ORIGINAL

Plaintiff, v.

C U E NO. i ^ i M ^ s ^ AS

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ELLIOT MONTEVERDE -TORRES,

IN THE COUNTY COURT

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DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant.

DALLAS COUNTY, TEXAS

PLAINTIFFS ORIGINAL PETITION I. INTRODUCTION Plaintiff Elliot Monteverde-Torres (Plaintiff) files this Original Petition (Petition) against Defendant Dallas Independent School District (DISD) (Defendant) and respectfully shows the following. II. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

Procedure 190.4. III. PARTIES 2. 3. Plaintiff is an individual and a resident of Dallas County, Texas. Defendant is an independent school district organized under the laws of the State

of Texas. Defendant may be served with process, including citation and a copy of this lawsuit, by serving Defendant's Superintendent of Schools, Mike Miles, 3700 Ross Avenue, Dallas, Texas 75204, or wherever Defendant may be found. Plaintiffs Original Petition Page 1

IV. JURISDICTION 4. The Court has jurisdiction over this action because the amount in controversy,

exclusive of interest and costs, is within the jurisdictional limits of the Court. V. VENUE 5. Venue is proper in Dallas County because (a) Defendant's principle place of

business is in Dallas County,1 and (b) all or a substantial part of the events and omissions giving rise to Plaintiffs claims occurred in Dallas County. VI. BACKGROUND FACTS 6. 7. 8. Plaintiff worked for DefendantfromOctober 2007 until June 2012. Plaintiff was a General Education teacher at Botello. Plaintiff first filed a Charge of Discrimination with the Texas Workforce

Commission on April 24, 2012, to report discrimination and retaliation 9. 10. by Angel McKoy (McKoy), Principal of F.G. Botello Elementary (Botello). Since March 2011, Plaintiff has been subjected to harassment, discrimination, and

retaliation based on his race/ethnicity (Hispanic/Latino), national origin (Puerto Rico), and gender (male), by Angel McKoy (African-American). 11. 12. In November 2010, McKoy became the principal at Botello. Shortly after McKoy joined Botello, the harassment and discrimination began.

1 2

TEX. CIV. PRAC. & REM. CODE

15.002(a)(2).

TEX. CIV. PRAC. & REM. CODE 15.002(a)(1).

Plaintiffs Original Petition

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13.

On February 15, 2011, Piamtiff was reprimanded by McKoy and placed on a

thirty-day probation for "inappropriate classroom management." 14. On March 21, 2011, he fried his first grievance pursuant to Defendant's policy

contesting the thirty-day probation. 15. 16. McKoy immediately began to retaliate against him. In the Spring of 2011, McKoy came to Plaintiffs classroom and reprimanded him

for speaking in Spanish to his bilingual students during a math class. 17. During the time his first grievance was pending, McKoy retaliated and

discriminated against Plaintiff by denying him access to his classroom for a span of two months, forcing him to conduct his class down the hallway and demoting him to an assistant position, reporting to an African-American colleague. 18. Further, McKoy rated him "Below Expectations" in one category of his PDAS

appraisal, which reduced his rating from "Exemplary" to "Proficient." 19. In May 2011, McKoy informed Plaintiff that he would no longer teach 4th grade

and moved an African-American teacher, who had just been hired the year before, into Plaintiffs 4th grade teaching position. 20. McKoy then assigned Plaintiff to a 31 grade teaching position for the upcoming

school year (2011-2012), where there were already three bilingual teachers. 21. with DISD. 22. When the grievance was decided in August 2011, Plaintiff filed a petition with the Plaintiff pursued his first grievance against McKoy to the highest level possible

Commissioner of Education in September 2011. 23. McKoy then continued her harassing, discriminatory, and retaliatory actions.

Plaintiffs Original Petition

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First, McKoy informed Plaintiff that because DISD had identified the need to

eliminate a bilingual teacher in 3 rd grade, he would be stripped of his position as a bilingual teacher and would be reassigned to a general education teaching position, resulting in the loss of income. 25. On December 16, 2011, Plaintiff filed his second grievance concerning McKoy's

decision to retaliate against him and strip Plaintiff of his position as bilingual teacher. 26. McKoy further discriminated and retaliated against Plaintiff by subjecting him to

more monitoring and observation than his African-American colleagues, and by placing him on an unwarranted Growth Plan. 27. Further, McKoy threatened Plaintiff with insubordination if he did not comply

with her directive to voluntarily submit to a written request to attend Region 10 professional development sessions. 28. Plaintiffs African-American colleagues were not required to attend the

professional development. 29. On December 16, 2011, while every teacher at Botello hosted and enjoyed the

farewell afternoon festivities with their respective homeroom sections, McKoy interrupted the celebration with Plaintiffs students and demanded his presence in her office. 30. During this meeting, McKoy gave Plaintiff a memorandum and demanded he

complete and return it by January 9, 2012. 31. None of Plaintiffs African-American colleagues in Grades 3-5 at Botello had

conversed with McKoy that day, before or later, in relation to such a request, nor had she requested such forms from them.

