City of Fort Worth, Texas v. Linda J. Shilling ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-410-CV
CITY OF FORT WORTH, TEXAS APPELLANT
V.
LINDA J. SHILLING APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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OPINION
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I. INTRODUCTION
Appellant City of Fort Worth, Texas (the “City”) brings this accelerated,
interlocutory appeal from the trial court’s order denying its plea to the
jurisdiction challenging Appellee Linda J. Shilling’s claims under the
Whistleblower Act and Texas Commission on Human Rights Act (“TCHRA”).
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(a)(8) (Vernon 2008); T EX. G OV’T
C ODE A NN. §§ 554.001–.010 (Vernon 2004); T EX. L AB. C ODE A NN. § 21.055
(Vernon 2006). In two issues, the City argues that the trial court erred by
denying its plea to the jurisdiction because Shilling prematurely filed suit and
because she is barred from pursuing one of her claims under both the TCHRA
and Whistleblower Act. We will affirm in part and reverse and render in part.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
The City hired Shilling in February 2006 to fill the position titled, “Deputy
Director, IT Department.” Sometime in October or November 2006, Shilling
reported that the City’s IT Finance Department was misappropriating and
misusing funds in regard to certain City contracts. Shilling also reported
sometime in November 2006 that Karen Montgomery, the City’s assistant city
manager, and Pete Anderson, Shilling’s supervisor and department director,
wanted to terminate Norm Craven, whom the City had recently hired, because
Craven had participated in an investigation involving sexual harassment in years
past. Also in November 2006, Shilling reported that Paula Randall, a City
employee in the IT Department, had threatened Dan Allen, another employee
in the IT Department, with the possible loss of his job if he was not in
agreement that Shilling should be terminated.
The City terminated Shilling on December 5, 2006, in part due to
insubordination and her failure to attend meetings and respond to information
requests, according to the City. Two days later, Shilling mailed a letter dated
2
December 7, 2006, and addressed to Karen Marshall, the City’s Human
Resources Director, substantively stating as follows:
My termination from the City of Fort Worth on December 5, 2006
was unfounded. The termination was due to me being a Whistle
Blower by reporting mismanagement of funds. I would like to
appeal my termination.
The subject of the letter is “Wrongful Termination,” and it contains Shilling’s
signature, address, and telephone number.
Pete Nelson, a City employee responsible for handling investigations of
whistleblowers, acknowledged in a letter addressed to Shilling and dated
December 18, 2006, that “Karen Marshall gave me the memo you sent her
dated December 7, 2006. In your memo you state you believe your termination
of employment was due to the fact that you are a ‘Whistle Blower.’” The letter
continues, “I have enclosed a copy of the City’s retaliation policy, as well as,
a Retaliation Complaint form and instructions. Please complete the enclosed
form and answer the ten (10) questions associated with the form.” It
concludes, “Please return the form to me[,] and I will begin investigating your
allegation. Give me a call if you have any questions . . . .”
Shilling sent a letter to Nelson dated January 5, 2007, apologizing for
“the delay in responding to [his] request for additional information.” She
submitted three completed City “Retaliation Complaint Forms” explaining the
3
basis of and circumstances surrounding her Whistleblower complaints that the
IT Finance Department was misusing funds, that Montgomery and Anderson
wanted to terminate Craven because Craven had participated in a sexual
harassment investigation, and that Randall had threatened Allen.
On or about January 30, 2007, Shilling filed a charge of discrimination
with the Texas Workforce Commission Civil Rights Division (“TWC”) claiming
that she was terminated shortly after she “reported and opposed efforts to
terminate Norm Craven for participation in a sexual harassment investigation.”
Shilling filed her original petition on February 23, 2007, alleging that the
City had, pursuant to subchapter 554 of the government code, “subjected [her]
to adverse employment action for good faith reports of violations of law to
appropriate law enforcement agencies.” In it, she contended that she had
terminated her grievance proceeding with the City. Shilling’s second amended
original petition, her live petition, filed July 9, 2007, included an identical
Whistleblower Act allegation in addition to an allegation asserting a retaliation
claim under section 21.055 of the labor code.
The City subsequently filed a plea to the jurisdiction arguing that the trial
court lacked jurisdiction (1) over Shilling’s Whistleblower Act claims because
she failed to comply with government code section 554.006 when she filed suit
on February 23, 2007, less than sixty days after she had filed her grievances
4
with the City on January 5, 2007, and (2) over her TCHRA retaliation claim
involving Craven because she had previously challenged the same complained-
of conduct in her grievance proceeding with the City. See T EX. G OV’T C ODE
A NN. § 554.006(a), (d); T EX. L AB. C ODE A NN. § 21.211. The City attached to
its plea Nelson’s affidavit, City policies regarding discrimination and retaliation
complaints, portions of Shilling’s deposition testimony, Shilling’s three City-
provided Retaliation Complaint Forms, and Shilling’s TWC charge of
discrimination. Shilling responded to the City’s plea and attached twenty-six
supporting exhibits, including the depositions of Shilling, Anderson, and
Marshall, Shilling’s post-termination correspondence with the City, and
correspondence between City employees, among other items.
