Metro. Transit Auth. of Harris Cnty. v. Douglas

544 S.W.3d 486
CourtCourt of Appeals of Texas
DecidedFebruary 27, 2018
DocketNO. 14–17–00176–CV
StatusPublished
Cited by36 cases

This text of 544 S.W.3d 486 (Metro. Transit Auth. of Harris Cnty. v. Douglas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metro. Transit Auth. of Harris Cnty. v. Douglas, 544 S.W.3d 486 (Tex. Ct. App. 2018).

Opinion

Martha Hill Jamison, Justice

This is an employment discrimination and retaliation case. In one issue, Metropolitan Transit Authority of Harris County, Texas (Metro) brings this interlocutory appeal challenging the trial court's denial of Metro's plea to the jurisdiction1 based on Viola M. Douglas's purported failure, before filing this lawsuit, to exhaust administrative remedies for her retaliation claims in compliance with the Texas Commission on Human Rights Act (the Act).2 Douglas moved to dismiss the appeal as moot, contending that she exhausted her administrative remedies after Metro filed its plea. We conclude that the appeal is not moot because there are live controversies between the parties, as discussed below, and therefore, we deny the motion to dismiss. We further conclude that governmental immunity has been waived as to the retaliation claims and Douglas was not required to exhaust her administrative remedies prior to asserting her retaliation claims in the trial court. Consequently, the trial court did not err in denying Metro's plea to the jurisdiction. We affirm.

Background

Douglas makes the following allegations in this lawsuit. Douglas is a lieutenant with the Metro Police Department. She applied *491for one of two available captain positions in 2014, along with two male lieutenants. Metro was required under its procedures to use an outside agency to make competency assessments of all candidates for captain position vacancies. Instead of following that process, then Chief of Police Tim Kelly decided to use a five-person panel of Metro employees to conduct interviews of the candidates. The panel scored Douglas as the highest ranking candidate.

Kelly then interviewed the candidates and promoted both male candidates. Douglas was not promoted. According to Douglas, Kelly's decision not to promote her was based in part on the fact that Vera Bumpers had been selected to replace Kelly as Metro's first female Chief of Police and Kelly wanted to avoid promoting too many women to high ranking leadership roles within Metro.3

Douglas filed a discrimination charge with the Texas Workforce Commission Civil Rights Division (TWC) in March 2015.4 After the requisite 180 days without a determination from the TWC, Douglas filed this lawsuit, bringing a gender discrimination claim in September 2015.5

Douglas filed an amended petition in July 2016 to add retaliation claims. She contends that in June 2015, after she filed her discrimination charge, Bumpers asked Douglas's former supervisor to lower her performance rating. When the former supervisor refused to do so, Bumpers reassigned Douglas to report to a captain who was promoted instead of her.

In July 2016, Bumpers refused to sign the "distinguished" performance evaluation of Douglas written by Douglas's new supervisor. Bumpers instructed the new supervisor to lower his performance rating of Douglas, which he did. Thus, Douglas's rating was lower than all six male lieutenants. Before the discrimination charge was filed, Douglas consistently had been rated as "distinguished."

Metro filed its plea to the jurisdiction requesting the trial court to dismiss the retaliation claims for failure to exhaust administrative remedies, which the trial court denied. Thereafter, in February 2017, Douglas again amended her petition, stating that she had filed a charge alleging retaliation on December 19, 2016 and the TWC had issued a notice of dismissal and right to sue letter; thus, she contends that her administrative remedies were exhausted.

Discussion

In its sole issue, Metro argues that the trial court erred in denying the plea to the jurisdiction as to Douglas's retaliation claims because Douglas failed to exhaust her administrative remedies before bringing those claims. Douglas moved to dismiss the appeal as moot because she filed her *492retaliation charge with the TWC before the appeal was filed.

As a governmental unit, Metro is immune from suit absent an express waiver of governmental immunity. Harris Cnty. Hosp. Dist. v. Parker , 484 S.W.3d 182, 191 (Tex. App.-Houston [14th Dist.] 2015, no pet.) ; see also Kosoco, Inc. v. Metro. Transit Auth. of Harris Cnty. , No. 01-14-00515-CV, 2015 WL 4966880, at *6 (Tex. App.-Houston [1st Dist.] Aug. 20, 2015, no pet.) (mem. op.) (acknowledging that Metro is a governmental entity). The Act provides a limited waiver of that immunity when a governmental unit has discriminated in any manner against any employee on the basis of age, sex, or other protected classification, or has retaliated against the employee for opposing or complaining of such discrimination. Parker , 484 S.W.3d at 191 (citing Tex. Lab. Code §§ 21.051 and 21.055 and Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 660 (Tex. 2008) (holding that "the [Act] clearly and unambiguously waives immunity") ).

The Act's immunity waiver applies only if the plaintiff alleges a violation within the scope of the statute. Id. If the plaintiff does not sufficiently plead facts that state a claim under the Act, the governmental unit may challenge the pleadings with a plea to the jurisdiction. Id. The governmental unit may also use a plea to the jurisdiction to challenge the existence of jurisdictional facts. Id.

When a plea to the jurisdiction challenges the plaintiff's pleadings, we determine whether the pleadings, construed in the plaintiff's favor, allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ). If the plaintiff pleaded facts making out a prima facie case and the governmental unit instead challenges the existence of jurisdictional facts, we consider the relevant evidence submitted. Id. We review a trial court's ruling on a plea to the jurisdiction de novo. Id. at 192.

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Cite This Page — Counsel Stack

Bluebook (online)
544 S.W.3d 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metro-transit-auth-of-harris-cnty-v-douglas-texapp-2018.