Dale Dardeau v. West Orange-Cove Consolidated Independent School District, O. Taylor Collins, Harry Barclay, Nancy Byers, Pete Amy and Eric Mitchell ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-08-00167-CV ____________________

DALE DARDEAU, Appellant

V.

WEST ORANGE-COVE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, O.TAYLOR COLLINS, HARRY BARCLAY, NANCY BYERS, PETE AMY, and ERIC MITCHELL, Appellees

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On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D 031184-BC

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MEMORANDUM OPINION

Appellant, Dale Dardeau, appeals a summary judgment granted in favor of appellees, West Orange-Cove Independent School District ("CISD" or "District"), Superintendent Dr. O. Taylor Collins (hereinafter "Collins"), Harry Barclay, Pete Amy, Nancy Byers, and Eric Mitchell (collectively "appellees"). We determine whether the trial court erred in granting appellees' motion for summary judgment on Dardeau's whistleblower claim and on Dardeau's state constitutional claims pursuant to article I, sections 8 and 19 of the Texas Constitution. We affirm.

FACTUAL BACKGROUND

Dardeau is a former principal of West Orange Stark Middle School. Dardeau, along with several other former District employees, brought suit in 2003 against the District and a former Superintendent alleging claims for reverse racial discrimination, retaliation, breach of contract, and promissory estoppel. In August 2005, Dardeau was reassigned to the position of Assistant Principal at Anderson Elementary School in West Orange. After such action, Dardeau filed a First Supplemental Petition in which Dardeau alleged that his reassignment to the assistant principal position violated the Texas Whistleblower Act and his state constitutional rights. Thereafter, the original action was severed into three causes of action: 1) Dardeau's and another employee's failure to promote claims; 2) six other District employees' pay disparity claims; and 3) Dardeau's whistleblower lawsuit. This appeal concerns a final summary judgment granted in favor of all defendants against all claims asserted in the whistleblower lawsuit.

In January 2005, Collins became the Superintendent for the District. The District received, in May 2005, preliminary ratings from the Texas Education Agency ("TEA") of the District's performance by campus on the Texas Assessment of Knowledge and Skills ("TAKS") test. According to the preliminary report, West Orange Stark Middle School, at which Dardeau was then serving as campus principal, was rated academically unacceptable. Collins received the final TEA report on August 1, 2005, which confirmed that the West Orange Stark Middle School was the only school in the District that was rated academically unacceptable. On August 2, 2005, Collins held a meeting with Margaret DuChamp, CISD's Executive Director of Human Resources, in which Collins and DuChamp discussed the reassignment of Dardeau to the position of assistant principal at Anderson Elementary School.

On August 3, 2005, Dardeau telephoned the TEA's Assessment Division and informed them of his belief that thirty-eight fifth grade students at West Orange Stark Middle School had been "socially promoted" from the fifth to sixth grade within the District. According to Dardeau, the TEA representative asked Dardeau "to gather more information." That same morning, Dardeau sent an email to several elementary school principals regarding the social promotion issue. Dardeau also sent a copy of the email to Jane Stephenson, CISD's Director of Curriculum, and Collins. Dardeau's email stated the following:

As of today, 33 5th graders that failed TAKS 3 times have been promoted to the 6th grade. I need a copy of the committee's minutes detailing the extenuating circumstances justifying their promotion. I have talked to the TEA today and they find it very difficult to see how that many students can meet the definition of extenuating circumstances.

Your immediate response is needed for our proper scheduling will be appreciated. [sic]

The following day on August 4, 2005, Collins notified Dardeau that he was being reassigned to the position of assistant principal at Anderson Elementary School. The primary reason given for the reassignment was the middle school's rating of "academically unacceptable." Collins stated he believed a change in the leadership of the middle school principal was necessary. The evidence in the record regarding whether Collins was aware of Dardeau's call to the TEA at the time of Dardeau's demotion is disputed.

