ACCEPTED 03-15-00294-CV 5309373 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/15/2015 4:14:12 PM JEFFREY D. KYLE CLERK NO. 03-15-00294-CV
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS 5/15/2015 4:14:12 PM JEFFREY D. KYLE Clerk MANOR INDEPENDENT SCHOOL DISTRICT Appellant v. DEYDRA STEANS Appellee
From the District Court of Travis County, 353RD Judicial District No. D-1-GN-13-000241, Honorable Tim Sulak, Judge Presiding
APPELLEE’S EMERGENCY MOTION FOR RECONSIDERATION OF TEMPORARY ORDER ON APPELLANT’S MOTION FOR EMERGENCY STAY
Appellee submits this Emergency Motion for Reconsideration of Temporary Order on Appellant’s Motion for Emergency Stay in accordance with T.R.A.P. 10.3 and 29.5.
A. Introduction
1. Appellant is the Manor Independent School District and Appellee is Deydra Steans (now Deydra Steans King). 2. Appellant and Appellee just finished hearings on Motions for Summary Judgment and Pleas to the Jurisdiction filed by MISD on or about March 4, 2015. *2 The hearings were held in April after hundreds of pages were filed by MISD as either part of the motion, evidence in support thereof or post-trial briefing that was permitted by the court. After the trial court heard 3 hours of argument on the case and was able to study and review the filings of the parties, the trial court granted a number of MISD’s requests but did not do so regarding various claims under Chapter 21 Texas Labor Code though it did eliminate one of those claims. Trial has been set for May 18, 2015 for quite some time. The trial court issued a letter detailing its decision but as the parties have disagreed about the terms of an order, no traditional order has been issued. Steans has worked diligently in regards to trial deadlines that both parties have known for months and has filed her witness and exhibit lists, deposition excerpts intended for use and motions in limine. Also, witnesses have been contacted and committed to appear for the trial of the case. The undersigned counsel was unable to undertake out of state travel to a Board Meeting in Florida because of commitment to this litigation. The case was filed January 18, 2013, and the last pleading filed by Steans was September 11, 2013 and the last answer filed by MISD was December 10, 2013. This is well beyond the 180 days the law contains for a litigant to maintain an automatic stay.
B. Argument and Authorities
3. This case does not qualify as an Emergency. The Texas Legislature has made it clear that only those appeals from interlocutory decisions that are made *3 within 180 days require an automatic stay of a proceeding. This case was filed in 2013 and it was not until 2015 that the Plea to the Jurisdiction was filed. It was filed based on information available to the prospective Appellants back in 2013. The matter went to a full hearing and after considering hundreds of pages of evidence and pleadings from the prospective applicant and responses from Ms. Steans, the trial court decided to grant their request in part and deny it in part. At this time, no order is in place as the parties have disagreed as to the form of the order. Counsel spent last evening with a mediator and opposing counsel in an attempt to resolve the dispute. Ms. Steans-King has waited so long for a trial, has prepared, and announced ready for trial next week so she is clearly harmed or injured by this action. 4. The case was jointly set by counsel on the urging of a district court judge. It was set for Monday the 18th of May. Travis County has many pre-trial rules regarding upcoming trials, and though the matters regarding the pending motion for summary judgment and plea to the jurisdiction were unsettled, Ms. Steans worked diligently to prepare witness lists, exhibit lists, deposition excerpt designations, and motions in limine in order to be ready for trial. 5. There was no need for the Appellee to wait so long before filing this plea on the eve of trial. Clearly, the nature of the pleading was such to where it could have been filed within 180 days. The Plea addressed issues regarding discrimination *4 against the girl’s athletic program at Manor that was not fact based and whether issues were properly preserved in the EEOC charges made by Steans. Appellant’s Pleas to the Jurisdiction were based on the following matters:
i. Plaintiff’s request for a receivership and declaratory and injunctive
relief should be dismissed.
ii.. Alternatively, the Plea regarding Plaintiff’s request for prospective
relief (including receivership and declaratory) regarding girl’s athletic
program should be granted based on immunity.
iii. Alternatively, the Plea regarding Plaintiff’s request for
appointment of receiver should be granted based on lack of
jurisdiction because Plaintiff failed to exhaust admin remedies. This
was primarily legal based.
iv. The Plea to the Jurisdiction regarding Plaintiff’s Chapter 21 Labor
Code claims should be granted because barred by immunity based on
failure to timely exhaust administrative remedies.
v. Defendant’s Plea to the Jurisdiction should be granted regarding
Plaintiff’s retaliation claims because cannot demonstrate some
required elements of claim. *5 vi. Alternatively, even if Plaintiff shows prima facie retaliation and/or sex discrimination, Court should grant the Plea to the Jurisdiction based on pretext. vii.Court should grant the Plea to the Jurisdiction on Plaintiff’s Chapter 21 claims regarding disparate treatment of coaches in the boys as compared to the girls program [such a claim was not actually made]. viii. The Court should grant the Plea to the Jurisdiction on Plaintiff’s claims of retaliatory failure to hire/offer Plaintiff a new coaching contract in violation of Chapter 21. ix. Court should grant the Plea to the Jurisdiction on Plaintiff’s claim of sexual harassment/hostile environment because Plaintiff has no evidence of the required elements. x. Even if Plaintiff can establish the elements of a hostile environment claim based on sexual harassment and retaliatory hostile environment, Defendant is entitled to an affirmative defense because it established an affirmative defense. xi. Court should grant the Plea to the Jurisdiction on Plaintiff’s free speech retaliation claim
xii. Court should grant the Plea to the Jurisdiction as to Plaintiff’s
common law claims because they were barred by sovereign immunity
and preempted by Chapter 21.
