Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Velva L. Price
District Clerk
Travis County
Cause No. D-1-GN-18-005721 D-1-GN-18-005721
Sandra Henriquez
HALCY MARTIN DEAN § IN THE DISTRICT COURT
Plaintiff, §
§
V. § OF TRAVIS COUNTY, TEXAS
§
STETSON ROANE §
Defendant. § 98TH JUDICIAL DISRICT
Defendant Stetson Roane (“Roane”) files this Brief in Support of his Amended Plea to
I. PROCEDURAL BACKGROUND
Plaintiff filed her First Amended Petition (“Petition”) on December 12, 2018, alleging a
single cause of action for intentional infliction of emotional distress (“IIED”) and asserting
liability because Roane allegedly is not entitled to immunity under Texas Education Code
§ 22.0511.
On January 8, 2019, Roane filed a Plea to the Jurisdiction and Answer to Plaintiff’s First
Amended Petition. On February 12, 2019, Roane filed an Amended Plea to the Jurisdiction
(“PTJ”) and Answer to Plaintiff’s First Amended Petition; the PTJ re-urged the previous PTJ.
Also on February 12, 2019, Roane filed a motion to dismiss pursuant to Section 10.106 of
the Texas Civil Practice and Remedies Code and Rule 91a of the Texas Rules of Civil Procedure;
those motions were briefed within the motions themselves. Roane is not filing separate briefing
as to those motions though many of the arguments and authorities overlap and will be cited in
-1-
II. FACTUAL BACKGROUND
In the Petition, Plaintiff makes numerous salacious allegations, which Roane vehemently
denies and successfully submitted to a polygraph examination to rebut. However, even if all such
allegations are assumed to be true, they do not permit Plaintiff to recover under Texas law.
Therefore, a rebuttal statement of facts is not strictly necessary in the context of this plea.
Nevertheless, because of the salaciousness of the allegations that have so far gone publicly
unchallenged, Roane is providing his own statement of the facts supported by affidavits by him
Roane was the superintendent for Seguin Independent School District (the District) from
July 16, 2015 until February 28, 2017. (Exh. A, ¶ 2). Roane’s wife, Nancy Denise Graves
(Roane’s Wife), was the Executive Director of Federal Programs and School Improvement for
the District from September 2015 until June 30, 2017, though she was on administrative leave
with pay from March 1, 2017 until June 30, 2017. (Exh. B, ¶¶ 2, 2).
The Texas Council of the Administrators of Special Education (TCASE) Conference (the
Conference) was held in Austin, Texas the week of January 15, 2017. (Exh. A, ¶ 3; Exh. B, ¶ 4).
Plaintiff was the District’s Special Education Director at the time of the Conference, having been
hired in April 2016 to perform that role for the 2016-2017 school year. (Exh. A, ¶ 4; Exh. B, ¶
Plaintiff requested that Roane attend the Conference to meet vendors and prospective
vendors because she was a new special education director and wanted to go in a new direction
with the program and to have his buy-in because he would be the one to sign the contracts. (Exh.
1
Roane acknowledges that where his and Plaintiff’s accounts of incidents vary, it would create fact issues; however,
the fact issues are not material to the determination of the legal issues presented. This plea to the jurisdiction is
based on the facts pleaded by Plaintiff, supplemented with undisputed evidence of other facts. Thus, the existence of
conflicting accounts between Roane and Plaintiff does not defeat the plea.
-2-
A, ¶ 5). As a former special education director at Aransas Pass ISD, Roane agreed to do so. (Id.).
Roane also thought it was a good opportunity to network with others. (Id.). In addition, it was in
keeping with Roane’s practice to accompany new administrators to their respective conferences.
(Id.). For example, Roane attended the THSCA with the new athletic director and TASA Mid-
Roane’s role at the Conference did not require him to register for the conference itself,
but he did need a hotel room, so he asked Plaintiff to book a room for him. (Exh. A, ¶ 6).
Plaintiff had a hotel room in the conference hotel, the JW Marriott, for four nights (Sunday-
Wednesday). (Exh. A, ¶ 7). Additional rooms in that hotel were not available. (Id.). Because
Roane was not arriving until Tuesday, Plaintiff stayed in the room the first two nights and then
vacated it on Tuesday morning, January 17, 2017, to allow him to stay there, with her planning
On the way to Austin, Roane exchanged text messages with Plaintiff about various
meetings and events. (Exh. A, ¶ 8). On January 17, 2017, Plaintiff, Roane, and others attended a
dinner with a law firm vendor, followed by drinks at the JW Marriott. (Exh. A, ¶ 9). They met at
7:00 in the lobby to take a taxi to attend the dinner at 7:30. (Id.). Present in the lobby were Mike
Garcia, a male attorney from the law firm hosting the dinner, Plaintiff, two female employees
from her department, and Roane. (Id.). During the evening, Roane asked Plaintiff several times
for the key to the room at the JW Marriott, but she did not provide it to him until approximately
10:30 p.m. (Exh. A, ¶ 10). The group left the dinner and returned by taxi to the JW Marriott
around 10:40 p.m. (Exh. A, ¶ 11). Mr. Garcia and Nick Maddox, another attorney of the firm,
invited everyone to have a drink in the bar. (Id.). Plaintiff’s employees declined, but Plaintiff
-3-
chose to stay with the men. (Id.). During this time, Roane checked on his belongings and tipped
the bell hop to take his belongings to his room and stock it with Coke and ice. (Exh. A, ¶ 12).
