Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions

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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.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension

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Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

U.S. Supreme Court holds ADEA applies to governmental entities, regardless of the size (i.e. under 20 employees).

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Mount Lemmon Fire District v Guido, et al., 17-587 (U.S. November 6, 2018).

Firefighters sued the District asserting it violated the Age Discrimination in Employment Act.  The parties disputed the language of the ADEA. The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).  The firefighters asserted the “also means” language creates a separate category of employers regardless of size.

After a detailed analysis of the history and wording in the ADEA and comparing the language to Title VII, the Court held the ADEA applies to political subdivisions of the state regardless of the number of employees. The ordinary meaning of “also means” is additive rather than clarifying. Furthermore, the text of §630(b) pairs States and their political subdivisions with agents, a discrete category that, beyond doubt, carries no numerical limitation. The Court acknowledged reading the ADEA as written to apply to states and political subdivisions regardless of size gives the ADEA a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ.

If you would like to read this opinion click here. GINSBURG, J., delivered the opinion of the Court, in which all other justices joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

U.S. Supreme Court holds EEOC charge filing process is mandatory, but not jurisdictional

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Fort Bend County v Davis, 18-525, (U.S. June 3, 2019).

Lois M. Davis filed a charge against her employer, petitioner Fort Bend County. Davis alleged sexual harassment and retaliation for reporting the harassment. While her EEOC charge was pending, Fort Bend fired Davis because she failed to show up for work on a Sunday and went to a church event instead. Davis attempted to supplement her EEOC charge by handwriting “religion” on a form called an “intake questionnaire,” but she did not amend the formal charge document. Upon receiving a right-to-sue letter, Davis commenced suit in Federal District Court, alleging discrimination on account of religion and retaliation for reporting sexual harassment.  After several years of litigation, Fort Bend raised the issue of the trial court’s lack of jurisdiction over the religious discrimination claim because she did not properly file a charge with the EEOC. The trial court agreed and dismissed the claim. The 5th Circuit Court of Appeals reversed and the County appealed.

The U.S. Supreme Court held the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). A claim-processing rule requiring parties to take certain procedural steps in, or prior to, litigation, may be mandatory in the sense that a court must enforce the rule if timely raised. But not all mandatory rules are jurisdictional. Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule.

GINSBURG, J., delivered the opinion for a unanimous Court. If you would like to read this opinion click here.

DA allegedly terminated for refusing to withhold exculpatory evidence cannot bring Sabine Pilot cause of action

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Hillman v Nueces County, et al., 17-0588 (Tex. March 15, 2019)

This is an employment related suit where the Texas Supreme Court held the County was immune from a suit brought by a former assistant district attorney

Hillman, a former assistant district attorney, filed suit alleging that the County wrongfully terminated his employment because he allegedly refused his supervisor’s order to withhold exculpatory evidence from a criminal defendant charged with intoxicated assault. Specifically, a witness statement noting the Defendant was not intoxicated at the time of the assault. Hillman was terminated for failing to follow instructions, presumably related to the disclosure. Hillman sued.  The trial court dismissed the case and the court of appeals affirmed. Hillman filed the petition for review.

Hillman essentially brings a Sabine Pilot cause of action, which allows suit against an employer for terminating an employee who refused to perform an illegal act. However, historically, sovereign/governmental immunity is not waived for a Sabine Pilot cause of action. The Court declined to abrogate or clarify the lack of waiver. Alternatively, Hillman asserted immunity was waived under the Michael Morton Act (2017 legislative changes to Tex. Code Crim. Proc. § 39.14(h) on criminal discovery and disclosure). However, the Act does not address governmental immunity. It serves obvious purposes separate and apart from any wrongful-termination issues. Finally, Hillman requested the Court abrogate the immunity doctrine. The Court held that having existed for more than six hundred years, the governmental-immunity doctrine is “an established principle of jurisprudence in all civilized nations.” Although courts defer to the legislature to waive immunity, the judicial branch retains the authority and responsibility to determine whether immunity exists in the first place, and to define its scope. To hold that governmental immunity does not apply to Sabine Pilot claims, the Court would have to trespass across the boundary between defining immunity’s scope (a judicial task) and waiving it (a legislative task).  It declined to do so.