After learning of his reassignment, Dardeau tendered an indefinite medical excuse stating that he was unable to work. Dardeau did not work during the 2005-2006 school year, however, he did receive his full salary. Dardeau returned to work as assistant principal at Anderson Elementary School at the beginning of the 2006-2007 school year. As a result of various job performance issues, Dardeau's contract was "nonrenewed" by the Board of Trustees on April 30, 2007. Dardeau retired in June 2007 and began receiving a pension.

PROCEDURAL BACKGROUND

The case was originally set for trial in July 2007. In June 2007, Dardeau amended his lawsuit, adding his nonrenewal as a second whistleblower claim, adding four individual Board members as defendants, and federal constitutional claims. The District removed the case to federal court, however, shortly thereafter, Dardeau filed Plaintiff's Third Amended Original Complaint in federal court, dropping his federal claims and ultimately causing the case to be remanded back to state court. On November 13, 2007, after the case was remanded, appellees filed a Motion for Summary Judgment on all causes of action asserted by Dardeau. Following a hearing on the motion, the trial court granted appellees' Motion for Summary Judgment in its entirety. The following day, Dardeau voluntarily nonsuited all claims based on any facts or incident arising after September 1, 2006, effectively nonsuiting all his nonrenewal claims.

Dardeau appeals the trial court's judgment on the following two grounds:

1. The trial court erred when it granted Defendants Motion for Summary Judgment on Plaintiff/Appellant's whistleblower claim because a genuine issue of material fact remains as to the claim.

2. Did the trial court err when it granted Defendants Motion for Summary Judgment as to Appellant's State Constitutional Claims pursuant to Article I §§ 8 & 19.

STANDARD OF REVIEW

We review the granting of a traditional motion for summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must determine whether the movant carried its burden to establish that there existed no genuine issue of material fact and that it was entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In determining whether the movant carried its burden, we assume all evidence favorable to the nonmovant is true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in his favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). "Because the trial court's order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." Knott, 128 S.W.3d at 216.

WHISTLEBLOWER CLAIM

A public employee suing under the Whistleblower Act has the burden of proof. Tex. Gov. Code Ann. § 554.004(a) (Vernon 2004). The employee must prove, among other things, that he "suffered discriminatory or retaliatory conduct by the employer that would not have occurred when it did if the employee had not reported the violation of law." City of Fort Worth v. Johnson, 105 S.W.3d 154, 162-63 (Tex. App.--Waco 2003, no pet.) (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)). This causation standard has been interpreted as a "but for" causal requirement. Hurley v. Tarrant County, 232 S.W.3d 781, 786 (Tex. App.--Fort Worth 2007, no pet.). Therefore, an employee must establish that "but for" his reported violation of law the discriminatory conduct would not have occurred when it did. Johnson, 105 S.W.3d at 163. However, the employee need not establish that the reported violation of law was the sole cause of the employer's discriminatory action. Id. The Whistleblower Act creates a presumption of causation when the employee is terminated or suspended not later than ninety days after the reported violation. Tex. Gov. Code Ann. § 554.004(a). However, the presumption is rebuttable. Id. The statutory presumption does not shift the burden of proof and will stand only in the absence of evidence to the contrary. Johnson, 105 S.W.3d at 163. If the Defendant produces evidence sufficient to support a finding of the nonexistence of the causal connection, the case proceeds as if no presumption ever existed. Id. Thus, the presumption will not aid an employee once the presumption has been rebutted by evidence to the contrary. Id. If the Defendant rebuts the statutory presumption, the employee must produce some evidence to support a causal connection between the reported violation and the discriminatory conduct by the employer. Id.

It is an affirmative defense under the statute that the employer "would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected" under the Act. Tex. Gov. Code Ann. § 554.004(b).

On appeal, appellees argue in part that they conclusively proved each element of their affirmative defense to appellant's whistleblower claim. "A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence." Adams v. Groesbeck Indep. Sch. Dist., No. 10-02-313-CV, 2003 WL 22708642, at *3 (Tex. App.--Waco Nov. 12, 2003, pet. denied) (not designated for publication). The District contends that Dardeau would have been reassigned to the assistant principal position at Anderson Elementary as a result of the school's academically unacceptable performance regardless of whether he had contacted the TEA. To counter this argument, Dardeau submitted evidence as to the timing of Collins's decision from several District employees.