The trial court denied the City’s plea to the jurisdiction. But it also
ordered that Shilling’s suit be abated for sixty days, during which time it
ordered Shilling to elect whether she wants to proceed under the Whistleblower
Act or the TCHRA on her retaliation claim involving “her objection to [the
City’s] alleged efforts to terminate the employment of Norm Craven.” The trial
court entered findings of fact and conclusions of law.1 Of the trial court’s eight
1
… See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442
(Tex. 1997) (noting that when findings of fact are not required but are helpful,
they do not carry the same weight on appeal as findings made under rule of
civil procedure 296 and are not binding on the appellate court).
5
findings of fact, its second, fifth, sixth, and seventh findings of fact are as
follows:
2. By letter dated December 7, 2006, Plaintiff initiated a grievance
with Defendant in which same appealed her termination and
alleged she was terminated for being a whistleblower.
5. In December 2006, Pete Nelson, Human Resources Manager for
Defendant, started an investigation of Plaintiff’s allegations raised
in her December 7, 2006 letter.
6. After conducting his investigation, Ms. Marshall testified that
Mr. Nelson reported to her that he could not substantiate Plaintiff’s
allegations.
7. Plaintiff filed suit on February 23, 2007, more than 61 days
after Plaintiff initiated a grievance with Defendant.
III. S TANDARD OF R EVIEW
We have jurisdiction to review a district court’s interlocutory order that
grants or denies a plea to the jurisdiction by a governmental unit. See T EX. C IV.
P RAC. & R EM. C ODE A NN. § 51.014(a)(8) (Vernon 2008),§ 101.001(3)(B) (Vernon
2005). A plea to the jurisdiction is a dilatory plea used to defeat a cause of
action without regard to whether the claims asserted have merit. Bland ISD v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s
subject matter jurisdiction. Id. Whether the trial court had subject matter
jurisdiction is a question of law that we review de novo. Tex. Natural Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
6
The plaintiff has the burden of alleging facts that affirmatively establish
the trial court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings
liberally in favor of the plaintiffs, look to the pleader’s intent, and accept the
pleadings’ factual allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). If a plea to the jurisdiction challenges the
existence of jurisdictional facts, as in this case, we consider relevant evidence
submitted by the parties that is necessary to resolve the jurisdictional issues.
Id. at 227; Bland ISD, 34 S.W.3d at 555. A trial court’s review of a plea to the
jurisdiction challenging the existence of jurisdictional facts mirrors that of a
traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; see
also T EX. R. C IV. P. 166a(c). The governmental unit is required to meet the
summary judgment standard of proof for its assertion that the trial court lacks
jurisdiction. Miranda, 133 S.W.3d at 228. The plaintiff is then required to
show that there is a disputed material fact regarding the jurisdictional issue. Id.
If the evidence creates a fact question regarding jurisdiction, the trial court must
deny the plea to the jurisdiction and leave its resolution to the fact finder. Id.
at 227–28. But if the evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as
a matter of law. Id. at 228.
7
IV. “INITIATE ” A CTION
In its first issue, the City argues that the trial court erred by denying its
plea to the jurisdiction because Shilling prematurely filed her lawsuit. It
contends that she initiated the City’s grievance procedure on January 5, 2007,
when she returned to the City the three completed, City-provided retaliation
complaint forms, not on December 7, 2006, when she notified Nelson that she
wanted to appeal her termination. Consequently, the City contends that
because Shilling filed her lawsuit on February 23, 2007, which was only forty-
nine days after initiating the City’s grievance procedure on January 5, she failed
to comply with the Whistleblower Act’s requirement that she give the City at
least sixty days to reach a decision on her complaint before filing suit, thus
depriving the trial court of jurisdiction over her claim. Shilling responds that she
initiated the City’s grievance procedure on December 7, 2006, and that she
complied with the Whistleblower Act’s mandatory sixty-day employer-
investigation period because she filed her lawsuit seventy-eight days later.
The Whistleblower Act provides that a state or local governmental entity
may not suspend or terminate the employment of, or take other adverse
personnel action against, a public employee who in good faith reports a
violation of law by the employing governmental entity or another public
employee to an appropriate law enforcement authority. T EX. G OV’T C ODE A NN.
8
§ 554.002(a). It contains an express waiver of the State’s sovereign immunity.
