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Toldson v. Denton Independent School District

Court of Appeals of Texas, Second District, Fort Worth

November 21, 2019

Orlando Toldson, Appellant
Denton Independent School District, Appellee

          On Appeal from the 362nd District Court Denton County, Texas Trial Court No. 15-09087-362.

          Before Sudderth, C.J.; Womack and Wallach, JJ.


          Dana Womack Justice.

         I. Introduction

         Appellant Orlando Toldson sued his former employer, appellee Denton Independent School District (DISD), alleging sexual harassment and retaliation claims under the Texas Commission on Human Rights Act (TCHRA). See Tex. Lab. Code Ann. §§ 21.051, .055. DISD moved for summary judgment, and the trial court granted the motion, dismissing both of Toldson's claims. Toldson appeals. In the "Issues Presented" portion of his brief, Toldson presents a single issue challenging the trial court's summary judgment only as to his retaliation claim.[1] We affirm.

         II. Background

         Toldson worked for DISD as a paraprofessional off and on from 2009 until he was terminated in February 2015. In 2014, DISD hired Toldson to serve as a paraprofessional teacher's aide in the special education department at Ryan High School (RHS) during the 2014-2015 academic year. He was initially assigned to assist in the classroom of Torsha Winrow, who was one of RHS's special education teachers. On September 18, 2014, Toldson went into assistant principal Ronda Bean's office and told her that he was frustrated, that Winrow was demanding, that he did not understand what his responsibilities were in Winrow's classroom, and that Winrow was "almost militant-like." Toldson made no allegation during this meeting that Winrow had sexually harassed him. Bean encouraged Toldson to communicate his concerns to Winrow and to ask her to give him a better understanding of his responsibilities in her classroom, a course of action with which Toldson agreed.

         On October 8, nearly three weeks after his September 18 meeting with Bean, Toldson returned to Bean's office to tell her that he still did not understand what his responsibilities as Winrow's teacher's aide were. Toldson made no allegation at this meeting that Winrow had sexually harassed him. Bean asked Toldson if he had communicated his concerns to Winrow as they had discussed in their prior meeting, and Toldson replied that he had not. Bean reiterated that Winrow was the classroom teacher and that he needed to communicate with her about the areas with which he was confused. Toldson agreed to meet with Winrow, and Bean asked him to let her know how things were going after he did so.

         Winrow and Toldson finally met on Friday, October 24, 2014, to discuss the expectations she had for him as her teacher's aide. The following Wednesday, October 29, 2014, Toldson sent an email to the head of RHS's special education department, Tiffany Biggers, the entire substance of which said, "I need to meet with you about Ms. Winrow." Biggers was not on school grounds that day, but when she returned the next day, she saw Toldson in the hallway and told him her availability to meet. However, Toldson did not follow up with Biggers to schedule a meeting, and he missed work the following Friday, October 31 and Monday, November 3.

         On Tuesday, November 4, Biggers conducted a weekly meeting at which the department's paraprofessionals, Toldson included, were in attendance. After that meeting was over, Toldson stayed behind and spoke with Biggers. Toldson told Biggers that he was "tired of Ms. Winrow," that Winrow was "too much" and was inappropriate with the students, and that he was "fed up." When Biggers asked Toldson how Winrow had been inappropriate, he replied, "[A] lot of ways[, ] and I'm just tired of it[;] I have had enough." Biggers asked Toldson to be specific about what was going on, but he did not do so, and Biggers suggested that Toldson talk to Winrow. Toldson replied, "[W]ell, I guess I will just snap" and walked away. Toldson did not tell Biggers that Winrow had sexually harassed him.

         At approximately 7:40 p.m. on November 4, Toldson sent an email to Bean. In pertinent part, that email stated as follows:

Ms. Bean,
I have been trying to get help from several other staff members about an issue I am facing and had no response[, ] so now I am contacting [you]. For the past several months[, ] things in the classroom with Ms. Winrow have been getting progressively worse. I know we spoke previously about an issue, but this is a different, and much worse[, ] issue. . . .
There have been a seri[e]s of incidents that I have been extremely uncomfortable with in regard to Ms. Winrow being inappropriate with myself and even students in the classroom . . . . She has made sexually suggestive comments to myself as well as students in the classroom and physically crossed boundaries with myself and students.

         Toldson's email further stated:

Other staff have also witnessed these activities taking place and have echoed my concerns. I would love to talk to you about this further in person[;] however, I thought I would attempt to contact you via email first. I love my job and I love what I do[, ] but I am getting to the point where I literally dread coming to work because this woman has made my job unbearable.

