By Michelle Casady

Law360 (January 8, 2021, 11:42 PM EST ) A Houston state court judge on Friday threw out a private preschool's $1 million lawsuit alleging that a former manager violated a nondisclosure agreement by informing a parent she had tested positive for COVID-19. 

Harris County District Judge Tanya Garrison dismissed the lawsuit, brought by Language Immersion Private Preschool against former manager Sheila Riestra, under the Texas Citizens Participation Act, an anti-SLAPP law. The preschool had maintained that its firing of Riestra had nothing to do with her positive diagnosis and that she was fired in July for violating the agreement by "unilaterally" accessing a parent's contact information.

Riestra's attorney, Benjamin F. Foster of Benjamin Foster PLLC, told Law360 on Friday that Judge Garrison issued the ruling granting dismissal under the TCPA from the bench following a hearing that morning — a rarity in his experience. A copy of that ruling was unavailable as of Friday afternoon.

"She was very concerned about the idea that an NDA would prohibit this sort of activity," he said. "She kept asking where is the language in the NDA that was violated by [Riestra's] conveying her COVID diagnosis?"

Messages left with Language Immersion Private Preschool and its attorney were not returned Friday afternoon.

The school said that it fired Riestra for "inappropriate behavior, rude demeanor, insubordination, misappropriation of company funds and company assets, and a variety of other reasons," and that her alleged violation of the NDA that led to the lawsuit, sought up to $1 million in damages, happened after her firing.

But in a motion seeking to dismiss the claims, Riestra told the court in September that she had been found to have COVID-19 and "responsibly sought to notify those who she had come into contact with."

"After she notified her employer, she was terminated," the motion said. "After she notified a parent whose child she had been in contact with of her diagnosis, her former employer sued her for breach of contract asking for up to a million dollars in damages. This is egregious conduct, and exactly the type of behavior that the Texas Legislature sought to curb when it enacted the Texas Citizens Participation Act."

The school filed the breach of contract suit in July, claiming Riestra violated an NDA she signed when she started work there in March 2020 that prohibited her from using any proprietary information acquired during her employment for personal reasons, and also prohibited her from "attempting to persuade any students or customers from altering his or her relationship with plaintiff."

Riestra said her former employer was bringing this lawsuit to "mislead the parents of its students and downplay the ongoing COVID-19 risks." She accused the school of providing incomplete information to parents about COVID-19 tests within the school and said the lawsuit sought to "silence" her and any other employee who may be diagnosed from contradicting the school's "false narrative with the truth."

Language Immersion Private Preschool told the court Riestra was making a "weak attempt to take advantage of the current pandemic" by arguing the suit was brought in retaliation for her speech. The school argued that the TCPA does not apply to the case, and that if the court found otherwise, the commercial speech exception would apply.

Language Immersion Private Preschool is represented by Adam Ramji of Ramji Law Group PC.

Riestra is represented by Benjamin F. Foster of Benjamin Foster PLLC.

The case is Language Immersion Private Preschool v. Sheila Riestra, case number 2020-42817, in the 157th District Court of Harris County, Texas.

--Editing by Peter Rozovsky.

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