Melody Yarbrough v. Texas A&M University - Kingsville ( 2009 )


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  •                             NUMBER 13-07-00744-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    MELODY YARBROUGH,                                                           Appellant,
    v.
    TEXAS A&M UNIVERSITY - KINGSVILLE,                                          Appellee.
    On appeal from the 105th District Court
    of Kleberg County, Texas.
    OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Benavides
    Opinion by Justice Rodriguez
    This appeal arises from a lawsuit filed by a professor seeking a declaration that her
    university employer prevented her from exercising her right to file a grievance regarding
    a negative employment evaluation. Appellant Melody Yarbrough challenges the trial
    court's order denying her motion for summary judgment and granting summary judgment
    in favor of appellee Texas A&M University - Kingsville (TAMUK or the university). By three
    issues, Yarbrough complains that the trial court erred in determining, as a matter of law,
    that TAMUK had allowed Yarbrough to present her grievance to someone in a position of
    authority as required by the government code. See TEX . GOV'T CODE ANN . § 617.005
    (Vernon 2004). We reverse and render in part and reverse and remand in part.
    I. BACKGROUND
    Yarbrough is employed by TAMUK as an associate professor in the college of
    education. In May 2003, Yarbrough's supervisor, Mike Daniel, presented her with her
    annual evaluation, which covered the 2002 calendar year.            Yarbrough's evaluation
    contained high marks in its numerical rankings portion of the evaluation but listed several
    areas needing improvement in the narrative portion. Yarbrough protested the negative
    comments in the narrative portion and asked Daniel to reconsider and change her
    evaluation. Daniel refused but informed Yarbrough that she was free to write a letter
    contesting the negative comments and that the letter would be placed in her file along with
    her evaluation. Although Yarbrough sent a letter to Daniel in July 2003 again asking him
    to rewrite the narrative portion of her evaluation, Yarbrough did not write a rebuttal letter.
    In the week following her evaluation, Yarbrough approached Fred Litton, dean of the
    school of education, regarding her evaluation. She presented Litton with a memo stating
    her desire to appeal her evaluation. Like Daniel, Litton informed Yarbrough she could write
    a letter to her file rebutting the negative evaluation. Litton also advised Yarbrough to
    contact Dalton Bigbee, associate vice president for academic affairs, about her complaint.
    Yarbrough met with Bigbee the same day. As had Daniel and Litton before him, Bigbee
    told Yarbrough she could write a rebuttal letter for her file. Bigbee also informed Yarbrough
    2
    that the faculty handbook allowed her to present her complaint to the faculty grievance
    committee.
    Yarbrough commenced her appeal to the grievance committee in September 2003,
    and the committee set Yarbrough's appeal for hearing on November 19, 2003. However,
    in early November 2003, Kay Clayton, provost and vice president for academic affairs, sent
    a letter to the grievance committee informing them that they were without authority to hear
    Yarbrough's appeal of her negative evaluation. As a result of the letter, the committee
    cancelled the hearing. Yarbrough was granted tenure in the spring of 2004.
    In April 2005, Yarbrough filed a lawsuit under chapter 37 of the civil practice and
    remedies code, see TEX . CIV. PRAC . & REM . CODE ANN . §§ 37.001-.011 (Vernon 2008),
    seeking a declaration that TAMUK violated government code section 617.005 by failing to
    afford her "a minimally adequate opportunity to present her grievance . . . ." See TEX .
    GOV'T CODE ANN . § 617.005 (stating that the code provision regarding collective bargaining
    for state employees "does not impair the right of public employees to present grievances
    concerning their wages, hours of employment, or conditions of work"). Both Yarbrough and
    TAMUK filed motions for summary judgment. The trial court entered judgment denying
    Yarbrough's motion, granting TAMUK's, and ordering that Yarbrough take nothing by her
    lawsuit.1 This appeal ensued.
    II. STANDARD OF REVIEW
    Although a party generally cannot appeal the denial of a motion for summary
    judgment, when both sides move for summary judgment and the trial court grants one
    1
    The trial court did not specify the grounds on which it granted TAMUK's m otion for sum m ary
    judgm ent.
    3
    motion and denies the other, the unsuccessful party may appeal both the granting of the
    prevailing party's motion and the denial of its own. Tex. Mun. Power Agency v. Pub. Util.
