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noting that "qualified immunity applies to federal causes of action, while `official immunity' . . . applies to state-law cause of action."
Summary of this case from Castaneda v. FloresOpinion
Civil No: SA-05-CA-106-XR.
October 17, 2005
ORDER
On this date, the Court considered Defendant's Motion to Dismiss in the above numbered and styled case. After careful consideration, the Court will deny the Motion to Dismiss in part and grant it in part (docket no. 8).
I. Background
Plaintiff was formerly employed by Defendant San Antonio Housing Authority ("SAHA") as a Housing Quality Specialist. His duties included negotiating rent with private owners, providing customer service, and inspecting rental properties to ensure compliance with SAHA guidelines. Plaintiff's mother was living in an apartment building operating under SAHA's authority. Plaintiff reported deficiencies in that apartment to his superiors, including Defendant John Farley ("Farley"). Plaintiff also reported policy and safety violations by SAHA to the Human Resources Department. Plaintiff claims that, soon after these reports, Farley and Defendant Debra Flach ("Flach") harassed and humiliated him to such an extent that he took medical leave under the Family Medical Leave Act (FMLA). Upon returning to work, Plaintiff claims that Flach and Farley continued to harass and humiliate him to the extent that the work environment became so hostile and unbearable that he was forced to resign, resulting in a constructive termination.
Plaintiff sues Flach and Farley, in both their official and individual capacities, as well as SAHA (collectively, the "Defendants"), asserting causes of action under 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA"), the Texas Whistleblower Act, Texas Government Code § 554.001, and the Texas Workers' Health and Safety Act, Texas Labor Code § 411.082. Plaintiff also filed common-law claims for intentional infliction of emotional distress and negligent hiring, training, and supervision.
Defendants now move to dismiss all claims under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Defendants assert that Eleventh Amendment grants immunity to SAHA as well as Farley and Flach in their official capacities from all federal law claims under the Eleventh Amendment. Defendants also assert the defense of governmental immunity for all state and common-law claims against SAHA and Farley and Flach in their official capacities. In defense of federal and state claims against Farley and Flach in their individual capacities, Defendants assert that Farley and Flach are entitled to qualified immunity as well as absolute immunity under the Texas Tort Claims Act.
Defendants also move to dismiss claims under the Family Medical Leave Act. However, Plaintiff has not asserted any cause of action under the FMLA.
II. Standard of Review
When a party files a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) (failure to state a claim upon which relief can be granted) and 12(b)(1) (lack of subject matter jurisdiction), the Court may not dismiss the claims "unless it appears certain that the plaintiff cannot prove any set of facts in support of [his] claim which would entitle [him] to relief." See Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In considering the motion under 12(b)(6), the Court may not "go outside the pleadings and must accept all well-pleaded facts as true, viewing those facts most favorably to the plaintiff." Scanlon v. Texas AM Univ., 343 F.3d 533, 536 (5th Cir. 2003). In considering the motion under 12(b)(1), the Court may find lack of subject matter jurisdiction "on three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). When considering a Rule 12(b)(1) motion filed in conjunction with other motions under Rule 12, the Court will consider the jurisdictional attack before addressing attacks on the merits. Ramming v. United States, 281 F.3d 158,161 (5th Cir. 2001).III. Analysis
Section 1983 grants a cause of action to an individual against any person who deprives the individual of "any laws, privileges or immunities secured by the Constitution and laws" under the color of state law. 42 U.S.C. § 1983. Under the Americans with Disabilities Act, an employer who discriminates against a disabled person is liable for damages in a civil suit. 42 U.S.C. § 12117. Under the Texas Workers' Health and Safety Act, an employer may not retaliate against an employee who reports a violation of occupational health and safety laws. TEX. LABOR CODE § 411.082. The Texas Whistleblower Act provides a private cause of action against a government entity that takes an adverse personnel action against an "employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV'T CODE §§ 554.002, 554.003.
A. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST., amend. XI. This bar against suits in federal court extends to suits brought by "citizens of a state against their own state or state agency or department." Clark v. Tarrant County, 798 F.2d 736, 743 (5th Cir. 1986). Because Eleventh Amendment immunity speaks to the jurisdiction of the Court, it shall be addressed before any attacks on the merits. Ramming, 281 F.3d at 161.
Whether an entity is an arm of the state entitled to Eleventh Amendment immunity depends on the particular entity's powers and characteristics under state law. Clark, 798 F.2d at 744. The Fifth Circuit makes the determination based on six factors: (1) whether state statutes and case law view the entity as an "arm of the state;" (2) the source of the entity's funding; (3) the degree of the entity's local autonomy; (4) whether the entity is primarily concerned with local problems as opposed to statewide issues; (5) whether the entity is authorized to sue and be sued in its own name; and (6) whether the entity is entitled to hold and use property. United States ex rel. Barron v. Deloitte Touche, LLP, 381 F.3d 438, 440 (5th Cir. 2004). The purpose of the six-factor analysis is to determine "if the state is the real, substantial party in interest." Pendergrass v. The Greater New Orleans Expressway Comm'n, 144 F.3d 342, 344 (5th Cir. 1998).
In the case of a housing authority such as SAHA, the third factor, the entity's degree of local autonomy, is dispositive. State law delegates the creation of municipal housing authorities to the municipalities. TEX. LOC. GOV'T CODE § 392.011. The governing body of each municipality is given the discretion to determine whether a municipal housing authority is needed. Id. § 392.011(d). Municipal housing authorities are governed by five commissioners appointed by the presiding officer of the municipality they serve. Id. § 392.031(a). All powers of a municipal housing authority are vested in the authority's commissioners and may be delegated to agents or employees as the authority "considers proper." Id. § 392.051(b), (c). Because a city's housing authority is "comprised wholly of members appointed by the mayor," it is "an arm of local government, not an instrument of the state." De la O v. Housing Auth. of the City of El Paso, 417 F.3d 495, 499 (5th Cir. 2005).
Because a housing authority is an arm of the local government and not a state entity entitled to sovereign immunity, Defendant SAHA's motion to dismiss Plaintiff's federal claims for lack of jurisdiction based on Eleventh Amendment immunity is DENIED. Because Eleventh Amendment immunity is not available to SAHA, it is also not available to Farley and Flach in their official capacities. Accordingly, Defendants' motion to dismiss federal claims against Farley and Flach in their official capacities based on Eleventh Amendment immunity is DENIED.
B. Qualified Immunity
Plaintiff has filed claims against Flach and Farley in their individual capacities under Section 1983 for violations of his First Amendment right to free speech and his right to due process. Defendants move to dismiss these claims based on Plaintiff's failure to defeat Flach and Farley's affirmative defense of qualified immunity through adequate pleadings.
A plaintiff is not required to "fully anticipate the [qualified immunity] defense in his complaint at the risk of dismissal under Rule 12." Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995). However, under Federal Rule of Civil Procedure 8(a)(2), the plaintiff must plead a cause of action consisting of a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). This statement must rest "on more than conclusions alone." Schultea, 47 F.3d at 1433; see also Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2004) ("Heightened pleading in qualified immunity cases requires that plaintiffs rest their complaint on more than conclusions alone and plead their case with precision and factual specificity."). The district courts are equipped with "an array of procedures that will carry the load as far as pleadings can." Schultea, 47 F.3d at 1433. In response to a defense of qualified immunity, "the court may, in its discretion, insist that a plaintiff file a [Rule 7] reply tailored to an answer pleading the defense of qualified immunity." Id. at 1433-34; see also Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). Defeating a defendant's defense under "the immunity doctrine will ordinarily require such a reply," and is properly ordered "when greater detail might assist." Schultea, 47 F.3d at 1434.
To determine whether an official is entitled to qualified immunity, a court must first determine whether the plaintiff's allegations make out a violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If such a right is shown, the court must determine if the right was clearly established at the time of the events in question. Id. Even if the official's conduct violated a clearly established constitutional right, the official is nonetheless entitled to qualified immunity if his conduct was objectively reasonable. See Lukan v. N. Forest Indep. Sch. Dist., 183 F.3d 342, 346 (5th Cir. 1999).
