaintiff’s mind

when she otherwise complained if somebody played the radio too loud.

      Absent plaintiff’s embellished and recent allegations of sexual advances, she

cannot demonstrate, as is her burden, that the alleged conduct was discrimination

based on her gender. See infra, Part III.A, discussing the third prima facie element

of plaintiff’s same-sex hostile work environment claim. Moreover, once stripped of

these embellishments, it becomes clear that the totality of plaintiff’s allegations is

insufficient to meet the severe or pervasive threshold required to prove the fourth

prima facie element of her claim.

   D. At all times AHISD followed its own sexual harassment policies in
      responding to plaintiff’s allegations.

      As demonstrated above, plaintiff’s argument that her principal violated

AHISD’s policy by ignoring her complaints during the Spring of 2008 is baseless

as plaintiff by her own admission had not reported these allegations to her principal

until May 15, 2008. See supra, part I.B. Similarly, plaintiff mischaracterizes the

testimony of Kershner, Bashara and Brown when she alleges in her Brief that

Kershner violated AHISD’s policy by not “formally handling Clark’s protected

report under the District’s policy” when Kershner conducted the initial

investigation into plaintiff’s allegations herself. See Appellee’s Brief, pp. 11-12.




                                          12
      Specifically, plaintiff asks this Court to conclude that the record contains no

written documentation showing that Kershner had provided a copy of plaintiff’s

letter to Brown, who was the Director of Human Resources at the time, and that

this establishes a “fact” that Kershner failed to bring plaintiff’s report to his

attention to conclude that Kershner lacked the administration’s authority necessary

to conduct an investigation of plaintiffs complaints. (see Appellee’s Brief, p. 11,

and Sec. Supp. CR 269). The record evidence is that Principal Kershner had

informed Brown of plaintiff’s charges (Supp. CR, Vol. I. 102) and (CR 243) and

that AHISD policy expressly allowed for the investigation to be conducted by a

campus principal. See Appellee’s Brief, p. 11 and (Sec. Supp. CR 269).

      Plaintiff then falsely claims that “Kershner admitted she [was] not qualified

to conduct such an investigation as she had never done it before” Id. But, this an

outright fabrication, as the record evidence is uncontested that principal Kershner

had previously handled a similar investigation involving a complaint of sexually

inappropriate conduct by a teacher towards students, nor had she, or anyone (other

then plaintiff in her Brief), stated that she was unqualified to do so. (CR 246)

      Plaintiff also falsely asserts that AHISD’s policy was violated because a

written report of the investigation was not filed with the district official overseeing

the investigation. See Appellee’s Brief, p. 13. But the record reveals that Kershner

was the district official overseeing the investigation, and she had provided plaintiff



                                          13
with a written report of her investigation and findings on May 23, 2008, which she

also discussed with plaintiff in person on May 27, 2008. (CR 183, 225-26) The

uncontroverted record testimony is also that Kershner shared the results of her

investigation with Brown, the Director of Human Resources. (CR 102)

           Plaintiff concludes that Kershner’s investigation of her complaints was

somehow illegitimate (see Appellee’s Brief, p. 15), clearly attempting to create

the impression with this Court that AHISD failed to follow its own policy in

handling her complaint. While plaintiff may and obviously does disagree with

the investigation results, AHISD’s jurisdictional evidence leads this court to

the opposite conclusion: that the school district and its administration followed

AHISD policy and properly investigated plaintiff’s allegations. Plaintiff cannot

rely on these factual misrepresentations and thus, she cannot show that she has

met the fifth required prima facie element of her claim, that AHISD was

negligent in controlling the working conditions because it knew of her

allegations and did not take appropriate action in response.

      E.    Contrary to her recent and unfounded assertions in her Brief, the
            record evidence demonstrates that plaintiff’s TINA (her growth plan)
            was not issued in retaliation for her having complained.

           Plaintiff’s claim of retaliation, that by placing her on a TINA4, AHISD

retaliated against her in the Fall of 2008, relies on mischaracterized record


4
    TINA is the school district’s acronym for Teacher in Need of Assistance, a growth plan.


                                               14
evidence without which plaintiff is unable to demonstrate a causal relation, the

third required prima facie element of her retaliation claim.5

       Plaintiff first argues that she suffered harassment beyond that complained of

in May of 2008 more or less silently because “any further reports of harassment

would have been futile, and Kershner never followed up to prove her wrong”

(Appellee’s Brief, pp. 15-16), when in fact the opposite is true. Kershner

conducted a thorough investigation of her complaints. (CR 183, 225-26) Plaintiff

even expressed satisfaction with the results, stating to Kershner that she was

satisfied with the investigation and response to her May 15, 2008 complaint,

thanking Kershner, and saying that she “trusted [Kershner’s] judgment with respect

to the conclusions of [Kershner’s] investigation.” (Supp. CR, Vol. I. 183, 193-197)

Plaintiff was obviously satisfied at the time with the investigation, but if she had

not been satisfied AHISD’s anti-harassment policy offered her an appeal through

the School District’s grievance procedures. (Supp. CR, Vol. I. 193-197) But

plaintiff did nothing of the sort.6 Instead, while she nebulously voiced a degree of