The concurring opinion agreed with the majority opinion, but Justice Guzman wrote separately to emphasize, to the Legislature, more is required if the purposes behind the Michael Morton Act are to have a full impact. But she agreed such additional actions must come from the Legislature.

If you would like to read this opinion click here.  Opinion by Justice Boyd.  Concurring opinion (found here) by Justice Guzman, joined by Justices Lehrmann and Devine.

City Manager’s change to policy manual is not a unilateral employment contract says Texas Supreme Court

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City of Denton v Brian Rushing, et al, 17-0336 (Tex. March 15, 2019)

This is an interlocutory appeal from an order denying a plea to the jurisdiction in a breach of contract case. The Texas Supreme Court reversed the denial and dismissed the case.

Rushing, Patterson and Marshall were employees of the Denton Utilities Department. All three worked uncompensated on-call shifts between 2011 and 2015. Policy 106.06 of the City’s Policies and Procedures Manual defines the rights and responsibilities of an on-call employee.  On-call time was listed as uncompensated.  In 2013, the City Manager modified Policy 106.06 and defined an explicit pay schedule for on-call time. These amendments were not approved by the City Council.  Rushing and the others sued the City, asserting Policy 106.06 was a unilateral contract and that they were entitled to payment of on-call time dating back to 2011.  The Court of Appeals held the City Manager’s policy adjustments equated to a unilateral contract, and immunity is waived under §271.152. The Texas Supreme Court granted review.

The Court first held interpreting Policy 106.06 to be a unilateral contract regarding Rushing’s employment conflicts with the disclaimer in the manual that nothing in the manual “ in any way” constitutes terms of a contract of employment.  Further, Policy 106.06 is a provision of a policies and procedures manual and not an ordinance adoption of a contract. Although city ordinances may create enforceable contracts, the Court held it has not previously determined that a municipality’s policies and procedures manual can create an enforceable contract. The Court reversed and rendered a decision for the City.

If you would like to read this opinion, click here. Opinion by Justice Devine.

Texas Supreme Court holds pension board’s amendment to deferred retirement option account was not unconstitutional

Eddington v Dallas Police and Fire Penson Systems, et al.,   17-0058, (Tex. March 8, 2019)

This is a statutory construction case where the Texas Supreme Court held the City of Dallas’s amendment to its pension plan did not violate the Texas Constitution.

Article XVI, Section 66 of the Texas Constitution prohibits the reduction of benefits in certain local public retirement plans.  The Dallas Police and Fire Pension System (“the System”) amended its pension plan to reduce the interest rate paid on Deferred Retirement Option Plan (“DROP”) accounts. After a member is eligible for retirement, the member can choose to continue working and, when leaving active service, draw a higher monthly annuity.  However, a member’s annuity is fixed at retirement age and does not increase with continued service.  While a member continues to work, the System created the DROP option allowing monthly credits to his DROP account, accessible upon leaving active service. In other words, members working past retirement eligibility can choose between a higher annuity on leaving active service, or a lower annuity plus a forced savings account.  The petitioners sued, asserting the amendment to the changed interest rate was unconstitutional. The trial court and appellate court denied petitioners relief.

After analyzing the text of Section 66 and the uncontested facts asserted, the Court held that reducing the interest rate that as-yet-unearned DROP payments will bear does not affect a benefit accrued or granted to employees. Interest already credited to DROP accounts is not impacted. The reduction in DROP account interest is prospective only. Section 66(d) protects “accrued” benefits only. Accrued benefits are those that have been earned by service, not those that may be earned by future service.

Finally, the Court held the trial court did not err in excluding the legislative history evidence submitted and the fiscal notes of the Legislative Budget Board.  The Court reasoned that while the judiciary can consider such information, those are construction aides. Courts should rely heavily on the literal text. The Court determined the text of Section 66 is plain as it affects the parties, so no error was made by the trial court.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the Court. Justice Guzman and Justice Brown not sitting. The docket page with attorney information can be found here.

School District substantially complied with TOMA even though it had a glitch with website postings for five months said Amarillo Court of Appeals

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, 07-17-00189-CV (Tex. App. – Amarillo, January 9, 2019).

This is a Texas Open Meetings Act (“TOMA”) case where the Amarillo Court of Appeals affirmed a take-nothing judgment in favor of the Pampa Independent School District (“PISD”).