Plaintiffs Original Petition

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This was a total departure from standard procedure, intended only to harass

Plaintiff and retaliate against him for filing a grievance concerning McKoy's decision to strip his position as a bilingual teacher to a General Education teacher. 33. On January 17, 2012, McKoy issued Plaintiffs annual appraisal and said, "I am

not going to give you another contract to work as a teacher in this school." 34. The appraisal rated Plaintiff "below expectations" in numerous categories, which

was unwarranted, unsupported, and was done in retaliation for Plaintiff filing his second grievance against McKoy. 35. When Plaintiff refused to attend a meeting with McKoy regarding his appraisal

unless it was audio-recorded, due to his pending grievance and Petition, and per Dallas I.S.D. policy, McKoy had a police officer escort Plaintiff off campus. 36. McKoy then issued three Letters of Reprimand on January 27, 2012 and February

7, 2012, for "insubordination" in retaliation for Plaintiff attempting to enforce his right to have the meeting recorded pursuant to DISD policy. 37. On February 13, 2012, Plaintiff filed his third grievance complaining of McKoy's

evaluation, which was in retaliation for his second grievance. 38. On February 21, 2012, Plaintiff filed his fourth grievance stemming from

McKoy's refusal to allow Plaintiff to audio record the January 17, 2012, meeting with McKoy. 39. On March 1, 2012, Plaintiff filed a complaint with the Texas Education Agency

(TEA) informing them of violations by McKoy of district, state, and federal policies and laws. A copy of the March 1, 2012 letter to the TEA is attached hereto and incorporated by reference. 40. On March 20, 2012, the TEA responded to Plaintiffs complaint.

Plaintiffs Original Petition

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The TEA sent DISD a letter informing them that the allegations in Plaintiffs

March 1, 2012, letter "raise serious questions regarding the school administration of Botello Elementary," as well as requesting that DISD perform a review of the allegations in the March 1, 2012, letter, which was to be submitted to the TEA no later than April 20,2012. 42. 43. To date, Plaintiff is unaware of the results of the TEA mandated review by DISD. On March 27, 2012, McKoy recommended that Plaintiff be placed on

administrative leave for alleged "potential misconduct," just days after DISD received the TEA directive to conduct an investigation at Botello. 44. Plaintiff has never been informed of the reason he was placed on administrative

leave or the "potential misconduct" McKoy has accused him of. 45. On April 5, 2012, Plaintiff filed his fifth grievance complaining of retaliation by

DISD and McKoy after his March 1,2012, letter to the TEA. 46. Due to the administrative leave, Plaintiff has not been allowed to return to work

and was banned from campus, which prohibited him from attending a class where he was to present his thesis required for completion of his Master's Degree, paid for by DISD. 47. Finally, McKoy has discriminated and retaliated against Plaintiff by refusing to

give him and other Hispanic teachers opportunities to complete their Graduate Administrative Assignments as required for completion of their Master's Degrees. 48. McKoy knowingly and willfully retaliated against Plaintiff by disregarding the

Memorandum of Understanding signed by Plaintiff, a representative of the University of Texas, Austin Principalship Program, and McKoy. 49. Instead, McKoy has reserved all administrative assignments for African-

American teachers.

Plaintiffs Original Petition

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As a result, Plaintiff has had to go to other schools to complete that component of

his Master's Degree. 51. On June 4, 2012, Plaintiff was fired from DISD. VII. CONDITIONS PRECEDENT 52. 53. Plaintiff filed a Charge of Discrimination with the Texas Workforce Commission. The Charge was filed within 180 days after Plaintiff was notified his employment

would be terminated. 54. 55. The TWC issued Plaintiff a right to sue letter on July 30,2012. Plaintiff has timely exhausted all of his administrative remedies. VIII. CAUSES OF ACTION A. First Cause of ActionDiscriminatory DischargeRace 56. 57. Plaintiff incorporates each of the foregoing paragraphs. Defendant discriminated against Plaintiff because of Plaintiffs race and

terminated Plaintiffs employment because of Plaintiff s race. 58. B. Defendant's actions violated section 21.051 of the Texas Labor Code.

Second Cause of ActionDiscriminatory DischargeColor 59. 60. Plaintiff incorporates each of the foregoing paragraphs. Defendant discriminated against Plaintiff because of Plaintiffs color and

terminated Plaintiffs employment because of Plaintiff s color. 61. C. Defendant's actions violated section 21.051 of the Texas Labor Code.

Third Cause of ActionDiscriminatory DischargeNational Origin 62. Plaintiff incorporates each of the foregoing paragraphs.
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Plaintiffs Original Petition

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Defendant discriminated against Plaintiff because of Plaintiffs national origin,

and terminated Plaintiffs employment because of Plaintiff s national origin. 64. D. Defendant's actions violated section 21.051 of the Texas Labor Code.

Fourth Cause of ActionDiscriminatory DischargeSex 65. 66. Plaintiff incorporates each of the foregoing paragraphs. Defendant discriminated against Plaintiff because of Plaintiffs r sex and

terminated Plaintiffs employment because of Plaintiff s sex. 67. E. Defendant's actions violated section 21.051 of the Texas Labor Code.