5
  See Ptomey v. Texas Tech Univ., 277 S.W.3d 487, 495 (Tex. App.—Amarillo 2009, pet.
denied), explaining that a retaliation claimant must raise a fact issue as to as to the
existence of a causal relationship between having engaged in a protected activity and a
subsequent adverse employment action.
6
  Plaintiff’s currently expressed dissatisfaction with the results of Kershner’s investigation
contradicts her statements to Kershner at this time; moreover, she had opportunity to but
failed to appeal that decision under clearly established AHISD policy. See Lauderdale v.
Texas Department of Criminal Justice, 512 F.3d 157, 164 (5th Cir. 2007) (holding that
when an employee believes that an initial complaint was ineffective, it is unreasonable to
not utilize other avenues provided under the employer’s policy).


                                             15
discontent outside of AHISD’s established reporting procedures, she made no new

allegations of sexually inappropriate conduct, and she did not appeal the District’s

response. (Supp. CR, Vol. I. 183-184, 230) In fact, the record evidence reveals that

in meetings with plaintiff during August, September, and October of 2008, her

supervisor principal and another AHISD administrator, the School District Athletic

Director, implored her to detail the vague and general complaints she was

referencing. But, the record is also uncontested that plaintiff steadfastly refused to

do so. Id.

      Plaintiff also asserts in her Brief that “in response to the [EEOC] charge,

Kershner warned [her] that her complaints would have consequences.” See

Appellee’s Brief, p. 17. Plaintiff’s deposition testimony describing conversations

with her principal is otherwise:

      Q:   Your complaints. I’m asking about your charge of
           discrimination. Did she ever infer or say there would be
           consequences for your having filed a charge of discrimination?
      MR. PEARSON: Object to the form. You can answer.
      A:   No.

(Supp. CR, Vol. II 72)

      Plaintiff also describes her TINA itself as retaliatory and unjustified because

it concerned her failure to follow AHISD policy relating to her allegations of

sexually inappropriate conduct. See Appellee’s Brief, pp. 18-19. But the TINA’s

directive to plaintiff to follow District complaint procedures involved plaintiff’s

                                         16
allegations outside of AHISD’s anti-harassment policy, vague allegations and

references to incidents plaintiff described as “unprofessional behavior,” in a

September 29, 2008 meeting with Kershner, so vague and general that Kershner,

and later the Athletic Director, begged plaintiff to provide specifics and to identify

the employees she claimed to have been involved so that the District could

investigate her general charges. (Supp. CR, Vol. I. 183-185, 230) The TINA was

borne from plaintiff’s refusal to do so and from Kershner having to direct plaintiff

to utilize AHISD’s grievance policy for future complaints and from such directives

having gone unheeded. Id.

      The uncontroverted record reveals that when plaintiff filed her Charge of

Discrimination with the EEOC on October 7, 2008, she referenced her May 15,

2008 written report to Kershner, but made no new allegations of inappropriate

behavior of any sort. (Supp. CR, Vol. I 232-33) The uncontested record also

demonstrates that in January and February of 2009, when plaintiff made new

allegations, she was not reporting incidents of sexual harassment but rather that she

was being “bullied” and “ostracized” by her coworkers. (Supp. CR, Vol. I 185-87,

250-58) Her “new” and voluminous allegations were workplace grievances against

coworkers, exactly the type of complaints plaintiff had, on multiple occasions,

been expressly instructed to bring under AHISD’s grievance policy. (Supp. CR,

Vol. I 198-203).



                                         17
        Finally, the TINA clearly stated: “Catherine has repeatedly made reference

to problems that have occurred with her physical education team, but she has never

followed through with policy to submit these issues in writing as directed by Board

Policy (DGBA LOCAL).” (Supp. CR, Vol. I 236) Her TINA also directed plaintiff

to “comply with all policies, operating procedures and legal requirements.” (Supp.

CR, Vol. I 237) No reasonable interpretation of the record evidence of plaintiff’s

TINA supports her conclusion and argument that the TINA’s directive was issued

to her in retaliation.

   F.    The record evidence does not support plaintiff’s conclusion that
         AHISD violated its custom or policy in evaluating and recommending
         plaintiff’s termination in the Spring of 2009.

        In support of her claim to have met the prima facie burden of demonstrating

a causal relationship between her protected activity and a subsequent adverse

employment action, plaintiff suggests that she received an exceptional review with

respect to the performance concerns covered in her TINA (professional

communication and compliance with policies) (Supp. CR, Vol. I 236-37) and

would have this court accept as “fact” her argument that AHISD violated its own

custom and policy in evaluating and recommending her termination. See

Appellee’s Brief, pp. 19-21. Specifically, plaintiff asserts that AHISD violated its

custom because Georgia Franks, an assistant principal, had previously conducted a

classroom observation of plaintiff and her supervisor, campus principal Kershner,


                                         18
conducted plaintiff’s summative evaluation. Id. Plaintiff contends that Kershner

replaced Franks and “conducted the biased annual evaluation in order to support

Clark’s wrongful termination.” Id. Plaintiff further contends that Kershner altered

the evaluation document by “remov[ing] Franks’ name from the document

entirely.” Id. at p. 21. Finally, plaintiff, without further explanation, suggests that

Superintendent Kevin Brown did not follow AHISD’s termination policy when

recommending plaintiff’s termination for cause to the Board of Trustees. Id. at pp.