PISD hired Terrell as a teacher on a probationary basis. At the end of the school year the PISD board voted to terminate her. Terrell brought suit asserting PISD committed TOMA violations in twenty-one separate meetings and demanded that all actions taken during those meetings (including her termination) are void. Physical notice for each of the twenty-two challenged meetings was posted to the inside of an external glass door of the administrative building for PISD in a manner in which the public could view them at any hour. These physical notices identified the date, time, and place of each respective meeting. Meeting notices were also posted to PISD’s website…most of the time. Due to an issue arising from a transfer to a new website for PISD, notice of meetings were not posted on PISD’s website from five months.   PISD was unaware of the website glitch, but upon learning of it, the board took corrective action. PISD also only posted notices on the outside bulletin board and not the one inside its administrative offices.   The trial court issued a take-nothing judgment against the Plaintiffs and they appealed.

The panel opinion noted the Texas Supreme Court has indicated that substantial compliance with TOMA’s notice requirements is sufficient. To determine whether a governmental entity substantially complied with the requirements of TOMA, courts look to whether the notice fairly identifies the meeting and “is sufficiently descriptive to alert a reader that a particular subject will be addressed.”  Courts are not to determine whether the entity could have posted a better notice in a better manner; rather they are tasked with determining whether the notice was sufficient to notify the public of the specific meeting and its topics. Physically posting the agendas in a glass case outside the building for all to see at any time was sufficient for substantial compliance under TOMA.  PISD provided sufficient evidence to constitute a good faith effort to post on the website, explained how the glitch occurred and what was done to fix it.  Appellants next argued that PISD violated TOMA by including only a partial description of the place of the meetings, such as “Pampa High School,” without identifying the meeting room, full street address, or name of the city. TOMA requires that the notice identify the “place” of the meeting. The panel held that while it would be more helpful if the notices had identified the specific room, it deem the school title descriptions were sufficiently specific to alert the public of the location of the school board meetings. As a result, the take-nothing judgment was affirmed.

If you would like to read this opinion click here. Panel consists of Justice Campbell, Justice Pirtle and Justice Parker. Opinion by Justice Parker. Thanedar and Terrell were pro se.  Attorneys listed for the  PISD are Jennie C. Knapp  and W. Wade Arnold.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Order granted County’s plea to the jurisdiction reversed by 13th Court of Appeals in Whistleblower Act case

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Leticia Perez v. Cameron County and Juan A. Gonzalez 13-17-00581-CV (Tex. App. – Corpus Christi & Edinburg, November 15, 2018).

This is a Texas Whistleblower Act case where the Thirteenth Court of Appeals reversed and remanded the order granting the County’s plea to the jurisdiction.

Perez worked as a deputy clerk in the Cameron County Clerk’s Office (“CCCO”). Perez asserts she had witnessed the elected clerk, Rivera, give kickbacks to CCCO vendors. She reported her concerns to the district attorney’s office and the FBI. Later, CCCO was audited for the problems which were the subject of Perez’s report to the district attorney and the FBI. Rivera allegedly “began a campaign of retaliation” against Perez which she believed was due to the report and her refusal to support Rivera’s successor. Perez filed a grievance against Rivera, who later terminated her. Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. She also brought suit for negligence against the county assistant attorney who advised her to file a grievance.  The County filed a plea to the jurisdiction, which was granted. Perez appealed.

First, Perez did not file a grievance after her termination, but the County’s grievance procedure was applicable only to active employees, not former employees. Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the procedure is not part of the required exhaustion of administrative remedies. The court held a terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees. Perez’s second point of error essentially stated that she properly plead a good faith reporting. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding “improper and illegal contracts” to CCCO’s vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in “kickbacks and contract rigging.”  Such meets the required elements for bribery and abuse of official capacity, which are both penal provisions. The court held Perez sufficiently alleged a good faith report of a violation of the law. Finally, Perez argued that the trial court accidentally dismissed her claims against Gonzalez (the attorney) as part of its ruling on the County’s plea to the jurisdiction. After granting the plea as to the County, the order then provided, “all requested relief not be granted herein is hereby expressly DENIED.” However, this unambiguous language does not finally dispose of Perez’s claims against Gonzalez. Because the order did not expressly dispose of Perez’s claims against Gonzalez or include a clear and unequivocal finality phrase, it did not dismiss those claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Contreras and Justice Benavides. The attorney listed for the County is Juan A. Gonzalez. The attorney listed for Perez is Javier Pena.

