5TH CIRCUIT CT. OF APPEALS DENIES GANG OF $4 IMMUNITY IN JUAREZ LAWSUIT

By Juan Montoya
For the second time in a row, the New Orleans-based Fifth Court of Appeals has denied qualified immunity in the First-Amendment retaliation trial to two former and two current Brownsville Independent School District trustees in the firing of former BISD CFO Tony Juarez.
The district insurance attorneys had appealed a decision by Judge Andrew Hanen finding issues of fact that the four – Rick Zayas, Ruben Cortez, Antonio Aguilar and Joe Colunga – had received fair notice that their conduct violated the Juarez's rights. Further, the appeal court judges also reasserted its initial findings that the four defendants were personally liable even if no formal vote was taken because the total of their conduct and other evidence admitted into district court constituted adverse employment decisions that led to the non-renewal of the CFO's position.
The two former and two current trustees were appealing the appeal court's decision issued Sept. 30. The 14-page order issued last Friday outlines the ongoing litigation between Juarez and the BISD that started when Juarez, as chief financial officer, recommended to former BISD superintendent Hector Gonzales that the district award the Stop-Loss insurance contact to American Administration General (AAG) instead of to a company with local insurance mogul Johnny Cavazos.
"Juarez's recommendation created tension with members of the board," the judges wrote. "Aguilar, Cortez and Colunga accused Juarez of misinforming the board regarding the AAG recommendation, while Cortez and Colunga complained to Gonzales."
Shortly after the recommendation, Kent Whittenmore...initiated a grievance contending that Juarez had lied to the board. In his lawsuit, Juarez alleges that Whittenmore's grievance was filed at the behest of the four trustees, a "tactic aligned with BISD's practice of of 'setting one employee against another,' so as to afford a pretext when terminating employees.
In evidence admitted into his lawsuit at the district court, Juarez produced at least two secretly-made tape recordings of at least one BISD employee (Elizabeth Hatcher-Brito and a former board member (Otis Powers) indicating that the BISD engaged in bidding irregularities and that BISD employees routinely used the filing of grievances as a way of advancing their careers.
Juarez would later provide the recordings to the FBI and his attorneys informed the board that Juarez had gone to federal authorities with the evidence.
After the end of his contract, Juarez's employment with the district was not renewed and he sued in federal court. The appeals panel ruled that "the district court found a bona fide factual dispute regarding whether the board's actions caused Juarez's adverse employment decision...Specifically, the district court relied in part on an affidavit from former BISD trustee Pat Lehmann regarding the board's practices, the admissibility of which is not challenged, in determining that the board practices of evading guidelines.
The appeals panel's upholding of  Hanen's order finding sufficient fact exist to move the case forward and also upheld the denial of qualified immunity for the defendants. The case was remanded to the Hanen's court and plaintiff attorney Frank Perez said it would be between 25 to 30 days before the next step in the process.
"I don't think that the defendants will appeal this decision again, but we'll see what the district counsel wants to do," Perez said.