    Comm'n of Tex., 
    253 S.W.3d 184
    , 192 (Tex. 2007). "In a motion for summary judgment,
    the movant has the burden to show there is no genuine issue of material fact" and must
    establish that it is "entitled to judgment as a matter of law." Corpus Christi Indep. Sch. Dist.
    v. Padilla, 
    709 S.W.2d 700
    , 708 (Tex. App.–Corpus Christi 1986, no writ). The appellate
    court should review both sides' summary judgment evidence, determine all questions
    presented, and render the judgment the trial court should have rendered. FM Props.
    Operating Co. v. City of Austin, 
    22 S.W.3d 868
    , 872 (Tex. 2000). "When a trial court's
    order granting summary judgment does not specify the grounds relied upon, the reviewing
    court must affirm summary judgment if any of the summary judgment grounds are
    meritorious." 
    Id. (citing Star-Telegram,
    Inc. v. Doe, 
    915 S.W.2d 471
    , 473 (Tex. 1995)).
    III. DISCUSSION
    By her first and second issues, Yarbrough complains that the trial court erred in
    granting summary judgment in favor of TAMUK on her claim for declaratory relief.2
    Specifically, Yarbrough argues TAMUK did not conclusively prove that her claim was moot
    or that she was able to present her grievance to a person in authority, thus complying with
    section 617.005. In her third issue, Yarbrough contends that the trial court erred in denying
    her motion for summary judgment, arguing that she conclusively proved the inverse of
    TAMUK's grounds.
    2
    Because the sam e law applies to Yarbrough's first and second issues, we will analyze them together
    for purpose of this appeal. See T EX . R. A PP . P. 47.1.
    4
    A. TAMUK's Motion for Summary Judgment
    TAMUK moved for summary judgment on two grounds. First, TAMUK argued that
    Yarbrough's claims for declaratory relief were moot because she was granted tenure in
    spring 2004. Second, TAMUK contended that it complied with section 617.005 because
    it did not prevent Yarbrough from accessing persons in positions of authority to present her
    grievance.
    1. Mootness
    TAMUK contends that Yarbrough's primary concern regarding her negative
    evaluation was the impact it would have on her chances of achieving tenure. TAMUK
    argues that because Yarbrough was granted tenure before the filing of this lawsuit, her
    claims for declaratory relief regarding her grievance rights are moot. We disagree.
    It is true that "a declaratory judgment is unavailable unless there is a justiciable
    controversy between the parties." Lubbock Prof'l Firefighters v. City of Lubbock, 
    742 S.W.2d 413
    , 419 (Tex. App.–Amarillo 1987, writ ref'd n.r.e.); see Allstate Ins. Co. v.
    Hallman, 
    159 S.W.3d 640
    , 642 (Tex. 2004) (holding that "a case becomes moot if a
    controversy ceases to exist" between the parties). However, in her response to TAMUK's
    motion for summary judgment, Yarbrough asserted that there still exists an actual
    controversy between her and TAMUK; Yarbrough argued that, because the policies
    underlying her dispute with TAMUK are still in effect, her right to present her grievances
    continues to be violated and could be repeated the next time she has a grievance. Unless
    the conduct challenged by an appellant has been discontinued and "there is no reasonable
    expectation that the wrong will be repeated," the case is not moot. See Lubbock Prof'l
    5
    
    Firefighters, 742 S.W.2d at 419
    (citing U.S. v. W.T. Grant & Co., 
    345 U.S. 629
    , 633
    (1953)). TAMUK does not dispute that it continues to support the policies challenged by
    Yarbrough. Moreover, TAMUK adamantly insists that its actions regarding Yarbrough's
    grievance complied with the law—in particular, that Yarbrough's meeting with Bigbee,
    despite his inability to remedy her complaint, gave her access to a person in authority and
    that TAMUK's rebuttal letter "exclusive remedy" satisfied its obligations under section
    617.005. See 
    id. (finding that
    the wrong was likely to be repeated, especially in light of the
    appellee's "vigorous trial and appellate opposition" to the claims of appellants). Based on
    the foregoing, we note that TAMUK has taken no steps to discontinue the complained-of
    policies, conclude that a repetition of events in this case is likely and, therefore, reject
    TAMUK's mootness argument because an actual controversy still exists between the
    parties. See 
    Hallman, 159 S.W.3d at 642
    . Thus, we cannot conclude that this ground
    supports the summary judgment entered in favor of TAMUK.
