






 





COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



 
PHYLLIS NAIRN,
 
                  
  Appellant,
 
v.
 
 
KILLEEN  INDEPENDENT
SCHOOL DISTRICT,
 
                    Appellee.


 
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                  No. 08-10-00303-CV
 
Appeal from the
 
146th
  Judicial District Court 
 
of Bell
  County, Texas 
 
(TC#226,628-B) 
 



 
O P I N I O N
Appellant Phyllis
Nairn (hereinafter “Appellant” or “Nairn”) brought a whistleblower suit against
Killeen Independent School District (“KISD” or “the District”) claiming that
KISD demoted her from her position as Special Education Coordinator to teacher,
and ultimately did not renew her term contract with the District.  Subsequently, on July 3, 2008, she amended
her petition to include claims of:  (1)
discrimination based on her race, color, religion, sex, and national origin;
(2) retaliation for exercising her rights under the First Amendment to the U.S.
Constitution; (3) harassment and a hostile work environment; (4) a violation of
her Due Process rights under the U.S. Constitution; and (5) wrongful
termination.  The District filed a Plea
to the Jurisdiction, a Motion for Summary Judgment, and a Supplemental Plea to
the Jurisdiction.  Appellant responded to
the plea, the motion, and the supplemental plea.  Ultimately, the trial court granted KISD’s
motion for summary judgment and supplemental plea to the jurisdiction, and
struck Plaintiff’s Third Amended Petition, disposing of the case.  On appeal, Appellant raises five separate
issues.  Finding no error, we affirm.
BACKGROUND
Factual History
     Phyllis Nairn was the Special Education
Coordinator at Shoemaker High School in the Killeen Independent School District
in Bell County, Texas during the 2006-2007 school year.  Her principal and direct supervisor was
Ronald Gray.  During the school year,
Nairn reported what she alleged to be violations of the law to her immediate
supervisor, Mr. Gray, KISD Superintendent Jim Hawkins, and other District
administrators.  Those violations
included:  (1) Mr. Gray’s alleged sexual
harassment of another female teacher; (2) alleged failures by the District to
follow the special education testing and classification requirements of
students; and (3) alleged failures by the District to follow the standardized
testing requirements promulgated by the State of Texas.
At the conclusion
of the 2006-2007 school year, the District reassigned Nairn from her position
as Special Education Coordinator to the position of teacher, which she
considered to be a demotion.  On June 12,
2007, Nairn filed a grievance with the District challenging her reassignment.  On September 25, 2007, the Board of Trustees
for KISD considered Nairn’s grievance and determined that she “has not carried
her burden of proof in her claims of discrimination based upon race, gender,
religion and national origin.”  The Board
further found that neither Nairn’s whistleblower claim nor her claims of
harassment and retaliation were substantiated. 
However, the Board noted that Nairn’s salary remained the same for the
2007-2008 school year during her reassignment as a teacher.  As a result, the Board decided that because
Nairn’s performance “should be judged based upon her position as a special
education coordinator” she should be returned “to the title of special
education coordinator,” although not at Shoemaker High School.  Finally, the Board directed the superintendent
to fully investigate the “problems in the special education program” at
Shoemaker High School for the 2006-2007 school year, and “take appropriate
action accordingly.”  As of September 26,
2007, Nairn was placed on administrative leave with pay for an indefinite
period while an investigation into the problems in the special education
program at Shoemaker High School was conducted.  Nairn was directed to remain available by
telephone, and was prohibited from entering any KISD property during the
pendency of the administrative leave.[1]
Upon completion of
the investigation, the Board, by letter dated March 12, 2008, informed Nairn
that it proposed not to renew her contract with the District.  Nairn requested a hearing with the Board which
took place on March 25, 2008, where she was present, but elected not to
participate stating “I exercise my right to remain silent.”
On April 1, 2008,
the District formally informed Nairn that it would not renew her contract.  On April 2, 2008, in an Amended Petition for
Review filed with the Texas Commissioner of Education, Nairn requested a
hearing relative to the nonrenewal of her contract with KISD.  Petitioner’s Brief was filed with the office
of the Commissioner of Education on May 1, 2008, and alleged, inter alia, that the District retaliated
against her when it did not renew her contract, because she had opposed a
discriminatory practice in that she made a complaint of sexual harassment.  Nairn also alleged that the District’s action
was arbitrary and capricious.
The Decision of
the Commissioner was issued on May 20, 2008. 
Therein, the Commissioner made numerous findings of fact.  Some of those fact-findings were that:  (1) Nairn was reprimanded on April 11, 2007
for making an inappropriate comment to another teacher by stating “you white
people all look alike;” (2) Nairn was reprimanded on May 18, 2007 for failing
to conduct a Texas Assessment of Knowledge and Skills test on April 2, 2007
because she did not reserve a room, failed to fill out forms, and fill out duplicate
forms; (3) Nairn was counseled by her principal in May 2007 regarding the “widespread
discontent of her staff, the ‘toxic work environment’ that was attributed to [her],
[her] failure to respond to e-mails and her numerous failures regarding student
testing;” and (4) there was no evidence to support Nairn’s report of sexual
harassment.[2]
[3]
The Commissioner
noted that despite the claims raised by Nairn, “the record contains substantial
evidence supporting other, nonretaliatory, performance-based reasons for
nonrenewal” of her contract.
In the Conclusions
of Law section of his Decision, the Commissioner determined that:  (1) he had jurisdiction over the matter
pursuant to Tex.Educ.Code Ann. §
21.301; (2) Nairn “failed to establish a causal connection between her report
objecting to an incident of alleged sexual harassment” and KISD’s proposal for
nonrenewal; (3) there was no evidence that Nairn had “a reasonable belief of
unlawful conduct” when she reported an incident of alleged sexual harassment;
(4) Nairn’s contract was not “nonrenewed in retaliation for opposing a
discriminatory practice, sexual harassment, under Tex. Labor Code § 21.055(1) and 42 U.S.C. § 2000e-3(a);” (5)
Nairn failed to exhaust administrative remedies regarding her reasonable belief
of unlawful conduct and her retaliation claim[4]; (6) Nairn, by
failing to object to the consideration of the 2006-2007 performance evidence
and by failing to raise the issue of the lack of 2007-2008 evidence, waived any
complaint to such evidence or the lack thereof; (7) Nairn failed to exhaust
administrative remedies regarding the issue of the Board’s consideration of the