When Plaintiff was ready to head to Hyatt Place, she asked Roane for taxi money, which
was curious because she had a district credit card that she could have used. (Exh. A, ¶ 13). Roane
went with Plaintiff to get her luggage from the bell hop where it had been stored all day and pay
for the taxi. (Exh. A, ¶ 14). The luggage was very large and had a broken wheel. (Id.). Plaintiff
was struggling to carry it. (Id.). Roane got the luggage in the taxi and realized how heavy it was,
so he decided to escort Plaintiff to the Hyatt to make sure she was able to get herself and her
In the taxi from the JW Marriott to the Hyatt Place, Roane rode in the front seat, while
Plaintiff rode in the back. (Exh. A, ¶ 15). When they arrived at the Hyatt, at the front desk Roane
offered his credit card to pay for the room because he had caused Plaintiff to move. (Exh. A,
¶ 16). Because of the broken suitcase, Roane again helped Plaintiff to her room with the heavy
broken suitcase in tow. (Id.). Plaintiff never told Roane she did not want help. (Id.).
While Roane was carrying the heavy broken luggage to Plaintiff’s room, he began to
sweat and stopped to remove his tie. (Exh. A, ¶ 17). During the walk to the room, Ms. Martin-
Dean and Roane discussed work. Plaintiff asked Roane several times if he would transfer her
husband, who was a middle school choir director, to a special education teaching position even
though he did not have the proper certification. (Id.). Roane told Plaintiff that he could not do
that. (Id.). The conversation continued as Roane put her luggage in her room whereby she
informed me that her husband was totally incapable of managing his class and would be unable
-4-
to make it through the year. (Id.). Again, Plaintiff was asking for her husband to be transferred;
Roane said he would consider it at the end of the school year, but he could not do it now. (Id.). 2
While in the hotel room, Roane did not remove any articles of clothing, sit down, make
any inappropriate sexual comments, or seek a romantic relationship with Plaintiff. (Exh. A, ¶
19).
The next day, January 18, 2017, Roane exchanged text messages with Plaintiff. (Exh. A,
¶ 20). In the first text, Roane told Plaintiff that he would be at the Texas Association of School
Boards offices that day and to text him if she needed him. Roane thanked her for the room and
for letting him hang out with her staff the night before. (Id.). Plaintiff responded, “Omg. Thank
you we had a wonderful time! It was very nice.” (Id.). Roane told her that they were lucky to
have such great leadership and to keep it up. (Id.). Plaintiff texted, “Ty! I appreciate your
support.” (Id.).
The next text message Roane received was Plaintiff inviting him to lunch with a
Medicare vendor at Coopers Barbecue, explaining that the vendor was one she was interested in
doing business with. (Exh. A, ¶ 21). Roane was not able to make it so he said, “Sorry catch up
with y’all later.” (Id.). Roane asked if Plaintiff had plans for that evening and mentioned that he
In response to Roane’s text asking if Plaintiff had an invitation to any events that
evening, Plaintiff replied that the Medicare vendor had an event at Pete’s Piano Bar. (Exh. A, ¶
22). Plaintiff reiterated that she was interested in that vendor and told Roane she would like him
to meet them. (Id.). They ended up making plans for Roane to meet the vendor at the Conference
at about 2:30-2:45. (Id.). Before they had the meeting, Plaintiff sent Roane a series of texts
2
Roane learned that after his departure from the District, Mr. Dean was transferred to the requested position. (Exh.
A, ¶ 18).
-5-
stating, “I want you to know I think you are awesome. I love working with you. Ty for all you do
At the end of the day on January 18, 2017, Plaintiff, her two staff members, Roane’s
Wife, and Roane met in the hotel lobby and walked to a reception at a Mexican restaurant. (Exh.
A, ¶ 23; Exh. B, ¶ 6). During the time at the restaurant, Plaintiff was dancing and having fun.
(Id.). Plaintiff even was aggressively teasing Roane’s Wife, making a joke that she did not know
The next morning, January 19, 2017, as Roane was checking out, he called Plaintiff to
ask whether the room charge was on the district credit card or hers personally. (Exh. A, ¶ 24).
Plaintiff told me she paid with her card, so when Roane returned to the District, Roane made sure
On January 26, 2017, Plaintiff submitted a sexual harassment complaint to the District
that tracks the allegations that are made in the First Amended Petition. 3 (Exh. C). Specifically,
the complaint alleged sexual harassment by Roane during the business trip to attend the TCASE
Conference on January 17, 2017. (Id.). The District initiated an investigation, and while the
20, 2017 (Exh. A, ¶ 25). During this examination, Roane was asked whether he had made certain
inappropriate comments to Plaintiff, as she was alleging in her complaint. (Id.). Roane responded
that he had not, and the polygraph examiner found no deception in Roane’s answers. (Id.).
