Opinion
CIVIL ACTION NO. SA-02-CA-395 NN
March 10, 2003
ORDER GRANTING PARTIAL MOTION TO DISMISS
The matter before the Court is defendant's Rule 12(b)(6) partial motion to dismiss (docket entry 19), plaintiff's response (docket entry 24) and defendant's reply (docket entry 25).
Plaintiffs were law enforcement officials with the defendant City of Elmendorf. They allege that they were required to work in excess of 40 hours weekly without adequate overtime compensation as required by the federal Fair Labor Standards Act. Plaintiff Cleveland complains of retaliation for violations of the Texas Whistleblower Act arising out of his reporting of unlawful activity and resulting in his constructive discharge from the position of Chief of Police. All plaintiffs allege that they were constructively discharged when they refused to perform illegal acts, attempting to state a claim under the Sabine Pilot exception to the employment-at-will doctrine.
Sabine Pilot Service, Inc. v. Hauck , 687 S.W.2d 733 (Texas 1985) (held that narrow exception to the employment-at-will doctrine exists for employee discharged for sole reason that the employee refused to perform an illegal act).
Defendant has requested dismissal of plaintiffs' Sabine Pilot claims, arguing that the City enjoys sovereign immunity from suit unless specifically waived by statute by the legislature. Plaintiffs respond that despite case authority on which defendant relies to support its motion to dismiss, this Court should read Sabine Pilot as creating an exception to the employment-at-will doctrine for all employers, and therefore as an implicit waiver of sovereign immunity.
The defendant's motion relies on the state appellate court's decision in Carroll v. Black , 938 S.W.2d 134 (Tex.App. — Ft. Worth 1996), rehearing overruled, (Feb. 19, 1997), rehearing of writ of error overruled, (Jan. 16, 1998), cert. denied, 525 U.S. 826, rehearing denied, 525 U.S. 1034 (1998). In that case, the court held that without legislative consent or statutory exception to sovereign immunity, Sabine Pilot cannot be read to overcome the immunity otherwise enjoyed by a public entity. Subsequent cases have reaffirmed this holding. In fact, no cases which have addressed this issue have adopted the position argued by plaintiffs. In light of this overwhelming authority. I likewise concur.
Redmon v. Dallas Area Rapid Transit , 2001 WL 182849 (N.D.Tex. Jan. 22, 2001); Salazar v. Lopez , 88 S.W.3d 351, 353 (Tex.App. — San Antonio, Aug. 7, 2002); University of Texas Medical Branch at Galveston v. Hobman , 6 S.W.3d 767, 777 (Tex.App.-Houston (1 Dist.), Nov. 24, 1999).
Accordingly, defendant's partial motion to dismiss is GRANTED and plaintiffs' Sabine Pilot causes of action are DISMISSED.