Opinion
No. 10-06-00095-CV
Opinion delivered and filed April 18, 2007.
Appealed from the 12th District Court Madison County, Texas, Trial Court No. 04-10356-012-10.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Jerry Ray Edgin sued the Texas Department of Criminal Justice for retaliation under Chapter 21 of the Labor Code. In this interlocutory appeal, the TDCJ challenges the trial court's denial of its plea to the jurisdiction. We affirm.
The TDCJ previously removed this case to federal court. The federal court remanded the case to the state court, holding that "Edgin has a claim under Texas law, and not merely a Title VII claim that can proceed in federal court. . . ."
STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court's "power to determine the subject matter of the suit." Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 698 (Tex.App.-Waco 2002, pet. withdrawn). We review a plea "based on sovereign immunity de novo because the question of whether a court has subject matter jurisdiction is a matter of law." Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004); see Vela, 69 S.W.3d at 698. Where "the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant." Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). "We indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id.
ISSUES PRESENTED
Contending that Edgin cannot state a claim for retaliation under Chapter 21 of the Labor Code, the TDCJ presents three primary issues purportedly challenging waiver of sovereign immunity: (1) Edgin cannot establish a good faith reasonable belief that discrimination occurred; (2) Edgin did not engage in a "protective activity;" and (3) there is no causation between the "protected activity" and the allegedly adverse action. In a fourth issue, the TDCJ argues that the trial court should have struck the affidavit of Renee Howe as conclusory.
SOVEREIGN IMMUNITY
Unless waived, sovereign immunity shields governmental entities from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Somervell County Healthcare Auth. v. Sanders, 169 S.W.3d 724, 726 (Tex.App.-Waco 2005, no pet). Chapter 21 of the Labor Code waives immunity as to entities it defines as "employers," including in relevant part, "a county, municipality, state agency, or state instrumentality . . ." TEX. LAB. CODE ANN. § 21.002(8)(D) (Vernon 2006); see Sauls v. Montgomery County, 18 S.W.3d 310, 315 (Tex.App.-Beaumont 2000, no pet.); see also Dallas/Fort Worth Int'l Airport Bd. v. Funderburk, 188 S.W.3d 233, 235-36 (Tex.App.-Fort Worth 2006, pet. granted, judgm't vacated w.r.m.); Purdin v. Copperas Cove Econ. Dev. Corp., 143 S.W.3d 290, 293 n. 2 (Tex.App.-Waco 2004, pet dism'd). The TDCJ is an employer subject to this waiver of immunity. See Tex. Dep't of Crim. Justice v. King, No. 10-01-058-CV, 2003 Tex. App. Lexis 10481, at *12 (Tex.App.-Waco Dec. 10, 2003, pet. denied) (mem. op.).
FAILURE TO STATE A CLAIM
In its first, second, and third issues, the TDCJ essentially argues that it is immune from suit because Edgin cannot state a claim of retaliation under Chapter 21 of the Labor Code.
A plea to the jurisdiction is intended to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (emphasis added). "The pleadings relevant to a review of a plea to the jurisdiction include amended petitions, the plea to the jurisdiction, and responses filed in connection with a defendant's plea to the jurisdiction." City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex.App.-Austin 2000, no pet.).
In his administrative complaint, Edgin stated, "I believe I have been discriminated against because of my participation in a protected activity . . ." This "protected activity" includes submitting a "monthly report outlining the problems in the Maintenance Department" and submitting a "witness statement for a female coworker who was subjected to an inappropriate comment by Warden [Alfred] Janicek," which arguably constituted sexual harassment. Edgin alleges that, following these events, he was charged with three disciplinary actions, demoted, forced to reapply as a correctional officer, "not accepted" as a correctional officer, administratively separated, and "subjected to harassment" which ultimately "forced [him] to retire."
Accordingly, Edgin's petition alleges that "his retirement was forced solely and directly due to retaliatory measures for his following policy and submitting witness statements." Considering Edgin's administrative complaint and the relevant pleadings, and construing them in his favor, Edgin alleges that he was retaliated against in violation of the Labor Code for "[opposing] a discriminatory practice." TEX. LAB. CODE ANN. § 21.055 (Vernon 2006); see Miranda, 133 S.W.3d at 228.
Nevertheless, relying on Miranda, the TDCJ attacks Edgin's ability to establish the elements of his cause of action. In Miranda, the Supreme Court examined the merits of the Mirandas' claims because they had alleged a violation of the Texas Tort Claims Act, under which immunity from suit and immunity from liability are "co-extensive." See Miranda, 133 S.W.3d at 224. The Act specifically provides that: "Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter." TEX. CIV. PRAC. REM. CODE ANN. § 101.025(a) (Vernon 2005) (emphasis added). "This provision effectively creates a situation in which evaluating whether subject matter jurisdiction exists in a given case may require a court to examine the merits of a plaintiff's claims." Prairie View A M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
" Miranda thoroughly details the procedure that courts and litigants should follow in examining questions of subject matter jurisdiction under the TTCA." Prairie View A M Univ. v. Brooks, 180 S.W.3d 694, 703 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Unlike the TTCA, Chapter 21 does not make immunity dependent on liability. Rather, Chapter 21 waives sovereign immunity where an employee exhausts administrative remedies and where the defendant qualifies as an "employer" as defined by the Labor Code. See Sauls, 18 S.W.3d at 315; see also Funderburk, 188 S.W.3d at 234; Purdin, 143 S.W.3d at 293 n. 2; TEX. LAB. CODE ANN. § 21.002(8)(D); Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). Neither requirement is at issue in this appeal.
We consider evidence " when necessary to resolve the jurisdictional issues raised." Bland, 34 S.W.3d at 555 (emphasis added). This case does not present a situation where we must explore the merits of Edgin's claims. See State v. Lueck, 212 S.W.3d 630, 637-38 (Tex.App.-Austin 2006, pet. filed). Because no jurisdictional issues exist for our determination, we overrule the TDCJ's first, second, and third issues. See id. We need not address the TDCJ's fourth issue. See TEX. R. APP. P. 47.1.
The trial court's judgment is affirmed.
Affirmed
DISSENTING OPINION
The majority has ignored the substance of the issues presented. The fundamental issue presented is that if we take as true all of the factual allegations of the non-movant and evidence, if any, in the record, the non-movant cannot allege a cause of action for which sovereign immunity has been waived by the State of Texas. After all, one of the essential questions in deciding whether the plaintiff has pled a claim against the State of Texas for which sovereign immunity has been waived is whether the plaintiff has pled a claim at all.
The majority implies that the conclusory allegations of the non-movant, that he thought he was retaliated against for opposing a discriminatory practice, is all that is necessary to assert a Chapter 21 claim. If I understand the State's plea to the jurisdiction, the State is arguing that as a matter of law the factual allegations do not allege a claim within the waiver of sovereign immunity under Chapter 21. Therefore, as I understand the State's argument to proceed, because the allegations do not assert a Chapter 21 claim, and because the allegations and discovery affirmatively show that the non-movant cannot allege a claim under Chapter 21, the State's plea to the jurisdiction should therefore be granted because no set of facts has been or can be alleged that will give the trial court jurisdiction. I agree with the State's analysis of the relevant law.
The majority limits its Chapter 21 claim analysis for sovereign immunity to (1) whether a claimant exhausted administrative remedies; and (2) whether the State qualifies as an employer. Thus, the majority has wholly failed to address the dispositive issue presented by the State.
I dissent.