22-23. As more fully explained below, none of these bare and false assertions are

supported by the jurisdictional evidence.

       The record evidence is that Franks rated plaintiff’s classroom performance

though an observation conducted January 8, 2009. Rating plaintiff as “exceeds” in

some areas she offered no rating to plaintiff with respect to Domains V-VII, areas

addressed by plaintiff’s ongoing TINA. (CR 405-411). Plaintiff’s assertion that

AHISD violated its custom when Kershner conducted plaintiff’s summative annual

appraisal, even though Franks had conducted the observation (see Appellee’s

Brief, pp. 20-21) further mischaracterizes Kershner’s testimony, which is the only

evidence offered by plaintiff to support the existence of such a custom. Id.

Contrary to plaintiff’s assertion that “it was customary for the same administrator

to conduct the [mid-year] evaluation and the annual evaluation” (see Appellee’s

Brief, pp. 20-21), Kershner testified that it was not unusual for her to conduct



                                            19
annual evaluations even though an assistant principal had conducted the mid-year

observation (CR 234-35) and there is no documentary evidence anywhere in the

record suggesting otherwise. The following testimony addressing plaintiff’s claim

that her evaluation was a retaliatory “consequence” of her having filed an earlier

complaint, her unsupported beliefs, is all plaintiff has to support her “factual”

claims:

      Q:   […] How do you know, other than your belief, that this [being
           evaluated by Kershner after being observed by Franks] is one of
           the consequences? Someone tell you? Did someone tell you that
           this was one of the consequences?
      A:   No, sir.
      Q:   So all you have is your own belief, correct?
      MR. PEARSON: Object to the form.
      A:   I just know it.
      Q:   You just know it in your heart, correct?
      MR. PEARSON: Object to the form.
      A:   Yes.

(Supp. CR, Vol. II 79) Thus, Kershner’s testimony dispenses with plaintiff’s

contention of “custom” basing her conclusions on nothing more than an

unsubstantiated subjective belief.

      Plaintiff’s assertion that Kershner “removed Franks’ name from the

document entirely” (see Appellee’s Brief, p. 21) is a very serious but thankfully

entirely unsubstantiated charge of criminal misconduct against Kershner. AHISD

wishes to give plaintiff the benefit of an analysis that her baseless charge is the



                                        20
result of her confusing Franks’ observation summary (CR 405-12) with Kershner’s

summative annual appraisal (CR 357-64). There is no record evidence that either

of these entirely different and distinct documents were altered in any way by

Kershner or anyone else on behalf of AHISD.

      There is similar absurdity with regard to plaintiff’s “factual’ claim that when

Brown told her that she would be informed of the Board’s action “pretty much

immediately” meant her proposed termination was a “done deal.” See Appellee’s

Brief, pp. 22-23. The undisputed evidence in this matter is that the Notice of

Proposed Termination to plaintiff informed her of her full due process opportunity

and her right to contest her proposed termination, to require the District to prove its

reasons for the proposal and to establish good cause for her termination in a full

evidentiary due process hearing before an independent hearing examiner. (Supp.

CR, Vol. I 105, 138-74) The record is also undisputed that Plaintiff entirely

rejected this opportunity to contest the Board’s proposed termination. (CR 105)

Except now, she would have this Court accept as fact that her resistance at that

time would have been futile! See Appellee’s Brief, p. 22.

      Plaintiff’s attempted demonstration of the third prima facie element of her

retaliation claim, that AHISD violated its custom and policy in evaluating and

recommending her termination in 2009, is not only not supported by the

jurisdictional evidence, it contradicts her own testimony and allegations.



                                          21
II.   Argument and Authorities

      A.     Mission Consolidated and the making of a prima facie case
             sufficient to withstand a jurisdictional challenge.

      Although this appeal involves a plea to the jurisdiction, the Texas Supreme

Court held in Mission Consolidated that the standard of review “mirrors that of a

traditional summary judgment” and the plaintiff must raise a fact issue on each of

the jurisdictional elements of her claims. See Mission Consol., 372 S.W.3d at 635.