 

El Paso Court of Appeals holds limitations defense in Whistleblower Act case could not be raised in a plea to the jurisdiction

Sims v. City of Madisonville, 08-15-00113-CV, 2018 WL 4659572, at *1 (Tex. App.—El Paso Sept. 28, 2018, no pet. h.)

This case involves a Whistleblower Act claim against the City of Madisonville where the El Paso Court of Appeals reversed the granting of the City’s plea to the jurisdiction.

Sims was a police officer with the Madisonville Police Department from November 2004 until he was terminated on July 27, 2012. Sometime prior to termination Sims reported to Madisonville Chief of Police Charles May that he had learned Sims’ supervising officer, Sergeant Jeff Covington, and another officer were conspiring to plant narcotics in the vehicle of Sgt. Covington’s ex-wife. (Covington was in the middle of a custody battle with the ex-wife at the time.) Chief May did not utilize that information. Sims met with Chief May and Covington one day before his termination. Before the meeting, Sims accessed computer files through his own computer and discovered evidence against Covington. Sims claimed Chief May was surprised by Sims’ remote access of the computer files and concluded that Sims had violated the Department’s computer-use policies. Sims was terminated. Chief May asked the Texas Rangers to investigate Sims’ conduct. In August 2012, a grand jury indicted Sims for breaching computer security under the penal code, but the charge was later dismissed.  Sims challenged his F-5 “dishonorable discharge” designation at the State Office of Administrative Hearings ( “SOAH”). The SOAH hearing examiner found in favor of Sims, citing that the elements for a dishonorable discharge had not been met. Sims then filed suit under the Texas Whistleblower’s Act, 90 days after the SOAH hearing. Madisonville asserted that Sims’ two-year wait in filing his suit made it untimely. The trial court granted the plea to the jurisdiction and Sims appealed.

Sims asserted that “non-compliance with the Whistleblower Act’s limitations provisions is not jurisdictional, and that an affirmative defense of limitations cannot be raised in a plea to the jurisdiction but must be proven in summary judgment proceedings.” The court agreed. Madisonville’s plea did not address any specific jurisdictional facts of Sims’ case regarding waiver of sovereign immunity.  It merely asserted the claims were untimely and argued limitations was jurisdictional. The court recognized that under certain statutes, a limitations bar could be jurisdictional, especially if the timing were indispensable to a jurisdictional question. However, that is not the contention raised or presented to the trial court by Madisonville. The court held the statute of limitations defense can be raised as an affirmative defense but not in a plea to the jurisdiction in this case.  The order granting the plea was reversed and remanded.

If you would like to read this opinion, click here. Panel consists of Justice McClure, Justice Rodriguez and Justice Hughes. Opinion by McClure. The docket page with attorney information can be found here.

5th Court of Appeals hold “City Attorney’s Office” is not a jural entity which can be sued

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Thompson v Dallas City Attorney’s Office, Cause 05-17-00847-CV (Tex. App. — Dallas, October 18, 2018)

This is an employment dispute, but the main issues center on litigation procedures where the Dallas Court of Appeals affirmed the granting of the City’s motion for summary judgment. 

Thompson is a former employee of the City.  She filed suit against the “Dallas City Attorney’s Office” for, apparently, some form of discrimination. The opinion does not focus on the underlying claims. Thompson was given an opportunity to replead and properly identify the City as the employer. Thompson failed to correct the misnomer. The court granted the City’s MSJ. Thompson filed a motion for new trial, which was denied. She filed motions to reinstate and to modify the judgment, which were denied. After judgement became final, she appealed. 

The City filed a supplemental answer, verifying a defect in the parties as the City Attorney’s Office is not a jural entity which can be sued on its own. It also asserted the claims were barred by the statute of limitations. The court agreed Thompson’s attorney make an understandable mistake in responding to the motion for summary judgment late. However, Thompson did not have a meritorious argument as the city attorney department is not a jural entity.  While a misnomer, such as naming the department instead of the city, is still effective to toll the statute of limitations, it nonetheless only tolls if the Plaintiff eventually names the proper entity as a party. Here, Thompson never added the City as the proper employer for suit. As a result, the trial court properly denied the motion for new trial and properly granted the MSJ. 

If you would like to read this opinion click here. Panel consists of Justices Meyers, Brown and Evans. Opinion by Justice Meyers. 

