                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00392-CV

JOELLE OGLETREE,
                                                             Appellant
v.

GLEN ROSE INDEPENDENT SCHOOL DISTRICT,
                                   Appellee



                           From the 249th District Court
                             Somervell County, Texas
                              Trial Court No. C-09621


                                     OPINION


       After she was terminated from her teaching job at Glen Rose High School, Joelle

Ogletree sued the Glen Rose Independent School District.         The trial court initially

sustained the District’s plea to the jurisdiction, and in an earlier appeal, we reversed in

part and affirmed in part that ruling, holding that the District did not have sovereign

immunity as to Ogletree’s breach of contract and section 1983 claims. See Ogletree v.

Glen Rose ISD, 226 S.W.3d 629 (Tex. App.—Waco 2007, no pet.). On remand, the District

moved for summary judgment, which the trial court granted. Raising three issues,
Ogletree appeals. We will affirm.

       The District moved for summary judgment on the following grounds: (1) on her

breach of contract claim, Ogletree was an at-will employee who therefore had no right

to termination only for “good cause” or right to due process; (2) on her breach of

contract claim, Ogletree failed to exhaust her administrative remedies for the trial court

to have jurisdiction; and (3) Ogletree’s section 1983 claim is barred by the statute of

limitations.    Without stating the reasons, the trial court granted the motion and

dismissed Ogletree’s two claims.

       We review a trial court’s summary judgment de novo. Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we

must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We must consider all the evidence in the light

most favorable to the nonmovant, indulging every reasonable inference in favor of the

nonmovant and resolving any doubts against the motion. See id. at 756.

       We begin with Ogletree’s second issue, which asserts in part that the trial court

erred in granting summary judgment because there is a fact issue on whether Ogletree’s

employment contract was a fixed-term employment contract and was not at-will, thus

requiring the District to have good cause for termination and to afford her due process.

       The summary judgment evidence shows that Ogletree taught French and English

at Glen Rose High School in the 2000-01 and 2001-02 school years under “Chapter 21”

teaching contracts. In a letter dated January 29, 2002, Ogletree gave notice that she

Ogletree v. Glen Rose Independent School District                                   Page 2
would be resigning at the end of the school year to stay at home with her daughter. In

the summer of 2002, John Bailey, then-Superintendent of the District, asked Ogletree to

come back to work to teach French. Ogletree informed him that she would teach but

only wanted to teach parttime and did not want to attend in-service days. As a result,

and at Ogletree’s request, Bailey sent Ogletree a letter dated August 1, 2002:

       This letter is to confirm our agreement regarding your employment with
       GRISD. As agreed, you will be a long-term sub working 178 days at
       $128.06 per day. Your assignment will be Flags, French II and French III.

       Thereafter, on August 19, 2002, Ogletree signed the following form “Letter of

Reasonable Assurance” from Bailey:

       Dear Substitute:

       This letter provides notice of reasonable assurance of continued
       employment with the district for the school year 2002-2003, when each
       school term resumes after a school break. … Please note that this letter is
       not a contract or guarantee of employment.

       Nothing contained herein construes an employment contract. Your
       continued employment is on an at-will basis. At-will employers may
       terminate employees at any time for any reason or for no reason, except
       for legally impermissible reasons. At-will employees are free to resign at
       any time for any reason or no reason.

       …

       Please complete the following information … . Failure to sign and return
       this form will keep you off the substitute list.

       Based on allegations of sexual misconduct with a student, on the evening of

October 1, 2002, Jeff Harris, the Principal of Glen Rose High School, telephoned

Ogletree at home to tell her that she was being placed on administrative leave.

According to Ogletree’s affidavit, on October 3, 2002, Harris telephoned Ogletree at

Ogletree v. Glen Rose Independent School District                                    Page 3
home and terminated her. Ogletree said that she asked Harris if she would be able to

tell her side or if “there would be hearing from” [sic] her, but Harris never gave her a

full idea of the allegations or how to defend herself. Ogletree also spoke with Bailey

that day, and she asked him about being able to give her side. Bailey told her it was a

“final decision.” Bailey’s affidavit states that Ogletree called him that day to discuss his

decision and that she set up an appointment to meet with him on October 4, but she

called back to cancel the appointment, “saying it was on her attorney’s advice.” In his

deposition, Bailey said that he offered Ogletree “an opportunity for her to come talk to

me and she chose not to,” although he admitted that the decision to terminate her was

final and nothing she could have told him would reverse the decision. Bailey did not

send her written information on the way to request a hearing.

