AFFIRMED and Opinion Filed June 21, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00384-CV
FERNANDO HERRERA, Appellant V. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-07866
MEMORANDUM OPINION Before Justices Partida-Kipness, Smith, and Breedlove Opinion by Justice Smith
Appellant Fernando Herrera appeals from the trial court’s summary judgment
in favor of appellee Dallas Independent School District (DISD) on appellant’s
retaliation claim under the Texas Whistleblower Act. On appeal, Herrera argues the
trial court erred in granting DISD’s motions for summary judgment because a
question of fact exists as to whether his 2017 protected reports to CPS played a role
in DISD’s decision to terminate him. For the reasons discussed below, we affirm
the judgment of the trial court. Factual Background and Procedural History1
Herrera began his employment with DISD in August 2013 as an intern in the
Alternative Certification program. During the 2014–2015 school year, Herrera
began reporting misconduct by two other teachers at McShan Elementary, the school
where he was assigned. On February 24, 2015, Herrera sent an anonymous report
to DISD’s Child Abuse and Domestic Violence Prevention Office accusing J. Rivera
of sexually harassing a female teacher and discussing students in a sexual way.
Herrera also sent the information to local media outlets and the Texas Education
Agency. Rivera was placed on administrative leave while DISD’s Professional
Standards Office investigated. The Professional Standards Office concluded that the
allegations were unfounded. Herrera also made a report to Child Protective Services
(CPS) that another teacher at the school, J. Aleman, physically harmed a student.
Aleman was also placed on administrative leave while CPS investigated the report.
Subsequently, Rivera and Aleman returned to teaching at McShan Elementary.
Herrera received a positive performance evaluation for the 2014–2015 school
year, and DISD continued his employment for the 2015–2016 school year under a
probationary teacher contract. In October 2015, Herrera again reported suspected
child abuse by a colleague. At the close of the 2015–2016 school year, Herrera’s
1 The underlying facts and procedural history of this case are well known to the parties; thus, we limit our discussion of the facts to those established in the summary judgment proceedings below and relevant to our determination of whether the trial court erred in granting summary judgment for DISD. See TEX. R. APP. P. 47.4; see also Herrera v. Dallas Indep. Sch. Dist., 609 S.W.3d 579 (Tex. App.—Dallas 2020, pet. denied) (prior appeal reversing trial court’s grant of DISD’s plea to the jurisdiction). –2– principal recommended that he receive a teacher certification through DISD and
commended him on his job performance for the year.
During the 2016–2017 school year, Herrera’s interpersonal conflicts with
Rivera and Aleman, as well as with other colleagues, continued. The conflicts
became a distraction at the school and were disruptive to the school’s educational
environment. On February 26, 2017, Herrera contacted his principal and claimed
that Rivera bullied and threatened him. Although the principal assured Herrera that
his concerns would be addressed and that he should contact police if he felt he was
in danger, Herrera sent an email to a local news station and current and former school
staff that accused Rivera of harassment and bullying. The email included Herrera’s
2015 anonymous report to DISD in which he accused Rivera of sexually harassing
a teacher and discussing students in a sexual way. Within this email, Herrera also
identified, by name, a minor DISD student who had been the alleged victim of child
abuse. Herrera subsequently sent similar emails, several of which also contained the
minor victim’s name, to various media outlets, Immigration and Customs
Enforcement within the Department of Homeland Security, and other third parties.
On February 27, 2017, Herrera sent another email to DISD staff, including the
Chief of the DISD Police Department, and accused Rivera of harassment and
criminal misconduct. Rivera, in turn, accused Herrera of bullying and threatening
him. Their principal encouraged them to contact DISD’s Employee Relations
–3– Department for assistance with their conflict. Rivera contacted Employee Relations;
Herrera did not. The conflict continued.
Both Herrera and Rivera were required to attend a formal conference with
their principal and her supervisor. They were advised to comply with DISD’s
employee standards of conduct. They were warned that failure to comply or improve
in the areas discussed could result in disciplinary action. Unfortunately, the conflict
between the two continued. Herrera continued making complaints about Rivera to
his principal and, on March 31, 2017, also mentioned a concern about Aleman.
