### TEXA S COU RT O F AP PEAL S, THIR D DISTRIC T, AT AU STIN

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4444 NO. 03-00-00099-CV

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4444 Lin Gr igsby, Appel

lant
v. Mike Moses, Commiss ioner of E ducation of the State of Texas; The Texas Education Age ncy , b y an d t hrou gh th e Co mmis sio ner o f Ed uca ti on ; a nd Gran bu ry Independent School District, a Public Body Cor porate, Appelle es

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4444444444 FROM THE DISTRICT CO URT OF TRAVIS COUNTY, 200T H JUDICIAL DIST RICT NO. 98-09957, H ONORABLE W. JEANNE MEURER, JUDGE PRESIDING

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Lin Grigsby appeals from a district-court judgment affir ming a decision of Mike Moses, Comm issioner of Education, in a suit brought byGrigsby against the Commi ssioner and her employer, the Granbury Indepe ndent School Dist rict (the “District”) . We will affirm the judgment.
THE CON TROVER SY The D istrict has es tablished written “policies” or r ules governing employee complain ts regarding conditions of their employment. So far as they apply here, the rul e s provide as follow s:2 1. “Complaints shall be heard in infor mal admini strative conferences” a nd “an informal pre sent at ion

of theco mpla int

to t he ” Di st ri ct boa rd of tr us te es , a s s et

out be low, “unle ss the bo ard grant s a hearin g.”

2. “[U]nless extended by mutual consent,” all time limits fixed in the rules must “be stri ctly c om plied wit h.”

3. A complaining employee m ust “meet with [h er] principal or i mmediate supervisor

with in 1 5 da

ys of thetime[s he ] f

ir st knew . . . of the event or ser ies of events c ausing the co mp laint .”

4. If dissatisfied w ith the “ou tcome” of such meeti ng, the em ployee m ay request a meeting with the Dis trict s uperin tendent t o “disc uss”the complaint
. 5. If dissatisfied with the “outcome” o f her meeting with the s uperin tendent, the employee may request in writing that the “matter” be placed on the agenda at ameeting of the District board of trus tees. After requiring that t he supe rinten dent i nform the employee of the date, tim e, and place of the bo ard meetin g, the rules state as follow s:
The Board President may set reasonable tim e lim its on com plaint presentat ions. The Board s hall listen to the complaint, but is not required to respond or take any a cti on on the matter. The lack of off icial action by the Board upholds the adm inist rative decisi on [of th e superi ntend ent]. Employees who are granted a hearing sh all be affor ded that hearing with the Board in a meeting that includes the hearing as an item in the posted agenda or with the Board’s designe e. If theBoard conducts the hearing, it shall make and communicate its dec ision at any time up to a

nd includi n g the next r

egularly scheduled Board meeting.3 In addition to her class room-teaching duties at Granbury High School, Grigsby coaches tennis, a sport that extends ove r both the spring a nd fall seme sters of the sc hool year. Forcoaching tennis, shereceives a s ingle stipend. Other sportsat the school typically begin and end within a single semester. This enables other employees to coach diff

erent spor ts in differe nt
seme sters and th ereby earn two stipen ds in t he scho ol yea r. Believing th is to be inequitable and claiming an entitlemen t t o a second stipend, Grigsby initiated the series of “informal administrative conferenc es” contemplated by the rul es outl ined a bove. S he did not, h owe ver, request the initial meeting with her principal until well after the expira tion of fifteen da

ys from the dateshe f

irst k new of the e vents gi ving ris e to her complaint. The principal resolve d Grigsby’s complaint on the ground thathe could “not grant [Grigsby] relie f beca

use thecomplaint was no t filed in a timely m anner according to” the rules. The super

intenden t res olved her

complaint on th e same ground, stating he s upported the princi pal’s action in

not gra nting her relie f “dueto the complaint
. . . not being f iled in a ti mely
manner according to” t he rules. An uncontradicted affidavit in the administrative record, made by the president of theboard of trust ees of

the District, states “the Board af ter due deliberation took no act ion o n” G rigsby’s c om plain t foll owi ng her p re sentat ion to that body. The Comm issioner“deni ed” G rigsby’s “ appeal ” to hi m o n the sa me g round. T he dist rict co urt affirmed the Commissioner’s decision.