      Here, Plaintiff asks this court to accept her Statement of Facts without

challenge or change so that she may support her jurisdictional defense and meet

her initial burden of proving the elements of a prima facie TCHRA case. See

Mission Consol., 372 S.W.3d at 638. In doing so, plaintiff is permitted to reach

into her arsenal of allegations, expecting the court to accept all well-plead

allegations and even disputed facts as supporting her claims. Id. But, in doing so,

plaintiff may not, without explanation, manufacture a genuine issue of material

fact as attempted here, through the offer of an affidavit that contradicts her

prior testimony. See Doe ex rel. v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386

(5th Cir. 2000) (omitting citations); see also Cantu v. Peacher, 53 S.W.3d 5,

10 (Tex. App.—San Antonio 2001, pet. denied). To allow otherwise “would

greatly diminish the utility of summary judgment as a procedure for screening

out sham issues of fact.” Id. In as much, the foregoing assertions made in

plaintiff’s Brief, that contradict and misrepresent the jurisdictional evidence in this

                                          22
case, and uncontroverted sworn deposition testimony, are to be disregarded by this

Court.

III.     Plaintiff has failed to establish the third, fourth and fifth elements of her
         sexual harassment claim.

         Plaintiff’s sexual harassment claim is based on the alleged harassment of her

same-sex coworkers, Ann Monterrubio and Michelle Boyer. See Plaintiff’s Second

Amended Petition, p. 3. Her prima facie case requires proof of the following

elements: (1) that she is a member of a protected category (i.e., female); (2) who

was subjected to unwelcome harassment; (3) that was based on gender; (4) and

which affected a term, condition, or privilege of her employment; and (5) that her

employer, AHISD, knew, or should have known, of the harassment and did not

take prompt remedial action. See Gulf States Toyota, Inc. v. Morgan, 89 S.W.3d

766, 770 (Tex. App.—Houston [1st. Dist.] 2002, no pet.). Plaintiff has failed to

raise a fact issue on the third, fourth, and fifth prima facie elements, which

deprives the trial court of subject matter jurisdiction over her claim. See Mission

Consol., 372 S.W.3d at 638.

   A. Plaintiff has failed to show that the alleged harassment was “based on
      gender.”

         In a same-sex hostile work environment case such as this one, harassment

that merely involves sexual content or has sexual connotations is not necessarily

discriminatory. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80



                                           23
(1998). A same-sex plaintiff must always show that the alleged harassment was

based on gender. See La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir.

2002). While plaintiff argues that she can offer additional evidentiary routes for

establishing this element exists outside of those generally required in Oncale, she

does in fact proceed under Oncale’s first evidentiary example. See Appellee’s

Brief, pp. 34-35.7 Under this route, plaintiff must establish the third “based on

gender” element of her prima facie case of same-sex discrimination claim by

showing (1) that her alleged harasser made explicit or implicit proposals of sexual

activity, and (2) provide credible evidence that her alleged harasser was

homosexual. See Oncale, 523 U.S. at 80.

       Plaintiff’s bare assertions that Monterrubio and Boyer “were physically

attracted to [her]” and harassed her because plaintiff “did not reciprocate that

interest” (see Appellee’s Brief, p. 35) cannot withstand a minimal level of scrutiny.

See supra, Part I.C. Plaintiff’s recent allegation that Monterrubio and Boyer had,

on one occasion (the 2007 faculty Christmas party) grabbed her buttocks,

contradicts her own report of this alleged incident made in May of 2008 where she

alleged that unidentified coaches were grabbing themselves and not her. (CR 330)

7
  Plaintiff cites EEOC v. Boh Bros., Constr. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013), in which
the Fifth Circuit recognized a same-sex discrimination claim based on an individual’s failure to
conform to gender stereotypes. However, this additional evidentiary route is inapplicable because
plaintiff has made no argument that her appearance or mannerism on the job were perceived as
gender non-conforming in some way, and that they provided the basis for the harassment she
alleges. Id. at 456 n. 7 (citing Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006)).


                                                24
Plaintiff makes no other allegation that could even remotely be construed as an

explicit or implicit proposal of sexual activity. Moreover, plaintiff’s argument is

not supported by any credible evidence that Monterrubio and Boyer were or are

homosexual. To the extent plaintiff has formed any subjective belief of this fact is,

such belief is, as a matter of law, insufficient proof to avoid summary judgment on

a same-sex sexual harassment claim. See English v. Pohanka of Chantilly, Inc., 190

F. Supp. 2d 833, 846 (E.D. Va. 2002); see also Love v. Motiva Enterprises LLC,

349 Fed. App’x 900, 902-03 (5th Cir. 2009) (holding that allegations of

inappropriate comments, gestures, and physical contact by same-sex co-worker

were more indicative of humiliating or bullying behavior, and did not support an

inference of sexual attraction and proposals for sex).

       Plaintiff cannot concoct these claims for the sole purpose of avoiding a

jurisdictional challenge. She offers nothing from the jurisdictional record to

remotely support her required demonstrations that she was the recipient of

proposals for sexual activity and that her alleged harassers are homosexuals and

thus, in this attempt, plaintiff has failed.

       Plaintiff’s recently invented allegations of sexual touching and sexual

advances, for which the only example given is contradicted by her previous

allegations, cannot reasonably form the basis of plaintiff’s complaint that such




                                               25
harassment was “based on gender,” and her same-sex discrimination claim must be

dismissed for this reason. See Oncale, 523 at 80.