Evidence submitted by the District relating to Collins decision to reassign Dardeau

In support of its affirmative defense and as part of its summary judgment evidence, the District submitted an affidavit from Collins, an affidavit from Jane Stephenson, handwritten notes taken by Margaret DuChamp during a meeting with Collins, testimony from the President of the Board of Trustees, Harry Barclay and Board member Pete Amey. Collins stated in his affidavit that when he became Superintendent of the District in January 2005, he realized "[t]he District faced unique challenges because of its diverse population and a large percentage of socioeconomically disadvantaged students." Collins stated that early in his tenure as Superintendent, he had several parents come to him with "concerns about the treatment of their students at the middle school on issues of fairness, respect, and consistency," but these complaints were not sufficiently severe to warrant documentation of any discipline of Dardeau. Additionally, Collins had several parents to approach him with concerns regarding the academic standing of the campus. According to Collins, Dardeau had been placed on growth plans on two prior occasions by two of his Superintendent predecessors following instances where Dardeau had exhibited racial insensitivity and made public comments demonstrating racial bias.

Collins came to believe that Dardeau "disregard[ed] student needs in favor of his own personal desire to control the middle school campus . . . ." One of Collins's goals for the District was to develop a culture of excellence and he believed that he and Dardeau "seem[ed] to have philosophical differences on how to achieve this goal." Collins stated that it had become apparent soon after he was hired that significant changes were going to be necessary to move the District forward in a positive direction. "With the added concerns created by the TEA's Academically Unacceptable rating of Mr. Dardeau's campus, it became apparent that his assignment must change."

In May 2005, Collins received the preliminary TEA ratings of the District's performance on the TAKS test by campus. Dardeau's campus was the only school to be rated academically unacceptable. The rating reflected a decline in attendance and test scores. Collins stated that he was "shocked by the disparity between white and minority student performance for Dardeau's campus." In a memorandum sent to the Beaumont Enterprise on May 16, 2005, Collins stated:

In all truth, however, our scores in mathematics and science are dismal and unacceptable. Emblematic of the problem is middle school mathematics. Only twenty-five percent of eighth graders passed the test and met the standard in mathematics; only 38% of seventh graders met the standard; and 44% of the sixth graders passed the test.

The great moral tragedy is that of the 135 African American students who took the test, only 18%, or 24 students, passed it. Swift, protracted, and research-based actions must be taken immediately to right this great wrong. And, as a Superintendent new to the district, I am bound and determined to provide the leadership to achieve justice in the system.

Collins further stated in his affidavit that "[i]t was apparent to me, following my review of the preliminary TEA report, that my fears concerning Mr. Dardeau's lack of attention to scholastic performance were in fact true, and it became equally apparent that an immediate change at the helm of the West Orange Stark Middle School was necessary." Collins also considered various placement options for Dardeau over the summer of 2005 and discussed several possibilities with the District's Board President, Harry Barclay. The statements made in Collins's affidavit were corroborated by Barclay's deposition testimony.

Barclay testified in his deposition that Collins "had been contemplating for a couple of months having to make a change on [the middle school] campus." Barclay testified that Collins first discussed the issue with him after he received the preliminary TAKS scores. According to Barclay the test scores at the campus had been "low for some time" and Collins told Barclay he was concerned with the unacceptable TAKS scores and "he didn't believe that progress was going to be made and he thought he needed to -- to make a change in the leadership on the campus in order to improve things[.]" While Barclay could not recall the specifics of past conversations on the issue, Barclay was under the impression that the low test scores and Dardeau's leadership had been a concern for prior Superintendents as well. Barclay testified that Collins had been considering removing Dardeau from the principal position at the middle school and "was trying to make up his mind what to do." Barclay believed that by May or June 2005, Collins "had decided that he had to make a change in the principal's job" and was pondering the question of "what does he do with Dale Dardeau." According to Barclay, Collins "was contemplating possibly moving [Dardeau into] some administrative position and -- and putting a new principal in there or, as he ended up deciding to do, putting him into an assistant principal position." Barclay stated that he and Collins discussed the issue several times over the course of a couple of months. However, Barclay was unaware that Collins had made a final decision before Dardeau was reassigned. Pete Amy, CISD Board of Trustees member, also testified that he and Barclay had discussed Collins's decision to reassign Dardeau before it happened. According to Amy, the week before Dardeau was reassigned, Barclay told Amy that Dardeau was going to be transferred.

