IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50193

DON POWERS; KARON WERNLI, 

 Plaintiffs - Appellees

v.

NORTHSIDE INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:14-CV-1004

Before JONES, BARKSDALE and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiffs-appellees Don Powers and Karon Wernli are a former principal 

and assistant principal, respectively, at Adams Hill Elementary School in San 

Antonio, Texas, located within Northside Independent School District (NISD), 

the defendant-appellant in this case. NISD terminated their employment after 

determining that they had improperly implemented the federal Rehabilitation 

Act. In response, Powers and Wernli sued NISD under, among other things,

the Texas Whistleblower Act, claiming their termination constituted unlawful 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2016

Lyle W. Cayce

Clerk

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retaliation for their reports of NISD’s alleged violations of the Rehabilitation 

Act. NISD moved for summary judgment, raising governmental immunity as 

a defense to the Whistleblower Act claims. The district court denied NISD’s 

motion in relevant part, and NISD now appeals. For the reasons set forth 

below, we AFFIRM IN PART the district court’s order denying NISD’s motion 

for summary judgment, and DISMISS IN PART NISD’s appeal for lack of 

jurisdiction.

I. Background

The Rehabilitation Act prohibits discrimination on the basis of disability 

in federal agencies and federally funded programs. See 29 U.S.C. § 794(a)

(enacted originally through Pub. L. No. 93-122, Title V, § 504). Federally 

funded school districts fall within the ambit of section 504 of the Rehabilitation 

Act, and section 504’s implementing regulations articulate requirements 

tailored to school districts. In particular, school districts are required to 

“conduct an evaluation . . . of any person who, because of handicap, needs or is 

believed to need special education or related services before taking any action 

with respect to the initial placement of the person in regular or special 

education and any subsequent significant change in placement.” 34 C.F.R. 

§ 104.35(a). That evaluation includes establishing standards and procedures

that ensure “[t]ests are selected and administered so as best to ensure that, 

when a test is administered to a student with impaired sensory, manual, or 

speaking skills, the test results accurately reflect the student’s aptitude or 

achievement level or whatever other factor the test purports to measure, rather 

than reflecting the student’s impaired sensory, manual, or speaking skills 

(except where those skills are the factors that the test purports to measure).” 

Id. § 104.35(b)(3).

To comply with the section 504 requirements, NISD created a “504 

committee” comprising educators tasked with conducting the required 

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evaluations of students. Powers and Wernli were members of the 504 

committee during the 2012–2013 school year. That year, the 504 committee 

evaluated J.B., a student with attention deficit hyperactivity disorder. The 

504 committee determined that J.B. had a reading disability and was thus

entitled to an accommodation during the 2013 STAAR test, which is a Texas 

standardized test. Pursuant to the accommodation, a proctor would read the 

test questions aloud to J.B. Shortly thereafter, NISD’s 504 coordinator, Anna 

Draker, reviewed the 504 committee’s recommendation and notified the 504 

committee that J.B. was not entitled to the accommodation due to a lack of 

supporting documentation. As a result, J.B. did not receive the 

accommodation. 

After Draker’s intervention in the J.B. matter, she audited NISD’s 504 

files during which she discovered that Wernli had marked as eligible various 

students who Draker believed were ineligible for section 504 accommodations. 

Draker and other NISD personnel then informed Powers and Wernli that they 

believed these practices were illegal. After those conversations, Powers and 

Wernli made several calls to the Texas Education Agency (TEA). They testified 

in their depositions that they made these calls to report NISD’s purportedly 

unlawful conduct in denying disabled students accommodations to which they 

were entitled. 

Between July 24 and July 30, 2013, NISD suspended Powers and Wernli 

on the ground that they had illegally classified students as eligible for section 

504 accommodations even though the students were ineligible. In accordance 

with NISD’s “DFBA (Local)” grievance policy, Powers and Wernli filed 

grievances, which were denied on December 3, 2013. On December 10, 2013, 

the NISD Board of Trustees voted to terminate Powers’s and Wernli’s 

employment, and they were notified of the termination on December 17, 2013. 

The December 17 notification letter explained that, pursuant to an attached 

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“DFBA (Legal)” policy, Powers and Wernli could initiate a hearing process to 

appeal the termination. Powers and Wernli did so on December 30. That 

process culminated in the Board’s final vote to terminate Powers’s and Wernli’s 

employment on April 22, 2014. Thirty days later, Powers and Wernli filed this 

suit, alleging in part that NISD terminated their employment in violation of 

the Texas Whistleblower Act. 

NISD filed a motion for summary judgment, arguing, among other 

things, that Powers and Wernli failed to satisfy the Texas Whistleblower Act’s 

provisions that waive NISD’s governmental immunity. The district court 

rejected those arguments and denied NISD’s motion for summary judgment. 

NISD now appeals.

II. Analysis

A. Jurisdiction and Standard of Review 

Because governmental immunity under Texas law “is complete 

immunity from suit,” this court has jurisdiction over NISD’s interlocutory 

appeal from the district court’s order denying governmental immunity. 

Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 582 (5th Cir. 2013). “And 

because governmental immunity from suit defeats a trial court’s jurisdiction, 

whether a trial court has jurisdiction is a question of law subject to de novo 

review.” Id. 

As relevant here, summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

B. Whistleblower Act Claims

The Texas Whistleblower Act provides:

A state or local governmental entity may not suspend or terminate 

the employment of, or take other adverse personnel action against, 

a public employee who in good faith reports a violation of law by 

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the employing governmental entity or another public employee to 

an appropriate law enforcement authority.