Whether a right is clearly established depends on "the specific context of the case, not as a broad general proposition." Id. In the context of the specific situation "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)) (internal quotations omitted). In light of "pre-existing law the unlawfulness must be apparent." Id. (internal quotations omitted). The relevant inquiry is whether it would be clear to a reasonable official that his actions were unlawful in the particular situation. Saucier, 533 U.S. at 201 (citing Wilson, 526 U.S. at 615).
Plaintiff claims that Defendants deprived him of his constitutional right to free speech under the First Amendment and his right to due process under the Fifth and Fourteenth Amendments. To prove a violation of the First Amendment in the context of termination from public employment, a plaintiff must show that (1) he suffered an adverse employment action, (2) his speech involved a matter of public concern, (3) his interest in commenting on matters of public concern outweighed the government employer's interest in promoting efficiency, and (4) his speech motivated the adverse employment action. Harris v. Victoria Ind. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999). A plaintiff claiming that the defendant deprived him of rights under the First Amendment "is required to be specific as to when [the] statement or statements were made, to whom they were made, whether they were oral or written, and the content of those statements." Foley v. Univ. of Houston Sys., 335 F.3d 333, 343 (5th Cir. 2003).
A plaintiff can establish deprivation of due process rights by showing that he was denied either substantive or procedural due process. A substantive due process claim in the public employment context requires the plaintiff to show: (1) that the employee "had a property interest/right in his employment;" and (2) that the "employer's termination of that interest was arbitrary or capricious." Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993). A plaintiff sets forth a violation of procedural due process by alleging facts that show that: (1) he had a protected property or liberty interest in his employment; and (2) he was denied "some kind of hearing" before that interest was terminated. Rathjen v. Litchfield, 878 F.2d 836, 838 (5th Cir. 1989) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)).
A property interest in employment may be created by statute or by contract. The existence of a property interest in employment is determined by state law. Rathjen, 878 F.2d at 838; Bishop, 426 U.S. at 344. Under Texas law, all employment is terminable at will "[a]bsent a specific contract to the contrary." Moulton; 991 F.2d at 230. To establish a property right in employment, a public employee must show that his employment contract fit this exception and gave him a "legitimate right to continued employment." Conner v. Lavaca Hosp. Dist., 267 F.3d 426, 437 (5th Cir. 2001).
Plaintiff's Section 1983 claims are based on allegations that Plaintiff was subjected to "humiliations and harassments directed against him by his supervisors and was constructively terminated." (Original Compl. at 8.) Constructive discharge occurs when an employer deliberately makes working conditions so intolerable that a "reasonable person in the plaintiff's shoes would have felt compelled to resign." Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005). Generally, a constructive discharge subjects the employer to the same liability as a formal discharge. Id. (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990)). A range of employment actions, including constructive discharge, supports a Section 1983 claim premised on violations of the First Amendment. Pierce v. Tex. Dep't of Criminal Justice, 37 F.3d 1146, 1149 (5th Cir. 1994). However, a constructive discharge only violates a plaintiff's procedural due process rights if it is a forced discharge designed to avoid pretermination procedures. Rutland v. Pepper, 404 F.3d 921, 923 (5th Cir. 2005). Constructive discharge supports a procedural due process claim "only in the narrow range of cases in which an employee confronts an either/or termination proposition, and it can be said that the state agency's motive is to avoid providing the pretermination remedy." Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981 (5th Cir. 1986).
With regard to Plaintiff's Section 1983 claims, Plaintiff's allegations consist solely of the conclusory statements that Defendants violated Section 1983 "by depriving PLAINTIFF of his due process rights," and "by depriving PLAINTIFF of his rights of expression." (Pl.'s Original Compl. at 9). Plaintiff fails to allege facts — such as an employment contract that was not terminable at will giving rise to a property interest, or retaliation for speech that was of public concern — that would support the conclusion that Farley and Flach violated his constitutional rights. Plaintiff also fails to allege any facts that show that Farley's and Flach's conduct was not objectively reasonable.
