Nora Kathryn Conroy v. Nacogdoches Independent School District--Appeal from 217th District Court of Angelina County

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In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-05-362 CV
On Appeal from the 217th District Court
Angelina County, Texas
Trial Cause No. CV-36,887-03-10

Appellant Nora Kathryn Conroy, a diagnostician employed in appellee Nacogdoches Independent School District's special education department, filed suit against the school district under the Whistleblower Act. See Tex. Gov't Code Ann. 554.001-554.010 (Vernon 2004). Conroy appeals the trial court's final order granting NISD's no-evidence motion for summary judgment. NISD cross-appeals the trial court's order denying NISD'S motion to transfer venue. We affirm the trial court's judgment as modified.


At the time Conroy filed her petition, she had been employed as a special education diagnostician by NISD for three years. In November 2002, Conroy and sixteen other special education staff members at NISD filed and signed a complaint with the TEA reporting violations of state and federal law in the NISD special education program. The TEA conducted an initial investigation of the special education program. In January 2003, the TEA sent NISD Superintendent Dr. Tony Riehl a letter advising him of the allegations contained in the complaint and directing the district to take corrective action. In March 2003, in a letter to the United States Department of Education's Office of Civil Rights, Conroy again complained of violations of state and federal regulations in the special education program. Twelve of the original sixteen signatories to the TEA complaint also signed this letter.

In August 2003, NISD's Special Education Director Debbie Walker informed Conroy she would be transferred from the elementary school to the high school for the 2003-2004 school year. Conroy had previously told Walker that Conroy did not want to go to the high school and Conroy's specialization was in working with very young children. In October 2003, while working at the high school, Conroy received a directive from High School Principal Elizabeth Ballenger instructing her to follow the admission, review, and dismissal procedures. Conroy brought suit against NISD under the Texas Whistleblower Act alleging her transfer to the high school and the October 2003 directive were retaliation for her reports to the TEA and U.S. Department of Education.

NISD filed a motion for summary judgment asserting Conroy had no evidence to support the "adverse employment action" or "causation" components of her retaliation claim. The trial court granted the motion and Conroy appealed. The parties subsequently learned that the trial court had signed two conflicting orders on the same day, both granting NISD's motion. One of the orders awarded NISD attorneys' fees under the Texas Education Code in an amount to be determined at a later date. The other order did not include the attorneys' fees award. NISD filed a motion to abate or dismiss the appeal arguing the signed order granting an undetermined amount of attorneys' fees was interlocutory. Because this Court would not have jurisdiction over the interlocutory judgment, this Court abated the appeal for the trial court to determine which of the orders it intended to enter. On remand from this Court for a clarifying order, the trial court entered a final summary judgment in favor of NISD and further, entered evidentiary rulings which NISD had not obtained prior to either of the court's original summary judgment orders. Conroy appeals the trial court's final order entered after remand. NISD cross-appeals the trial court's order denying its motion to transfer venue.

Standard of Review

A summary judgment motion pursuant to Tex. R. Civ. P. 166a(I) is essentially a motion for a pretrial directed verdict. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).

Conroy's Issues on Appeal

Conroy presented two issues on appeal prior to this Court's abatement. She argued that the district court erred in granting NISD's no-evidence motion for summary judgment because she presented more than a scintilla of evidence of "causation" between the adverse personnel decisions and Conroy's report of law violations, and that NISD had subjected Conroy to "adverse personnel action." After this Court's abatement and after the trial court entered its final order granting NISD's summary judgment including the new evidentiary rulings, Conroy supplemented her brief to include two additional issues. She asserts the district court's rulings on summary judgment evidence made for the first time after abatement and remand are void, or otherwise waived, for purposes of this appeal. She also contends that, in the event this Court considers the trial court's evidentiary rulings, the trial court's rulings on her summary judgment evidence constituted reversible error.

Evidentiary Rulings Incorporated Into Final Judgment On Remand

We first address Conroy's issues regarding the trial court's inclusion of evidentiary rulings in its judgment after this Court abated the appeal for a clarifying order. Conroy argues the rulings are void because this Court's order of abatement did not grant the trial court authority to rule on evidentiary matters and the trial court could not make such rulings because its plenary jurisdiction had expired. She also argues that because NISD did not obtain rulings on the summary judgment evidence prior to the judgment, NISD waived any complaint concerning defects in Conroy's summary judgment evidence and that its attempt to have any evidentiary rulings incorporated into the reformed judgment on remand is untimely.

When NISD asked this Court to abate or dismiss Conroy's appeal, NISD sought "[t]o clarify the issue of which order the district court intended to sign and whether this Court has jurisdiction over a final appealable judgment[.] . . ." NISD asked this Court to abate or dismiss the appeal "[t]o resolve the dilemma of which of the two alternative proposed Orders the district court intended to sign (and whether the Court of Appeals thus has jurisdiction over this appeal)[.]" Conroy agreed to abate the appeal only for the limited purpose of clarifying which Order the lower court intended to sign. This Court abated the appeal and remanded the cause to the trial court "in order for the trial court to determine whether a judgment nunc pro tunc or other clarifying order should be entered."

