Dallas Independent School District v. Powell

68 S.W.3d 89, 2001 WL 687960

• Court: Court of Appeals of Texas
• Decided: July 27, 2001
• Docket: 05-00-01910-CV
• Status: Published

Opinions

OPINION

Opinion By

Justice JAMES.

William Ray Powell brought suit against the Dallas Independent School District (DISD) alleging DISD constructively terminated his employment in retaliation for filing a workers’ compensation claim. DISD brings this interlocutory appeal from the denial by the trial court of DISD’s second plea to the jurisdiction, arguing in one point of error that the trial court erred in denying DISD’s plea to the jurisdiction because DISD established there was an administrative remedy and Powell did not utilize the remedy available. For the reasons set forth below, we affirm the judgment of the trial court.

Background

Powell was employed by DISD as a custodian from August 1983 until approximately March 1995. In February 1994, Powell was injured at work. Powell reported the injury to DISD and filed a workers’ compensation claim. Powell returned to work after surgery and was told there were no longer any full-time positions available. DISD offered to place Powell on the substitute custodian list but never called Powell for a substitute position. Powell sued DISD for retaliatory discharge under the workers’ compensation act. DISD filed a plea to the jurisdiction alleging that Powell failed to exhaust the administrative remedies under the Texas Education Code¹ before filing suit. Powell responded that there were no remedies to exhaust under the code; therefore, his only remedy was in the courts. The trial court denied DISD’s plea to the jurisdiction, and DISD appealed to this Court.. This Court affirmed the trial court’s ruling, concluding that DISD had failed to identify a specific administrative remedy available to Powell. DISD then filed a second plea to the jurisdiction in the trial court, supplemented with a copy of the DISD grievance policy, and alleged that the grievance policy clearly stated that all employees have the right to “present grievances concerning their wages, hours of employment, or conditions of work,” and that Powell failed to exhaust the applicable administrative remedies. The trial court denied DISD’s second plea to the jurisdiction, and this appeal followed.²

DISD’s Second Plea to the Jurisdiction

In its sole point of error, DISD contends the trial court erred in denying its plea to the jurisdiction because Powell failed to exhaust the administrative remedies established in the DISD grievance policy.

In considering an interlocutory appeal from a denial of a plea to the jurisdiction, we must take the allegations in the petition as true and construe them in favor of the pleader. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). Because the question of subject matter jurisdiction is a legal question, we review the trial court’s order denying appellant’s plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Denton County v. Howard, 22 S.W.3d 113, 118 (Tex.App.-Fort Worth 2000, no pet.).

Here, the pleadings indicate Powell filed suit because of alleged retaliatory discharge by DISD. DISD contends Powell failed to exhaust the applicable administrative remedies; its grievance policy allows that any “matter which involves appeal or grievance procedures set out in another policy or by law and that also concerns wages, hours of work, or conditions of work may be grieved.” DISD points to the uncontested affidavit of Robert L. Johnston, Secretary for the DISD Board during 1985-1997, presented in support of its plea, in which Johnston states that “all DISD employees were permitted to file grievances concerning their wages, hours of employment, or conditions of work.” However, Powell was alleging retaliatory discharge due to his filing a workers’ compensation claim. DISD fails to establish how Powell’s claim fits within the grievance policy’s procedures regarding “wages, horn's of work, or conditions of work.” Because the defendant bears the burden to establish the trial court’s lack of jurisdiction, we narrowly construe DISD’s policies seeking to limit jurisdiction. See Peek v. Equip. Sew. Co. of San Antonio, 779 S.W.2d 802, 804-805 (Tex.1989); see also MCI Telecomm. Corp. v. Tarrant County Appraisal Dist., 723 S.W.2d 350, 353 (Tex.App.-Fort Worth 1987, no writ).

We, therefore, conclude that a grievance procedure for “wages, hours of work, or conditions of work” does not include complaints regarding retaliatory discharge for filing a workers’ compensation claim. Thus, DISD failed to establish Powell had any administrative remedies he was required to pursue before fifing suit with the trial court.

The dissent would remand this case a second time to the trial court without addressing the issues on appeal based solely upon allegations outside the record. The dissent cites no authority, and we find none, for this Court to invoke, sua sponte, rule of civil procedure 151 in a pending appeal. See Gainesville Oil & Gas Co. v. Farm Credit Bank, 847 S.W.2d 655, 664 (Tex.App.-Texarkana 1993, no writ).

For the reasons set forth above, we affirm the trial court’s judgment.

MOSELEY, J. dissenting.

1 . DISD made reference to section 7,057 of the Texas Education Code and cited Jones v. Dallas Independent School District, 872 S.W.2d 294 (Tex.App.-Dallas 1994, writ denied). However, in this Court’s unpublished opinion affirming the trial court’s judgment denying DISD's first plea to the jurisdiction, we concluded these citations were not applicable to Powell's claims. Dallas Indep. Sch. Dist. v. Powell, No. 05-97-01637-CV, 1999 WL 1025246 (Tex.App.-Dallas Nov. 12, 1999, no pet.) (not designated for publication), 1999 WL 1025246, at *1-2.

2 . Powell’s counsel filed a motion to withdraw as counsel of record, claiming Powell is now deceased. Rule of appellate procedure 7.1(a)(1) states:

If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party's name may be used on all papers.

While the rules do not specifically address interlocutory appeals, we construe rule 7.1(a)(1) to apply to interlocutory appeals. The motion to withdraw was denied on April 23, 2001.