Because Defendants have asserted the affirmative defense of qualified immunity to Plaintiff's Section 1983 claims, it is within the Court's discretion to order Plaintiff to submit a reply under Federal Rule of Civil Procedure 7. Schultea, 47 F.3d at 1433-34. Accordingly, Plaintiff is ordered to submit a Rule 7 reply that is tailored to address Defendants' assertion of qualified immunity. This reply must allege sufficient specific facts to show that: (1) Farley and Flach violated Plaintiff's constitutional rights; (2) these rights were clearly established at the time; and (3) Farley's and Flach's conduct was not objectively reasonable. Lukan, 183 F.3d at 346. To establish that Farley and Flach violated Plaintiff's constitutional rights, Plaintiff is admonished that conclusory statements that Defendants violated his rights, such as those in Paragraph 24 of the Complaint, are insufficient. Rather, Plaintiff must plead sufficient facts to establish each of the elements of his section 1983 claims as outlined above. After the Rule 7 reply is filed, Defendants Flach and Farley may re-assert their motion to dismiss based on qualified immunity. At this time, the motion to dismiss Plaintiff's section 1983 claims against them based on qualified immunity is denied without prejudice.
C. ADA Claims Against Farley and Flach in Their Individual Capacities
District courts within the Fifth Circuit have consistently held that individual defendants cannot be held liable for damages under the ADA. Jenkins v. Bd. of Educ., 937 F. Supp. 608, 612 (S.D. Tex. 1996) (finding that the plaintiff suing school district officials under the ADA in their individual capacities failed to state a claim upon which relief could be granted); Miller v. Giglio Distrib. Co., 899 F. Supp. 318, 319 (E.D. Tex. 1995) (finding that no relief from individual defendants is available under the ADA); see also Rodriguez v. Corvel Corp., 2001 U.S. Dist. LEXIS 25714 at *15-16 (W.D. Tex. Feb. 26, 2001) (stating that the same rationale that denies individual liability under Title VII also precludes individual liability under the ADA).
Plaintiff does not object to dismissal of his ADA claims against Farley and Flach in their individual capacities. (Resp. at 11). Accordingly, Farley and Flach's motion to dismiss the ADA claims against them in their individual capacities is GRANTED, and Plaintiff's claims under the ADA against Farley and Flach in their individual capacities are DISMISSED. Defendants' motion to dismiss the ADA claim based on qualified immunity is dismissed as moot. Plaintiff's ADA claims against SAHA and Farley and Flach in their official capacities remains pending.
D. Governmental Immunity to State Tort Claims 1. Intentional Infliction of Emotional Distress and Negligence claims
Plaintiff asserts causes of action for intentional infliction of emotional distress against all Defendants, and negligent hiring, training, and supervision against SAHA. Defendants move to dismiss all state tort claims based on governmental immunity.
Sovereign immunity bars suits against the State unless the Legislature expressly gives consent. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Governmental immunity affords political subdivisions such as counties and municipalities similar protection for their governmental functions. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003). With regard to housing authorities, the Legislature has provided that, "[f]or all purposes, including the application of the Texas Tort Claims Act (Chapter 101, Civil Practice and Remedies Code), a housing authority is a unit of government and the functions of a housing authority are essential governmental functions and not proprietary functions." TEX. LOC. GOV'T CODE § 392.006. Thus, because the functions of a housing authority are governmental, the housing authority has governmental immunity for those functions, waived only by express language from the Legislature or the Texas Tort Claims Act.
The Texas Tort Claims Act waives both sovereign and governmental immunity to the extent that liability arises from the "use of a motor-driven vehicle or motor-driven equipment" or from "a condition or use of tangible personal or real property." See TEX. CIV. PRAC. REM. CODE § 101.021 (waiving the immunity of a "governmental unit"). Because Plaintiff's claims do not involve a condition or use of tangible personal or real property or the use of a motor-driven vehicle or motor-driven equipment, the Act does not waive immunity for Plaintiff's claim of negligent hiring, training, and supervision. In addition, intentional torts are expressly excluded from the waiver of immunity under the Act. Id. § 101.057 (2). Therefore, governmental immunity precludes Plaintiff's claim for intentional infliction of emotional distress against SAHA.