On remand, NISD filed a motion to clarify the order granting summary judgment and attached two proposed final judgments for the trial court's consideration. The two proposed orders mirrored the two previously signed orders except that (1) the proposed order awarding NISD attorneys' fees was titled an "Interlocutory Order" and the proposed order with no attorneys' fees award was titled "Order and Final Judgment" and (2) both of the proposed orders included new rulings striking specific evidence attached to Conroy's response to NISD's summary judgment motion. In NISD's motion to clarify, NISD not only asked the trial court to enter the order most consistent with its original intention concerning the granting of the summary judgment but further asked the court to "take this opportunity to advise the court of appeals what evidence, if any, of [Conroy]'s evidence in response to [NISD]'s motion for summary judgment was considered in determining the motion." The trial court signed the final judgment.

We may "abate [an] appeal to permit clarification by the trial court." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001); see Tex. R. App. P. 27.2 ("The appellate court may allow an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record."). In deciding whether to abate or dismiss an appeal, an appellate court "must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities." Tex. R. App. P. 44.3. If a "trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals[,] and the trial court can correct its action or failure to act[,]" a court of appeals is required to direct the trial court to correct the error and then the court of appeals shall continue as if the erroneous action or failure to act had not occurred. Tex. R. App. P. 44.4.

Generally, the lower court loses jurisdiction upon the filing of a notice of appeal. Tex. R. App. P. 25.1(b). Conroy contends that because the trial court lacked jurisdiction to adjudicate evidentiary matters after the court entered its summary judgment order, the authority to act could only derive from this Court's abatement order. NISD concedes that "[u]pon remand, the district court's jurisdiction was not based upon its original plenary power . . . [but] the district court exercised the jurisdiction granted it by this Court's Order of abatement and remand and clarified its prior failure expressly to rule on NISD's evidentiary objections." The issue, therefore, turns on the authority granted by this Court's order to abate and remand.

NISD argues that when this Court abated and remanded for either "a judgment nunc pro tunc or other clarifying order," the district court was not restricted only to enter a judgment nunc pro tunc. In essence, NISD contends the judgment on remand including the evidentiary rulings was proper because it was a "clarifying order" under the authority granted by this Court's order. We disagree. NISD did not argue in its Motion to Abate or Dismiss Appeal that the appeal should be abated for a ruling on its objection to summary judgment evidence. We have previously held when there is no order sustaining or overruling either party's objections and nothing in the judgment indicates the trial court considered them, the contested evidence remains a part of the summary judgment evidence. See Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 227 (Tex. App.--Beaumont 2004, no pet.). For jurisdictional purposes, this Court abated the appeal to the trial court only to determine which of the signed orders conformed with the trial court's intent. The inclusion of new evidentiary rulings into the final judgment after remand exceeded the scope of the remand granted by this Court.

NISD maintains Conroy waived any objection to the included evidentiary rulings because she failed to timely object. Because we hold the trial court exceeded the scope of the remand order, Conroy was not required to object to evidentiary rulings that had no effect. Tex. R. App. P. 33.1.

Causation Element and Conroy's Summary Judgment Evidence

For Conroy to prevail on her claim, she must establish (1) she is a public employee; (2) she acted in good faith in making her report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) she suffered retaliation as a result of making the report. See Tex. Gov't Code Ann. 554.002(a). Employees filing a whistleblower action must prove all elements of their claim by a preponderance of the evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). (1)

Conroy argues the trial court erred in granting NISD's no-evidence motion for summary judgment because more than a scintilla of evidence established "causation" between Conroy's report of violations and her transfer and the October 2003 directive.

To show causation, a public employee must demonstrate that after he or she reported a violation of the law in good faith to an appropriate law enforcement authority, the employee suffered discriminatory conduct by his or her employer that would not have occurred when it did if the employee had not reported the illegal conduct.

Id. (citing Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995)).

The Zimlich Court further explained that:

[c]ircumstantial evidence may be sufficient to establish such a causal link between the adverse employment action and the reporting of illegal conduct. Such evidence includes:(1) knowledge of the report of illegal conduct; (2) expression of a negative attitude toward the employee's report of the conduct; (3) failure to adhere to established company policies regarding employment decisions; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the adverse employment action was false. But evidence that an adverse employment action was preceded by a superior's negative attitude toward an employee's report of illegal conduct is not enough, standing alone, to show a causal connection between the two events.


Id. at 69 (citations omitted).

In response to NISD's summary judgment motion, Conroy attached the depositions of Superintendent Riehl, Assistant Superintendent G.W. Neal, and Liz Ballenger, high school principal. Conroy presents the following arguments in response to NISD's no-evidence claim as to causation: (1) Riehl and Neal's depositions establish they had knowledge that Conroy had made a report of illegal conduct prior to her transfer; (2) Neal's deposition establishes Walker had a negative attitude toward the complaints that had been reported by Conroy and others to the TEA; and (3) Neal's deposition evidences the transfer decision violated established school district policy and included an offer to accept Conroy's resignation at a time when such resignation could have subjected Conroy to adverse employment actions either by the school board or state board of education.

