Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 271st District Court Wise County, Texas Trial
Court No. CV12-07-438
Sudderth, C.J.; Kerr and Birdwell, JJ.
SUDDERTH, CHIEF JUSTICE
2012, Appellee Joseph Palazzolo, who had been one of
Appellant Fort Worth Independent School District
(FWISD)'s assistant principals, sued FWISD, alleging that
it had violated the Whistleblower Act by firing him in
retaliation for reporting its legal violations. Six years
later, FWISD filed a plea to the jurisdiction,
which the trial court denied.
single issue in this accelerated interlocutory
appeal, FWISD complains that the trial court lacks
subject matter jurisdiction over Palazzolo's
Whistleblower Act claim against it because Palazzolo did not
file suit until after the Whistleblower Act's
jurisdictional 30-day limitations period had run. We affirm.
worked for FWISD in the 2007–2008 school year as a
history teacher and was hired as an assistant principal for
the 2008–2009 and 2009–2010 school years. His
2009 contract was for a two-year term, i.e., the
2009–2010 and 2010–2011 school years. The instant
dispute arose in August 2010 when Palazzolo filed a complaint
about FWISD with the Texas Education Agency (TEA) before the
new school year started. Palazzolo IV, 498 S.W.3d at
677–78 (reciting allegations of attendance
falsification, grade changing, inappropriate conduct with
students, and hostile work environment). FWISD placed
Palazzolo on paid administrative leave, and on October 26,
2010, FWISD's Chief of Administration submitted a report
to FWISD's Board, proposing that Palazzolo's
employment be terminated for good cause "based upon six
grounds that were unrelated to his reports of
wrongdoing." Id. at 678 & n.2. The Board
voted 6 to 3 to notify him of his proposed termination.
October 28, 2010, the Board informed Palazzolo, in a
four-page letter bearing the memo line "Notice of
Proposed Termination of Employment Contract," that it
would consider the proposal to discharge him from his
employment with FWISD "subject to [his] statutory rights
to protest and to request a hearing," under education
code sections 21.211 and 21.253. The Board informed him that
if he wished to protest "this proposed action to
terminate [his] employment contract" and to request a
hearing before the proposed action was taken, he had to
"comply with the requirements specified by Section
21.253 of the Texas Education Code"-within 15 days of
receiving the notice-by notifying the Board in writing and
filing a written request for a hearing before a hearing
examiner. See Presidio ISD v. Scott, 309 S.W.3d 927,
929 (Tex. 2010). Palazzolo opted to pursue his Chapter 21
rights to request a hearing on his proposed termination.
See Tex. Educ. Code Ann. § 21.253; see also
Palazzolo IV, 498 S.W.3d at 678.
supreme court explained in Scott, the procedure for
a term-contract teacher to seek review of a proposed
termination under Chapter 21 begins with the request for a
hearing before a hearing examiner, whose recommendation may
be adopted or rejected by the board. 309 S.W.3d at 929. The
teacher may then appeal the board's decision to the
Commissioner of Education, and either side may appeal the
Commissioner's decision to a district court:
school district seeks to terminate a teacher, the teacher may
request a hearing before a certified hearing examiner who
develops the record, conducts a bench trial, and ultimately
makes a written recommendation that includes proposed
findings of fact, conclusions of law, and if the examiner so
chooses, a proposal for granting relief. See Tex.
Educ. Code §§ 21.251–.257. Next, the school
district's board of trustees or board subcommittee
considers the recommendation and may adopt, reject, or change
the hearing examiner's conclusions of law or proposal for
granting relief. Id. § 21.259.
If dissatisfied with the board's decision, the teacher
may appeal to the Commissioner of Education. Id.
§ 21.301(a). The Commissioner "shall review the
record of the hearing before the hearing examiner and the
oral argument before the board of trustees or board
subcommittee." Id. § 21.301(c). And, with
exceptions not relevant here [procedural irregularities] the
Commissioner shall consider the appeal "solely on the
basis of the local record and may not consider any additional
evidence or issue." Id. If the board terminates
a teacher's contract, the
Commissioner may not substitute his judgment for the
board's unless its decision was "arbitrary,
capricious, or unlawful or is not supported by substantial
evidence." Id. § 21.303(b). Once the
teacher and school district receive notice of the
Commissioner's decision, id. § 21.304, a
party may file a request for rehearing, id. §
21.3041(a). "Either party" may then appeal the
Commissioner's decision to a district court. Id.
Id. (footnote omitted).
the hearing examiner ruled in FWISD's favor on March 1,
2011, and the Board adopted the examiner's
recommendation a week later, Palazzolo appealed to the
Commissioner, who reversed the hearing examiner's
decision for procedural irregularities. Palazzolo
IV, 498 S.W.3d at 678; see Tex. Educ. Code Ann.