The Court notes that the Eastland Court of Appeals has held that Texas Local Government Code § 392.065, which provides that a municipal housing authority may "sue and be sued," waives a housing authority's immunity from suit. Even so, however, the municipal housing authority would retain its immunity from liability.
Plaintiff does not object to dismissal of his claims for intentional infliction of emotional distress and negligent hiring, training, and supervision against SAHA. (Resp. to Defs.' Mot. Dismiss 10-11). Plaintiff's state law claims for negligent, hiring, training, and supervision and intentional infliction for emotional distress against SAHA are DISMISSED. Because an official sued in his official capacity enjoys the same immunities as the public entity, Plaintiff's state-law claims for intentional infliction of emotional distress against Farley and Flach in their official capacities are DISMISSED.
2. Texas Workers' Health and Safety Act claim
Plaintiff also asserts a cause of action for violation of the Texas Workers' Health and Safety Act under Texas Labor Code section 411.082 based on Defendants' adverse employment action against him in retaliation for making a report of a violation of an occupational health or safety law. Under the Texas Workers' Health and Safety Act, an employer may not retaliate against an employee who reports a violation of occupational health and safety laws. TEX. LABOR CODE § 411.082. Defendants assert governmental immunity as a bar to the claim. Section 504.002(c) of the Texas Workers' Health and Safety Act limits causes of action against a political subdivision to those available under the Texas Tort Claims Act. TEX. LABOR CODE § 504.002(c). A cause of action for retaliation under Texas Labor Code 411.082 is not authorized by the Texas Tort Claims Act. See TEX. CIV. PRAC. REM. CODE § 101.021 (waiving immunity for claims arising out of the condition or use of tangible personal or real property or from the use of motor-driven vehicles or equipment). Plaintiff does not object to dismissal of his claim for violation of the Texas Worker's Health and Safety Act against SAHA. (Resp. to Defs.' Mot. Dismiss 10-11). Accordingly, Plaintiff's claim against SAHA and Farley and Flach in their official capacities is DISMISSED.
3. Texas Whistleblower Act claim
Plaintiff asserts a cause of action against Defendants under the Texas Whistleblower Act. Under the Whistleblower Act, an employee of a governmental entity is entitled to relief if he suffers an adverse employment action in retaliation for a reporting the employer's violation of law in good faith to an appropriate law enforcement authority. TEX. GOV'T CODE § 554.002. A constructive termination is an adverse employment action under the Act. Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 773 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.).
Defendants Flach and Farley move to dismiss this claim against them in their individual capacities, asserting the defense of qualified immunity. Defendants base their qualified immunity defense on Plaintiff's failure to overcome the qualified immunity defense through specific pleadings. However, while section 1983 claims are subject to heightened pleading requirements, state law claims need only satisfy the lower threshold of general federal "notice pleading" requirements to survive a 12(b)(6) motion. Morin v. Caire, 77 F.3d 116, 123 (5th Cir. 1996). Because there is no heightened pleading requirement as urged by Defendants, Flach and Farley's motion to dismiss the Texas Whistleblower Act claim against them in their individual capacities is DENIED.
The Court notes that "qualified immunity" applies to federal causes of action, while "official immunity" (sometimes referred to as qualified immunity) applies to state-law causes of action. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (government employees are entitled to official immunity from suit arising from performance of their discretionary duties in good faith as long as they are acting within the scope of their authority). Official immunity is an affirmative defense. Id.
Defendants also argue that Plaintiff's Whistleblower Act claim is barred because Plaintiff failed to plead that he invoked the grievance procedures within SAHA. Prior to filing a suit for relief, the employee must initiate the employer's grievance procedure under the Act. TEX. GOV'T CODE § 554.006 ("A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter."). The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation occurred or was discovered by the employee through reasonable diligence. Id. The Texas Supreme Court has not yet decided whether the failure to meet these requirements deprives a court of jurisdiction. Univ. of Tex. Med. Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005).