Aleman had already been placed on administrative leave on March 30 based on two
other teachers’ reports of suspected child abuse by Aleman. On that same day,
Herrera made a report to CPS concerning Aleman inappropriately touching a student
several days in a row on the playground.
On April 5, 2017, the principal had a second formal conference with Herrera
and Rivera regarding complying with DISD policy and not disrupting the school.
She subsequently went on medical leave and an acting principal took over her duties
at the school. The acting principal began receiving reports in May 2017 that Herrera
was spreading accusations about his colleagues and was encouraging staff and
parents to file complaints against Rivera and Aleman.
On May 15, 2017, Rivera and Aleman each filed Level I grievances regarding
Herrera’s misconduct. On May 16, 2017, Herrera made another report to CPS
regarding a mother’s complaint to him that Rivera inappropriately touched her child
–4– in the classroom. The acting principal investigated Rivera and Aleman’s grievances
as directed and, on May 18, DISD placed Herrera on administrative leave with pay
pending a formal investigation.
DISD hired Locke Lord LLP to investigate the allegations of misconduct
relating to the conflict involving Herrera, Rivera, and Aleman. Ultimately, Locke
Lord found that Herrera engaged in bullying behavior in violation of DISD’s
employee standards of conduct, that he attempted to influence parents and staff to
make false reports against Rivera and Aleman, and that Rivera bullied Herrera by
sending him harassing and offensive text messages. Locke Lord also noted that
Herrera inappropriately identified, by name, a minor student who was an alleged
victim in a sexual abuse investigation at the school to several media outlets and third
parties. Locke Lord did not substantiate Herrera’s claim that DISD placed him on
administrative leave in retaliation for reporting Rivera and Aleman’s misconduct.
Instead, Locke Lord found that Herrera had been placed on administrative leave
based on his own alleged misconduct, which had been supported by written
statements from seven individuals.
As a result of the investigation, Rivera received a reprimand for bullying a
colleague, and the principal recommended to DISD that Herrera be terminated.2
DISD notified Herrera in a letter dated December 11, 2017, that it was
2 In a separate report, Locke Lord concluded there was no evidence to support a finding that Aleman violated DISD policy. –5– recommending termination of his employment based on the findings of the
investigation. Herrera appealed to the Texas Education Agency, and DISD
subsequently decided not to pursue a mid-year termination of Herrera’s contract due
to the length of the appeal process extending through the end of the school year.
Instead, the DISD Board voted to terminate Herrera’s probationary contract at the
end of the 2017–2018 school year and notified Herrera of its decision by letter on
April 26, 2018.
Later that year, Herrera filed suit against DISD alleging it violated the Texas
Whistleblower Act when it terminated him in retaliation for making reports to CPS
concerning teachers inappropriately touching students. DISD filed an answer
generally denying Herrera’s whistleblower claim and asserting various affirmative
defenses, including that it would have taken the action against Herrera “based solely
on information, observation, or evidence that is not related to the fact that he made
any report that is purportedly protected by the Whistleblower Act.” DISD also
moved for summary judgment on this affirmative defense and separately moved for
summary judgment arguing that the Board did not know about, or rely on, Herrera’s
CPS reports in reaching its decision and, thus, Herrera could not raise a genuine issue
of fact that his CPS reports were the “but for” cause of his termination.
Herrera filed a consolidated response to both motions for summary judgment,
and DISD filed a consolidated reply. After a hearing, the trial court granted
–6– DISD’s motions for summary judgment and entered a take nothing judgment against
Herrera. This appeal followed.
Summary Judgment Standard of Review
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). A traditional motion for summary judgment requires the moving
party to show that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555
S.W.3d 79, 84 (Tex. 2018). If the movant carries this burden, the burden shifts to
the nonmovant to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84.
We take evidence favorable to the nonmovant as true, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Ortiz v. State
Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).
A defendant is entitled to summary judgment on a plaintiff’s cause of action
if the defendant conclusively negates at least one essential element of the plaintiff’s
cause of action or conclusively establishes all the elements of an affirmative defense
as a matter of law. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
We must affirm the summary judgment if any ground asserted in the motion, and
preserved for appellate review, is meritorious. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 157 (Tex. 2004).