§ 21.303(b), (c). In his June 29, 2011 decision, the
Commissioner gave the Board two options: (1) hold a new
hearing or (2) "pay [Palazzolo] any back pay and
employment benefits from the time of termination until the
time [he] would have been reinstated and one year's
salary from the date [he] would have been reinstated."
See Tex. Educ. Code Ann. § 21.304(e), (f). The
Commissioner also identified the date full compensation was
to be tendered to Palazzolo as "[t]he date [he] would
have been reinstated."
25, 2011, FWISD sent Palazzolo the following letter,
Pursuant to the June 29, 2011, Decision of the Commissioner
on Motion for Rehearing, enclosed with this letter is a check
payable to you in the amount of eighteen thousand, one
hundred fourteen dollars and sixteen cents ($18,114.16). This
check covers your salary and benefits minus applicable
deductions from March 9, 2011, until July 15, 2011, and
provides the back pay and benefits as outlined in the
Decision of the Commissioner on Motion for Rehearing
referenced above. The enclosed check is your final check for
the 2010-2011 school year.
The first paycheck for the 2011-2012 school year will be
issued to employees on September 28, 2011.
meantime, FWISD unsuccessfully appealed the
Commissioner's decision to the district court. See
id. § 21.307. FWISD's appeal of the district
court's decision to this court was dismissed in March
2012. Palazzolo I, 2012 WL 858632, at *1.
general timeline of events relevant to this appeal,
therefore, is as follows:
August 9, 2010: Palazzolo files his
complaint with the TEA. Palazzolo IV, 498 S.W.3d at
October 26, 2010: FWISD Board votes to
notify Palazzolo of his proposed termination. Id.
October 28, 2010: FWISD Board sends
"Notice of Proposed Termination of Employment
Contract" to Palazzolo, referencing his right to protest
and to request a hearing under Chapter 21 and providing a
15-day deadline to notify the Board of such request.
Palazzolo complies with this deadline.
March 1, 2011: The hearing examiner rules in
March 8, 2011: The Board adopts hearing
March 22, 2011: Palazzolo appeals to the
May 10, 2011: The Commissioner reverses the
hearing examiner's decision.
June 29, 2011: On rehearing, the
Commissioner restates his original decision and clarifies
FWISD's two options.
July 15, 2011: Per FWISD's July 25, 2011
letter and the Commissioner's order, we infer that this
would have been Palazzolo's reinstatement date.
July 25, 2011: FWISD complies with part of
one of the Commissioner's two options while appealing the
Commissioner's decision, paying Palazzolo back pay and
benefits of $18,114.16, and states in its letter to him that
the "first paycheck for the 2011-2012 year will be
issued to employees on September 28, 2011."
February 14, 2012: At its Board meeting, the
FWISD Board votes to pay Palazzolo a year's salary.
See Tex. Educ. Code Ann. § 21.304(f).
February 17, 2012: FWISD sends a letter to
Palazzolo's attorney enclosing checks for $10,740.87 and
$67,088.49, payable to Palazzolo, "as final payment in
the above referenced matter" [Joseph Palazzolo vs. Fort
Worth ISD, Docket No. 038-R2-0311]. This letter contained no
February 22, 2012: FWISD files a motion to
dismiss its appeal in this court.
February 23, 2012: Palazzolo files a
grievance with FWISD on a FWISD "Employee Complaint
Statement Form" that references "Board
Policy DGBA (LEGAL) and (LOCAL)." Chapter 21
complaints about the proposed nonrenewal or proposed
termination of an employee's term contract are included
in the DGBA (LOCAL) exceptions, but the policy specifically
references Whistleblower complaints, which "may be made
to the Superintendent or designee beginning at Level
Two." On the form grievance, Palazzolo checks all of the
levels-Level 1, Level 2 ("Appeal of Level 1
Decision"), and Level 3 ("Appeal of Level 2
February 28, 2012: FWISD sends a letter
directly to Palazzolo stating that the FWISD Board had voted
to pay him a year's salary as set forth in the
Commissioner's decision and referencing the two checks he
had been issued to cover his salary through February 17,
2012, with applicable deductions ($10,740.87), and a full
year's salary with applicable deductions ($67,088.49).
The letter further stated that the $67,088.49 was his
"final check from the District with regard to [his]
employment with Fort Worth ISD" and that his FWISD
benefits would end the next day, on February 29, 2012.
February 29, 2012: FWISD sends a letter to
Palazzolo, acknowledging his February 23 grievance and
informing him that the "DGBA (LOCAL) policy"
required him to attach the supporting documents he referenced
in his grievance.