Roane and his wife amicably resigned their employment with the District with no finding
of guilt made against Roane. (Exh. A, ¶ 26). Roane’s resignation was effective February 28,
2017; Roane’s Wife’s resignation was effective June 30, 2017. (Exh. A, ¶ 26; Exh. B, ¶3).
3
This complaint is the subject of a lawsuit under the Texas Public Information Act, and for that reason, Roane and
Plaintiff have agreed to treat this as a confidential document pursuant to an Agreed Protective Order.
-6-
On March 6, 2017, the District notified Plaintiff that her complaint was closed; the letter
advised Plaintiff that, under Policy DIA (LOCAL) (Exh. D), if she was dissatisfied with the
outcome, she could appeal pursuant to DGBA (LOCAL) (Exh. E). 4 (Exhibit F, Letter to
Plaintiff).
On August 11, 2017, the District received a Notice of Charge of Discrimination from the
Equal Employment Opportunity Commission (“EEOC”), in the name of Plaintiff, alleging sexual
harassment by the Superintendent on January 17, 2017. (Exh. G). The EEOC issued a Notice of
“A party may contest a trial court’s subject-matter jurisdiction by filing a plea to the
jurisdiction.” Houston Mun. Employees Pension System v. Ferrell, 248 S.W.3d 151, 156 (Tex.
2007)(quoting Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). The trial court
must determine at its earliest opportunity whether it has the constitutional or statutory authority
to decide the case before allowing the litigation to proceed. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject-matter jurisdiction
is a question of law. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855
(Tex. 2002).
The goal of a plea to the jurisdiction is to have the trial court dismiss the cause of action.
See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985). Further, such a dismissal is with prejudice.
Koseoglu, 233 S.W.3d at 844 (citing Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004)).
4
The Court may take judicial notice of these policies published on the district’s website. See In re Doe, 501 S.W.3d
313, 321 n. 11 (Tex. App.—Houston [14th Dist.] 2016, no pet.). This particular policy page can be accessed on the
District website by clicking “Board Policy Online” at http://www.seguin.k12.tx.us/page/board.home. The policies
also can be quickly accessed at https://pol.tasb.org/Policy/Section/550?filter=D.
-7-
When a plea to the jurisdiction challenges the pleadings, the court must determine
whether the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear the cause. Miranda, 133 S.W.3d at 226. The court construes the pleadings liberally in favor
of the plaintiff and looks to the pleader’s intent. Id. If the pleadings do not contain sufficient
facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted
Also, the plaintiff has the burden to affirmatively demonstrate the court’s jurisdiction by
alleging a valid waiver of immunity. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d
583, 587 (Tex. 2001); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993).
It is well established that, if the plea challenges the existence of jurisdictional facts, the
court considers not only the pleadings, but relevant evidence when necessary to resolve the
jurisdictional issues raised. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Tex. Dep’t of
Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 555 (Tex. 2000). The burden is on the plaintiff to affirmatively
demonstrate the trial court’s jurisdiction. See Heckman v. Williamson County, 369 S.W.3d 137,
In most cases of a jurisdictional challenge, the trial court should limit its consideration of
evidence to only that which is relevant to the jurisdictional issue and avoid considering evidence
that goes to the merits. Bland Indep. Sch. Dist., 34 S.W.3d at 555. However, in some cases
-8-
jurisdiction involves the merits. Miranda, 133 S.W.3d at 227. In such circumstances, the trial
court must review the evidence to determine if there is a genuine issue of material fact. Id. at
227-28. If the evidence raises a fact issue regarding jurisdiction, the trial court cannot grant the
plea and the trier of fact must resolve the issue. Id. If the relevant evidence is undisputed or if
there is no fact question on the jurisdictional issue, the trial court should grant the plea as a
matter of law. Id. at 228. This standard generally mirrors that of a summary judgment. Id.
B. This Court lacks jurisdiction over a claim for intentional infliction of emotional
distress under the facts pleaded because the claim is preempted by Chapter 21 of the
Texas Labor Code.
The Texas Commission on Human Rights Act is codified in Chapter 21 of the Texas
Labor Code (“Chapter 21” or “TCHRA”). The TCHRA provides a statutory cause of action for
sexual harassment in employment. See Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438,
445 (Tex. 2004). The Texas Supreme Court and several courts of appeals have determined that
the preemption of a claim by Chapter 21 is a jurisdictional bar to suit. See Waffle House, Inc. v.
Williams, 313 S.W.3d 796 (Tex. 2010); City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 2008);
App.—Beaumont May 21, 2015, no pet.)(mem. op.); Pruitt v. Int’ l Ass’n. of Fire Fighters, 366
S.W.3d 740 (Tex. App.–Texarkana 2012, no pet.). If the complained-of acts constitute a statutory
violation of Chapter 21, those acts cannot also serve as the basis of an independent common-law
claim. See Pruitt, 366 S.W.3d at 748 (citing Waffle House, 313 S.W.3d at 813).