2006-2007 performance evidence and the lack of 2007-2008 evidence; (8) Nairn
failed to present evidence or argument to the Board regarding remediation and
waived the same; (9) Nairn failed to exhaust administrative remedies regarding
the issue of remediation; (10) while Nairn preserved the issue of insufficient
time to obtain legal counsel, there is no requirement that the Board grant additional
time to secure legal counsel, nor is there any evidence that the Board acted
arbitrarily and capriciously in denying Nairn’s request for additional time to
secure counsel; (11) Nairn failed to maintain an effective working relationship
or maintain good rapport with parents, the community or colleagues and failed
to meet the District’s standards of professional conduct by making “inappropriate
or unprofessional comments;” (12) Nairn failed to fulfill her duties and
responsibilities, was incompetent or inefficient in performing her duties,
failed to discharge her duties with regard to the testing program, and overall,
performed her duties inadequately during the April 2007 Texas Assessment of
Knowledge and Skills testing; (13) Nairn’s performance following the renewal of
her contract for the 2007-2008 constitutes substantial evidence to support
nonrenewal; and (14) KISD’s decision to nonrenew Nairn’s term contract of
employment was supported by substantial evidence and was not unlawful,
arbitrary, or capricious.
Finally, the
Commissioner concluded that Nairn’s appeal should be denied in part and
dismissed in part, and disposed of all of the issues raised in the appeal.
On July 3, 2008,
Nairn filed her First Amended Original Petition against KISD in the District
Court.  Therein, she alleged the facts
and claims noted above.
Procedural History
KISD filed a Plea
to the Jurisdiction on October 2, 2008 arguing that because Nairn failed to
appeal the Decision of the Commissioner under Chapter 21 of the Texas Education
Code within thirty days after she or her representative received notice of the
Commissioner’s decision, the district court was without jurisdiction to hear
her claims.  On November 4, 2008, Nairn
filed her Response to KISD’s Plea to the Jurisdiction and asserted that it was
inappropriate for the District to argue the merits of Nairn’s claims in its
Plea to the Jurisdiction, and that the deadlines set out in the Texas Labor
Code were inapplicable to her claims regarding the District’s violations of her
federal constitutional and statutory rights.
On May 26, 2009,
KISD filed its Motion for Summary Judgment arguing that:  (1) the Decision of the Commissioner became
final and unappealable when Nairn failed to appeal the decision to the district
court in accordance with the provisions of the Texas Labor Code; (2) Nairn’s
claims for discrimination, violations of the First Amendment, hostile work
environment, violations of Due Process, and wrongful termination were precluded
by the doctrine of collateral estoppel in that the facts underlying each of
those claims were decided in favor of KISD by the Texas Commissioner of
Education; and (3) Nairn’s claims under the Texas Whistleblower statute failed
as a matter of law for the reason that she was unable to establish that she
made a good faith report of sexual harassment or that such report was a “but-for”
cause of KISD’s determination not to renew her contract.[5]
Appellant filed
her Response to Defendant’s Motion for Summary Judgment on June 19, 2009
asserting that the District was not entitled to summary judgment because it
could not negate at least one element of each of Nairn’s claims, nor could the
District conclusively prove each element of its affirmative defenses.[6]
 Appellant also argued that the deadline
to appeal a decision by the Commissioner of Education was inapplicable to Nairn’s
claims regarding violations or her federal constitutional or statutory rights
and that the doctrine of collateral estoppel did not bar Appellant’s causes of
action or defenses because the Commissioner did not consider or hear all of the
facts underlying those claims or defenses, and as a result, the facts pled by
Nairn in support of her claims were not previously adjudicated.  Finally, Appellant asserted that her
whistleblower claim did not fail as a matter of law because she was not
required to exhaust administrative remedies as to that claim, and because the
facts underlying that claim were not fully developed and fairly litigated
before the Commissioner of Education.
On that same day,
Appellant filed her Second Amended Original Petition adding a claim for
tortuous interference with contract.  In
support of that claim, Nairn argued that she entered into contracts with
parents to serve as a special education advocate and the District interfered
with those ongoing and prospective contracts and business relationships by its
actions as set forth in the Second Amended Petition.
On July 1, 2009,
KISD filed its Supplemental Plea to the Jurisdiction urging the trial court to
find that it had no jurisdiction to consider Appellant’s claim for tortuous
interference with contract because KISD enjoys sovereign immunity from all
intentional torts, except those which arise from the operation or use of a
motor vehicle.
On February 12,
2010, the trial court, without specifying the grounds upon which it relied, granted
summary judgment as to Appellant’s claims under the Texas Whistleblower Act, as
well as her claims for discrimination, constitutional deprivations, due process
violations, wrongful termination, retaliation, and hostile work
environment.  Later, the trial court also
granted KISD’s Supplemental Plea to the Jurisdiction relative to Appellant’s
claim for tortuous interference with contract finding that it had no
jurisdiction to consider the claim.[7]
On April 30, 2010,
prior to entry of the trial court’s Final Order, but some three months after the
parties had been notified of the court’s granting of KISD’s motion for summary
judgment, Appellant filed her Third Amended Original Petition which added a
claim that KISD had retaliated against Nairn for filing complaints with the
Equal Employment Opportunity Commission pursuant to 42 U.S.C. § 2000e-3.  The District filed a Motion to Strike
Plaintiff’s Third Amended Original Petition arguing that Nairn:  had not sought leave of court to file the
amendment; and the filing of the amendment was solely a dilatory tactic to
delay entry of final judgment by the court. 
Appellant responded that the court’s granting of summary judgment did
not dispose of all claims, and alternatively, that Nairn should be granted
leave to amend.  On July 14, 2010, Nairn
filed a Motion for New Trial.
On June 23, 2010,
following his appointment, Judge Strauss held an entry of judgment
hearing.  At the conclusion of the
hearing, the trial court again granted KISD’s Motion for Summary Judgment,
Supplemental Plea to the Jurisdiction, granted KISD’s Motion to Strike
Plaintiff’s Third Amended Original Petition, and denied Plaintiff’s Motion for
New Trial.
DISCUSSION
Appellant raises
five issues for our consideration, four of which essentially allege that the
trial court erred in granting Appellee’s plea to the jurisdiction and motion