March 1, 2012: Palazzolo files with the
Commissioner a "petition of review of termination by
Fort Worth Independent School District," complaining
that he should be reinstated absent a clear intent to
terminate his employment.
March 14, 2012: This court grants
FWISD's motion to dismiss and dismisses FWISD's
appeal of the district court's ruling and the
Commissioner's 2011 decision. Palazzolo I, 2012
WL 858632, at *1.
March 22, 2012: Palazzolo sends a letter to
the FWISD superintendent asking for his grievance hearing to
be scheduled and pointing out that the February 14, 2012
FWISD Board vote did not indicate that he was being
terminated but that after the vote, "someone within
FWISD took steps to end [his] pay and benefits with
FWISD," which was why he filed his grievance.
April 19, 2012: Palazzolo sends a follow-up
letter to the FWISD superintendent, again asking for his
grievance hearing to be scheduled.
April 20, 2012: FWISD sends Palazzolo a
letter informing him that his February 23, 2012 grievance
would be put on a schedule for a Level 2 hearing sometime
between May 2 and May 15.
April 20, 2012: (Same day as above.)
Palazzolo's petition for review is dismissed by the
Commissioner for want of jurisdiction because Palazzolo was
attempting to appeal a board's decision under education
code section 21.304(f), not a decision to terminate his
contract under section 21.259 or a decision to not renew his
contract under section 21.208. According to the Commissioner,
he had no jurisdiction over Palazzolo's claim since the
issues Palazzolo raised had to have first been raised at the
school district level through the school board's
April 24, 2012: FWISD sends Palazzolo a
letter informing him that the superintendent would hear his
complaint on May 9, 2012, at 1:30 p.m. We infer from the
record that this hearing was rescheduled.
May 1, 2012: The parties unsuccessfully
mediate the dispute.
May 24, 2012: FWISD sends Palazzolo a letter
reciting that his Level 2 grievance hearing was scheduled for
the next day, May 25, 2012, at 2:30 p.m.
May 25, 2012: Palazzolo's Level 2
grievance is heard by the FWISD superintendent. The
superintendent conducts the Level 2 hearing under both the
DGBA policy, which applies only to district employees, and
the GF policy, which concerns complaints by members of the
June 8, 2012: FWISD sends Palazzolo a letter
explaining the superintendent's conclusion after the
Level 2 grievance hearing that there was no evidence of
retaliation and advising Palazzolo, "Should you wish to
appeal this decision, you may do so in compliance with the
timelines set forth in Board Policy." In the letter,
FWISD summarized facts pertinent to the Level 2 grievance
hearing, listing his termination date as March 8, 2011-the
date the Board adopted the hearing examiner's
recommendation-and noting that the Commissioner had reversed
that decision on May 10, 2011, and had given FWISD two
options in his June 29, 2011 decision, which FWISD had then
appealed to the district court, which dismissed the appeal.
The letter further recited that FWISD had appealed that
dismissal to this court before it moved for dismissal of its
June 27, 2012: FWISD sends Palazzolo a
letter informing him that the Board would consider his appeal
of the Level 2 decision at its July 17, 2012 meeting at 5:30
p.m. and attaching a copy of the "Procedures for
Employee Grievance/Complaint Appeals."
July 6, 2012: Palazzolo files his
Whistleblower lawsuit. Palazzolo IV, 498 S.W.3d at
678. While Palazzolo prevailed at trial on
his Whistleblower claim, in 2016 we reversed the trial
court's judgment based on jury charge error. See
id. at 677, 686.
remand, FWISD filed a plea to the jurisdiction, arguing that
the trial court lacked jurisdiction because Palazzolo had
filed his Whistleblower lawsuit more than 30 days after
February 14, 2012, which FWISD identified as the conclusion
of the Chapter 21 grievance process. Palazzolo responded by
pointing out that between February 14, 2012, and his filing
suit on July 6, 2012, FWISD and its attorneys fully
participated in FWISD's Level 2 internal grievance
process by which he challenged his actual-no longer
proposed-termination. And he further pointed out the
contradictory position that FWISD's own policies take on
the matter. While FWISD's policies direct teachers to the
Chapter 21 process to challenge a proposed contract
termination, they refer to the district's
internal Level 2 grievance procedures as the proper vehicle
for Whistleblower claims. Palazzolo also referred the
trial court to Palazzolo II, in which FWISD had
successfully argued that the trial court had no jurisdiction
over his earlier attempt at a Whistleblower lawsuit based on
other FWISD actions because he had failed to exhaust the
internal grievance procedures as required by FWISD's
policies. 2014 WL 69889, at *1–2, *5–6 (holding
that as to his transfer and appraisal-report claims,
Palazzolo did not properly ...