        In a letter to Bailey dated December 11, 2002, and received by Bailey on

December 12, Ogletree’s attorney stated the she “appeals her discharge” and requests a

closed-session hearing, but the District did not respond.

        We assume without deciding that there is a fact issue on whether Ogletree’s

employment contract was a fixed-term employment contract and was not at-will and

will proceed to whether summary judgment was proper because Ogletree failed to

exhaust her administrative remedies. Our initial opinion summarized the law in that

area:

        “[A] plaintiff’s failure to exhaust administrative remedies may deprive
        courts of subject matter jurisdiction in the dispute.” Essenburg v. Dallas
        County, 988 S.W.2d 188, 189 (Tex. 1998) (per curiam); see Matagorda County
        Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex.
        2005); Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 354 (Tex. 2005);

Ogletree v. Glen Rose Independent School District                                      Page 4
        Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 361 (Tex. 2004).
        “[E]xhaustion of administrative remedies generally requires compliance”
        with administrative procedures. Van Indep. Sch. Dist. at 354. “[A] party
        must exhaust administrative remedies as a prerequisite to a trial court’s
        jurisdiction in a case involving the administration of school laws and
        disputed fact issues.” Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698
        (Tex. App.—Waco 2002, pet. withdrawn) (citing Tex. Educ. Agency v.
        Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90 (Tex. 1992)); see TEX. EDUC. CODE
        ANN. § 7.057 (Vernon 2006); Van Indep. Sch. Dist. at 354. “[T]he doctrine of
        exhaustion of administrative remedies” applies “to the school
        employment context.” Vela at 701; see Van Indep. Sch. Dist. at 354. “[A]
        teacher’s claim of breach of his teaching-employment contract involves the
        administration of school laws and disputed fact issues, and thus, the
        teacher [i]s required to exhaust . . . administrative remedies . . . before
        looking to the courts for relief.” Vela at 701 (citing Godley Indep. Sch. Dist.
        v. Woods, 21 S.W.3d 656, 660 (Tex. App.—Waco 2000, pet. denied)).

Ogletree, 226 S.W.3d at 632.

        In its summary-judgment evidence, the District included a statement signed by

Ogletree on July 31, 2000 that she received a copy of the District’s grievance policy and

appropriate forms. The statement is on a form that notes: “For clarification, a grievance

does not become a formal grievance until it is put in writing and properly filed with the

immediate supervisor.” Also in the record is the District’s grievance policy DGBA

(LOCAL), which the District contends applies to a non-Chapter 21 contract teacher,

which is what Ogletree contends she was under Bailey’s August 1, 2002 letter. That

policy provides a three-step process, beginning with a written grievance within fifteen

days:

        An employee who has a grievance shall request a conference with the
        principal or immediate supervisor by submitting the grievance in writing
        on a form provided by the District. The form must be filed within 15 days
        of the time the employee first knew or should have known of the event or
        series of events about which the employee is complaining.


Ogletree v. Glen Rose Independent School District                                         Page 5
       Ogletree’s attorney’s December 11, 2002 written request was untimely.               She

contends, however, that under another grievance policy, the District should have given

her a hearing without her request. But that specific policy (DCE (LEGAL)), even if we

agreed with Ogletree’s construction, applies to written contracts for non-educators.

       Ogletree further contends that her failure to timely exhaust her administrative

remedies is excused because such exhaustion would have been futile, citing Bailey’s

response to Ogletree that the decision to terminate her was final and his testimony that

nothing she said could have changed his decision. Futility is a recognized exception to

the exhaustion of administrative remedies requirement. See Smith v. Blue Cross & Blue

Shield United of Wis., 959 F.2d 655, 659 (7th Cir. 1992); see also Dawson Farms, LLC v. Farm

Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007); Gardner v. School Bd. Caddo Parish, 958

F.2d 108, 111-12 (5th Cir. 1992). To come under the futility exception, a claimant must

show that it is certain that the claim will be denied on appeal. Smith, 959 F.2d at 659.

       The District correctly notes that, under the three-step process, Ogletree could

have appealed her grievance to the District’s Board of Trustees, and then to the Texas

Education Commissioner, followed by judicial review. See TEX. EDUC. CODE ANN. §

7.057 (Vernon Supp. 2009). Ogletree had the burden of demonstrating futility, but she

only claims and presented evidence that an appeal to the superintendent would have

been futile. Cf. Gardner, 958 F.2d at 112. By not even alleging that an appeal to the

school board or the state commissioner would have been futile, she cannot demonstrate

futility. Cf. id. We thus hold that Ogletree failed to exhaust her administrative remedies

as a matter of law and that the trial court lacked jurisdiction over her breach of contract

Ogletree v. Glen Rose Independent School District                                     Page 6
claim. Summary judgment and dismissal were proper on this ground, and we overrule

that part of her second issue.