xiii. Court should grant Defendant’s Plea to the Jurisdiction on
Plaintiff’s claim for exemplary damages Most of these requests in the Plea to the Jurisdiction were legally based or based on facts that were known early on by the district. The Court granted many of the requests made by Manor Independent School District but permitted the case to go forward on sexual discrimination against Steans in terms of her pay as alleged in her EEOC charge, sexual harassment as alleged in her EEOC Charge and retaliation as alleged in her EEOC Charge. MISD had the EEOC documents well within the 180 day time period. More than 180 days before filing the Plea to the Jurisdiction. Discovery commenced in February 2013. Steans’ deposition was taken on September 16, 2013. The last discovery sent by MISD was on or about November 15, 2013. This was a year and a half before the Plea to the Jurisdiction was filed. Steans took depositions in 2014 but had to file a Motion to Compel in order to be able to do so. 6. MISD has raised the issue of settlement negotiations. However, settlement negotiations should not be a consideration in regards to whether the case should be stayed. The case was tentatively settled around March of last year and then around *7 April of last year subject to approval by the MISD Board but the Board rejected the settlement in May. That was a year ago. The settlement discussions took place in 2014 and not within the 180 day time period. 7. The Notice of Interlocutory Appeal is premature in this case, unless the letter from the Judge Sulak serves as an order in this case. 8. Permitting this case to go forward will in no way interfere with the jurisdiction of the Appellate Court and in fact going forward will enhance the court’s jurisdiction. Pleas to the Jurisdiction are decided on many matters that have gone to trial. This is not something that presents a problem (it occurs regularly), but instead promotes judicial efficiency. One should not encourage untimely Pleas to the Jurisdiction that undermine the interests of a Litigant. If the matter goes to trial, there will be clarity on what, if anything, the jury finds a violation regarding and those matters will be subject to the Court of Appeals finding. If a jury trial is permitted to go forward, this will be like any other appeal. If the jury provides an award for something cut out by the Court of Appeals, then that automatically goes away as long as the appeal stands. And of course any items for which the Court of Appeals decides are appropriate, any jury award would then still stand. Interference as meant by the statute is in regards to matters that interfere with the court’s jurisdiction such as dismissing an order that provided the basis for an appeal. Garcia v. Marichalar, 185 S.W.3d 70, 73 (Tex.App.—San *8 Antonio 2005). It seems clear that judicial efficiency is only furthered by denying the request for an emergency stay, because to grant it is to encourage conduct that will waste time and expense involving litigants. If the stay is granted, Ms. Steans will have to wait another year or year and a half before she goes to trial. This is unfair and is harmful to her. 9. MISD’s request essentially makes the law a nullity. There is a reason for the 180 day provision. The law says clearly that in order to automatically stay a proceeding the filing should take place within 180 days after the defendant files their original answer—not more than 2 years later as here. Further, Section 29.5 of TRAP provides that a trial court retains jurisdiction of the case and may proceed with a trial on the merits. 10. The trial court still has a duty to go forward with trial unless this court stays this proceeding. Evans v. C. Woods Inc., 34 S.W.3d 581 (Tex.App.--Tyler 1999). And if we look to the federal courts for guidance in this matter we can see where granting a stay would be improvident. In that system, the standards for granting a stay pending appeal are well-established: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. *9 2113, 95 L.Ed.2d 724 (1987); see also Nken, 556 U.S. at 426, 129 S.Ct. 1749. It would seem as though the public interest in this matter lies in following the Texas State law.
In order to illustrate to the court the matters raised in the response, we attach the following:
a. The latest pleading by Plaintiff;
b. The response by Defendant to the latest pleading;
c. The docket sheet of the case from Travis County; and
d. Affidavit of Gary L. Bledsoe.
C. Conclusion/Prayer
For the reasons stated in this motion, Appellee asks that the Court to rescind its temporary order on Appellant’s Emergency Motion to Stay to prevent harm to Appellee.
Respectfully submitted,
POTTER BLEDSOE, LLP
By: /s/ Gary L. Bledsoe Gary L. Bledsoe State Bar No. 02476500 gbledsoe@potterbledsoe.com Harry G. Potter III hpotter@potterbledsoe.com State Bar No. 16175300 Alondra G. Johnson
ajohnson@potterbledsoe.com State Bar No. 24087801 316 W. 12th Street Austin, Texas 78701 (512) 322-9992 Telephone (512) 322-0840 Fax
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
I certify that on May 15, 2015, my office conferred with opposing counsel Jennifer Powell, and she opposes to Appellee’s Emergency Motion for Reconsideration of Temporary Order on Appellant’s Motion for Emergency Stay.
/s/ Gary L. Bledsoe Gary Bledsoe
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served on counsel on this 15th day of May 2015, through the Court’s electronic filing system and by electronic mail and/or fax to the following:
Jennifer A. Powell Eichelbaum, Wardell, Hansen, Powell & Mehl, P.C. 4201 Parmer Lane, Suite A100 Austin, Texas 78727 512/476-9944 512/472-2599 fax jpowell@edlaw.com cc:nbn@edlaw.com
ATTORNEY FOR DEFENDANT
/s/ Gary L. Bledsoe Gary Bledsoe