   B.    Plaintiff has failed to show that the alleged harassment was severe or
         pervasive under the standards established by the Fifth Circuit.

        The fourth required prima facie element of plaintiff’s sexual harassment

case is that the alleged harassment must be demonstrated to have altered a

term, condition, or privilege of her employment. See Gulf States Toyota, 89

S.W.3d at 770. In this respect, the Supreme Court and the Fifth Circuit have

required plaintiffs to demonstrate conduct sufficiently severe or pervasive to

constitute an actionable hostile work environment. See, e.g., Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67 (1986). Here, plaintiff has not even alleged facts

sufficient to demonstrate that the purported conduct of Monterrubio and Boyer

remotely approached that threshold.

        Plaintiff’ argues that she does not need such proof because her “factual”

claims are analogous to two cases: City of Laredo v. Negrete, 2010 WL 454921

(Tex. App.—San Antonio 2010, pet. denied) and Wal-Mart Stores, Inc. v. Itz, 21

S.W.3d 456 (Tex. App.—Austin 2000, pet. denied). However, these are the facts

that distinguish plaintiff’s claims from those holdings:

        In both Negrete and Itz, the alleged harassers called their victims at their

homes multiple times, made numerous unquestionable sexual advances towards

their victims, and repeatedly touched them in a sexual manner. See Negrete, 2010

                                         26
WL 454921 at *6; Itz, 21 S.W.3d at 463-65. The alleged behavior of Monterrubio

and Boyer pales in comparison, and Fifth Circuit cases addressing the threshold for

a same-sex hostile work environment have never before recognized an actionable

claim under allegations as minimal and inconsequential as those alleged by

plaintiff. See Appellant’s Brief discussion Part III.C, pp. 54-60.

      In support of her claim to have met the prima facie burden of demonstrating

that Monterrubio and Boyer’s alleged harassment was sufficiently severe or

pervasive to alter the conditions of her employment, plaintiff invents new

allegations never before reported, and embellishes old ones in materially

significant ways, all of which are contradicted by the jurisdictional evidence. See

supra, Part I.C (discussing plaintiff’s recently fabricated allegations) Yet, even if

plaintiff’s sham allegations are taken as true, which they should not be in light of

the overwhelming jurisdictional evidence that contradicts them, courts have

consistently rejected hostile work environment claims based on conduct far more

severe than the allegations of teasing and offhand comments offered by plaintiff.

See, e.g., Oncale, 523 U.S. at 82.

      For these reasons alone plaintiff’s attempt to meet the fourth prima facie

element of her sexual harassment claim fails, as does her attempt to defend against

the jurisdictional challenges of Mission Consolidated interpreting the TCHRA.




                                          27
   C. Plaintiff has failed to meet her burden of demonstrating that AHISD
      was negligent in controlling the workplace, and the jurisdictional
      evidence conclusively establishes that AHISD responded appropriately
      to her complaints.

      The fifth element of a prima facie sexual harassment claim is a

demonstration that the employer was negligent in controlling the workplace

because it knew of the harassment and failed to take prompt remedial action. See

Gulf States Toyota, 89 S.W.3d at 770. Plaintiff’s argument that Boyer was her

supervisor who failed to appropriately respond to her complaints (see Appellee’s

Brief, pp. 41-42) does not begin to engage the factors identified by the United

States Supreme Court for making this determination. See Vance v. Ball State

University, 133 S.Ct. 2434, 2439 (U.S. 2013) (holding that a “supervisor” is a

person with authority to hire, fire, promote, reassign, and alter a plaintiff’s benefits

of employment). Here, it is undisputed that Boyer had no authority to hire, fire,

promote, reassign or in any way alter plaintiff’s employment benefits. (Supp. CR,

Vol. I. 35-36, 181)

      Contrary to the arguments in plaintiff’s Brief, and as demonstrated by the

uncontroverted jurisdictional evidence, the first-line AHISD employee with

supervisory responsibilities over plaintiff was her principal, Kershner, and

Kershner was not aware of plaintiff’s allegations until May of 2008. And the

record evidence is further undisputed that AHISD promptly investigated plaintiffs

claims and took prompt remedial action to prevent future harassment. (CR 183,

                                          28
225-26) Plaintiff’s own negligence, in unreasonably failing to report her

allegations sooner, prevented AHISD from taking any earlier action (Supp. CR,

Vol. I. 183), and for such reasons plaintiff also fails to meet the fifth required

prima facie element of a sexual harassment claim, leading to a dismissal of such

claim under the relevant authorities. See Faragher v. Boca Raton, 524 U.S. 775,

806-08 (1998).

IV.    Plaintiff has failed to show that AHISD’s legitimate nonretaliatory
       reasons for termination were pretextual as required to defeat a
       jurisdictional challenge to her retaliation claim under Mission
       Consolidated.

       A plaintiff’s prima facie burden for a retaliation claim differs notably from

that of a discrimination claimant, as the ordinary (non-retaliation) McDonnell

Douglas burden-shifting framework does not require evidence that a plaintiff’s

membership in a protected class factored into the adverse employment decision.