    2. Compliance with TEXAS GOVERNMENT CODE § 617.005
    In addition to mootness, TAMUK moved for summary judgment on the ground that
    its actions with regard to Yarbrough's complaint complied with section 617.005. Following
    are the undisputed material facts of this case: Yarbrough received a negative evaluation
    from her supervisor, Daniel, in May 2003; Yarbrough disagreed with Daniel's assessment
    of her performance; Yarbrough asked Daniel to change the negative narrative portion of
    the evaluation to match the positive numerical ranking portion of the evaluation; the
    "exclusive remedy" for TAMUK faculty contesting negative evaluations is writing a rebuttal
    letter to be placed in the professor's file; Yarbrough did not avail herself of this remedy;
    6
    instead, Yarbrough pursued her complaint up the "chain of command" at TAMUK, meeting
    first with Litton and then Bigbee; neither Litton nor Bigbee had the power to change
    Yarbrough's evaluation; only Daniel had the power to change Yarbrough's evaluation;
    Yarbrough appealed her negative evaluation to the faculty grievance committee in
    September 2003; the grievance committee set Yarbrough's appeal for a hearing; in
    November 2003, TAMUK's provost informed the committee that it had no authority to hear
    Yarbrough's appeal and no hearing was held.
    Because the facts are undisputed, the question before us—whether TAMUK's
    actions with regard to Yarbrough's grievance, as a matter of law, complied with section
    617.005 of the government code—is a legal one. See 
    Padilla, 709 S.W.2d at 708
    . Section
    617.005 states that chapter 617 of the government code, which prohibits public employees
    from striking or engaging in collective bargaining, "does not impair the right of public
    employees to present grievances concerning their wages, hours of employment, or
    conditions of work either individually or through a representative that does not claim the
    right to strike." TEX . GOV'T CODE ANN . § 617.005.
    At the outset, we note that the case law and other authority interpreting this question
    is sparse. In Corpus Christi Independent School District (CCISD) v. Padilla, this Court
    addressed a similar, although not identical, situation. 
    709 S.W.2d 700
    . Two employees
    complained that CCISD had deprived them of their grievance rights as public employees
    by denying their request for a hearing before the board of trustees. 
    Id. at 703.
    The
    employees had each received work reassignments and initiated grievances under a board
    policy that created three categories of grievances. 
    Id. Under the
    policy, all grievances
    must have gone through the first category, Type A, which was an informal process handled
    7
    by private conference with the involved parties. 
    Id. After this
    initial process, grievances
    could be further pursued as either a Type B grievance—which involved a written statement
    that there had been a violation of policies or regulations—or a Type C grievance—which
    involved a written complaint regarding wages, hours, and conditions of work that was heard
    and determined by the CCISD superintendent. 
    Id. Only Type
    B grievances could be
    appealed to the board of trustees. 
    Id. One of
    the complaining employees filed a Type B grievance, but the superintendent
    determined that the grievance fell in the Type C category so both employees then filed
    Type C grievances. 
    Id. The superintendent
    met with both employees, heard their
    complaints, and denied both grievances.             
    Id. The employees
    appealed the
    superintendent's denial to the board of trustees, but the board denied their request for a
    hearing. 
    Id. At its
    regular meeting, the board set aside time for an open forum at which
    any person could address the board about any matter. 
    Id. The employees
    did not
    approach the board during the open forum to complain of their grievances. 
    Id. In Padilla,
    we held that the government code "ensure[s] only that public employees
    have access to those in a position of authority to air their grievances," and the law was
    satisfied by the board of trustee's open forum at regular board meetings. 
    Id. at 707;
    see
    TEX . GOV'T CODE ANN . 617.005; see also Op. Tex. Att'y Gen. No. H-422, at 2 (1974)
    (reasoning that a public employee's right to present his grievances, "given as an alternative
    to collective bargaining, is of little value if public employers are entitled to refuse to hear
    or discuss grievances"). We also held that, because the superintendent was empowered
    8
    by the board to remedy employee grievances, the Type C procedure initiated by the
    complaining employees also complied with the law. 