Ex-employee failed to file supplemental EEOC charge, so failed to exhaust administrative remedies says Eastland Court of Appeals

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Christopher Wernert v. City of Dublin, 11-16-00104-CV (Tex. App. – Eastland, August 30, 2018).

This is an employment discrimination case were the Eastland Court of Appeals affirmed the granting of the City’s dispositive motion.

Wernert was a police officer for the City who suffered a serious knee injury on the job when he slipped and fell on an icy street while directing traffic. The injuries were listed as permanent preventing him from continuing patrol duties. However, Wernert was also an investigator and continued to perform those duties for two years. Then, the Chief of Police added patrol duties back into his job requirements. Wernert filed an EEOC/TWC charge.  Wernert was then required to exhaust his leave but was later terminated by a new Chief when he could not return to work, including patrol. Wernert filed suit but alleged acts which occurred after his EEOC charge was filed. The City filed a summary judgment motion, asserting a lack of jurisdiction for failing to exhaust administrative remedies. The trial court granted the motion and Wernert appealed.

Each discrete act of discrimination requires administrative remedy compliance. Discrete discriminatory acts are not actionable if time-barred, and each discrete discriminatory act starts a new clock for filing charges alleging that act.  The court analyzed the current state and federal law and whether Wernert was required to file a supplement charge in order to preserve acts which occurred after the first charge.  The only adverse actions taken prior to the first charge was a change in job duties, while the forced leave and termination occurred after his charge.  Adopting the reasoning from the U.S. Fifth Circuit expressed in Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x 269, 273 (5th Cir. 2013), the Eastland court held Wernert’s claims are precluded because he did not file an administrative charge for these discrete acts that occurred after his previous EEOC charge. Wernert was required to pursue administrative relief for each of these discrete acts even though they were related to the factual basis of his previous charge. And since the only acts for which he sought damages were the post-charge acts, the trial court properly granted the summary judgment.

If you would like to read this opinion click here. Panel consists of Justice Willson, Justice Bailey and Senior Justice Wright, Retired. Memorandum Opinion by Justice Bailey.  The attorney listed for the City is James T. Jeffrey, Jr.  The attorneys listed for Wernert are Robert J. Wiley and Eric P. Dama.

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals

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Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

Employee failed to establish valid comparators in equal protection/employment discrimination case, so individuals entitled to qualified immunity says 5th Circuit

Mitchell v. Mills No. 17-40737 (5th Cir. July 13, 2018)

This is an equal protection in employment case where the 5th Circuit held the individual defendant mayors were entitled to qualified immunity.

Mills and Chartier were both mayors at different times during Mitchell’s employment by the City. Mitchell is an African-American man in the Public Works Department (“PWD”). Mitchell alleged the defendants paid him less than two comparable white coworkers.  Mitchell’s comparators are Davlin, who is a Street Superintendent and Heard, who was Davlin’s predecessor. Both comparators shared some overlapping duties with Mitchell, but they also had additional duties and skills including experience in operating street-related heavy equipment, including a motor grader. Mills and Chartier moved for summary judgment on the basis of qualified immunity, which the trial court denied. They filed this interlocutory appeal.

Mitchell bears the burden to overcome qualified immunity. Mitchell may not rest on mere allegations or unsubstantiated assertions but must point to specific evidence in the record demonstrating a material fact issue.  In order to establish a violation of the Equal Protection Clause in the employment context, a plaintiff must prove a racially discriminatory purpose or motive.  As part of his prima facie case of wage discrimination, Mitchell “must show that he was a member of a protected class and that he was paid less than a non-member for work requiring substantially the same responsibility.”  His circumstances must be “nearly identical” to those of a better paid employee. Given the undisputed facts, Davlin and Heard are not nearly identical comparators. They worked in the street department and Mitchell in the water department. Streets required specialized skills which were not required for Mitchell’s job. It is undisputed that Mitchell possessed none of these skills and that such skills and responsibilities were not required for his position. In sum, Mitchell failed to carry his burden to overcome the defendants’ claim of qualified immunity. The summary judgment should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices JOLLY, SOUTHWICK, and WILLETT. Opinion by Justice Jolly. Attorney listed for Defendants is Darren Keith Coleman.  The attorney listed for Mitchell is Dorian Vandenberg-Rodes.