See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008).8

       As such, plaintiff’s retaliation claim is distinguishable from the

discrimination claims brought in KIPP v. Whitehead, 466 S.W.3d 99 (Tex. App.—

Houston [1st Dist.] 2014, pet. denied) (holding that consideration of pretext was

not part of the jurisdictional analysis under Mission Consolidated for plaintiff’s

8
  The Supreme Court held that a prima facie case of discrimination under the TCHRA
requires an employee to show that (1) she is a member of a protected class; (2) was
qualified for her position; (3) suffered an adverse employment action; and (4) was replaced
by someone outside of her protected class or was treated less favorably than other similarly
situated employees who were outside of her protected class. AutoZone, 272 S.W.3d at 592.


                                            29
gender and race discrimination claims), and KIPP v. Rosenberg, 2015 WL 410454

(Tex. App.—Houston [14th Dist.] 2015, pet. filed) (holding same as for age

discrimination claim).

      Conversely, under a retaliation TCHRA claim, such as plaintiff also asserts

here, the third prima facie element of causation requires a plaintiff to raise a fact

issue as to as to the existence of a causal relationship between having engaged in a

protected activity and a subsequent adverse employment action. See Ptomey v.

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

And a plaintiff cannot do this absent direct or circumstantial evidence of actual

retaliation. Id. In this respect, beyond speculation and innuendo, plaintiff has

offered no evidence, embellished or not, of retaliation.

   A. Under Texas SOAH v. Birch pretext is to be considered when engaging
      in the Mission Consolidated jurisdictional analysis.

      Where, as here, an employer offers legitimate nonretaliatory reasons for its

adverse employment action (see Appellant’s Brief, pp. 6-20, discussing plaintiff’s

numerous irremediable performance deficiencies), the rebuttable presumption of

retaliation that plaintiff initially relied on to meet the third prima facie element

under McDonnell Douglas vanishes. See Quantum Chem. Corp. v. Toennies, 47

S.W.3d 473, 477 (Tex. 2001) (explaining that the employer’s provision of a

legitimate reason eliminates the presumption initially relied on by the plaintiff).




                                          30
      Without this presumption, and unless a plaintiff offers at least some

circumstantial evidence of causation, rather than relying on her mere subjective

belief, the plaintiff has not raised a fact issue as to the third required retaliation

prima facie element. This was the holding that this Court previously reached in

dismissing a plaintiff’s retaliation claim in Texas SOAH v. Birch, No. 04-12-

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

denied).   Furthermore, the First Court of Appeals, which decided KIPP v.

Whitehead, implicitly recognized this distinction between discrimination and

retaliation claims when it previously decided University of Texas M.D. Anderson

Cancer Center v. Valdizan-Garcia, 2012 WL 5545783 (Tex. App.—Houston [1st

Dist.] November 15, 2012, no pet.). In Valdizan-Garcia, the court granted the

employer’s plea to the jurisdiction under Mission Consolidated, holding that,

where it had demonstrated legitimate nonretaliatory reasons for her termination,

the plaintiff had failed to provide required evidence, beyond her subjective belief,

demonstrating she would not have suffered the adverse employment act “but-for”

her engagement in protected activity. Id. at *7-8. Thus, the court engaged in the

McDonnell Douglas burden-shifting framework as part of its jurisdictional analysis

under Mission Consolidated. Id.

       Because the application of Birch and Valdizan-Garcia to this plaintiff’s

retaliation claims merely required her to raise a fact issue through allegations



                                         31
legally sufficient to support a reasonable inference in her favor, her argument that

considering pretext at this jurisdictional stage would create an excessive burden is

not persuasive. See Mission Consol., 372 S.W.3d at 635-36. Here, to demonstrate

pretext, plaintiff would have only been required to allege circumstantial evidence

that, taken as true, would suggest a retaliatory motive on the part of AHISD, the

same circumstantial evidence that might support her initial prima facie burden to

show causation. See Ptomey, 277 S.W.3d at 495. But, as here, a plaintiff’s mere

conclusory allegations and unsubstantiated subjective beliefs are insufficient to

meet this burden. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994). And, because plaintiff’s factual misrepresentations have been laid bare, and

for the reasons discussed in Section IV.B and C below, her evidentiary theories,

the ones she might have relied on to meet this burden to show causation, have been

demonstrated to be insufficient as a matter of law.

   B.    Even were pretext not part of a jurisdictional analysis, plaintiff’s
         retaliation claim fails because her proffered circumstantial evidence is
         insufficient as a matter of law to support an inference of causation.

        Plaintiff has offered no competent evidence, direct or circumstantial, that she

was the victim of retaliation, except to argue that an inference of retaliation is

established by the temporal proximity between her protected activity and AHISD’s

adverse employment action (Appellee’s Brief, pp. 51-53), and by her

unsubstantiated belief that Monterrubio was a similarly situated employee but was



                                           32
treated differently (Appellee’s Brief, pp. 23-25). However, the jurisdictional

evidence is to the contrary such that the facts of this case cannot support an

inference of causation under either evidentiary theory.

