Special education supervisor sues after termination by district

A special education administrator sued the school district and school employees following the termination of his employment. He claimed that he was fired because he reported child abuse to his supervisor and participated in a CPS investigation. The trial court dismissed the lawsuit and the educator appealed to the court of appeals.

The educator was head of special education services at a high school campus. At the beginning of the school year a special education teacher at the school withheld lunch from a special education student as a form of discipline. 

Shortly after, another special education teacher on the campus interrogated a special education student "in an extreme manner" by flipping over the student's table so that it nearly hit him. The teacher also emptied the student's backpack, ripped up his papers, and threw the backpack's contents onto the floor as the student cried. 

The campus principal watched this incident without intervening, and the entire incident was caught on videotape. The educator provided the principal with documentation listing the violations connected with these incidents.

Not long after the these incidents, the educator intervened to break up a fight between students. 

The next week, the principal suspended the educator for three days with pay during an investigation into that fight; the cause for his suspension stated that he "watched two boys fight in front of the cafeteria and did not make any attempt to deescalate the situation." 

The educator filed a grievance regarding the fight and suspension. 

Sometime during this time period, the principal told the educator that the school district's superintendent "wants to get rid of you and I can't keep you if I can't trust you."

Child Protective Services began to conduct an investigation into the abuse allegations against the special education teachers.  

At one point, the principal falsely stated to the CPS investigator that she told the educator to suspend one of the teachers accused of the alleged abuse. 

Throughout the investigation, the mothers of the students the teachers allegedly abused reached out to the educator, inquiring whether the teachers were disciplined. The educator brought these inquiries to the principal's attention, and each time the principal would criticize the educator and pushback "as she had from the beginning."

While the investigation was occurring, the educator borrowed two fogger/sprayer machines from the district warehouse so that he could fog and sanitize the auditorium; the supervisor on duty, gave him permission to borrow the foggers. He labeled the boxes to make clear they belonged to the warehouse, used them to sanitize the auditorium, and left both foggers in their boxes in the auditorium. 

The next day, the main warehouse supervisor came to the school to speak with the educator and asked the educator to email him instead of asking the supervisor whenever the educator needed something for the school campus. After the educator apologized and explained that he was unaware of that process, the supervisor responded that he understood and "just wanted the educator to be informed of the future process." 

Shortly thereafter, the educator was summoned to administration and asked to write a statement about this incident. The educator informed administration that he was working on the statement with his attorney, at which point the educator was informed that he was being suspended without pay because he "had not given administration the statement, and that there was going to be an investigation."

The educator was proposed for termination and requested a hearing before the independent hearing examiner. 

Following the hearing, the examiner recommended that the educator be terminated and the board of trustees accepted that recommendation and voted to terminate the educator. 

The educator then filed an appeal to the commissioner of education, claiming that the hearing examiner arbitrarily excluded evidence produced by the educator. However, the educator did not specify what evidence had been excluded. The commissioner of upheld the decision of the board.

At that point, the educator sued the school district, the superintendent, the teachers accused of abusing the students, and the commissioner of education. He requested judicial review of his termination, arguing that the school district had violated the Texas Whistleblower Act. He also alleged that the school district retaliated against him for reporting to CPS and serving as a witness in the CPS investigation of abuse at the school.

The court of appeals reviewed the case and determined that it was unclear from the record as to whether the educator was actually the person who made the report to CPS. It also noted that he was required to serve as a witness during the CPS investigation as part of his job description as the overseer of special education services on the campus. Therefore, he could not be protected based on the type of lawsuit he filed. 

Finally, the court noted that the finding of the hearing examiner was that the educator was terminated for failing to provide a statement during the investigation into the fogger incident, not for anything related to the alleged abuse or CPS investigation. It upheld the decision of the trial court to dismiss the appeal.

Although the court of appeals did not discuss this issue, it should be noted that the educator had the opportunity to directly appeal his termination to district court and chose not to do so. Instead, he filed a new, different type of lawsuit and this may have impacted the outcome of this case.