for summary judgment. Specifically, Appellant argues that:  (1) she was not required to pursue her federal
statutory or constitutional claims through the Education Code’s administrative
review scheme; (2) her claims are not barred by the doctrine of collateral
estoppel because they were not fully and fairly adjudicated by the Commissioner
of Education; (3) her claims are not barred because they are, in part, based on
facts that occurred after the Commissioner of Education issued his decision and
after the District filed its plea to the jurisdiction; and (4) she should have
been permitted to file her Third Amended Original Petition because the District’s
partial summary judgment was not a trial. 
In her fifth issue, Appellant argues that Judge Rick Morris should have
recused himself from hearing the matter because he had an economic interest in
the outcome of the proceedings.
Standard of Review – Summary Judgment
We review a trial
court=s summary
judgment de novo.  Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).  Our review is limited to
consideration of the evidence presented to the trial court.  Mathis v. Restoration Builders, Inc.,
231 S.W.3d 47, 52 (Tex.App.--Houston [14th Dist.] 2007, no pet.).  When a summary judgment does not state or
specify the grounds upon which it relies, we may affirm the judgment if any of
the grounds presented in the summary judgment motion are meritorious.  Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d
537, 556 (Tex.App.--San Antonio 2011, no pet.).
A party moving for
traditional summary judgment bears the burden of showing that no genuine issue
of material fact exists and that he is entitled to judgment as a matter of
law.  Tex.R.Civ.P.
166a(c).  To determine if the non‑movant
raises a fact issue, we review the evidence in the light most favorable to the
non‑movant, crediting favorable evidence if reasonable jurors could do
so, and disregarding contrary evidence unless reasonable jurors could not.  See Fielding, 289 S.W.3d at 848, citing City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005).  A
defendant who conclusively negates a single essential element of a cause of action
or conclusively establishes an affirmative defense is entitled to summary
judgment on that claim.  Frost Nat’l
Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
Exhaustion of Administrative Remedies
Texas law requires
an aggrieved party to exhaust all remedies provided under the applicable
administrative scheme if the party’s claim:  (1) concerns the administration of school laws;
and (2) involves questions of fact.  Mission
Indep. Sch. Dist. v. Diserens, 188 S.W.2d
568, 570 (Tex. 1945); Ysleta Indep.
Sch. Dist. v. Griego, 170 S.W.3d 792,
795 (Tex.App.--El Paso 2005, pet.
denied).  In addition, the
Term Contract Nonrenewal Act, which is
found in Chapter 21 of the Education Code, provides an administrative procedure
by which a school teacher, who is
employed under a term contract, may seek judicial review of a district’s
decision not to renew the contract.  See
Griego, 170 S.W.3d
at 794; see also Gutierrez v.
Laredo Indep. Sch. Dist., 139 S.W.3d
363, 366-67 (Tex.App.--San Antonio 2004, no pet.).  The Act requires a teacher who is aggrieved by
the nonrenewal of a term contract to exhaust administrative remedies before
seeking redress in the courts.  See
Tex.Educ.Code Ann. § 21.209 (West 2006); see also Brown v.
Amarillo Independent School Dist., 190 S.W.3d
7, 10 (Tex.App.--Amarillo 2005, no pet.),
citing Tex. Educ.
Agency v. Cypress–Fairbanks, 830 S.W.2d
88, 90 (Tex. 1992).  “An
employee who alleges that a school district wrongfully terminated an employment
contract must apply to the school authorities for relief before filing suit in
the district court.”  Griego, 170 S.W.3d
at 795; see also Larsen v.
Santa Fe Indep. Sch. Dist., 296 S.W.3d
118, 128-29 (Tex.App.--Houston [14th Dist.] 2009, pet. denied); Gutierrez, 139 S.W.3d
at 366-67.
When a teacher
asserts a claim based on nonrenewal of a term contract, the last step in the
administrative process is an appeal
to the Commissioner of Education.  Tex.Educ.Code Ann. § 21.209 (providing
that “[a] teacher who is aggrieved by a decision of a board of trustees on the
nonrenewal of the teacher’s term contract may appeal to the commissioner for a review of the decision of the
board of trustees . . . .”).  Similarly,
a person must pursue her claim with the Commissioner
of Education before filing suit
when the claim involves actions or decisions by the school board that allegedly
violate either state school laws or a provision of a written employment
contract between a school district and an employee if the violation would cause
the employee to suffer monetary harm.  See
Tex.Educ.Code Ann. § 7.057(a)(West
Supp. 2011).  Only when an appeal to the Commissioner of Education
has been exhausted will a district court have jurisdiction to hear a school
district employee’s breach of contract claim premised on contract nonrenewal or
the grounds specified in Section
7.057(a).  See Tex.Educ.Code Ann. § 21.307; see also Griego, 170 S.W.3d
at 795; Dotson v.
Grand Prairie Indep. School Dist., 161 S.W.3d
289, 291 (Tex.App.--Dallas 2005, no pet.).
The record shows
that Nairn initiated KISD’s administrative grievance process by filing a level
one grievance.  Nairn proceeded through
the internal grievance process which culminated on March 25, 2008, when she obtained
a level three decision from KISD’s board of trustees.  She then appealed to the Texas Commissioner of
Education on April 2, 2008.
To invoke judicial
review of the Commissioner’s Decision, Nairn was obligated to perfect an appeal
to the district court in the county in which the district’s central
administrative offices are located, or Travis County if all parties agree.  Tex.Educ.Code
Ann. § 21.307(a).  Such appeal to
the district court must be perfected no later than the 30th day after the date
the party or the party’s representative receives notice of the commissioner’s
decision or, if a request for a rehearing is filed, the date on which such
request is denied by the commissioner.  Tex.Educ.Code Ann. § 21.307(b).  The commissioner and each party to the appeal
to the commissioner must be made a party to the appeal under this section.  Tex.Educ.Code
Ann. § 21.307(c).
In its plea to the
jurisdiction, KISD asserts that Appellant did not timely perfect an appeal
under the relevant provisions of the Education Code, and that the findings of
fact by the Commissioner preclude Nairn from re-litigating those same facts in
the trial court.  Nairn counters that she
was not required to pursue her federal statutory or constitutional claims
through the administrative review process set forth in the Education Code in
order for the trial court to have jurisdiction over her claims regardless of
the facts on which those claims are based.  She asserts that underpinning all of her
claims is her assertion that KISD engaged in discriminatory employment
practices.
It is undisputed
that Nairn did not perfect an appeal under the relevant provisions of the Texas
Education Code.  Neither did she name the
Commissioner of Education as required by § 21.307(c) of the Education
Code.  Instead, she amended the lawsuit