In addition to the general rule that Chapter 21 preempts common law tort claims, the
Texas Supreme Court has made clear that the specific common law cause of action for IIED
cannot be used to address claims related to sexual harassment in employment situations. The
Texas Supreme Court has stated that IIED is a “gap-filler” tort never intended to supplant or
-9-
duplicate existing statutory or common-law remedies. Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 816 (Tex. 2005)(citing Zeltwanger, 144 S.W.3d at 441). The Court added that, “[e]ven if
other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.” Id.
The fact that Plaintiff is attempting to sue Roane directly rather than the employer, the
District, does not alter this result. In Creditwatch, the Court prohibited recovery on an IIED
claim against a plaintiff’s supervisor because the supervisor’s conduct could form the basis of a
claim under the TCHRA. See id.; Tex. Labor Code § 21.000, et. seq. Thus, under Creditwatch
and numerous other court decisions, a plaintiff cannot bring a claim for intentional infliction of
emotional distress against a defendant supervisor where the plaintiff could bring a state statutory
claim or other tort claim against plaintiff’s employer based on the same conduct alleged. See
Rawlings v. Travelers Prop. Cas. Ins. Co., 3:07-CV-1608-O, 2008 WL 2115606, at *4 (N.D.
Tex. May 20, 2008)(citing Creditwatch, 157 S.W.3d at 815-817)(other citations omitted); see
also Fisher v. Dallas County, 299 F.R.D. 527, 537–38 (N.D. Tex. 2014); Mercer v. Arbor E & T,
2012 WL 1425133, at *10 (S.D. Tex. Apr. 21, 2012) (citing cases); see also Muniz v. El Paso
Marriott, 2009 WL 4878619, at *3 (W.D. Tex. Dec. 8, 2009) (“Under Texas law, a claim for
IIED is not available against an employee’s supervisor if the same alleged conduct supports a
claim for relief against the employer under other legal theories, such as the anti-discrimination
statutes.”); Rawlings v. Travelers Prop. Cas. Ins. Co., 2008 WL 2115606, at *4 (N.D. Tex. May
20, 2008) (“[A] plaintiff cannot bring a claim for [IIED] against a defendant supervisor where
the plaintiff could bring a state statutory claim or other tort claim against plaintif[f]’s employer
based on the same conduct alleged. Accordingly, for Plaintiff to have stated a claim on which she
has a reasonable basis of recovery against ... her former supervisor, Plaintiff’s IIED claim cannot
be based on facts that could form the basis of any workplace harassment or discrimination claim
- 10 -
at all, even an action solely against her employer.” (emphasis in original) (citations omitted));
Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont 2008, pet. denied).
In this case, Plaintiff’s allegations form the basis of a claim for sexual harassment under
Chapter 21, and Plaintiff knew it. Plaintiff filed a sexual harassment complaint with her
employer and filed a charge of discrimination alleging sexual harassment and retaliation against
her employer. (Exh. C; Exh. G). Both complaint documents complain about the conduct on
January 17, 2017, of the statutory “chief executive officer of the school district.” See Tex. Educ.
But we don’t have to rely on Plaintiff’s understanding of the nature of her claims to see
that she is alleging conduct that could form the basis of a claim under the TCHRA; the law itself
First, because of Roane’s status as the CEO of the District, the District potentially faced
liability under an “alter ego” or proxy theory, which deprives the employer of the affirmative
defense usually available in a hostile environment/sexual harassment cases. See Ackel v. Nat’l
Commc’ ns, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003). 5 An individual is a proxy for the
speak for the entity. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998)).
Plaintiff certainly understood Roane to be in this capacity as she stated in her pleadings that
“Defendant Roane had been granted sole hiring and firing authority by the [SISD] board, so
Halcy reasonably believed he might use it to retaliate against her, and she believed and feared he
had the ability to do whatever he wanted with regard to her position with the district.” (Petition, ¶
4.12).
5
Texas courts “consistently look to federal law to inform our construction and application of the TCHRA because
one of its purposes is to ‘provide for the execution of the policies of Title VII.’” Alamo Heights Indep. Sch. Dist. v.
Clark, 544 S.W.3d 755, 764 n. 5 (Tex. 2018).
- 11 -
Second, the alleged conduct at issue certainly falls within the protections of Chapter 21.
Plaintiff argues that the conduct that she originally characterized as sexual harassment when she
filed her complaints actually is not sexual harassment covered by Chapter 21. Plaintiff makes
this argument by attempting to parse the activities of the evening of January 17, 2017, to claim
that certain of the activities were outside the scope of the superintendent’s duties; however, it is
all activity that is covered by the TCHRA and Title VII by virtue of their relationship as
supervisor and employee on a business trip. Plaintiff’s pleadings indicate that the alleged conduct
Chapter 21. See, e.g., Ellerth, 524 U.S. at 748 (plaintiff’s allegations of harassment included an
allegation that while she and a supervisor were on a business trip, the supervisor had invited her
to the hotel lounge, made remarks about her breasts, and, when she gave no encouragement to
him, told her to “loosen up” and warned her, “I could make your life very hard or very easy at
Burlington.”); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60 (1986) (plaintiff’s allegations of
harassment included allegations that her supervisor had invited her out to dinner and, at the
dinner, suggested that they go to a motel and have sexual relations and that her supervisor had
made repeated demands upon her for sexual favors, both during and after business hours);
Moring v. Arkansas Dept. of Correction, 243 F.3d 452 (8th Cir. 2001)(employee prevailed
6
The following quotes reflect that all of the allegations came during a single encounter following a business
dinner from which Roane was escorting Plaintiff that occurred in Austin while they were there for the Conference
and that much of the conversation related to work. “Roane arrived at the conference . . . He arranged a business
dinner for Halcy and several of her colleagues.” (¶ 4.4). “After [the business dinner] Roane insisted on ‘ensuring’
Halcy got back to her own hotel ‘safely.’” (¶ 4.5). In the hotel room, he mentioned “he needed someone like her to
‘work with him.’ He talked about how they could do great things together and ‘be powerful.’” (¶ 4.6). “Plaintiff
reminded Defendant Roane that Denise was also Halcy’s direct supervisor at work.” (¶ 4.7). “Defendant began to
boast . . .” (¶ 4.8). “Halcy informed Defendant Roane . . that [he] and she could only be ‘work friends.’” (¶ 4.9).