         Bean did not read this email until the morning after Toldson sent it.

         At approximately 5:50 a.m. on November 6, 2014, Toldson sent an email to DISD deputy superintendent Richard Valenta complaining about Winrow, and he copied RHS principal Vernon Reeves. In the email, Toldson said that he had been told that Valenta was "the person to contact regarding issues at [RHS] that [were] ongoing despite [his] best efforts to resolve them." After making other complaints about Winrow related to her performance in the classroom, Toldson wrote the following:

In addition[, ] there [have been] several occasions w[h]ere she made sexually suggestive comments to myself or other aide[]s as well as . . . touched me inappropriately. On one particular occasion[, ] she stroked my face while telling me a story about how a child used to masturbate while looking at her lips. It made me extremely uncomfortable.

         Toldson said that he had spoken to Bean about some issues related to Winrow, but he stated that he did not tell Bean anything about Winrow's "inappropriate physical contact." Toldson wrote that Winrow had "begun trying to retaliate against [him] for talking to Mrs. Bean" and had "constantly been nit[]picking at [him] and asking [him] to redo the same task over and over to satisfy her."

         In the email, Toldson also indicated that he had sought help from Biggers, and he referenced his recent conversation with her, claiming that she had asked him how he was "planning on resolving the issue" with Winrow and whether he was looking for a new job. Toldson wrote that he had been told that "the only way [he] could get out of Mrs. Winrow's class was to move down in pay." Toldson said that he had witnesses who would "back up" everything he was alleging.

         Reeves replied to Toldson's email approximately five hours after he had sent it, telling him, "[p]lease come by and see me. I will work with you on your concerns." Reeves interviewed Toldson "the first thing that morning." During the interview, Reeves told Toldson that he wanted to do everything he could to help but that Toldson needed to provide specific details as to what had happened. But Toldson did not provide many specifics. The only specific instance that Toldson provided to Reeves was that on one occasion, while he and Winrow were sitting around a table in the classroom, Winrow told the story about the student masturbating, and she touched Toldson's face when doing so. Toldson gave Reeves a list of people to talk to who could corroborate his allegations of sexual harassment against Winrow.

         Reeves offered to move Toldson to another classroom while he investigated Toldson's allegations, and Toldson accepted the offer. Thus, on the morning of November 6-the same morning that he had sent his email to Valenta and Reeves- Toldson was moved from Winrow's classroom into the classroom of another RHS special education teacher, Kristiey Rodriguez, until the investigation of his allegations of sexual harassment could be completed. This move did not result in an alteration to Toldson's job title or pay.

         The same day, Reeves began interviewing the potential witnesses Toldson had identified, and he completed those interviews by the next day. Of the five school employees that Reeves interviewed, Reeves did not find any who corroborated Toldson's allegations of sexual harassment against Winrow. Only one of the witnesses, another RHS paraprofessional named Melody Hampton, claimed to have seen Winrow touch Toldson. Hampton told Reeves that on a single occasion, she had seen Winrow touch Toldson's cheek when Winrow was leaving a table. But Hampton added that she had not heard the conversation between Winrow and Toldson that preceded the touch and that she did not know why Winrow had touched Toldson. Hampton did not provide Reeves with any other specific information about the touch, nor did she indicate that the touch appeared to be of a sexual nature.

         After interviewing all the witnesses, Reeves interviewed Winrow. Winrow acknowledged that at the beginning of the school year, she had informed Toldson about a former student masturbating. She stated that she had done so in order to educate Toldson, who was new to her classroom, about the types of students and behaviors that he could encounter.

         Having concluded his investigation, Reeves met with Toldson on November 7 and told him that he did not find any corroboration of his allegations of sexual harassment against Winrow. But Reeves told Toldson that he could see there was tension between Toldson and Winrow and that he had decided to make Toldson's change to Rodriguez's classroom permanent. Toldson asked Reeves if he could have time to think about the decision and to talk to his wife about it, and Reeves agreed to that request but asked Toldson to let him know by the end of the day in writing whether his permanent placement in Rodriguez's classroom was an acceptable resolution to him or whether he would like the investigation into his allegations against Winrow to continue.

         But Toldson did not respond in writing, so on the morning of November 12, Reeves emailed him to ask him whether he was satisfied with the investigation and with his move to Rodriguez's classroom or whether he wanted DISD's human resources department to further investigate his allegations. Also on November 12, Regina Wright, DISD's director of human resources over classified and operations personnel, received an email with Toldson's concerns, and she contacted Toldson and scheduled a meeting with him for November 14 to discuss those concerns.