she previously filed in the district court.  Because Appellant did not appeal the
Commissioner’s decision within thirty days after the date she or her
representative received notice of the Commissioner’s decision, the district
court was precluded from exercising jurisdiction over these issues decided by
the Commissioner.  Moses v. Dallas ISD, 12 S.W.3d 168, 171-72 (Tex.App.--Dallas 2000, no
pet.).
The question then
becomes what issues were resolved by the Commissioner.  There is no dispute that the primary issue
Nairn appealed to the board and then to the Commissioner was the nonrenewal of
her term contract.  A review of the
Decision of the Commissioner reveals that the majority of the issues addressed
in his decision relate to the nonrenewal of Nairn’s term contract of employment
with KISD.  As a result, to the extent
that Nairn attempted to litigate that issue in the district court, she was
precluded from doing so because the district court had no jurisdiction to hear the
facts in support of that claim.  See Moses,
12 S.W.3d at 172.  The Commissioner’s
determination of the facts related to the nonrenewal of Nairn’s contract are
identical to the facts relative to her wrongful termination claim.  In effect, the wrongful termination claim is
a re-statement of the contract nonrenewal claim.  As such, the district court did not have
subject matter jurisdiction to consider Nairn’s wrongful termination claim.
Next, the District
asserts that all of the claims brought by Nairn in her Original Petition, First
Amended Original Petition, and Second Amended Original Petition are barred by
the doctrine of collateral estoppel.  Nairn counters that collateral estoppel is
inapplicable because all of her claims were not fully and fairly adjudicated
before the Commissioner and because her claims are based, in part, on facts
which occurred after the Commissioner issued his decision and after the
District filed its plea to the jurisdiction.
Collateral estoppel
applies to administrative agency orders when the agency is “[a]cting in a
judicial capacity and resolves disputed issues of fact properly before it which
the parties have had an adequate opportunity to litigate . . . .”  Bryant v.
L.H. Moore Canning Co., 509 S.W.2d
432, 434 (Tex.Civ.App.--Corpus Christi), cert. denied, 419 U.S. 845,
95 S.Ct. 79, 42 L.Ed.2d 74 (1974),
quoting United States
v. Utah Constr. & Mining Co., 384 U.S.
394, 421-22, 86 S.Ct 1545, 1559-60, 116 L.Ed.2d 642 (1966); Railroad Comm’n.
v. Phillips, 364 S.W.2d
408, 411 (Tex.Civ.App.--Austin 1963, no writ).  An agency must have jurisdiction over the
disputed issues for courts to give agency findings preclusive effect.  See Puga v. Donna
Fruit Co., Inc., 634 S.W.2d
677, 680 (Tex. 1982).  Even if
the agency is powerless to grant all the relief requested, if it has the
authority to make incidental findings essential to the granting of the relief,
the agency has primary jurisdiction to hear the dispute.  Texas Educ.
Agency, 830 S.W.2d at
90-1; Lake Country
Estates, Inc. v. Toman, 624 S.W.2d
677, 681 (Tex.App.--Fort Worth 1981, writ ref’d n.r.e.).
The Commissioner of Education had jurisdiction over the
disputed issues regarding Nairn’s employment contract.  Section 21.209 of the Texas Education Code
provides that the commissioner’s jurisdiction extends to appeals by any person aggrieved by
actions or decisions of any board of trustees or board of education.  See Tex.Educ.Code
Ann. § 21.209.
The Commissioner
held a full hearing on Nairn’s appeal
of KISD’s nonrenewal of her term employment contract.  Both Nairn and KISD were represented by counsel
at the administrative hearing and they were adversaries in the administrative
proceeding.  The Commissioner entered
findings of fact and conclusions of law as to all facts and issues encompassing
the nonrenewal of Nairn’s contract.  Clearly,
the Commissioner acted in a judicial capacity and resolved disputed issues of
fact which were properly before him.  See
Bryant, 509 S.W.2d
at 434.
Based on the
Decision of the Commissioner, it is apparent that during the agency hearing,
the parties had an adequate opportunity to fully and fairly litigate the issue
of the nonrenewal of Nairn’s contract as well as the facts supporting the
positions of both parties.  The record is
devoid of any additional facts which occurred after the Commissioner of
Education’s decision and after the District filed its plea to the
jurisdiction.  Under the principle of
collateral estoppel, the Commissioner’s fact-findings on the nonrenewal of
Nairn’s contract bind the trial court.  See
Muckelroy v. Richardson ISD, 884
S.W.2d 825, 830 (Tex.App.--Dallas 1994, writ denied); Vaughn v.
Burroughs Corp., 705 S.W.2d
246, 249 (Tex.App.--Houston [14th Dist.] 1986, no writ).
We conclude that
while the trial court did not have jurisdiction to consider any claim related
to the nonrenewal of Nairn’s term contract of employment with KISD, including
her wrongful termination claim, it properly considered the claims raised by
Nairn in her First Amended and Second Amended Original Petitions because those
claims were separate and distinct from wrongful termination and contract
nonrenewal.  However, under the principle
of collateral estoppel, the facts determined by the Commissioner were binding
on the trial court.  Against that
backdrop, we turn to the District’s Motion for Summary Judgment.
Nairn alleged that
KISD violated her constitutional rights by discriminating against her on the
basis of her race, color, religion, sex, or national origin under color of
state law by treating her differently than other similarly situated individuals.
A person alleging
discrimination in an employment context must present a prima facie case of discrimination, Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex. 2001), by
presenting evidence that she is a member of a protected class, she was
qualified for her position, she was subjected to an adverse employment action,
and she was treated less favorably than others outside the protected class who
were similarly situated to her.  Davis v. Houston Cmty. College Sys. No.
01-04-01160-CV, 2006WL3933852, *2 n.1 (Tex.App.--Houston [1st Dist.] Jan. 25,
2007, no pet.).  The facts Appellant sets
forth in support of this claim are the same facts resolved by the Commissioner.
 In this case, there is no evidence in
the record that Nairn was treated less favorably than others outside the
protected class who were similarly situated to her.  As a result, Appellant is unable to establish
even a prima facie case for
discrimination.  However, assuming that
she was able to do so, the burden of production would shift to KISD who would
be obligated to show a legitimate, non-discriminatory reason for the adverse
employment action.  See Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d
507, 512-13 (5th Cir. 2001).  Here, the
decision of the Commissioner, acting in a judicial capacity, based on all of
the facts presented by the parties, clearly establishes multiple legitimate,
non-discriminatory reasons for the adverse action.  Once KISD articulates a legitimate,
nondiscriminatory reason for an employment action, the burden returns to Nairn