        1.   Plaintiff cannot rely on a theory of temporal proximity because her
             performance deficiencies had been identified and addressed by
             AHISD before she ever engaged in protected activity.

      Plaintiff’s argument that she owned a stellar performance record prior to

engaging in protected activity disintegrates upon basic scrutiny of the jurisdictional

record. See infra, pp. 3-7; see also Appellant’s Brief, pp. 43-45. As plaintiff

admitted in her initial May 15, 2008 written complaint, she was already on notice

from Kershner that her performance was deficient. Id. Likewise, the undisputed

evidence conclusively establishes that plaintiff’s growth plan, which was

considered prior but began three weeks after she filed a charge with the EEOC,

concerned significant performance deficiencies that AHISD had identified and

taken several steps to remediate in the months prior to her EEOC charge. Id. The

fact that plaintiff engaged in protected activity in the midst of these remediation

efforts does not render her immune from discipline, does not confer a privileged

status upon her, and does tie the District’s hands in responding upon reasonable

belief that plaintiff’s performance was deficient. See Arredondo v. Gulf Bend Ctr.,

No. H-06-1580, 2007 WL 1004051, at *6 (S.D. Tex. Mar. 30, 2007).




                                         33
        2.   Plaintiff was not similarly situated to Monterrubio, as she alone
             suffered from an astounding and unprecedented variety of
             consistent and severe, and irremediable, performance deficiencies
             setting her apart and in a class separate from any other AHISD
             employee to come before of after her.

      In order to support an inference of retaliation through disparate treatment, a

plaintiff must show that her comparator employee was similarly situated “in all

material respects, including […] conduct” (see Ysleta Indep. Sch. Dist. v.

Monarrez, 177 S.W.3d 915, 917 (Tex. 2005)), and that their work rule violations

and disciplinary records were “nearly identical.” See AutoZone, 272 S.W.3d at 594.

In only one respect can plaintiff’s situation be equated with Monterrubio’s, and

that concerned the District’s efforts in August, September, and October of 2008 to

foster cooperation and professional communication between coaches in the girls’

athletic department. (Supp. CR, Vol. I. 184, 227-231) When these efforts failed,

plaintiff was placed on a growth plan, but it is undisputed that Monterrubio, who

had not engaged in any protected activity, was, on the same day, also placed on a

growth plan. (Supp. CR, Vol. I. 184-185, 236-237)

      Aside from this lone instance, plaintiff and Monterrubio’s work rule

violations are not remotely comparable in quantity or degree. (Supp. CR, Vol. I.

105-106, 191-192) Plaintiff was terminated for a multitude of significant reasons

that were not shared by Monterrubio or any other employee. Id. Such reasons

included AHISD’s determination that plaintiff lied in the course of its investigation



                                         34
into a breach of state testing protocols when plaintiff’s cell phone rang multiple

times during a TAKS exam (Supp. CR, Vol. I. 188, 268-69); making false reports

to Kershner concerning her and others’ behavior in meetings, which Kershner

witnessed herself and knew to be false (Supp. CR, Vol. I. 189, 312-313); the

allegations plaintiff made to another teacher that Monterrubio and Boyer were

“lesbian dikes” who “get drunk and share men.” (Supp. CR, Vol. I. 189-190, 321-

322); plaintiff’s failure to prepare lesson plans and maintain student grades (Supp.

CR, Vol. I. 96-97, 327-335); her complaints about her coworkers made to students

and her repeated failure to comply with Kershner’s directives not to bring her

daughter to school during work hours (Supp. CR, Vol. I. 189-190).

      The evidence conclusively establishes that plaintiff was not “similarly

situated” with Monterrubio or any other AHISD employees (Supp. CR, Vol. I.

105-106, 191-192), and as such, her allegations are insufficient as a matter of law

to show retaliation through disparate treatment. See Monarrez, 177 S.W.3d at 917.




                                        35
                                       PRAYER

      For the foregoing reasons, AHISD prays that this Court reverse the trial

court’s order denying its Plea to the Jurisdiction, and dismiss plaintiff’s claims for

want of subject matter jurisdiction.


                                        Respectfully submitted,

                                        SCHULMAN, LOPEZ & HOFFER, LLP

                                        /s/ Robert A. Schulman
                                        Robert A. Schulman
                                        State Bar Number 17834500
                                        Email: rschulman@slh-law.com
                                        Leonard J. Schwartz
                                        State Bar Number 17867000
                                        Email: lschwartz@slh-law.com
                                        Bryan P. Dahlberg
                                        State Bar Number 24065113
                                        Email: bdahlberg@slh-law.com
                                        517 Soledad Street
                                        San Antonio, Texas 78205
                                        Tel.: (210) 538-5385
                                        Fax: (210) 538-5384

                                        ATTORNEYS FOR APPELLANT
                                        ALAMO HEIGHTS ISD




                                          36
                         CERTIFICATE OF SERVICE

      This is to certify that on this 9th day of April 2015, a true and correct copy
of the foregoing document has been delivered by electronic service to counsel of
record for Appellee in this proceeding as follows:

      Mr. Matthew R. Pearson, Gravely & Pearson, L.L.P., 425 Soledad
      Street, Suite 600, San Antonio, Texas 78205,
      Email: mpearson@gplawfirm.com.