       Ogletree asserts that the trial court erred in granting summary judgment on the

District’s ground that Ogletree’s section 1983 claim is barred by the statute of

limitations. The parties agree that the statute of limitations on a section 1983 claim is

two years. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2009); Price

v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005).        But they disagree when

Ogletree’s section 1983 claim accrued.

       Federal law determines when Ogletree’s section 1983 claim accrued. Helton v.

Clements, 832 F.2d 332, 334 (5th Cir. 1987). Generally, a cause of action accrues the

moment the plaintiff knows or has reason to know of the injury that is the basis of her

complaint. Id. at 335. The statute of limitations begins to run from the moment the

plaintiff becomes aware that she has suffered an injury or has sufficient information to

know that she has been injured. Id. In a section 1983 wrongful discharge action, the

statute of limitations begins to run on the date of termination. See id. (conspiracy

allegations did not extend time for limitations to begin to run); see also Frazier v. Garrison

ISD, 980 F.2d 1514, 1521-22 (5th Cir. 1993) (holding that when employment

discrimination claim is based on discharge, the discharge itself is basis for

discrimination suit and begins limitations period).

       Ogletree argues that the statute of limitations did not begin to run until she

learned of the alleged gender discrimination, i.e., when she later learned that a male

teacher was allegedly treated differently upon substantially similar allegations of sexual

Ogletree v. Glen Rose Independent School District                                       Page 7
misconduct with a student.           However, well-established Fifth Circuit precedent in

employment discrimination cases directly contradicts Ogletree’s position. See Chapman

v. Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989) (holding that limitations period on

employment discrimination claim triggered on date of discharge, not on date of

discovery of discriminatory intent); Merrill v. Southern Methodist Univ., 806 F.2d 600, 605

(5th Cir. 1986) (same); see also Anderson v. City of Dallas, 111 F.3d 892 (5th Cir. 1997) (per

curiam) (same); Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992) (same) (“To allow

plaintiffs to raise employment discrimination claims whenever they begin to suspect

that their employers had illicit motives would effectively eviscerate the time limits

prescribed for filing such complaints.”).

       Ogletree relies solely on a non-employment case to support her accrual

argument. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001); Piotrowski v.

City of Houston, 51 F.3d 512, 516 (5th Cir. 1995).

              Accrual of a § 1983 claim is governed by federal law: “Under
       federal law, the [limitations] period begins to run ‘the moment the
       plaintiff becomes aware that he has suffered an injury or has sufficient
       information to know that he has been injured.’” Russell v. Bd. of Trustees,
       968 F.2d 489, 493 (5th Cir. 1992) (quoting Helton v. Clements, 832 F.2d 332,
       335 (5th Cir. 1987), cert. denied, 507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662
       (1993). A plaintiff’s awareness encompasses two elements: “(1) The
       existence of the injury; and (2) causation, that is, the connection between
       the injury and the defendant’s actions.” Piotrowski, 51 F.3d at 516.

Piotrowski, 237 F.3d at 576. Piotrowski involved allegations that the Houston Police

Department took affirmative steps to suppress information that it knew someone was

going to try to kill the plaintiff. Id. at 576-77. The court noted fraudulent concealment, a

well-recognized exception that tolls the statute of limitations (or delays accrual of the

Ogletree v. Glen Rose Independent School District                                         Page 8
cause of action), and that the City did not object to a jury question on whether the

plaintiff knew or should have known of the causal connection between her injuries and

the defendant’s actions. See id. at 577 & n.13. In this case, Ogletree makes no fraudulent

concealment allegation, and she fails to persuade us that Piotrowski, an unusual and

factually inapposite case, controls accrual of her section 1983 discrimination claim,

rather than the employment cases cited above.

       Ogletree was terminated on October 3, 2002. The two-year limitations period

expired on October 3, 2004. She did not file her section 1983 claim until April 27, 2005.

Because the District established that it was entitled to summary judgment on Ogletree’s

section 1983 claim based on its statute of limitations defense, we overrule that part of

Ogletree’s second issue.

       Having found that the trial court properly granted the District’s summary

judgment motion on Ogletree’s failure to exhaust her administrative remedies and the

statute of limitations, we need not address her first and third issues and the remainder

of her second issue. See TEX. R. APP. P. 47.1. We affirm the trial court’s judgment.



                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 10, 2010
[CV06]



Ogletree v. Glen Rose Independent School District                                      Page 9
