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Texas Fifth Court of Appeals (Dallas)
Fired Teacher Wins Reprieve (for now)
Of Judge’s Dismissal of Whistleblower Suit
Ruling: Whether a fired teacher’s Whistleblower lawsuit against his former district must be dismissed will hinge on a future ruling by a trial judge on whether the ex-teacher met the legal criteria for filing suit. Fernando Herrera v. Dallas ISD, No. 05-19-01290-CV (majority and concurring/dissenting opinions). Issued Aug. 27.
Background
Ex-DISD elementary bilingual teacher Herrera claimed in his Whistleblower suit he filed against the district that he had been placed on administrative leave, and was ultimately fired from his probationary contract as of the end of the 2017-18 school year, for reporting suspected child abuse allegations on the part of other teachers to Child Protective Services.
The record reflects that prior to firing Herrera, the district concluded, following an investigation, that Herrera had engaged in bullying conduct and violated school policy by publicly revealing the name of a student who had been the subject of a sexual abuse investigation.
The district’s final, official reasons for firing Herrera was that his position was identified as an “excess position” based on the review of expected staffing needs for the upcoming school year.
Herrera appealed to the Fifth Court after the trial judge granted DISD’s motion to dismiss the lawsuit.
A 2-1 majority opinion by a three-member Fifth Court panel sent the suit back to the trial judge with a directive to determine whether a grievance Herrera filed over his then-pending termination was sufficient to preserve his right to file his Whistleblower suit against the district.
The dissenting justice concluded the suit should be dismissed because, based on the facts, Herrera had not timely requested the required grievance hearing with DISD.