Plaintiff has not responded to this argument. Defendants cite no authority for the proposition that a Plaintiff must plead that he invoked the grievance procedure under the Texas Whistleblower Act or be subject to dismissal. Accordingly, this 12(b)(6) motion is DENIED without prejudice. Defendants may re-assert this aragument at a later time via a motion for summary judgment or other appropriate motion.
E. Absolute Immunity
Plaintiff asserts a state tort cause of action for intentional infliction of emotional distress against Farley and Flach in their individual capacities. Defendants assert that, by filing their motion to dismiss, Farley and Flach are entitled to have the state tort causes of action against them dismissed under the Texas Tort Claims Act election of remedies provision. Under the Act, "if a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit." TEX. CIV. PRAC. REM. CODE § 101.106(e). Thus, for section 101.106(e) to apply, suit must be filed, "under this chapter," or, in other words, under the Texas Tort Claims Act.
As previously noted, the Texas Tort Claims Act does not apply to intentional torts. Id. § 101.057(2) ("This chapter does not apply to a claim arising out of assault, battery, false imprisonment, or any other intentional tort."). If the Act expressly does not apply to Plaintiff's intentional infliction of emotional distress claim, how can section 101.106(e) of the Act apply to mandate dismissal of the claim against Flach and Farley? An intentional tort claim is not brought "under the Act" for purposes of section 101.106(e). Rogers v. Bonnette, 2005 WL 1593437, at *2 (W.D. Tex. July 5, 2005); see also Wharton v. Metro. Transit Auth., 2005 WL 1653075 *4 (S.D. Tex. July 8, 2005) (plaintiff's claims for intentional and negligent infliction of emotional distress, libel, and slander were brought under common law and not Tort Claims Act, and thus section 101.106(e) dismissal was not warranted).
That the Act's provisions do not apply to claims that are expressly excluded from the Act is made clear through the following illustration. The Tort Claims Act waives sovereign or governmental immunity as a bar to suit that would otherwise exist. TEX. CIV. PRAC. REM. CODE § 101.025(a). At common law, municipalities and related governmental units do not have sovereign immunity for proprietary functions; rather, they enjoy immunity only for governmental functions. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 83 (Tex. 1997) (Hecht, J., concurring). The Act preserves the common-law rule that municipalities do not enjoy sovereign immunity for proprietary functions by including section 101.0215(b), which states "This chapter does not apply to the liability of a municipality for damages arising from its proprietary functions. . . ." TEX. CIV. PRAC. REM. CODE § 101.0215(b); see also City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987). Because the Act does not apply to proprietary functions, its provisions, such as the prohibition of exemplary damages, also do not apply to these claims. See Pike, 727 S.W.2d at 522; see also Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 559 (Tex.App.-Waco 2001, no pet.) (noting that, though Tort Claims Act precludes exemplary damages, a governmental unit engaged in proprietary functions could be liable). Therefore, when the Legislature states that the Act does not apply to certain types of claims, none of its provisions apply. Simply put, these claims are not brought "under the Act" and thus its provisions do not govern.
The Court notes that the district court for the Northern District has reached a contrary conclusion. In Davray, Inc. v. City of Midlothian, 2005 WL 1586574 (N.D. Tex. July 6, 2005), the plaintiff argued that section 101.106(e) did not apply to his intentional tort claim because that section is only implicated when suit is filed "under this chapter" — that is, under the Texas Tort Claims Act. The court rejected this argument, relying on a Texas court of appeals opinion — Liu v. City of San Antonio, which reasoned:
Liu also argues that even if we hold that section 101.106 applies, the trial court still erroneously dismissed her intentional tort claims against Deosdade and Pittman. Liu argues that section 101.106 is not applicable to her intentional tort claims, because section 101.057(2) of the Texas Tort Claims Act excludes claims "arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities." Indeed, section 101.057 "expressly provides that claims for 'false imprisonment or any other intentional tort' are not covered by [the Texas Tort Claims] Act. Therefore immunity is not waived for these claims under state law."