         At 9:00 p.m. on November 12, Toldson replied to Reeves's earlier email, stating, "Upon returning to school on Monday [November 10] and still being harassed[, ] I have decided to continue the investigation and have since contacted HR." The next morning, Reeves forwarded Toldson's email to DISD's assistant superintendent for human resources, Robert Stewart, stating that he had only just learned of Toldson's new allegation of harassment and that he would meet with Toldson to find out specifically what had happened. That same morning, Reeves met with Toldson and asked him to provide specific information about the harassment he had suffered upon returning to school the previous Monday, but Toldson declined to do so, stating that he preferred to give the details in writing and that he would do so from his home computer. Reeves then allowed Toldson to return to his duties.

         On November 14, Toldson emailed Wright to cancel their scheduled meeting, and he sent another email to her requesting that she provide him with instructions on how to initiate the formal grievance process. Wright provided him with the instructions. Four days later, on November 18, Toldson filed a Level 1 grievance, in which he restated, nearly verbatim, the allegations he had asserted in his November 6 email to Reeves. In addition, Toldson asserted that Biggers and Bean had retaliated against him for his report against Winrow. The specific forms of retaliation that Toldson reported were that Bean had yelled at him and had told him that he needed to be at work on time and that Biggers had made him attend a mandatory department meeting at which Winrow would be present. The only remedy Toldson requested in the grievance was that he be removed from RHS and given a position at another DISD school.

         Wright was assigned as the hearing officer for Toldson's November 18 grievance. On November 20, Wright called Toldson to discuss the grievance, to initiate the investigation of it, and to discuss his requested remedy. Toldson did not answer, and Wright left him two messages. Toldson returned her call later that day, and they scheduled a meeting for the next day so that Wright could begin her investigation. At her meeting with Toldson the next day, Wright informed Toldson that she could accommodate his request to be moved to another school. But Toldson wavered, indicating that he wanted to amend his grievance to seek a different remedy than the one he had initially requested. Toldson asked if he could speak with his wife and reschedule the meeting with Wright for a time after the school's Thanksgiving break.

         Wright told Toldson that the grievance timeline would be put on hold until he got back to her, and later that day, Toldson emailed her to say that he did not have enough information to make an informed decision about her suggested grievance remedy, that he felt as if he was being rushed, that he would be amending his requested remedy, and that he wanted to know how to continue with the grievance process. Wright responded to Toldson's email, stating that she would move forward with the grievance process and would schedule a hearing on his grievance.

         On December 1, Toldson amended the requested-remedy portion of his November 18 grievance, stating that he was now seeking to remain employed at RHS but in a different capacity and that he additionally wanted Winrow, Bean, and Biggers to be fired. Also on December 1, Toldson filed another Level 1 grievance, this time complaining about Wright and Valenta for conduct related to the November 21 meeting on his November 18 grievance. In the December 1 grievance, Toldson asserted that while he was on orders from his doctor to refrain from working, he was "repeatedly contacted by individuals from [DISD] HR." He claimed that he was pressured to meet with Valenta and Wright about his November 18 grievance, that he finally did meet with them "against [his] better judgment," and that he was "bullied into making a decision" regarding the grievance. Toldson stated that he wanted Valenta and Wright to be fired.

         On December 9, Wright held the Level 1 hearing on Toldson's November 18 grievance, and she issued her decision on January 5, 2015. Wright said that based on her own investigation, as well as the investigation Reeves had conducted, she found no evidence to support Toldson's allegations against Winrow. Wright noted that despite the fact that Reeves had also not found any evidence to substantiate Toldson's claims, he nonetheless offered to move Toldson to another classroom and that Toldson had found that resolution acceptable. Wright acknowledged Toldson's claim that he had suffered further harassment even after the move, but she said that he had refused to provide any specific details concerning those allegations and that consequently, further investigation of his claims had been unsuccessful. Wright granted Toldson's request to remain at RHS but denied his request that Winrow, Biggers, and Bean be fired.

         Meanwhile, another DISD employee, David Hicks, was assigned as the Level 1 hearing officer for Toldson's December 1 grievance. Hicks held the hearing on that grievance on December 15, 2014, and although Toldson attended that hearing, he did not provide any additional details when asked about his allegations in that grievance and instead noted that everything was already in the grievance document. Noting Toldson's refusal to provide additional information, Hicks concluded that Wright had not violated Toldson's rights but had simply been attempting to resolve his November 18 grievance in the most informal setting possible and in a quick and fair way. Hicks ...

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