to show that the stated reasons were pretextual and that the real reason was
discrimination.  See Quantum Chem. Corp., 47 S.W.3d at 482.  Nairn presented no evidence showing that KISD’s
stated reasons were pretextual.
Nairn also alleges
that the District retaliated against her when she exercised her rights under
the First Amendment of the Constitution of the United States.  The elements of such a claim are:  (1) speech by a public employee involving a
matter of public concern; (2) the employee’s interest in commenting on a matter
of public concern outweighs the employer’s interest in efficiency; (3) an
adverse employment action; and (4) the speech motivated the adverse employment
action.  Guillaume v. City of Greenville, 247 S.W.3d 457, 463-64 (Tex.App.--Dallas
2008, no pet.).  An adverse employment action is one that a reasonable
employee would find to be “materially adverse,” i.e., “the employer’s actions must be harmful to the point that
they could well dissuade a reasonable worker from making or supporting a charge
of discrimination” under federal law.  Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57,
126 S.Ct. 2405, 2409, 165 L.Ed.2d 345 (2006).  The facts Appellant
sets forth in support of this claim are the same facts resolved by the
Commissioner.  Other than the
allegations contained in her petitions, Appellant has presented no evidence
that she spoke out on a matter involving public concern, that her interest in
speaking outweighed her employer’s interest in efficiency, and that her speech
motivated the District’s adverse employment action against her.  Indeed, the Commissioner, acting in a judicial
capacity, determined that the decision not to renew Nairn’s term contract,
based on substantial evidence, was her exceptionally poor job performance as
well as the reprimands she had received.
Appellant next
alleges a claim of hostile work environment.  The elements of a prima facie case of hostile work environment are:  (1) the employee belongs to a protected group;
(2) the employee was subjected to unwelcome harassment; (3) the harassment
complained of was based on the protected characteristic, e.g., race or gender; (4) the harassment complained of affected a
term, condition, or privilege of employment; and (5) the employer knew or
should have known of the harassment in question and failed to take prompt
remedial action.  Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 n.14
(Tex.App.--Texarkana 2008, pet. denied).  A plaintiff complaining of harassment by a
supervisor need show only the first four elements.  Id.
In her pleadings
and brief, Nairn contends “[s]he was subjected to a hostile work environment in
which male supervisors were allowed to sexually harass female employees without
repercussion.”  Each of the facts
underlying this conclusory allegation were heard by the Commissioner, acting in
a judicial capacity.  They are the same
facts alleged by Nairn in support of her other claims and in support of her
assertion as to why the District did not renew her contract.  There is no evidence in the record that Nairn
was subjected to unwelcome harassment. 
Indeed, the single instance of conduct referred to by Nairn was refuted
by the employee herself.[8]  The Commissioner, acting in a judicial
capacity, based on the facts presented by the parties, found no evidence of a
hostile work environment and no evidence that Nairn’s report concerning
harassment was based on a reasonable belief of unlawful conduct.
Nairn next alleged
that the District violated her Due Process rights.  There are two types of possible due process
violations, procedural and substantive.  Dallas County v. Gonzales, 183 S.W.3d
94, 111 (Tex.App.--Dallas 2006, pet. denied).  In examining a claim of procedural due
process, courts apply the following test:  (1) whether the plaintiff has a liberty or
property interest entitled to procedural due process; and (2) if so, what
process is due.  Id.  In a claim regarding
substantive due process, the test is:  (1)
whether the plaintiff has a protected property interest; and (2) if the
government deprived the person of that interest capriciously and arbitrarily.  Id.  A constitutionally protected property
interest is an “individual entitlement grounded in state law, which cannot be
removed except ‘for cause.’”  Id.  Each of the facts argued by Nairn in support
of this claim are the same facts argued by Nairn to the Commissioner, acting in
a judicial capacity.  Here, because Nairn
does not have a constitutionally protected property interest in her position
with the District, as noted by the Commissioner in his decision, she is unable
to establish a violation of due process.  See Tex.Educ.Code Ann. § 21.204(e)(a teacher
does not have a property interest in a contract beyond its term).
Next, Nairn alleges that the
District retaliated against her generally because she reported alleged unlawful
conduct.  To establish a prima facie case of retaliation,
Nairn must show that:  (1) she engaged in
a protected activity; (2) KISD took an adverse employment action against her; and
(3) it did so because of her participation in the protected activity.  Herbert v. City of
Forest Hill, 189 S.W.3d 369, 376
(Tex.App.--Fort Worth 2006, no pet.).  Nairn must
establish that, absent the protected activity, the adverse employment action
would not have occurred when it did.  See
id. at 377; McMillon v. Texas
Dep’t of Ins., 963 S.W.2d 935, 940
(Tex.App.--Austin 1998, no pet.).  Nairn need not
establish that the protected activity was the sole cause of KISD’s employment
action.  Herbert, 189 S.W.3d at 377.
The Texas Labor Code
discrimination provisions are modeled after federal law, and Texas courts
follow the federal statutes and cases in applying the Texas statute.  See Tex.Lab.Code Ann. § 21.001 (West
2006); AutoZone, Inc. v.
Reyes, 272 S.W.3d 588, 592
(Tex. 2008)(“By
adopting the Act, the Legislature ‘intended to correlate state law with federal
law in employment discrimination cases.’”).  Were Nairn able to
establish a prima facie case of retaliation, the burden would shift to KISD to articulate a
nondiscriminatory reason for the adverse employment action.  McCoy v. Texas
Instruments, Inc., 183 S.W.3d 548, 555
(Tex.App.--Dallas 2006, no pet.).  Once KISD articulates
a legitimate, nondiscriminatory reason for an employment action, the burden
returns to Nairn to show that the stated reasons were pretextual and that the
real reason was retaliation.  See Quantum Chem. Corp., 47 S.W.3d at 482.  Each of the facts
alleged by Nairn in support of this claim are the same facts presented to the
Commissioner, acting in a judicial capacity, during Nairn’s appeal of the
nonrenewal of her contract.  Even if she
was able to establish a prima facie
case of retaliation, the Decision of the Commissioner, acting in a judicial
capacity, establishes multiple nondiscriminatory reasons for the adverse
action, and Nairn has offered no evidence of pretext.
Finally, Nairn alleged a claim pursuant to
the Texas Whistleblower Act.  The
elements of such a claim are:  (1) that
the plaintiff was a public employee; (2) that the defendant was a state agency
or local government; (3) that the plaintiff reported in good faith a violation