While Roane denies the allegations related to the dialogue, he recalls different work-related discussion,
specifically about Plaintiff’s husband and whether he could be moved to a teaching position. (Exh. A, ¶ 17).
- 12 -
where, on an overnight business trip, the plaintiff’s supervisor showed up to her hotel room in his
boxers, sat on her bed, touched her thigh, attempted to kiss her, and would not leave); Ferris v.
Delta Air Lines, Inc., 277 F.3d 128, 135 (2d Cir. 2001), cert. denied, 537 U.S. 824 (2002)(jury
could properly find on these facts that hotel room was a part of the plaintiff-flight attendant’s
work environment, bringing rape by co-worker within the realm of Title VII).
No matter how Plaintiff tries to characterize the alleged conduct on January 17 about
which she complains, it is conduct that is subject to the statutory construct of Chapter 21. In
addition, the other conduct about which Plaintiff complains actually occurred in the workplace
itself (Petition, ¶¶ 4.12, 4.14-4.16). Thus, all of the alleged conduct is covered, and when
Plaintiff received her notice of right to sue from the EEOC in September 2017, she could have
sued under Title VII or Chapter 21. For some reason she chose not to do so, but by so choosing
Plaintiff lost her ability to recover for the conduct that occurred that is the basis of her lawsuit.
Further supporting the characterization of the alleged conduct as covered under Chapter
21, it is clear from the pleadings that the only reason for Plaintiff to even argue that it was
extreme and outrageous conduct that caused her emotional distress was because of the
employment relationship, specifically, Roane’s role as the CEO of her employer and the husband
of her direct supervisor. A random man propositioning a random woman, even using illicit
language, will not be considered unlawful conduct, i.e., conduct that is “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” See Hoffmann-La Roche
Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). What makes Plaintiff claim it is unlawful
is the fact that it occurred in the context of the employment relationship and took advantage of
the imbalance of power in that relationship. Plaintiff cannot use that relationship to argue the
- 13 -
conduct was extreme and outrageous and then ignore the fact that it was in the context of the
working relationship to argue that the statutory remedy for such conduct does not apply.
2. This Court further lacks jurisdiction because Plaintiff has failed to exhaust
administrative remedies against a professional employee of a school district, as
required by section 22.0514 of the Texas Education Code.
A person may not file suit against a professional employee of a school district unless the
person has exhausted the remedies provided by the school district for resolving the complaint.
Tex. Educ. Code Ann. § 22.0514. The exhaustion of remedies is a jurisdictional prerequisite to
suit, so the court addresses this issue in a plea to the jurisdiction. See O’Neal v. Ector Cnty.
Indep. Sch. Dist., 251 S.W.3d 50, 51 (Tex. 2008) (per curiam).
Plaintiff claims she was not required to exhaust because Roane was acting outside the
scope of his employment, and she is suing him in his individual capacity. Courts “reject the
suggestion that merely pleading form words, such as a conclusory allegation that [an employee]
was acting ‘outside the scope of her employment,’ allows the statutory exhaustion requirement to
be circumvented. In assessing subject matter jurisdiction, this court must consider the factual
allegations upon which relief is sought, not just the manner in which the cause of action is
pleaded.” Melendez v. Houston Indep. Sch. Dist., 418 S.W.3d 701, 710 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). As established above, Roane was acting within the scope of his
employment, and her complaints are related to the impact his conduct had in the workplace.
Seguin ISD Board policy requires employees to submit complaints of harassment through
Board Policy DIA (LOCAL) (Exh. D). The policy also calls for an investigation to be conducted.