In her appeal to this Court, Grigsby c ontends the district court er red because , as
a matter of law, the District waived the fifteen-day r equirement “by allowing a grievance4

presentation” at t he mee ting of the b oard of t rustees. C onsequ ently , the C om mi ssioner’s decisi on w as arbit rary and c aprici ous. SeeTex. G ovt. C ode A nn. § 20 01.174 (2) (2000).
HOLDIN GS AND DI SCUSSION Grigsby endeavors to br ing her case withi n the scope of our holdings in Havner
v. Meno , 867 S.W.2d 130 (Tex. App.—Austin 1993, no writ), and Her nande z v. Me n o , 828 S.W.2d 491 (T ex. A pp.— Aust in 19 92, w rit den ied). In Havner , we held a school district waived its rig ht to insist upon a hearing before its board of trus tees, as required by a rule of the Texas Educ ation Age ncy, by the board’s making a dec ision on t he mer itsof an employee’s complaint without the requisite hear ing. Havner , 867 S.W.2d at 134. In Hernandez , we held a school district waived a ten-day time limitation, within w hich an employee was required to requ est a hearing, by the board’s a ffirmatively granting and conducting

a three-day e videntiary hearing on the merits of the employee’s complaint, after which the board purported to deny relief on the groundthat t he heari ng had not b een requ ested w ithi n the t en day s required
. Her na ndez , 828 S.W.2d at 494. In each ca se, our holding rested on the well-se ttled common-la w rule that the waiver of a known right occurs when the person poss essing the right (1) expressly relinquishe s the right, (2) a cts in a

manner inc onsist ent with an intent to claim the right, or (3) f ails to a ct in a manner consistent with an intent to cla im the rig ht. See, e.g., PGP Gas Prods. Inc. v. Reserve Equip. , 667 S.W.2d 604 , 609 ( Tex. App.—Austin 1 984, writ r ef’ d n.r .e.) ; see also Havner , 867 S.W.2d at

134; Hernandez , 828 S.W.2d at 494. The Comm issioner f

ound the District “did not consent to waive” the fifteen- day requir ement; he also found the “merits” of Grigsby’s complaint were never “addressed” at any5

stage of the school-district proceedings. Grig sby does n ot ass ail these findings on any basis. She does not contend the board expr essly relinquishe d its right to insist upon compliance with the time limitation. Sheargue s inste ad that th e board’s mere act o f “listen[ing] to her
com plain t,” as the b oard was requir ed by its rulesto do, we re su ffic ient in an d of its elf to consti tute waiver as a matter of law because in her presentation to the board she stated h e r “complete ca se ” and g av e t o th e b oard with out obj ec tio n a

pa ck et of su ppo rt ingdocume nts . We disagree with the a

rgument. The adm inist rative record co ntain s a transcri pt of th e board p roceedi ng. It demonstrat es o nly that theboard listene d to Grigsb y’s a

rgument in support o f her complaint, without asking questions, a nd perhaps acc ept ed “ a packet of material” that she would be refer ring to in her ar gum ent. T he trans cript d oes not suggest that a ny doc um ents w ere authenticatedor offe red and rec eived in evidence; nor does it suggest that any person was called to give sworn testimony subject to cross- examination. The sole ev idence o f what that board did following Grigsby’s unilater al presentation is f

ound in the uncontradicted affidavit made by the preside nt of th e board. The affiant declare s therei n that the bo ard, after l isteni ng to Grig sby’s presentation, “took no action [on her complaint], ther eby upho l ding the [superint endent’s] decisi on o n the basis of [ the] untimely filing.” These undisputed f acts cannot rea sonably be viewed as amounting to an act orfailure to act that is inco nsiste nt w ith an inten t on t he boa rd’s part to enforce the time limitation. The manner of proceeding shown by the transc riptand the board’s express refusal to act on the merits of Grigsby’s c omplaint m anifest the opposite—an intent to “li sten to the co mp laint ,” in th e wo rds of the rule, bu t to en fo rce neverthe less the6

fifteen- day time limitation appli cable to the cour se of “infor mal admin i strative conferences” invoked by Grigsb y’s c omplaint. The r ecord does no t show the waiv er for which Grigsby conte nds in her sole assignm ent of erro r.

It is not contended tha t any con stitutional provision, statute, or administrative practice, rule, o r policy require d an evidentiary hear ing on complaints of the kind made by Grigsby. We hold the Comm issioner ’s act ion denying Grigsby’s “appeal”to him is not shown to be a

rbitrary an d capricious. We there foreaff irm the dis trict- court j udgment.

John E. Powers, Jus tice Before C hief Just ice A boussi e, Justi ces Ki dd and Pow ers * Affirmed Filed: October 26, 2000 Publish

* Before John E. Po wers, Senior J usti ce (retire d), Third Court of Appeals, sitting by assignm ent. SeeTex. G ov’t C ode A nn. § 74 .003(b) (W est 199 8).