See id. § 554.0035 (“A public employee who alleges a violation of this chapter
may sue the employing state or local governmental entity for the relief provided
by this chapter. Sovereign immunity is waived and abolished to the extent of
liability for the relief allowed under this chapter for a violation of this chapter.”);
Tex. Dep’t of Human Servs. v. Okoli, No. 01-07-00103-CV, 2007 WL
1844897, at *2 (Tex. App.—Houston [1st Dist.] June 28, 2007, pet filed).
Before filing suit, however, a claimant “must initiate action under the grievance
or appeal procedures of the employing state or local governmental entity
relating to suspension or termination of employment or adverse personnel
action.” T EX. G OV’T C ODE A NN. § 554.006(a) (emphasis added). If a final
decision is not rendered before the sixty-first day after the date procedures are
initiated, the employee may elect to exhaust the applicable procedures
previously initiated or terminate procedures and timely file suit. Id.
§ 554.006(d)(1), (2). It is this sixty-day statutory requirement that the City
contends Shilling failed to comply with.
The requirement that an employee “initiate” grievance procedures before
filing suit is to afford the employer an opportunity to correct its errors by
resolving disputes before litigation. City of San Antonio v. Marin, 19 S.W.3d
438, 441 (Tex. App.—San Antonio 2000), disapproved of on other grounds by
9
Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631, 633 n.7
(Tex. 2005). Section 554.006 does not require that grievance or appeal
procedures be exhausted before suit can be filed; rather, it requires that such
procedures be timely initiated and that the grievance or appeal authority have
sixty days to render a final decision. Barrett, 159 S.W.3d at 632. While the
Whistleblower Act does not dictate what actions are required to “initiate” the
appeals procedure, the Act is remedial in nature and should be liberally
construed to effect its purpose. Moore v. Univ. of Houston-Clear Lake, 165
S.W.3d 97, 102 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of New
Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.).2
The evidence is undisputed that Shilling provided written notice of her
intent to appeal her termination. The letter is dated December 7, 2006, and
2
… The City argues that section 554.006's statutory prerequisites to filing
suit are jurisdictional because of the legislature’s post-Barrett amendment to
government code section 311.034 stating that “[s]tatutory prerequisites to a
suit, including the provision of notice, are jurisdictional requirements in all suits
against a governmental entity.” See T EX. G OV’T C ODE A NN. § 311.034 (Vernon
Supp. 2008). Shilling contends that abatement, not dismissal, is the
appropriate remedy for her alleged failure to comply with section 554.006. See
Barrett, 159 S.W.3d at 632 (holding that abatement is appropriate remedy for
prematurely filed Whistleblower Act suit, provided that procedures have been
timely initiated, but stating that “[w]e need not decide here whether the failure
to meet these requirements [of section 554.006] deprives the court of
jurisdiction over the action.”). In light of our holding overruling the City’s first
issue, we do not reach this specific question.
10
Shilling opines therein that her termination was “unfounded” and that she was
terminated for being a whistleblower. The evidence is also undisputed that the
City received Shilling’s notice sometime shortly thereafter; Nelson responded
to Shilling’s notice by letter to her dated December 18, 2006, that Marshall had
given him the memo that Shilling sent dated December 7, 2006.
The City’s sole, specific argument is that Shilling did not initiate the City’s
grievance procedure because her December 7, 2006 letter failed to include the
“very specific requirements” that are set forth in the City’s discrimination and
retaliation complaints policy. The policy states that an employee invokes the
grievance procedure by filing a retaliation or discrimination report not later than
the ninetieth day after the date on which the alleged adverse employment
action occurred or was discovered and that all complaints must be filed in
writing. The policy states that all reports “must include the following
information,” which includes employee contact information, including the
employee’s “number and position” and supervisor, the nature and date of the
alleged adverse employment action, the individual who allegedly caused the
adverse action, and the facts forming the basis of the complaint. The policy
further provides that the “Human Resources Department’s Employee Relations
Division will investigate allegations of discrimination and retaliation and convey
the findings to the Department Director.”
11
While Shilling’s December 7, 2006 letter does not contain the detail that
is provided in her January 5, 2007 retaliation forms, we cannot conclude that
the City established its plea to the jurisdiction on the issue of initiation as a
matter of law because Shilling responded with evidence demonstrating that the
City indeed began an investigation after receiving Shilling’s written notice
indicating her intent to appeal her termination. Specifically, Marshall testified
at her deposition that she asked Nelson to conduct an investigation into
Shilling’s claims in December 2006 and that Nelson conducted an investigation.