Collins received the final TEA report on August 1, 2005. The report confirmed that West Orange Stark Middle School was the only school in the District which was rated as academically unacceptable. Collins stated,

[b]ecause of Mr. Dardeau's expressed lack of concern and his apparent disinterest in turning around these declining academic ratings, I began considering in earnest where I could place Mr. Dardeau in a position of administrative responsibility with similar duties and level of responsibility, but where he would not need to be the lead person responsible for assuring campus academic performance.

Collins also gave thought to who might take over as principal of the middle school. Collins made the decision to transfer Dardeau to an assistant principal position at Anderson Elementary School.

On August 2, 2005, Collins held a meeting with Margaret DuChamp, the District's Executive Director of Human Resources, in which the two discussed reassigning Dardeau to the assistant principal position at Anderson Elementary. Handwritten notes of the same date, taken by DuChamp during the meeting, were produced confirming the meeting and discussion of Dardeau's reassignment to Anderson Elementary. The handwritten note states, "Move Dale to AP-Anderson, demotion-unacceptable rating." Collins further stated, "[w]hen I decided to transfer Mr. Dardeau on August 2, 2005, I had been contemplating his reassignment for several months. I had discussed the transfer with the Board President, Harry Barclay, on numerous occasions, between May and August 2005."

With respect to Collins's knowledge of Dardeau's report to the TEA and his decision to reassign Dardeau, Collins stated:

I don't recall learning about Mr. Dardeau's allegation that he had contacted the Texas Education Agency until sometime in the vicinity of when he filed his First Supplemental Petition in this lawsuit, which was on or about August 15, 2005.

No one from the TEA ever contacted anyone from the District about any allegation that the District was improperly "socially promoting" fifth graders. In fact, in the 2005-2006 Academic Excellence Indicator System (AEIS) report, the District's promotion of fifth graders under Tex. Educ. Code § 28.0211 is reflected as statistically insignificant.

I used my best judgment and discretion in making the decision about Mr. Dardeau's transfer because of the Academically Unacceptable rating the middle school campus received, taking into consideration the concerns which middle school parents had voiced to me about the campus and Mr. Dardeau. As soon as I received the TEA's final results, I knew the change I had been contemplating for several months was required.

The District also offered evidence showing the email Dardeau sent to Collins on the morning of August 3, 2005, regarding his report to the TEA which was marked unread. Barclay likewise stated in his affidavit that no one from the TEA ever contacted any member of the Board of Trustees regarding Dardeau's report that the District was "socially promoting" students.

Jane Stephenson stated in her affidavit that after receiving the preliminary TAKS scores for West Orange Stark Middle School, Collins told Stephenson that he was shocked by the disparity between white and minority student performance for the middle school. Stephenson admitted receiving Dardeau's August 3, 2005, email but, did not recall when and, stated that '[n]o one from the TEA had ever contacted anyone from the District about any allegation that the District was improperly "socially promoting" fifth graders." According to Stephenson,

[a]s the District's Director of Curriculum, I would have been immediately notified if TEA had questioned the District's Grade Placement Committee procedures.

In accordance with 19 Texas Administrative Code Rule 101.2017(b)(3), the District timely submitted the information about the percentage of students promoted through the Grade Placement Committee process under Texas Education Code § 28.0211 in the fall of 2005. In the 2005-2006 Academic Excellence Indicator System (AEIS) report, the District's promotion of fifth graders under Tex. Educ. Code §28.0211 is reflected as statistically insignificant.

