Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).
This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.
Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code. Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.
Fratus’ claims for declaratory relief centered only on past allegations. As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.” Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations. The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act. However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.
If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson. The attorney listed for Fratus is Laurence Watts. The attorneys listed for the City are Tyrone Cooper and Sharae Reed.