    Padilla, 709 S.W.2d at 707
    .
    TAMUK interprets Padilla to stand for the proposition that, under section 617.005,
    a public employer need only provide a forum for the airing of employee grievances.
    TAMUK does not believe it is required to provide employees with access to persons who
    can actually remedy the problem complained of in the grievance. Following this logic,
    TAMUK argues that the open forum provided by the CCISD board of trustees in Padilla is
    analogous to TAMUK's open-door policy; TAMUK contends this policy allows employees
    to air their grievances to any member of the university's administration, including the
    president. TAMUK asserts that, by failing to pursue her complaint past Bigbee and the
    faculty grievance committee, Yarbrough did not fully avail herself of the university's open-
    door policy, and thus, TAMUK did not deny her access to persons in positions of authority
    as required by section 617.005. TAMUK further argues that Yarbrough's meeting with
    Bigbee, in itself, satisfied the university's obligation; TAMUK contends that, despite the
    undisputed fact that Bigbee did not have the power to alter Yarbrough's negative
    evaluation, Bigbee was nonetheless a person in a position of authority. See 
    id. However, TAMUK's
    argument ignores two critical uncontested facts:               (1) the
    university's "exclusive remedy" for employees complaining of negative evaluations is to
    write a rebuttal letter to be placed in their files; and (2) Daniel, the supervisor who drafted
    the negative comments in the narrative portion of Yarbrough's evaluation, was the only
    person at the university empowered to change Yarbrough's evaluation. We do not believe
    that the open forum provided by the CCISD board of trustees in Padilla—through which
    9
    aggrieved employees could present their complaints to a body that was empowered to take
    action to remedy the problem—is sufficiently analogous to warrant our endorsement of
    TAMUK's open-door policy, which, by the university's own admission, does not provide
    employees access to persons who can fix the underlying cause of their grievances.
    Moreover, we refuse to extend our holding in Padilla to the facts of this case because the
    complaining employees in Padilla had direct access to a person "in a position of authority
    able to remedy" their grievance, the superintendent.                          
    Id. (emphasis added).
                 Here,
    TAMUK's argument relies heavily on Yarbrough's access to two particular persons, Bigbee
    and Daniel.        The first, Bigbee, had no power to rectify the situation giving rise to
    Yarbrough's grievance. The other, Daniel, was the very person who wrote the negative
    evaluation about which Yarbrough was complaining; surely, a public employer's obligations
    under section 617.005 are not satisfied by a policy that vests sole discretion to remedy
    grievances in the hands of the supervisor who created the underlying situation giving rise
    to the complaint.3 We will not limit a public employer's duty under section 617.005 to
    merely providing a sounding board for employee venting; to do so without also requiring
    that the person in authority be able to remedy the complaint would render an employee's
    grievance rights meaningless. See Op. Tex. Att'y Gen. No. H-422, at 2.
    3
    See, e.g., T EX . E D U C . C OD E A N N . § 11.171(a) (W estlaw current through 2009 1st C.S.) (stating that
    public school teachers m ust be able to take their grievances of harassm ent or other violations of law to a
    "supervisor other than the supervisor against whom the em ployee intends to report the grievance"); Univ. of
    Tex. Sys. Rules & Regulations of the Bd. of Regents, Rule 30602 §§ 5-8, http://dox.utdallas.edu/policy1187
    (last visited Aug. 27, 2009) (providing for the appeal of unsatisfactory decisions of direct supervisors to other
    persons em powered to m ake a decision on the m atter); McLennan Com m unity College Em ployee Grievance
    Procedure, http://www.m clennan.edu/publications/phandbook/docs/b-17.pdf (last visited Aug. 27, 2009)
    (sam e).