Evidence submitted by Dardeau relating to Collins's decision to reassign Dardeau

Dardeau responded to the District's affirmative defense arguing that appellees failed to prove all the elements of its affirmative defense as a matter of law, but instead, a fact issue remained on the element of causation under Dardeau's whistleblower claim. Dardeau first argues that the TAKS test scores were not the sole reason for Dardeau's reassignment. However, the District need not prove that the TAKS scores were the sole reason for Dardeau's reassignment in order to prevail under their affirmative defense. Rather, the District had only to conclusively establish that it would have taken the action against Dardeau "based solely on information, observation, or evidence that is not related" to Dardeau's report to the TEA. Tex. Gov. Code Ann. § 554.004(b).

Second, Dardeau argues it was not the policy of the District to demote principals for first time poor test scores but rather to put principals on "growth plans." However, Dardeau points to no formal District policy or procedure requiring or suggesting that a principal should be placed on a growth plan for first time poor test scores. ⁽¹⁾ In addition, the summary judgment record established that Dardeau had previously been placed on growth plans for other issues related to his leadership of the middle school campus. The District submitted evidence in its Motion for Summary Judgment that Dardeau's reassignment was not only consistent with the Texas Education Code but was also authorized by Dardeau's contract and District policy.

On appeal, Dardeau attempts to rely upon the affidavit of Kathleen Rogers, another District employee. However, the record reflects this affidavit was objected to by the District as hearsay and the trial court granted the District's objections, excluding the affidavit from the evidence considered by the trial court. Dardeau urges this Court to consider the affidavit, irrespective of the fact that it was excluded by the trial court, because it appears in the record as an attachment to a prior motion. However, even if we were to consider this affidavit, we find that it corroborates Collins's statement that he made the decision to reassign Dardeau prior to Dardeau's report to the TEA.

In said affidavit, Kathleen Rogers stated that she and Anitrea Goodwin applied for the position of principal at Bancroft Elementary school, and were both interviewed on August 1, 2005. On August 2, 2005, it was announced that another candidate had been appointed as principal at Bancroft Elementary. Rogers stated that she was disappointed, but that Goodwin was very disappointed and upset. According to Rogers, Collins called Goodwin on the night of August 2, 2005, and told her not to be upset, not to worry, and to come by and see him the next day. According to Rogers, when Goodwin went to the meeting on August 3, 2005, Collins stated that he would find a place for her, and that there would be a place for her in the District. Following Dardeau's reassignment on August 4, 2005, Goodwin was informed that she would act as interim principal of the middle school. Dardeau argues that the timing of Goodwin's meeting with Collins on August 3, 2005, suggests that Collins did not decide to reassign Dardeau until he received Dardeau's email on the morning of August 3. However, Roger's affidavit reflects that Collins scheduled his August 3 meeting with Goodwin on August 2, the same day Collins met with DuChamp and finalized his decision to demote Dardeau to the assistant principal position at Anderson Elementary School. We find Dardeau's reliance on Rogers's affidavit both improper and unpersuasive.

To counter the District's contention that Dardeau's August 3, 2005, email was marked unread in Collins's email inbox and therefore, Collins had no knowledge of Dardeau's phone call, Dardeau offered the testimony of Ira Wilsker, a computer expert, who testified that an email being marked unread does not prove that the recipient did not open or has not seen the email's contents because Outlook allows a user to mark emails unread even after they have actually been viewed. In addition, Outlook has a preview screen to allow a user to view the contents of an email without opening it.