Tex. Gov’t Code § 554.002(a). When a public employee alleges a violation of 

the Act, the employing state or local governmental entity’s immunity from suit 

is waived. See id. § 554.0035. NISD offers three arguments why Powers and 

Wernli failed to establish a waiver of NISD’s governmental immunity under 

the Act. We reject each.

First, NISD claims that Powers and Wernli failed timely to file suit 

under the Act. The Act provides that 

[a] public employee must initiate action under the grievance or 

appeal procedures of the employing state or local governmental 

entity relating to suspension or termination of employment or 

adverse personnel action before suing under this chapter.

Id. § 554.006(a). If a final decision is not rendered within 60 days after the 

date the procedures are initiated, then the employee may elect to exhaust those 

applicable procedures, “in which event the employee must sue not later than 

the 30th day after the date those procedures are exhausted to obtain relief 

under this chapter[.]” Id. § 554.006(d)(1).

Powers and Wernli elected to exhaust NISD’s grievance procedures, but 

NISD asserts that Powers and Wernli filed suit long after the 30-day deadline. 

NISD emphasizes that its DFBA (Local) policy “states clearly that ‘Employees 

who allege adverse employment action in retaliation for reporting a violation 

of law to an appropriate authority shall initiate a grievance under this 

policy . . .’ and that the Board will make a ‘final decision’ on the Whistleblower 

Complaint.” NISD contends that the Board’s final decision on December 3, 

2013 to deny Powers’s and Wernli’s grievances triggered the 30-day period 

during which Powers and Wernli were required to file their lawsuit. Because 

they did not sue until May 22, 2014, NISD argues their suit was untimely, and 

NISD’s governmental immunity has not been waived. 

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Powers and Wernli, however, respond that their suit followed exhaustion 

of the grievance procedure for challenging their December 2013 terminations 

and was timely every step of the way. They point to the December 17, 2013,

notification letter explaining their termination, which advised them that they 

could “request that a hearing be held concerning the proposed termination of 

[their] term contract . . . as set forth in the enclosed policies.” The attached

DFBA (Legal) policy was headed “Northside ISD-Bexar County” and stated 

that “[i]f a term contract employee desires a hearing before an independent 

hearing examiner, the employee must file a written request with the 

Commissioner not later than the 15th day after the date the employee receives 

notice of the proposed termination or suspension without pay.” Powers and 

Wernli initiated that hearing procedure on December 30, 2013, within the 15-

day window, and it was not resolved until April 22, 2014, when the Board of 

Trustees terminated them. With April 22 as the critical date that triggered 

the 30-day filing period for a Whistleblower Act suit, the suit was timely. 

NISD’s reply brief ignores the DFBA (Legal) document and offers no 

reason why compliance with NISD’s DFBA (Legal) policy is not dispositive. See 

id. § 554.006(d)(1) (providing suit must be filed within 30 days “after the date 

[the DFBA (Legal)] procedures [were] exhausted”). The district court did not 

err in holding the Whistleblower Act suit timely filed.

NISD next contends that Powers and Wernli failed to establish a waiver 

of NISD’s governmental immunity because they did not report in good faith a 

violation of law to “an appropriate law enforcement authority,” as required by 

the Whistleblower Act. Id. § 554.002(a). NISD’s only argument on this point, 

however, is that they could not have believed in good faith TEA was such an 

authority, because “each time that [they] spoke to someone at TEA, they were 

referred to the information available on the TEA website, told that they should 

‘be okay’ regarding the allegations against [them], and informed that TEA did 

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not get involved with the situation that [they] were calling about.” As the 

district court pointed out, NISD mischaracterizes Powers’s and Wernli’s 

deposition testimony because these references occurred with respect to 

Powers’s and Wernli’s requests for legal guidance, not TEA’s general 

responsibility for section 504 issues. Despite the district court’s rebuke of 

NISD’s mischaracterization, NISD repeats its error on appeal without further 

argument. Presented with no other argument why TEA is not an appropriate 

law enforcement authority,1 we agree with the district court’s denial of 

summary judgment on this issue.

Finally, in a similar vein, NISD argues that Powers and Wernli lacked a 

good faith belief that they were reporting a violation of law. See id.

§ 554.002(a) (protecting “a public employee who in good faith reports a 

violation of law”). NISD claims that “[i]t is clear from Plaintiffs’ own testimony 

that they were not reporting an actual violation of law; they were seeking 

validation of their prior actions for the purpose of protecting their jobs, in light 

of the serious allegations they were facing.” Powers and Wernli respond that 

their testimony reflects that they reported section 504 violations. The district 

court rejected NISD’s argument, noting that “[a] jury, not the Court, is best 

equipped to make the credibility determinations resolution of that argument 

requires.” Given the district court’s conclusion that NISD’s argument creates 

a genuine dispute of material fact, we lack jurisdiction to resolve that 

argument. See, e.g., Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408–09 (5th Cir. 

2009) (citing cases and noting in the qualified-immunity context that if the 

 

1 We note that NISD’s reply brief contains new arguments on the “appropriate law 

enforcement authority” and “good faith” issues that NISD did not raise in either its motion 

for summary judgment or its opening brief in this court. Because “arguments raised for the 

first time in a reply brief . . . are waived,” and because no extraordinary circumstances 

compelling an exception to that rule exist, we do not address these new arguments. E.g., 

United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).

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immunity determination “would require the resolution of a genuinely disputed 

fact, then that fact is material and we lack jurisdiction over the appeal”). 

* * *

For these reasons, we AFFIRM IN PART the district court’s order 

denying NISD’s motion for summary judgment, and DISMISS IN PART 

NISD’s appeal for lack of jurisdiction.

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