      Mr. Brendan K. McBride, McBride Law Firm, 425 Soledad Street,
      Suite 600, San Antonio, Texas 78205,
      Email: brendan.mcbride@att.net.




                                      /s/ Robert A. Schulman
                                      Robert A. Schulman,
                                      Attorney for Appellant




                                        37
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this Reply Brief contains 8,137 words (excluding the caption, table of contents,
index of authorities, signature, certificate of service, and certificate of compliance).

       I further certify that this is a computer-generated document created in Word
for Mac, using 14-point typeface for all text, except for footnotes, which are in 12-
point typeface. In making this certificate of compliance I am relying on the word
count provided by the software used to prepare this document.

      I understand that a copy of this document may be posted on the Court’s
website and that the electronically filed copy of the document becomes part of the
Court’s record.

      Copies have been sent to all parties associated with this case.


                                        /s/ Robert A. Schulman
                                        Robert A. Schulman,
                                        Attorney for Appellant




                                          38
                             APPENDIX

Tab Document

1   AHISD’s Motion to Exceed Word Limits of TRAP 9.4(i)(2)(C)




                                  39
                               No. 04-14-00746-CV



                              In the Court of Appeals
                          for the Fourth District of Texas



           ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT,
                            Appellant,

                                         v.

                             CATHERINE CLARK,
                                 Appellee.




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


                    APPELLANT’S MOTION TO EXCEED
                     WORD LIMITS OF TRAP 9.4(i)(2)(C)


      Appellant Alamo Heights Independent School District files this unopposed

motion, contemporaneously with its Reply, asking the Court to allow it to exceed

the word limits set for its Reply by Texas Rule of Appellate Procedure 9.4(i)(3)(C),

and would respectfully show the following:

      1.     This case is an accelerated appeal of the trial court’s interlocutory

order denying Appellant’s Plea to the Jurisdiction.


                                         40
      2.     This Court has the authority under the Texas Rules of Appellate

Procedure 9.4(i)(4) to allow a party to exceed the word limits.

      3.     This Court should allow AHISD to exceed the 7,500 word limit for its

Reply by 637 words because this case involves several complex and novel legal

issues that required substantial briefing from both parties, as well as a Clerk’s

Record that has been filed in three separate installments totaling over 1,000 pages

of pleadings, documents and testimony that make up the jurisdictional record in

this case

      4.     This is the first such request by AHISD, and if the Court grants this

relief, AHISD’s combined briefing in this case will not exceed the 27,000 word

limit established by Rule 9.4(i)(2)(B).

5.    Accordingly, AHISD believes that the foregoing reasonably explains the

need for the requested relief, and that good cause exists for granting this relief.

Appellee’s counsel is unopposed to this Motion, as indicated below.

      WHEREFORE, PREMISES CONSIDERED, AHISD asks the Court to

grant this Motion and allow it to exceed the word limits for its Reply by 637 words as

requested herein.




                                          41
                                     Respectfully submitted,

                                     SCHULMAN, LOPEZ, & HOFFER, LLP


                                     /s/ Robert A. Schulman
                                     Robert A. Schulman
                                     Texas Bar No. 17834500
                                     Email: rschulman@slh-law.com
                                     Leonard J. Schwartz
                                     Texas Bar No. 17867000
                                     Email: lschwartz@slh-law.com
                                     Bryan P. Dahlberg
                                     Texas Bar No. 24065113
                                     Email: bdahlberg@slh-law.com
                                     517 Soledad Street
                                     San Antonio, Texas 78205-1508
                                     Telephone: (210) 538-5385
                                     Facsimile: (210) 538-5384
                                     ATTORNEYS FOR APPELLANT


                     CERTIFICATE OF CONFERENCE

      On April 9, 2015, Bryan Dahlberg corresponded with Appellee’s counsel,

Matthew Pearson, regarding the relief sought in this Motion. Mr. Pearson notified

Mr. Dahlberg that he does not oppose this Motion to Exceed the Word Limits of

TRAP 9.4(i)(2)(C).



                                     /s/ Robert A. Schulman
                                     Attorney for Appellant




                                       42
                         CERTIFICATE OF SERVICE

      I hereby certify that on this 9th day of April 2015, a true and correct copy of
the foregoing document has been delivered by electronic service to counsel of
record for Appellee in this proceeding as follows:

      Mr. Matthew R. Pearson, Gravely & Pearson, L.L.P., 425 Soledad
      Street, Suite 600, San Antonio, Texas 78205,
      Email: mpearson@gplawfirm.com.

      Mr. Brendan K. McBride, McBride Law Firm, 425 Soledad Street,
      Suite 600, San Antonio, Texas 78205,
      Email: brendan.mcbride@att.net.




                                       /s/ Robert A. Schulman
                                       Attorney for Appellant




                                         43