To further show Collins had knowledge of Dardeau's email, Dardeau also submitted an affidavit from Jamie Wilson, another District employee, who stated that after she received Dardeau's email she immediately forwarded the email to Collins and contacted Stephenson, who told her that Collins was aware of what was going on. Stephenson set up a meeting with Wilson the following morning to review applicable procedures for promoting fifth graders. There is no evidence in the record that Collins attended the meeting. When asked in his deposition whether he remembered having the subject of Dardeau's August 3 email discussed with him, Collins stated, "I remember generally that Jane brought to me the concern or what was happening at that time, and my instructions to all principals and to -- to Jane was to ensure that the law [was] firmly followed."

Conclusion

Whether or not Collins was aware of Dardeau's phone call to the TEA at the time of Dardeau's reassignment, assuming all evidence favorable to Dardeau is true, the trial court could reasonably have found that the District conclusively established its affirmative defense as a matter of law. The evidence in the summary judgment record conclusively establishes that Collins began contemplating Dardeau's reassignment when he received the preliminary TAKS scores in May 2005 and contemplated that decision for several months until he received the final test scores from the TEA on August 1, 2005. ⁽²⁾ The evidence further establishes that Collins held a meeting with the Executive Director of Human Resources on August 2, 2005, in which he finalized his decision to reassign Dardeau to the assistant principal position at Anderson Elementary, as a result of the middle school's academically unacceptable rating and Collins's belief that a change in leadership was necessary to remedy the school's poor academic performance. This decision was reflected in the Executive Director's handwritten notes of that meeting. This decision was also corroborated by the testimony of Board President Barclay.

There is no evidence that Dardeau ever followed-up on his request for information or spoke with the TEA again regarding the matter or that anyone from the TEA ever contacted the District regarding Dardeau's allegation that the District was "socially promoting" 5th grade students. While Collins may have been aware of Dardeau's phone call to the TEA on the morning of August 3, 2005, there is nothing in the record to suggest that phone call was significant to Collins or played any part in his decision to reassign Dardeau to the assistant principal position at Anderson Elementary.

The record establishes that the trial court could reasonably have found the District established as a matter of law that Dardeau would have been reassigned on August 4, 2005, based on information and observations wholly unrelated to Dardeau's phone call to the TEA on August 3, 2005. Therefore, we overrule issue one.

CONSTITUTIONAL CLAIMS

Dardeau further complains on appeal that the trial court erred when it granted summary judgment on his claim that the District violated his constitutional rights under article I, sections 8 and 19 of the Texas Constitution. See Tex. Const. art. I, §§ 8, 19. Specifically, Dardeau alleged that his right to exercise protected expression (as well as protected liberty interest) was violated by the District after he reported the alleged illegal social promotion of fifth grade students at West Orange Stark Middle School to the TEA. ⁽³⁾ Appellees contend in their Motion for Summary Judgment that Dardeau nonsuited his Texas Constitutional claims, but filed summary judgment on these claims in an abundance of caution in case they were still pending. Appellees further assert that Dardeau never pled sufficient facts to assert a cause of action that the District violated his rights under the Texas Constitution. Appellees cite Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), for the proposition that "any actions [Dardeau] took which form the basis of his constitutional claims were undertaken while he was performing his official duties as principal of West Orange Stark Middle School," preventing equitable relief under those claims. Dardeau did not specifically address to the District's arguments regarding his constitutional claims, other than asserting that his job description "would clearly exclude him from the narrowest of readings of . . . Garcetti v. Ceballos." On appeal, Dardeau states that his constitutional claims are based on his demotion to the assistant principal job at Anderson Elementary.

The Texas Supreme Court has not recognized a private right of action for damages for violations of one's state constitutional rights. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995) (free speech and free assembly clauses); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 469 (Tex. App.--Fort Worth 1997, writ denied) (due process clause); see also Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 400-01 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (Texas Supreme Court's holding in Bullion not limited to the constitutional provisions at issue there). Equitable relief is the only relief available for violation of one's state constitutional rights. See City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex. 2007). Dardeau sought, as his only remedy for this claim, a permanent injunction reinstating Dardeau as principal of West Orange Stark Middle School and restraining the District from further violating Dardeau's constitutional rights.