of law; (4) to an appropriate law enforcement agency; and (5) that the
plaintiff’s report was the but-for cause of the defendant’s suspending, firing,
or otherwise discriminating against the plaintiff at the time the defendant
took that action.  Guillaume, 247 S.W.3d at 461; Tex.Gov’t
Code Ann. § 554.004 (West 2004).
The Decision of
the Commissioner speaks directly to two of the elements necessary for a
whistleblower violation.  First, the
Commissioner found that there was “no evidence that Petitioner’s report
concerning harassment was based upon a reasonable belief of unlawful conduct,”
and that there was “no evidence that Petitioner had a reasonable belief of
unlawful conduct when she reported an incident . . . .”  Indeed, the Commissioner determined
specifically that Nairn failed to “establish a causal connection between her
report objecting to an incident of alleged sexual harassment and Respondent’s
proposal for nonrenewal.”  The
Commissioner also found that “Petitioner’s contract was not nonrenewed in
retaliation for opposing a discriminatory practice, sexual harassment, under
Tex. Labor Code § 21.055(1) and 42 U.S.C. 2000e-3(a).”  Nairn cannot establish one of the elements of
a valid whistleblower violation, and accordingly, her claim must fail.
Because collateral
estoppel applies to administrative agency orders when the agency is “[a]cting
in a judicial capacity and resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate . . .,” Bryant, 509 S.W.2d at
434, and because the Commissioner of Education had jurisdiction over
the disputed facts and issues in this case, the district court correctly gave
the Commissioner’s findings preclusive effect.  See Puga, 634 S.W.2d
at 680.  In light of the
preclusive effect of the Commissioner’s fact-findings, the trial court
correctly determined, for purposes of summary judgment, that Appellant was unable
to establish at least one element of each of the claims brought in her Second
Amended Original Petition.
However, that
determination did not apply to Appellant’s claim for tortuous interference with
contract.  As to that claim, the trial
court granted the District’s Supplemental Plea to the Jurisdiction.
A plea
to the jurisdiction is a dilatory plea by which a party
challenges the court’s authority to determine the subject matter of a cause of
action.  Bland Independent School Dist. v.
Blue, 34 S.W.3d
547, 554 (Tex. 2000); see
Texas Department of Transp. v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999).  A
governmental unit’s sovereign immunity deprives a trial court of subject matter
jurisdiction.  Texas Dept. of Parks & Wildlife
v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004).
The plaintiff bears the burden to allege facts
affirmatively proving that the trial court has subject matter jurisdiction.  Texas Dept. of Criminal Justice v.
Miller, 51 S.W.3d
583, 587 (Tex. 2001);
Texas Ass’n of Business v. Texas Air
Control Bd., 852 S.W.2d
440, 446 (Tex. 1993).
 To sue a governmental unit, the
pleadings must allege consent to suit either by reference to statute or express
legislative permission.  Jones, 8 S.W.3d at 638-39; City of El Paso v. Chacon, 148 S.W.3d 417, 421 (Tex.App.--El Paso 2004, pet.
denied).  To prevail on a plea to
the jurisdiction, the defendant must show an incurable
jurisdictional defect on the face of the pleadings.  City of Austin v. Rangel, 184 S.W.3d 377, 381 (Tex.App.--Austin 2006, no pet.), citing MAG–T, L.P. v. Travis Cent. Appraisal
Dist., 161 S.W.3d
617, 624 (Tex.App.--Austin 2005, pet. denied).
We review a plea questioning the trial court’s
subject matter jurisdiction de novo.  See Miranda, 133 S.W.3d at 226.  In conducting our review, we do not look at
the merits of the case but construe the pleadings liberally in favor of the
plaintiff, look to the pleader’s intent, and accept the pleadings’ factual
allegations as true.  Texas Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Texas Ass’n. of Business, 852 S.W.2d at 446; Arnold v. University of Texas
Southwestern Medical Center at Dallas, 279 S.W.3d 464, 467 (Tex.App.--Dallas 2009, no pet.); City of Austin v. Lamas, 160 S.W.3d 97, 100 (Tex.App.--Austin 2004, no pet.).
When a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties to the extent necessary to resolve the jurisdictional
issues raised, just as the district court is required to do.  Miranda, 133 S.W.3d at 227, citing Bland Ind. Sch. Dist., 34 S.W.3d at 555.  Where
a plea to the jurisdiction includes
evidence, and the jurisdictional challenge implicates the merits of the
plaintiff’s cause of action, the trial court reviews the relevant evidence to
determine if a fact issue exists.  Miranda, 133 S.W.3d at 227.  If the
evidence shows a fact question regarding the jurisdictional issue, a plea to the jurisdiction may not be
granted and the fact finder should resolve the fact issue.  Id. at 228.  However, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, the plea to the jurisdiction
may be ruled on as a matter of law.  Id.
KISD enjoys
governmental immunity from suit for all torts, including intentional torts,
except those which arise from the operation or use of a motor vehicle.  Watson
v. Dallas ISD, 135 S.W.3d 208, 222 (Tex.App.--Waco 2004, no pet.).  Absent an express waiver of immunity, KISD is
entitled to immunity from suit which would deprive the trial court of
jurisdiction over the claim. See State v.
Shumake, 199 S.W.3d 279, 283 (Tex. 2006). 
Because there is no waiver for Appellant’s claim of tortuous
interference with contract, regardless of how liberally we construe her
pleading as to that claim, the trial court lacked subject matter jurisdiction
to hear the claim and properly granted the District’s Supplemental Plea to the
Jurisdiction.  See Univ. Interscholastic League v. Southwest Officials Ass’n., Inc.,
319 S.W.3d 952, 962-63 (Tex.App.--Austin 2010, no pet.).
Finally, in the “Facts”
section of her Second Amended Original Petition, Nairn alleged additional facts
not contained in her First Amended Original Petition.  Those facts included:  (1) that KISD harassed and punished Nairn’s
daughter and prevented Nairn and her husband from taking an active role in
their daughter’s education by barring Nairn from District property; (2) that
the District interfered with Nairn’s contracts with parents to serve as a
special education advocate; and (3) that KISD refused to rehire Nairn in 2009.  Nairn argues that these additional facts
precluded the granting of summary judgment and the supplemental plea to the
jurisdiction because they were not considered by the Commissioner.  The District contends the trial court lacked
jurisdiction to consider these additional facts because Nairn had not exhausted
her administrative remedies.
To the extent that
Nairn was alleging a new cause of action on behalf of her daughter by arguing
that the District harassed and punished her daughter for Nairn’s actions, such
a claim was never presented to the District, the Board, or the Commissioner in
any form.  With respect to that claim,
Nairn failed to exhaust administrative remedies and the trial court lacked
subject matter jurisdiction to hear said claim.  Further, while Nairn was barred from KISD’s