Conroy failed to present any direct evidence that the transfer or the October 2003 directive would not have occurred when it did had she not made the reports to the TEA and the U.S. Department of Education. We also find she lacks sufficient circumstantial evidence to establish a genuine issue of material fact as to the element of causation. See id.

NISD does not dispute it was aware of the complaints to the TEA and the U.S. Department of Education. Conroy contends that Walker harbored a negative attitude toward the reports by Conroy and others to the TEA. She bases this argument on a letter from special ed employees in the district and a memo to Neal, both read into the record during Neal's deposition. The letter stated the employees' opinion that Walker's reaction was "defensive, rude, and . . . antagonistic" to the employees' attempts to discuss issues regarding policies Walker implemented. The memo was from Neal and Lynn McLean to Superintendent Riehl regarding interviews with the employees who signed the letter of complaint. Neal read the following portion of the memo:

In our discussion with those who signed the letter and those who did not, we found the comment "We must do things right. I know what we have to do to be in compliance. If you do not wish to get on the Debbie Walker train with the issue, I will accept your resignation. I have applications on my desk which can be used for replacements." This comment created a feeling of threat among those who signed the letter. We believe the seriousness of the situation and the pressure Debbie felt to clean up the out-of-compliance issues contributed to the passion behind the statement. This same passion has brought forth many other statements that have been seen as aggressive and rude.


In the Fall of 2002, a number of special education employees prepared and forwarded a letter of complaint to NISD. The statements and attitude attributed to Special Education Director Walker in the letter of complaint and quoted in part in the memo of Assistant Superintendent Neal, dated November 15, 2002, were made prior to any report filed by Conroy and others with the TEA or U.S. Department of Education and therefore, present no evidence that Walker had a negative attitude toward the reports made by Conroy and others to the TEA or U.S. Department of Education.

One other type of circumstantial evidence listed by the Zimlich Court that may be offered to prove retaliatory employment practices is the failure to adhere to established policies regarding employment decisions. 29 S.W.3d at 69. Conroy contends that her transfer to the high school was not done in accordance with usual practices because the high school principal initially objected to Conroy's being transferred to her campus without her consent or approval. Assistant Superintendent Neal did testify that the normal procedure at NISD was to permit a principal to approve the assignment of any staff person to his or her campus. Principal Ballenger initially complained that she was hesitant to accept Ms. Conroy as she "was part of a group of 25 who were not positive toward the special education director in the 2002-2003 school year." However, that same memo continued, "The Nacogdoches High School special education department barely held together last year without a major incident." Principal Ballenger later withdrew her objection to the transfer and consented to having Conroy assigned to the campus. Nothing in the evidence offered by Conroy on this issue tends to show any deviation from usual employment practices on the part of NISD regarding Conroy's transfer to the high school campus as it relates to Conroy's whistleblower reports. Instead, the record evidence reveals that the special education department had suffered from controversy and unrest for at least the year before any reports were made by Conroy and others to any authorities. Conroy does not dispute that her contract of employment with NISD allowed for her transfer by the district to different campuses according to its staffing needs. The high school campus to which Conroy was transferred had lost both its diagnosticians and the district had to fill the positions. Conroy tenders, as further evidence of discriminatory practices, the statement that when her transfer was announced, she was offered the opportunity to resign less than 45 days before the beginning of the school year, which may have subjected her to sanctions or other penalties had she accepted the district's offer to resign. She did not resign, though, nor was she sanctioned and therefore, speculation as to what could have happened is no evidence of any discriminatory employment practices. As stated in Zimlich, there is no evidence "from which a fact finder could reasonably infer that discrimination was a factor in the decision process." Id. Without evidence supporting such an inference, "a finding of liability rests only on speculation." Id. at 70.

Similarly, the only evidence offered by Conroy to prove discriminatory treatment in comparison to similarly-situated employees was the fact that she was not allowed to take work home in the evening while another diagnostician, Jana Burrows, was allowed to do so. However, again, this evidence is insufficient to allow a fact finder to reasonably infer that discrimination was a factor in the decision process. Thus, the record contains neither the types of circumstantial evidence listed by the Zimlich Court to show that NISD would not have made any employment decision concerning Conroy when it did if Conroy had not participated in the filing of the reports with TEA or U.S. Department of Education nor any direct evidence to prove the fact. Conroy's issue on causation is overruled. Because this holding is dispositive, we do not reach Conroy's other issue regarding whether NISD subjected her to adverse personnel action.


Based on our holding that the trial court improperly included new evidentiary rulings in its final judgment on remand, we modify the trial court's Order and Final Judgment Granting Defendant's No-Evidence Motion for Summary Judgment to delete the portions of the judgment ruling on specific evidence. We find Conroy failed to present more than a scintilla of evidence to support the causation element to her claim and we affirm the trial court's judgment as modified. We need not address NISD's cross appeal.






Submitted on October 12, 2006

Opinion Delivered June 7, 2007


Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. NISD moved for summary judgment on the ground that there was no evidence of only one element, that Conroy suffered retaliation as a result of making the report. More specifically, NISD asserted that Conroy incurred no adverse employment action and no evidence of causal link between any adverse employment action and the reporting of illegal conduct.