Plaintiff’s pro se brief insufficient to preserve arguments on appeal holds Dallas Court of Appeals

Gilberto Hernandez v. Dallas Independent School District, 05-17-00227-CV (Tex. App. – Dallas, April 18, 2018).

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

The Dallas Independent School District (“DISD”) employed Hernandez as an elementary school teacher for approximately sixteen years. Prior to the end of the 2013/14 school year Hernandez sued DISD, DISD executive director Jacqueline Lovelace, and other employees in federal district court alleging age discrimination, sex discrimination, constitutional violations, and retaliation under the Texas Whistleblower Act for reports he filed with the TEA, DISD Office of Professional Responsibility (OPR), and Child Protective Services (CPS).  He appeared pro se. While the case was pending, DISD issued a non-renewal of his teacher contract, which was later sustained by an independent hearing examiner. After multiple amendment attempts, the federal district court declined supplemental jurisdiction. Hernandez then filed a Whistleblower claim in state court. DISD filed a plea to the jurisdiction, challenging both the pleadings and the existence of evidence which the trial court granted. Hernandez appealed.

The court of appeals first noted Hernandez did not properly file his brief or cite to record references in support. As a result, the court held “he has preserved nothing for our review.” However, it considered the legal arguments regardless. In a multi-report situation, each report must be evaluated to determine if the complained-of conduct constitutes a violation of actual law and if the report was made to an appropriate law enforcement authority. However, Hernandez’ response to DISD’s plea did not address any of his reports or why the reports should be considered submitted to an appropriate law enforcement authority. Hernandez did not carry his burden. Further, he tried to bring in federal claims on appeal, but his state law petition only contained the Whistleblower Act cause of action.  Finally, Hernandez asserts the statute of limitations, while expired, was tolled for 30 days after dismissal by the federal court under 28 USC §1367(d).  However, the trial court did not dispose of the claims based on the statute of limitations, so §1367 is inapplicable. The order granting the plea was affirmed.

If you would like to read this opinion click here. Panel consists of Justice Lang, Justice Brown, and  Justice Whitehill. Memorandum Opinion by Justice Brown.  Hernandez appeared pro se. The attorneys listed for DISD are Carlos G. Lopez, Kathryn E. Long and Oleg Nudelman.

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