(Id. at p. 3). The policy provides for a complainant who is dissatisfied with the outcome to file an
- 14 -
appeal through DGBA(LOCAL) policy. (Id. at p. 4). In this case, Plaintiff filed a complaint on
January 26, 2017 (Exh. C). On March 6, 2017, Plaintiff was advised through her counsel that her
complaint had been resolved by the resignation of Roane. (Exh. F). The letter specifically stated
that if Plaintiff was not satisfied with the result, she could appeal through the District’s DGBA
policy. (Id.). If Plaintiff wanted to continue to press claims against Roane, she should have
sought a finding of wrongdoing by Roane. Plaintiff could have complained under DGBA about
the District closing the complaint without providing her with that. She chose not to do so,
Because Plaintiff did not exhaust administrative remedies this Court does not have
WHEREFORE, Defendant Stetson Roane respectfully prays this Court grant its plea to
the jurisdiction and dismiss this matter in its entirety, that Roane be granted taxable costs and
attorney’s fees pursuant to Tex. Educ. Code §§ 22.0517 and 22.055, and that the Court grant all
Respectfully submitted,
by: _____________________________
Jennifer A. Powell
Texas Bar No. 00783554
Eric E. Muñoz
Texas Bar No. 24056021
4201 W. Parmer Lane, Suite A100
Austin, Texas 78727
(512) 476-9944
(512) 472-2599 fax
jpowell@edlaw.com
emunoz@edlaw.com
Counsel for Defendant Stetson Roane
- 15 -
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
has been sent via court-generated electronic mail on March 8, 2019, to the following:
Walter L. Taylor
The Hart Law Firm
6630 Colleyville Blvd, Suite 100
Colleyville, Texas 76034
Wtaylor@thehartlawfirm.com
________________________________
Jennifer A. Powell
- 16 -
A
B
EXHIBIT C
CONFIDENTIAL DOCUMENT
DEFINITIONS Solely for purposes of this policy, the term "employees" includes
former employees, applicants for employment, and unpaid interns.
STATEMENT OF The District prohibits discrimination, including harassment, against
NONDISCRIMINATION any employee on the basis of race, color, religion, gender, national
origin, age, disability, or any other basis prohibited by law. Retalia-
tion against anyone involved in the complaint process is a violation
of District policy.
DISCRIMINATION Discrimination against an employee is defined as conduct directed
at an employee on the basis of race, color, religion, gender, nation-
al origin, age, disability, or any other basis prohibited by law, that
adversely affects the employee's employment.
HARASSMENT Prohibited harassment of an employee is defined as physical,.ver-
,
310
Seguin ISD
094901
ADA / Section 504 Reports of discrimination based on disability may be directed to the
Coordinator designated ADA/Section 504 coordinator. [See DIA(EXHIBIT)]
Superintendent The Superintendent shall serve as coordinator for purposes of Dis-
trict compliance with all other antidiscrimination laws.
Alternative An employee shall not be required to report prohibited conduct to
Reporting the person alleged to have committed it. Reports concerning pro-
Procedures hibited conduct, including reports against the Title IX coordinator or
ADA/Section 504 coordinator, may be directed to the Superinten-
dent.
A report against the Superintendent may be made directly to the
Board. If a report is made directly to the Board, the Board shall ap-
point an appropriate person to conduct an investigation.
Timely Reporting Reports of prohibited conduct shall be made as soon as possible
after the alleged act or knowledge of the alleged act. A failure to
promptly report may impair the District’s ability to investigate and
address the prohibited conduct.
Notice of Report Any District supervisor who receives a report of prohibited conduct
shall immediately notify the appropriate District official listed above
and take any other steps required by this policy.
Investigation of the The District may request, but shall not insist upon, a written report.
Report If a report is made orally, the District official shall reduce the report
to written form.
Upon receipt or notice of a report, the District official shall deter-
mine whether the allegations, if proven, would constitute prohibited
conduct as defined by this policy. If so, the District official shall im-
mediately authorize or undertake an investigation, regardless of
whether a criminal or regulatory investigation regarding the same
or similar allegations is pending.
If appropriate, the District shall promptly take interim action calcu-
lated to prevent prohibited conduct during the course of an investi-
gation.
The investigation may be conducted by the District official or a de-
signee, such as the campus principal, or by a third party desig-
nated by the District, such as an attorney. When appropriate, the
campus principal or supervisor shall be involved in or informed of
the investigation.
The investigation may consist of personal interviews with the per-
son making the report, the person against whom the report is filed,
and others with knowledge of the circumstances surrounding the
Complaints In this policy, the terms “complaint” and “grievance” shall have the
same meaning.
Other Complaint Employee complaints shall be filed in accordance with this policy,
Processes except as required by the policies listed below. Some of these poli-
cies require appeals to be submitted in accordance with DGBA af-
ter the relevant complaint process:
1. Complaints alleging discrimination, including violations of Title
IX (gender), Title VII (sex, race, color, religion, national origin),
ADEA (age), or Section 504 (disability), shall be submitted in
accordance with DIA.
2. Complaints alleging certain forms of harassment, including
harassment by a supervisor and violation of Title VII, shall be
submitted in accordance with DIA.
3. Complaints concerning retaliation relating to discrimination
and harassment shall be submitted in accordance with DIA.
4. Complaints concerning instructional resources shall be sub-
mitted in accordance with EF.
5. Complaints concerning a commissioned peace officer who is
an employee of the District shall be submitted in accordance
with CKE.
6. Complaints concerning the proposed nonrenewal of a term
contract issued under Chapter 21 of the Education Code shall
be submitted in accordance with DFBB.