On April 9, 2007, Collins recommended to the District's Board of Trustees that Dardeau's term employment contract be proposed for nonrenewal based on conduct unrelated to his phone call to the TEA. The Board voted to propose Dardeau's nonrenewal. Dardeau received notification of his proposed nonrenewal on April 9, 2007. He was informed that he had fifteen days from the day he received the letter to request a hearing. No hearing was requested within the applicable time frame. On April 30, 2007, the Board of Trustees voted unanimously to nonrenew Dardeau's term contract of employment with the District, effective June 30, 2007. Thereafter, Dardeau submitted a request to retire from West Orange-Cove CISD. Dardeau's retirement was effective at the end of June 2007.

The trial court granted summary judgment on Dardeau's nonrenewal as it relates to his whistleblower claim as a cause of action under the Texas Whistleblower statute, and Dardeau does not challenge that ruling on appeal. Following the trial court's grant of summary judgment in this case Dardeau nonsuited any claims related to his 2007 nonrenewal. Dardeau's employment contract with the District was nonrenewed on other grounds two years after his reassignment to the assistant principal position at Anderson Elementary. Dardeau is no longer contesting the nonrenewal of his contract, and that decision has become final. In addition, Dardeau subsequently retired from the District. Therefore, we need not address the merits of Dardeau's constitutional challenges as they are now moot. See generally City of Alamo v. Montes, 934 S.W.2d 85 (Tex. 1996) (Secretary's claim that she was discharged for political reasons, for which she had been awarded an injunction requiring her reinstatement, was rendered moot on appeal when she resigned from employment); see also Wilson v. West Orange-Cove Consolidated Indep. Sch. Dist., No. 09-08-00068-CV, 2008 WL 5622697 (Tex. App.--Beaumont Feb. 12, 2009, pet. denied) (appeal by former district employee from trial court's dismissal of action seeking injunctive and declaratory relief for nonrenewal was moot because nonrenewal had become final). We overrule issue two. ⁽⁴⁾ Having overruled both issues on appeal, we affirm the final judgment of the trial court.

AFFIRMED.

   __________________________________

CHARLES KREGER

Justice

Submitted on March 3, 2009

Opinion Delivered July 30, 2009

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

1. While Dardeau produced evidence that another principal in the District had been placed on a growth plan at least in part for low test scores, those low test scores were not academically unacceptable. In that instance the primary reason for placing the principal on the growth plan was an issue related to the special education at the school as well as the school's low test scores, which received a rating of acceptable as opposed to a rating of recognized or exemplary. In addition that action was taken by a prior superintendent, not Collins.

2. Collins's affidavit appears to be inconsistent in that he states "[a]fter I received the TEA accountability rating on August 1, 2005, I decided to transfer Mr. Dardeau to an assistant principal position at Anderson Elementary School" and then later states "I decided on August 2 that Mr. Dardeau would be transferred to Anderson Elementary, and shortly thereafter, I talked with Anitrea Goodwin . . .." However, while Collins may have misstated the dates or been unclear in his affidavit, he clearly testifies that he made that decision on or around August 1st or 2nd after receiving the TEA accountability rating, prior to Dardeau's phone call to the TEA.

3. Specifically, Dardeau alleged in pertinent part that he "exercised protected expression under Article One, Section 8, (also a protected liberty interest under Section 19) of the [] Texas Constitution when he . . . made a citizen's report of perceived social promotion or promotion in violation of the laws to the TEA/SSI; and reported to Collins and Stephenson the same, informing the Elementary Principals of the same . . .." He further alleged that he had a "protected liberty and property interests in . . . criticizing the Superintendent-currently Collins-on his violation of state law or rules governing personnel assignment, and student promotion."

4. We have not considered the appendices to appellant's reply brief in rendering this decision. Therefore, we decline to rule on Appellees' Motion to Strike. See Derwen Resources, LLC v. Carrizo Oil & Gas, Inc., No. 09-07-00597-CV, 2009 WL 6141597, at *6 n.3 (Tex. App.--Beaumont May 21, 2009, no pet. h.).