"Because section 101.106 expressly only applies to a 'claim under this chapter' and section 101.057 excludes intentional torts from application of the chapter, it would appear logical that section 101.106 could not operate to bar an intentional tort claim." Pruitt v. Ziesmer, No. 14-00-00054-CV, 2002 WL 1316218, at *5 n. 8 (Tex.App.-Houston [14th Dist.] June 13, 2002, no pet. h.). The Texas Supreme Court, however, in Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997), allowed section 101.106 to defeat an intentional tort claim, emphasizing that section 101.106 "bars any action." Id. We must, therefore, overrule Liu's second issue.88 S.W.3d 737, 744 (Tex.App.-San Antonio 2002, pet. denied) (some citations omitted). Thus, as the Liu court pointed out, the Texas Supreme Court in Newman utilized a section of the Tort Claims Act to bar a claim for an intentional tort, even though the Act does not apply to intentional torts, lending support to the Davray court's conclusion. However, Newman involved an earlier version of section 101.106, which stated that "[a] judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject mater by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim." Thus, any action — not just one "under this chapter" — would be barred by virtue of a previous judgment or settlement so long as it involved the same subject matter. The current section 101.106(e), however, applies only when suit is filed under the Act. The Court concludes that suit was not filed under the Act, and thus section 101.106(e) does not mandate dismissal. Defendant's motion to dismiss based on absolute immunity under Texas Civil Practice Remedies Code § 101.106(e) is therefore DENIED.
F. Injunctive Relief
Plaintiff requests injunctive relief forbidding Defendants from violating rights secured by the ADA, Section 1983, the Texas Whistleblower Act, and the Texas Workers' Health and Safety Act. Defendants move to dismiss Plaintiff's request for injunctive relief. This Court only has jurisdiction over claims for future relief "if a reasonable likelihood exists that the plaintiff will again be subjected to the allegedly unconstitutional actions." Wallace v. Tex. Tech Univ, 80 F.3d 1042, 1047 (5th Cir. 1996). If a plaintiff does not seek reinstatement, "there is not a reasonable likelihood the he would again be subjected to the allegedly unconstitutional actions." Id. Without this "reasonable likelihood" of future constitutional violations, claims for future injunctive relief are outside the jurisdiction of this Court as moot and are properly dismissible. Id.; see also Honig v. Doe, 484 U.S. 305, 317-18 (1988) (finding that the reasonable likelihood that the party would again suffer the deprivation of rights created a justiciable controversy within the Supreme Court's jurisdiction under Article III of the Constitution).
Plaintiff in this case does not seek reinstatement with SAHA. (Original Compl. at 16). Because there can be no reasonable likelihood that the Plaintiff will again be denied his constitutional rights by Defendants without a request for reinstatement, Plaintiff's claim for injunctive relief from future violations are DISMISSED as moot.
Conclusion
Defendant's Motion to Dismiss (docket no. 8) is GRANTED IN PART and DENIED in part.
Defendants' motion to dismiss based on Eleventh Amendment immunity is DENIED. Defendants Flach and Farley's motion to dismiss Plaintiff's section 1983 claims based on qualified immunity is denied without prejudice. Plaintiff is ORDERED to file a Rule 7 reply as described above. Defendants Flach and Farley's motion to dismiss Plaintiff's ADA claims against them in their individual capacities is granted. Defendants Flach and Farley's motion to dismiss Plaintiff's ADA claims against them in their individual capacities based on qualified immunity is dismissed as moot.
Defendant SAHA and Defendants Flach and Farley's motion to dismiss Plaintiff's intentional infliction of emotional distress and negligence claims against SAHA and Defendants in their official capacities based on governmental immunity is GRANTED. Defendants Flach and Farley's motion to dismiss Plaintiff's intentional infliction of emotional distress claim against them in their individual capacities is DENIED.
Defendants' motion to dismiss Plaintiff's Whistleblower Act claims is DENIED. Defendant's motion to dismiss Plaintiff's claim under section 411.082 against SAHA and Flach and Farley in their official capacities is GRANTED. Defendants' motion to dismiss Plaintiff's claims for injunctive relief is GRANTED.