Fifth Cause of ActionDiscriminatory HarassmentRace 68. 69. 70. Plaintiff incorporates each of the foregoing paragraphs. Defendant continually harassed Plaintiff because of Plaintiffs race. Defendant's actions violated section 21.051 of the Texas Labor Code.

F.

Sixth Cause of ActionDiscriminatory HarassmentColor 71. 72. 73. Plaintiff incorporates each of the foregoing paragraphs. Defendant continually harassed Plaintiff because of Plaintiff s color. Defendant's actions violated section 21.051 of the Texas Labor Code.

G.

Seventh Cause of ActionDiscriminatory HarassmentNational Origin 74. 75. 76. Plaintiff incorporates each of the foregoing paragraphs. Defendant continually harassed Plaintiff because of Plaintiff s national origin. Defendant's actions violated section 21.051 of the Texas Labor Code.

H.

Eighth Cause of ActionDiscriminatory HarassmentSex 77. 78. 79. Plainti ff incorporates each of the foregoing paragraphs. Defendant continually harassed Plaintiff because of Plaintiff s sex. Defendant's actions violated section 21.051 of the Texas Labor Code.
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Plaintiffs Original Petition

I.

Ninth Cause of ActionUnlawful Retaliation 80. 81. Plaintiff incorporates each of the foregoing paragraphs. Plaintiff engaged in protected activity as set forth in Texas Labor Code section

21.055. In response, Defendant retaliated against Plaintiff and ultimately terminated Plaintiffs employment. 82. J. Defendant's actions violated section 21.055 of the Texas Labor Code.

Tenth Cause of ActionTexas Whistleblower Act 83. 84. Plaintiff incorporates each of the foregoing paragraphs. Defendant's actions set forth above, as well as other facts that will be developed

through discovery, violate the Texas Whistleblower Act, Texas Government Code 554.001, et seq. 85. Plaintiff was terminated in retaliation for reporting a violation of law to an

appropriate law enforcement authority. 86. Plaintiff has exhausted all administrative prerequisites to the tiling of suit as

required by Texas Government Code 554.006. 87. Because Plaintiff was terminated, and otherwise retaliated against, within 90-days

of reporting a violation of law to an appropriate law enforcement authority, a rebuttable presumption exists that the Defendant is liable for retaliating against him under the Texas Whistleblower Act. IX. DAMAGES 88. Plaintiff incorporates each of the foregoing paragraphs.

Plaintiffs Original Petition

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89.

Defendant's actions violated the Texas Commission on Human Rights Act, which

entitles Plaintiff to recover from Defendant back pay, front pay, compensatory damages, as well as pre-judgment and post-judgment interest. 90. Because Defendant's actions were done with malice and/or reckless indifference

to Plaintiffs state-protected rights, Plaintiff is entitled to recover from Defendant punitive damages. 91. 92. Plaintiff seeks all damages available to him under the TCHRA. Defendant's actions also violated the Texas Whistleblower Act, which entitles

Plaintiff to recover from Defendant lost wages, lost benefits, compensatory damages, as well as pre-judgment and post-judgment interest. 93. Further, pursuant to Texas Government Code 554,008, Plaintiff seeks on behalf

of the State of Treasury a civil penalty not to exceed $15,000.00 against McKoy for taking adverse action against Plaintiff. X. ATTORNEYS' FEES AND COSTS 94. 95. 96. Plaintiff incorporates each of the foregoing paragraphs. Plaintiff retained the services of undersigned counsel to prosecute his/her claims. Pursuant to Texas Labor Code section 21.259, Plaintiff is entitled to recover a

reasonable attorneys' fee from Defendant, including reasonable expert fees. 97. Further, pursuant to Texas Government Code 554.003, Plaintiff is entitled to

recover attorneys' fees, costs and expenses.

Plaintiffs Original Petition

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XI. JURY DEMAND 98. Plaintiff demands a trial by jury. XII. CONCLUSION AND PRAYER 99. Plaintiff respectfully requests that Defendant be cited to appear and answer, and

that upon final trial of this matter, the Court enter judgment awarding Plaintiff: A. B. C. D. Back pay and front pay (including benefits) as determined by the jury; Compensatory damages as determined by the jury; Punitive damages as determined by the jury; A civil penalty not to exceed $15,000.00 against McKoy pursuant to Texas Government Code 554.008 for taking adverse action against Plaintiff; Reasonable attorneys' fees and expert fees; Courts costs; Pre-judgment and post-judgment interest at the rate set by law; and All legal or equitable relief this Court deems proper.

E. F. G. H.

Plaintiffs Original Petition

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Respectfully submitted,

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MATTHEW R. SCOTT

Texas Bar No. 00794613

JOE KENDALL

Texas Bar No. 11260700

JAMIE J. MCKEY

Texas Bar No. 24045262 THE KENDALL LAW GROUP 3232 McKinney Avenue, Suite 700 Dallas, Texas 75204 214-744-3000 / 214-744-3015 (Facsimile) ATTORNEYS FOR PLAINTIFF

Plaintiffs Original Petition

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