7. Complaints concerning the proposed termination or suspen-
sion without pay of an employee on a probationary, term, or
continuing contract issued under Chapter 21 of the Education
Code during the contract term shall be submitted in accord-
ance with DFAA, DFBA, or DFCA.
Notice to Employees The District shall inform employees of this policy through appropri-
ate District publications.
Guiding Principles The Board encourages employees to discuss their concerns with
Informal Process their supervisor, principal, or other appropriate administrator who
has the authority to address the concerns. Concerns should be ex-
pressed as soon as possible to allow early resolution at the lowest
possible administrative level.
Informal resolution shall be encouraged but shall not extend any
deadlines in this policy, except by mutual written consent.
Response At Levels One and Two, “response” shall mean a written communi-
cation to the employee from the appropriate administrator. Re-
sponses may be hand-delivered, sent by electronic communication
to the employee’s e-mail address of record, or sent by U.S. Mail to
the employee’s mailing address of record. Mailed responses shall
be timely if they are postmarked by U.S. Mail on or before the
deadline.
Days “Days” shall mean District business days, unless otherwise noted.
In calculating time lines under this policy, the day a document is
filed is “day zero.” The following business day is “day one.”
Representative “Representative” shall mean any person who or an organization
that does not claim the right to strike and is designated by the em-
ployee to represent him or her in the complaint process.
The employee may designate a representative through written no-
tice to the District at any level of this process. The representative
may participate in person or by telephone conference call. If the
employee designates a representative with fewer than three days’
notice to the District before a scheduled conference or hearing, the
District may reschedule the conference or hearing to a later date, if
desired, in order to include the District’s counsel. The District may
be represented by counsel at any level of the process.
Consolidating Complaints arising out of an event or a series of related events
Complaints shall be addressed in one complaint. Employees shall not file sep-
arate or serial complaints arising from any event or series of events
that have been or could have been addressed in a previous com-
plaint.
When two or more complaints are sufficiently similar in nature and
remedy sought to permit their resolution through one proceeding,
the District may consolidate the complaints.
Untimely Filings All time limits shall be strictly followed unless modified by mutual
written consent.
If a complaint form or appeal notice is not timely filed, the com-
plaint may be dismissed, on written notice to the employee, at any
point during the complaint process. The employee may appeal the
dismissal by seeking review in writing within ten days from the date
of the written dismissal notice, starting at the level at which the
complaint was dismissed. Such appeal shall be limited to the issue
of timeliness.
Costs Incurred Each party shall pay its own costs incurred in the course of the
complaint.
Complaint and Complaints and appeals under this policy shall be submitted in
Appeal Forms writing on a form provided by the District.
Copies of any documents that support the complaint should be at-
tached to the complaint form. If the employee does not have copies
of these documents, they may be presented at the Level One con-
ference. After the Level One conference, no new documents may
be submitted by the employee unless the employee did not know
the documents existed before the Level One conference.
A complaint or appeal form that is incomplete in any material as-
pect may be dismissed but may be refiled with all the required in-
formation if the refiling is within the designated time for filing.
Audio Recording As provided by law, an employee shall be permitted to make an au-
dio recording of a conference or hearing under this policy at which
the substance of the employee’s complaint is discussed. The em-
ployee shall notify all attendees present that an audio recording is
taking place.
Level One Complaint forms must be filed:
1. Within 15 days of the date the employee first knew, or with
reasonable diligence should have known, of the decision or
action giving rise to the complaint or grievance; and
2. With the lowest level administrator who has the authority to
remedy the alleged problem.
In most circumstances, employees on a school campus shall
file Level One complaints with the campus principal; other
District employees shall file Level One complaints with their
immediate supervisor.
If the only administrator who has authority to remedy the al-
leged problem is the Superintendent or designee, the com-
plaint may begin at Level Two following the procedure, includ-
ing deadlines, for filing the complaint form at Level One.
If the complaint is not filed with the appropriate administrator, the
receiving administrator must note the date and time the complaint
form was received and immediately forward the complaint form to
the appropriate administrator.
The appropriate administrator shall investigate as necessary and
schedule a conference with the employee within ten days after re-
ceipt of the written complaint. The administrator may set reasona-
ble time limits for the conference.
ATTORNEYS AND COUNSELORS FOR TEXAS PUBLIC SCHOOLS AND LOCAL GOVERNMENT
March 6, 2017
By Email: tigerhanner@gmail.com
On January 26, 2017, your client filed a complaint against Superintendent Stetson Roane pursuant to
DIA (Local). The only remedy sought is that Stetson Roane be removed from his position. On
February 27, 2017, Stetson Roane resigned from Seguin Independent School District. Because of his
resignation, Stetson Roane no longer holds a position with Seguin Independent School District and there
is no other relief that can be granted. Therefore, we consider your client’s complaint closed at this time.
Pursuant to DIA (Local), a complainant who is dissatisfied with the outcome of an investigation may
appeal through DGBA (Local), beginning at the appropriate level, or file a complaint with appropriate
state or federal agencies. Additionally, Seguin Independent School District prohibits retaliation against an
employee who makes a claim alleging to have experienced discrimination or harassment, or another
employee who, in good faith, makes a report, serves as a witness, or otherwise participates in an
investigation.