–7– Texas Whistleblower Act
The Texas Whistleblower Act provides that “[a] state or local government
entity may not suspend or terminate the employment of, or take other adverse
personnel action against, a public employee who in good faith reports a violation of
law by the employing governmental entity or another public employee to an
appropriate law enforcement authority.” TEX. GOV’T CODE ANN. § 554.002(a). The
Act defines a local government entity to include a public school district. Id. §
554.001(2)(C).
To prove a claim under the Whistleblower Act, the public employee “must
prove that the adverse action ‘would not have occurred when it did’ if the employee
had not reported the violation.” Off. of Att’y Gen. of Tex. v. Rodriguez, 605 S.W.3d
183, 192 (Tex. 2020) (quoting Tex. Dep’t of Hum. Servs. v. Hinds, 904 S.W.2d 629,
636 (Tex. 1995)). This but-for causation standard does not require the plaintiff to
prove that “the report was the ‘sole’ or the ‘substantial’ reason for the adverse
personnel action.” Rodriguez, 605 S.W.3d at 192. However, an adverse action
“‘based solely’ on reasons unrelated to a good-faith report of a legal violation
destroys the causal link.” Id. Thus, it is an affirmative defense to an employee’s
whistleblower claim that the employing local government entity “would have taken
the action against the employee that forms the basis of the suit based solely on
information, observation, or evidence that is not related to the fact that the employee
made a [protected] report.” TEX. GOV’T CODE § 554.004(b).
–8– Analysis
On appeal, Herrera presents one global issue attacking the trial court’s order
granting DISD’s two motions for summary judgment: “Could a jury find that DISD
terminated Mr. Herrera because of his protected reports to CPS involving the
inappropriate touching of children?” Generally, Herrera argues that the Board had
knowledge of his CPS reports and that DISD’s inconsistent reasons for terminating
him create a genuine issue of material fact.
We first turn to whether the trial court erred in granting DISD’s motion for
summary judgment on its section 554.004(b) affirmative defense. DISD argues that
appellant would have been, and was, terminated for substantiated misconduct,
regardless of the reports to CPS. DISD contends that Appellant failed to present any
evidence indicating DISD would not have terminated him for the substantiated
misconduct in his summary judgment response. We agree.
In support of its motion for summary judgment on its affirmative defense,
DISD attached an affidavit by Robert Abel, DISD’s Assistant Superintendent of
Human Capital Management, which included numerous DISD documents, such as
policies, handbooks, and personnel records. Abel testified that he had been a
member of DISD’s Legal Review Committee (LRC) since January 2016. The LRC
was comprised of representatives from Human Capital Management, Police and
Security, School Leadership, Operations, and Legal Services. The LRC reviewed
employee documentation for potential personnel actions, such as terminations,
–9– suspensions, demotions, and criminal background reports. To place a proposed
personnel action before the committee, an employee’s immediate supervisor
prepared a letter of recommendation regarding the action, including the reasons for
the recommendation and supporting documentation, and sent it to the next level
supervisor. If the next level supervisor approved of the recommended action, the
packet was sent to Employee Relations, which submitted it to the LRC for
consideration. According to Abel, the LRC “independently determines whether the
recommended personnel action coincides with the documented misconduct of the
employee.” The LRC’s decision is communicated back to the employee’s
supervisor, and Employee Relations notifies the employee by letter of any personnel
action. When the personnel action is termination at the end of a probationary
contract period, the LRC notifies the employee of its intent to recommend
termination to the Board of Trustees. The Board makes the final termination
decision.
As to Herrera’s ultimate termination, Employee Relations became involved
before receiving an official letter of recommended personnel action because of the
continued disruption at the school from the interpersonal conflict between Herrera,
Rivera, and Aleman. It was not until after Herrera’s principal reviewed the Locke
Lord report that she sent an administrative recommendation to the LRC that Herrera
be terminated based on his violation of Board policy and his breach of student
privacy. The letter makes no mention of Herrera’s reports to CPS. Furthermore, the
–10– principal testified by affidavit that she was not aware Herrera made reports to CPS,
that the reports played no role in any action she took toward Herrera, and that she
assisted three other teachers in making CPS reports against Aleman, which concern
the same allegations in Herrera’s CPS report.