property during the investigation conducted by the superintendent, nothing
barred Nairn’s husband from KISD property, and he was not precluded from taking
an active role in his daughter’s education.  As to the “new fact” that the District
interfered with Nairn’s contracts with other parents, we have already
determined that the trial court lacked jurisdiction to hear this claim inasmuch
as it was simply a restatement of her tortuous interference with a contract
claim.  Finally, the “new fact” that KISD
refused to rehire Nairn in 2009 was disposed of by the Commissioner when he,
acting in a judicial capacity, determined that the District’s nonrenewal of
Nairn’s contract was supported by substantial evidence that she had been twice
reprimanded, was incompetent or inefficient in performing her duties, failed to
discharge her duties with respect to the testing program, and overall performed
her duties inadequately during the Texas Assessment of Knowledge and Skills
testing period.
We conclude the
trial court did not err in granting Appellee’s motion for summary judgment and
supplemental plea to the jurisdiction.  Issues
One, Two, and Three are overruled.
In Issue Four,
Appellant claims that the trial court erred by striking her Third Amended
Original Petition which included a new claim that the District retaliated
against Nairn for filing complaints with the Equal Employment Opportunity
Commission in violation of 42 U.S.C. § 2000e-3.
A party may not
file an amended pleading within seven days of trial or thereafter without
obtaining leave of court.  Tex.R.Civ.P. 63.  The court shall grant leave to amend unless
there is a showing that the amendment will operate as a surprise to the
opposing party.  Id.  Nairn contends that the
District’s motion for summary judgment was a partial motion, and that summary
judgment is not a trial within the meaning of Rule 63.  A summary judgment proceeding is a trial
within the meaning of Rule 63.  See Goswami v. Metropolitan S & L Ass’n.,
751 S.W.2d 487, 490 (Tex. 1988); Leche v.
Stautz, 386 S.W.2d 872, 873 (Tex.App.--Austin 1965, writ ref’d n.r.e.).  The trial court’s decision will not be
disturbed unless the opposite party clearly shows an abuse of discretion.  Merit Drilling Co. v. Honish, 715 S.W.2d 87, 91 (Tex.App.--Corpus
Christi 1986, writ ref’d n.r.e.).
It is undisputed
that Nairn did not seek leave of court to file her Third Amended Original
Petition.  The District filed a Motion to
Strike claiming that the trial court had disposed of all of the issues in the
case by way of summary judgment and the supplemental plea to the jurisdiction,
and that the filing of the amendment was a dilatory tactic intended to delay
the entry of final judgment.  Nairn
responded that while the court’s intent as to the District’s motion for summary
judgment was clear, it was not clear that the court had disposed of the
tortuous interference with contract claim. 
Nairn argues that as a result, she was entitled to amend her pleading
under Rule 63 because the case was still active and such amendment would not
operate as a surprise to the District.[9]  However, the amendment was filed more than nine
months after the trial court’s hearing on the motion for summary judgment and
more than ninety days after the trial court granted the summary judgment.  A thorough review of the record makes it
clear that the trial court was disposing of all of the claims in the case.
Regardless of how
liberally we construe Rule 63, given that Appellant never sought leave to amend
her pleading, and in consideration of the timing of the amendment, we cannot
say that the trial court abused its discretion in striking Appellant’s Third
Amended Original Petition.  Issue Four is
overruled.[10]
Finally, in Issue
Five, Appellant argues that “Judge Rick Morris should have recused himself from
hearing this matter because he had an economic interest in the outcome of the
proceedings.”
A Texas judge may be
removed from a case if he or she is (1) constitutionally disqualified, (2)
subject to a statutory strike, (3) subject to statutory disqualification, or
(4) subject to recusal under rules promulgated by the Texas Supreme Court.  Gaal v. State, 332 S.W.3d 448, 452 (Tex.Crim.App. 2011).
 Rule 18b(2) of the Texas Rules of Civil
Procedure sets forth the law specifically pertaining to recusal of judges.  Tex.R.Civ.P.
18b(2); Gaal, 332 S.W.3d at 452-53 & n.12.  It states in relevant part:  “A judge shall recuse
himself in any proceeding in which:  (a)
his impartiality might reasonably be questioned; [or] (b) he has a personal
bias or prejudice concerning the subject matter or a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding. . . .”  Tex.R.Civ.P.
18b(2).  Subsection (a) generally applies
only when it appears that the judge “harbors an aversion, hostility or
disposition of a kind that a fair-minded person could not set aside when
judging the dispute.”  Gaal, 332 S.W.3d at 453,
quoting Liteky v. United States, 510 U.S. 540, 558, 114 S.Ct. 1147,
127 L.Ed.2d 474 (1994) (Kennedy, J., concurring).  Subsection (b) more specifically addresses
what the judge knows and feels.  Id.
Recusal
is generally not required purely on the basis of judicial rulings, remarks, or
actions, as they would not on their own typically “evidence the degree of
favoritism or antagonism required;” these will usually be grounds for reversal
if in error, but not for recusal.  Gaal, 332 S.W.3d at 454, quoting
Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127
L.Ed.2d 474 (1994).  On the
other hand, recusal is appropriate if the facts are such that a reasonable
person would harbor doubts as to the impartiality of the trial judge.  Kemp v. State, 846 S.W.2d 289, 305 (Tex.Crim.App. 1992).
We review an order denying a motion to recuse
under an abuse of discretion standard, affirming so long as the ruling on the
motion is within the zone of reasonable disagreement.  Gaal, 332 S.W.3d at 456.  We consider the totality of the evidence and
information presented at the recusal hearing to see if the record reveals
sufficient evidence to support the conclusion that the trial judge was
unbiased.  Id.
Appellant filed no
motion to recuse Judge Morris in the trial court.  Indeed, other than the arguments raised by
Appellant in her brief, and an argument raised in Appellant’s motion for new
trial, the record contains nothing challenging Judge Morris whatsoever.[11]
In order to
preserve a claim of recusal for appellate review, Appellant was obligated to
file a verified motion to recuse at least ten days prior to the date set for
trial or other hearing.  See Tex.R.Civ.P. 18a(a); Wirtz v. Massachusetts Mut. Life Ins. Co.,
898 S.W.2d 414, 422-23 (Tex.App.--Amarillo 1995, no writ).  This requirement is mandatory, and failure to
comply waives any right to complain thereafter.  See
Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759, 763 (Tex.App.--Houston
[14th Dist.] 1990, writ denied).  Because
no motion to recuse, verified, or otherwise, was ever filed in the case, we
conclude that this issue was not preserved for our review.  Issue Five is overruled.
CONCLUSION
Having overruled
each of Appellant’s issues, we affirm the trial court’s judgment.
 