Sincerely,
S CHULMAN , L OPEZ ,
H OFFER & ADELSTEIN , LLP
Christopher H. Schulz
CHS:cap
cc: Ms. Dorothy Whitman
Assistant Superintendent, Human Resources
Seguin Independent School District
Schulman, Lopez, Hoffer & Adelstein, LLP—Trusted advisers and advocates for Texas independent school districts,
charter schools and local governments offering accessible, responsive legal representation to our clients.
Main Office: 517 Soledad Street, San Antonio, Texas 11 (210) 538-5385 11 Facsimile: (210) 538-5384
82
G
EEOC FORM 131 (11/09) U.S. 6...1a1 Employment Opportunity C„ionmission
PERSON FILING CHARGE 1 1
Haley Martin-Dean
Dorothy Whitman THIS PERSON (check one or both)
Assistant Superintendent of Administrative Services
SEGUIN ISD X Claims To Be Aggrieved
1221 Kingsbury St.. Is Filing on Behalf of Other(s)
Seguin, TX 78155
L EEOC CHARGE NO.
451-2017-02545 (UNPERFECTED)
NOTICE OF CHARGE OF DISCRIMINATION
(See the enclosed for additional informat on)
This is notice that a charge of employment discrimination has been filed against your organization under:
Title VII of the Civil Rights Act (Title VII) The Equal Pay Act (EPA) The Americans with Disabilities Act (ADA)
The Age Discrimination in Employment Act (ADEA) 7 The Genetic Information Nondiscrimination Act (GINA)
2.[I Please call the EEOC Representative listed below concerning the further handling of this charge.
3. Please provide by a statement of your position on the issues covered by this charge, with copies of any supporting documentation to the EEOC
Representative listed below. Your response will be placed in the file and considered as we investigate the charge. A prompt response to this
request will make it easier to conclude our investigation.
4.7 response
Please respond fully by to the enclosed request for information and send your response to the EEOC Representative listed below. Your
will be placed in the file and considered as we investigate the charge. A prompt response to this request will make it easier to
conclude our investigation.
5. n EEOC has a Mediation program that gives parties an opportunity to resolve the issues of a charge without extensive investigation or
expenditure of resources. If you would like to participate, please say so on the enclosed form and respond by
to
If you DO NOT wish to try Mediation, you must respond to any request(s) made above by the date(s) specified there.
For further inquiry on this matter, please use the charge number shown above. Your position statement, your response to our request for information,
or any inquiry you may have should be directed to:
ri
CIRCUMSTANCES OF ALLEGED DISCRIMINATION
• El Race ❑ Color ( Sex ❑ Religion ❑ National Origin ❑ Age ❑ Disability ❑ Retaliation ❑ Genetic Information Other
A perfected charge (EEOC Form 5) will be mailed to you once it has been received from the Charging Party.
•■■
Date
1
Name / Title of Authorized Official 'gnature its
311
EEOC Form 5 (11109)
Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe
Discriminated Against Me or Others. (If more than two, list under PARTICULARS below,)
Name No, Employees, Members Phone No. (Inakide Area Code)
THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):
I have been employed with Respondent since May 1 2016. While employed I was subjected to Sexual
Harassment from the Superintendent. As soon as I was able I reported the incident to human
Resources which ultimately ended with the Superintendent resigning his position. After his
resignation I was subjected to retaliation for reporting the incident.
Rumors have been spread by members of the school district and I have been accused of making
false allegations.
I believe I have been discriminated against based on my sex/female as I was sexually harassed and
then retaliated against by having my complaint made public in violation of Title VII of the Civil Rights
Act of 1964, as amended.
I want this charge filed with both the EEOC and the State or local Agency, if any. I NOTARY — When necessary for State and Local Agency Requirements
will advise the agencies if I change my address or phone number and I will
cooperate fully with them in the processing of my charge in accordance with their
procedures.
I swear or affirm that 1 have read the above charge and that it is true to
I declare under penalty of perjury that the above is true and correct, the best of my knowledge, information and belief.
SIGNATURE OF COMPLAINANT
313
EEOC Form 161 (11(16) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION H
DISMISSAL AND NOTICE OF RIGHTS
To: Haley Martin-Dean From: San Antonio Field Office
269 Turtle Lane 5410 Fredericksburg Rd
Seguin, TX 78155 Suite 200
San Antonio, TX 78229
Sybil Edwards,
451-2017-02545 Investigator (210) 281-7654
THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:
The facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.
Your allegations did not involve a disability as defined by the Americans With Disabilities Act.
II The Respondent employs less than the required number of employees or is not otherwise covered by the statutes.
El Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged
discrimination to file your charge
IXI The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the
information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with
the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.
The EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge.
Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age
Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you.
You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your
lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be
lost. (The time limit for filing suit based on a claim under state law may be different.)
Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the
alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years)
before you file suit may not be collectible.
Enclosures(s)
gni )z.0 17
'64 Travis G. Hicks, (Date Mailed)
1 Director
CC:
Dorothy Whitman
Assistant Superintendent of Administrative Services
SEGUIN ISD
1221 Kingsbury St.
Seguin, TX 78155
312