The LRC reviewed the principal’s recommendation, as well as its supporting
documentation (the Legal Review Packet), which included the Locke Lord report.
The LRC was not given the exhibits to the Locke Lord report. On December 6,
2017, the LRC met and discussed the recommendation to terminate Herrera. Abel
testified that the LRC was concerned with Locke Lord’s findings that Herrera
engaged in bullying behavior toward two other teachers in violation of Board policy,
especially his mischaracterization of a colleague’s text message to suggest that his
colleague was a pedophile, and Herrera’s breach of student confidentiality and
privacy in violation of Board policy and state law. Abel referenced the following
two sections of the Locke Lord report as causing the LRC the most concern: (1)
Herrera’s conduct regarding the text message was the “equivalent of spreading a
malicious rumor and, as such, constitutes ‘workplace aggression’ intended to
‘demoralize, intimidate, or humiliate’ a colleague” and (2) Herrera’s identification,
by name, of a minor student who had been the suspected victim in a sexual abuse
investigation of a teacher was “an alarming breach of that student’s privacy.” Abel
further testified that the LRC’s decision to recommend termination was “based
–11– solely on the information contained in the Legal Review Packet—primarily, the
Locke Lord Report.”
As to whether the LRC considered Herrera’s CPS reports, Abel testified as
follows:
There was no discussion of Mr. Herrera’s CPS reports at the December 6, 2017 Legal Review Committee meeting. I was not aware that Mr. Herrera had made a report to CPS on March 31, 2017 regarding alleged misconduct by [J.] Aleman. To my knowledge, the Legal Review Committee was not aware that Mr. Herrera had made such a report to CPS on March 31, 2017. I was also not aware that Mr. Herrera had made a report to CPS on May 16, 2017 regarding alleged misconduct by [J.] Rivera. To my knowledge, the Legal Review Committee was not aware that Mr. Herrera had made such a report to CPS on May 16, 2017. The Legal Review Committee did not consider the March 31, 2017 or May 16, 2017 reports to CPS in making its decision to recommend the termination of Mr. Herrera’s employment.
Abel further testified that the LRC recommended termination of Herrera’s
employment “based solely on information unrelated to the fact that Mr. Herrera had
made reports to CPS on March 31, 2017 and May 16, 2017.”
DISD’s December 6, December 11, and March 29 letters to Herrera support
Abel’s testimony. DISD’s December 6, 2017 letter provided Herrera with notice
that it was reporting his misconduct to the State Board of Educator Certification and
that he may be subject to sanctions. In DISD’s letter to the Texas Education Agency,
it notified the agency that Herrera was on administrative leave pending termination
and that his termination had been recommended “for bullying behavior to his co-
workers and for releasing a minor student’s name that was a suspected victim in a
–12– sexual abuse investigation to several media outlets and third parties.” The State
Board for Educator Certification and Herrera ultimately agreed to a sanction in lieu
of formal disciplinary proceedings. The Agreed Final Order reprimanded Herrera
for violating “Title 19, Texas Administrative Code §247.2(3)(A) by providing the
name of a minor/student involved in a Child Protective Service Investigation to a
local media outlet.”
The December 11, 2017 letter advised Herrera that the recommendation to
terminate his employment came as a result of the concluded investigation. The letter
specifically listed the following findings from the investigation3:
Although DISD choose not to pursue mid-year termination due to the length
of the appeal process, DISD notified Herrera by a March 29, 2018 letter that the
Superintendent would be recommending for approval to the Board that Herrera’s
3 Herrera takes issue with the last sentence of the letter, claiming that DISD cannot even agree on the policy that Herrera violated because FO (LOCAL) governs Student Discipline. DISD responds that this was a clear typographical error and that it should state FL (LOCAL), which governs Student Records. Regardless of which particular Board policy the prohibition of disclosing a minor victim’s name to the public falls under, the summary judgment evidence shows that such disclosure is a violation of Board policy and the Educators’ Code of Ethics. –13– contract end at the conclusion of the contract period. Abel attended the April 26,
2018 Board meeting at which the Board discussed the Superintendent’s
recommendation and voted unanimously to terminate Herrera’s probationary
contract at the end of its term, as well as the probationary contract of twenty other
employees. The reason given on the list of non-renewal recommendations provided
to the Board regarding Herrera was “misconduct.”