    10
    Accordingly, we conclude that a public employer complies with section 617.005 so
    long as it allows its employees to access persons in positions of authority to present their
    grievances. See 
    id. ("Having the
    right to present grievances necessarily implies that
    someone in a position of authority is required to hear them . . . ."). However, it is not
    enough that the approached person have a generally authoritative title—such as associate
    vice president for academic affairs. Rather, the person to whom the employee grieves
    must have the authority to actually correct the complained-of wrong. By our decision today
    we do not conclude that the person to whom the grievance is presented is under any sort
    of legal compulsion to take action. See 
    id. Neither are
    we mandating that, as was
    requested by the employees in Padilla, public employers hold hearings for every grievance
    brought before them. See 
    Padilla, 709 S.W.2d at 707
    (agreeing that a requirement that
    the board of trustees hold an evidentiary hearing for every employee complaint would place
    an "overwhelming burden" on the board). We merely conclude that the person hearing the
    employee's grievance must have the power to remedy the complaint if it is ultimately
    determined that is the correct course of action. Based on the foregoing, we cannot
    conclude that TAMUK's actions with regard to Yarbrough's grievance complied with section
    617.005, and thus, its actions cannot provide a basis for granting TAMUK's motion for
    summary judgment.
    3. Conclusion
    Having rejected both grounds on which TAMUK moved for summary judgment, we
    conclude the trial court erred in granting summary judgment in favor of TAMUK. See 
    Doe, 915 S.W.2d at 473
    (holding that reversal of a granted motion for summary judgment
    11
    requires proof that none of the movant's grounds were meritorious).          We sustain
    Yarbrough's first and second issues.
    B. Yarbrough's Motion for Summary Judgment
    Yarbrough moved for summary judgment on the ground that TAMUK denied her
    access to a person in a position of authority who could remedy her grievance regarding her
    negative evaluation.    As previously discussed, the material facts of this case are
    undisputed, and we interpret the law to require that a public employer allow potentially
    wronged employees to present their complaints to a person in a position of authority who
    is able to remedy the grievance. See 
    Padilla, 709 S.W.2d at 707
    . Here, the uncontested
    facts establish that, although Yarbrough attempted to appeal her evaluation up the chain
    of command to Bigbee, Bigbee did not have the authority to direct Daniel to change her
    evaluation or change her evaluation himself. Rather, the evidence shows that Daniel was
    the only person at TAMUK vested with the power to change Yarbrough's evaluation and
    that Yarbrough's "exclusive remedy" was to write a letter to her file rebutting Daniel's
    negative narrative in her evaluation.
    We conclude that by creating an "exclusive remedy" that put Yarbrough's grievance
    squarely back into the hands of the person who wrote her complained-of evaluation,
    TAMUK, as a matter of law, failed to comply with section 617.005. Its actions impaired
    Yarbrough's right to present her grievance to a person with the authority to remedy her
    complaint. Therefore, the trial court erred when it denied Yarbrough's motion for summary
    judgment.    Yarbrough's motion should have been granted because the evidence
    conclusively established that neither her meeting with Bigbee nor the "exclusive remedy"
    of writing a rebuttal letter satisfied TAMUK's obligation to provide Yarbrough with access
    12
    to a person in authority who could remedy her grievance. See FM Props. Operating 
    Co., 22 S.W.3d at 872
    (directing this Court to consider the summary judgment evidence,
    determine the questions presented, and render the judgment that should have been
    rendered by the trial court). Yarbrough's third issue is sustained.
    IV. CONCLUSION
    The judgment of the trial court granting TAMUK's motion for summary judgment and
    denying Yarbrough's is reversed. We render judgment granting Yarbrough's motion for
    summary judgment and enter the following requested declaratory relief:4 that Texas A&M
    University, Kingsville impaired Yarbrough's right to present her grievance under section
    617.005 of the Texas Government Code by offering Yarbrough the "exclusive remedy" of
    rebutting her evaluation to the very supervisor who crafted the negative narrative in the first
    place; this policy denied Yarbrough access to a person in a position of authority who could
    remedy her grievance and, thus, deprived her of her statutory rights under section 617.005.
    See TEX . GOV'T CODE ANN . § 617.005. We remand the case to the trial court for entry of
    attorneys' fees and costs pursuant to the civil practice and remedies code. See TEX . CIV.
    PRAC . & REM . CODE ANN . § 37.009.
    NELDA V. RODRIGUEZ
    Justice
    Opinion delivered and filed this
    24th day of September, 2009.
    4
    See Lubbock Prof'l Firefighters v. City of Lubbock, 742 S.W .2d 413, 419-20 (Tex. App.–Am arillo
    1987, writ ref'd n.r.e) (reversing the trial court's denial of and rendering the declaratory relief requested by
    appellants).
    13