 
 
February
22, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before
McClure, C.J., Rivera, and Antcliff, JJ.




[1] During the period of time
that she was on paid administrative leave, on November 19, 2007, Nairn filed
her Original Petition against KISD alleging violations of the Texas
Whistleblower statute.  See Tex.Gov’t
Code Ann. § 554.001, et seq.
(West 2004).


[2] The Decision of the
Commissioner specifically notes that each finding of fact is supported by substantial
evidence.
 


[3] Nairn complained that her
principal, Mr. Ronald Gray, committed sexual harassment by hugging another
teacher.  The Commissioner determined
that the teacher informed Nairn not to make a report of sexual harassment, that
she was not offended by the action, and “that there was nothing to it” [the
incident of hugging].  The Commissioner
further found that there was no evidence of other teachers’ beliefs that the
principal’s actions constituted sexual harassment or that a hostile working
environment had been created, nor was there any evidence that “Petitioner’s
report concerning harassment was based upon a reasonable belief of unlawful
conduct.”


[4] The Commissioner
determined that because Nairn failed to present facts and evidence on these issues
to the Board, she failed to exhaust administrative remedies and waived the
claims.


[5] In support of its Motion
for Summary Judgment, KISD offered the following:  (1) the Decision of the Commissioner of
Education dated May 20, 2008; (2) a copy of a letter dated September 26, 2007
from Jim Hawkins to Phyllis Nairn relating to Nairn being placed on
administrative leave with pay; (3) a copy of Nairn’s Term Contract of
Employment with KISD dated March 5, 2007; and (4) copies of excerpts from the
Reporter’s Record of the KISD Board of Trustees Nonrenewal Hearing for Phyllis
Nairn conducted on March 25, 2008.
 


[6] It appears that Appellant
believed that the District was urging a no evidence motion for summary judgment
pursuant to Texas Rule of Civil Procedure 166a(i) when she noted in her
Response to the Motion for Summary Judgment that “the District’s motion appears
to be based solely on Mrs. Nairn’s pleadings.” 
Given that KISD submitted evidence in support of its Motion for Summary
Judgment, it is clear that the District was proceeding under the traditional summary
judgment standard pursuant to Rule 166a(c) of the Texas Rules of Civil
Procedure.


[7] The trial court held a
hearing on the motion for summary judgment on July 10, 2009.  On January 19, 2010, the court, by letter,
informed the parties that KISD’s motion for summary judgment was granted.  An entry of judgment hearing was held on
March 12, 2010, at which time Appellant’s counsel objected to Judge Morris
continuing to preside over the case.  No
motion to recuse was ever filed in the case, and there is no record of the
March 12, 2010 hearing.  Judge Morris
requested a visiting judge to preside over the case, and Judge Strauss was
assigned to do so.  The reasons for Judge
Morris’ request are not contained in the record.


[8] Conduct which Nairn never
observed herself.


[9] Nairn also asserts that
Rule 63 should be liberally construed in favor of the party seeking to amend.  See
Cuellar v. Garcia, 621 S.W.2d 646, 648 (Tex.Civ.App.--Austin 1981, writ
ref’d n.r.e.).
 


[10] In addition, had
Appellant been granted leave to amend, all of the facts underlying her new
claim under 42 U.S.C. § 2000e-3 had previously been determined by the
Commissioner, acting in a judicial capacity, by substantial evidence, in favor
of the District and against Appellant. 
Specifically, the Commissioner found that “[p]etitioner’s contract was
not nonrenewed in retaliation for opposing a discriminatory practice, sexual
harassment, under Texas Labor Code § 21.055(1) and 42 U.S.C.
2000e-3(a).”  This is the additional
claim asserted by Appellant in her Third Amended Original Petition.  In light of the Decision of the Commissioner,
Nairn was collaterally estopped from using those facts in support of her new
claim.


[11] In her Motion for New
Trial, Appellant argues that Judge Morris should have recused himself or been
disqualified because his wife, allegedly works for KISD as a teacher.  As noted herein, Appellant did not file a
motion to recuse Judge Morris and offered no evidence in support of this
allegation in her Motion for New Trial. 
Additionally, the Motion for New Trial was not ruled on by Judge Morris,
rather Judge Strauss denied the motion.
 