Our review of the Locke Lord report also supports DISD’s assertion that it did
not consider Herrera’s CPS reports in its decision to terminate him. Although the
report references CPS and indicates that CPS investigated Rivera and there was
ongoing investigation as to Aleman, the report does not expressly indicate that it was
Herrera who reported any misconduct to CPS. Instead, the report sets out multiple
instances in which Herrera tried to convince others to report misconduct to CPS and
provides that Herrera stated in his interview that he “talked to CPS.” Additionally,
in one portion of the report, Locke Lord cautioned,
Allegations of child abuse are very serious and should be dealt with in strict accordance with District protocols, not through the rumor mill. If Mr. Herrera learned that any abuse or inappropriate contact may have occurred, his responsibility was to report that conduct to appropriate authorities (“a law enforcement agency, Child Protective Services, or [the] appropriate state agency”).
(quoting DISD’s Employee Handbook) (change in original).
In Herrera’s response to DISD’s motions for summary judgment, he argued
that DISD failed to conclusively prove that his protected activity did not play any
–14– role, however small, in the decision to terminate him. He pointed to the Board
Packet, the same packet of information submitted to the LRC, as proof that the Board
knew about his CPS reports. He also asserted that DISD listed reasons for
terminating him in its interrogatory responses that were unsubstantiated in the Locke
Lord report and, thus, because it gave inconsistent reasons for terminating him, a
fact issue existed.
As we have set out above, we have not found any place in the Legal Review
Packet or the Board Packet that expressly states that Herrera was the one who made
the CPS reports against Rivera and Aleman. Furthermore, even taking Herrera’s
assertion that the Board knew about the CPS reports as true, such evidence does not
raise a genuine issue of material fact as to DISD’s affirmative defense that it would
have terminated him for the substantiated allegations regardless of his CPS reports.
See, e.g., Steele v. City of Southlake, 370 S.W.3d 105, 118–19, 123–24 (Tex. App.—
Fort Worth 2012, no pet.) (explaining that section 554.004(b)’s affirmative defense
precludes liability when “the evidence conclusively establishes that any possible
consideration by the employer of the fact that the employee made a report was only
superfluous to the adverse employment action” and concluding that employer
established it would have fired employee for admitted untruthfulness regardless of
protected report). Moreover, we agree with DISD that Herrera misinterprets DISD’s
interrogatory responses. DISD’s response as to why Herrera was terminated is
consistent with its summary judgment argument that it terminated Herrera for the
–15– reasons listed in its December 11, 2017 letter. The fact that DISD listed
unsubstantiated allegations along with substantiated allegations in response to a
broader interrogatory, or even placed Herrera on leave to investigate potential
misconduct that ultimately was unsubstantiated, does not detract from the
substantiated misconduct expressly listed in the December 11, 2017 letter.
We conclude that DISD conclusively established its affirmative defense as a
matter of law and that Herrera failed to raise a fact issue in response. Therefore, the
trial court did not err in granting DISD’s motion for summary judgment as to its
affirmative defense. Because we have upheld summary judgment in favor of DISD
on its affirmative defense, it is not necessary for us to decide whether the trial court
erred in granting DISD’s motion for summary judgment as to the element of
causation in Herrera’s whistleblower claim. See TEX. R. APP. P. 47.1 (we must hand
down an opinion as brief as practicable to address the issues). Herrera’s sole issue
is overruled.
Conclusion
We affirm the judgment of the trial court.
/Craig Smith/ CRAIG SMITH JUSTICE
220384F.P05
–16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FERNANDO HERRERA, Appellant On Appeal from the 101st Judicial District Court, Dallas County, Texas No. 05-22-00384-CV V. Trial Court Cause No. DC-18-07866. Opinion delivered by Justice Smith. DALLAS INDEPENDENT Justices Partida-Kipness and SCHOOL DISTRICT, Appellee Breedlove participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee DALLAS INDEPENDENT SCHOOL DISTRICT recover its costs of this appeal from appellant FERNANDO HERRERA.
Judgment entered this 21st day of June 2023.
–17–