According to Marshall, Nelson shared his findings with her that he could not
substantiate Shilling’s claims. Also, Anderson sent Nelson a January 12, 2007
memorandum explaining that he was providing Nelson with two “documents”
that he had mentioned to Nelson “a month or so ago” related to Shilling’s
whistleblower claims. Anderson confirmed during his deposition that the
memorandum referenced a conversation that he had with Nelson in December
2006 when Nelson “was trying to investigate” Shilling’s claims. Anderson
testified that the memorandum states that he “talked to Pete Nelson about an
investigation he was conducting around that time frame.” [Emphasis added.]
In the context of discussing the January 12, 2007 memorandum and December
2006 conversation that Anderson had with Nelson, Shilling’s attorney
12
specifically inquired into whether Nelson conducted the investigation as a result
of receiving Shilling’s notice. The following exchange occurred:
[Shilling’s attorney]: And [Nelson] was conducting the investigation
because he had received a complaint from Ms. Shilling that she had
complained that she was terminated due to whistleblower activity,
correct?
[Anderson]: I — I believe that’s the case, yes.
Shilling thus presented evidence disputing the City’s argument that her
December 7, 2006 letter did not “initiate” an investigation.3
The City cites a number of cases that are either distinguishable from the
facts of this case or inapposite. 4 And although the City—in response to
Shilling’s exhaustion argument—contends in reply that Shilling presented no
evidence that it made a decision on her appeal before she filed suit, we agree
with our sister court’s logical conclusion that an employee’s act of filing suit
demonstrates an intent to terminate the grievance proceedings and pursue the
3
… There is no evidence—nor is it argued—that the City initiated the
investigation into Shilling’s claims on its own or for any reason other than
Shilling’s letter notifying it of her intent to appeal her termination.
4
… See Johnson v. The City of Dublin, 46 S.W.3d 401, 404–05 (Tex.
App.—Eastland 2001, pet. denied) (holding that appellant failed to initiate city’s
grievance procedure because he did not submit written copy of grievance); Ruiz
v. Austin ISD, No. 03-02-00798-CV, 2004 WL 1171666, at *7 (Tex.
App.—Austin May 27, 2004, no pet.) (mem. op.) (holding that appellant failed
to initiate grievance procedure by raising concerns at a meeting).
13
claims in court. See Tex. Dep’t of Transp. v. Needham, No. 03-98-00460-CV,
1999 WL 143853, at *3 (Tex. App.—Austin Mar. 18, 1999, no pet.) (not
designated for publication) (addressing issue of whether an employee’s filing of
suit acts as an election under section 554.006(d) and holding that appellee’s
“filing of suit acted as an implied termination of . . . grievance procedures and
was thus a tacit ‘election’ under the statute.”). Indeed, Shilling alleged in her
original petition that she was terminating the grievance.
With the exception of claiming in its reply brief that Marshall’s deposition
testimony is “not material,” 5 the City seems to disregard the evidence above
demonstrating that it actually began an investigation in response to Shilling’s
December 2006 letter. Dismissing this evidence, however, is inconsistent not
only with the liberal construction that we should give this portion of the
Whistleblower Act (to effect its purpose that the employer be afforded an
opportunity to correct its errors by resolving disputes before litigation), but also
with the applicable standard of review. See Miranda, 133 S.W.3d at 228
(reasoning that trial court’s review of plea to the jurisdiction challenging the
5
… The record does not demonstrate that the City asserted this objection
to Marshall’s testimony and obtained a ruling by the trial court thereon. See
T EX. R. A PP. P. 33.1.
14
existence of jurisdictional facts mirrors that of a traditional motion for summary
judgment).
In light of the relevant jurisdictional evidence submitted by Shilling
showing that her December 7, 2006 letter initiated an investigation by the City,
a fact issue exists regarding the date on which she “initiated” the City’s
grievance procedure as contemplated by government code section 554.006(a).
See T EX. G OV’T C ODE A NN. § 554.006(a). Consequently, the trial court did not
err by denying the City’s plea to the jurisdiction on this ground. See Miranda,
133 S.W.3d at 227–28 (reasoning that the trial court must deny the plea to the
jurisdiction and leave its resolution to the fact finder if the evidence creates a
fact question regarding jurisdiction); City of Dallas v. Watts, 248 S.W.3d 918,
921–22 (Tex. App.—Dallas 2008, no pet.) (reasoning that appellant’s
arguments do not establish its plea to the jurisdiction as a matter of law but
highlight fact dispute as to whether appellee’s actions “initiated” appellant’s
appeal procedures). We overrule the City’s first issue.
V. E LECTION OF R EMEDIES
In its second issue, the City argues that the trial court erred by failing to
grant its plea to the jurisdiction on Shilling’s TCHRA claim involving her report
that Montgomery and Anderson wanted to terminate Craven because of his
participation in a sexual harassment investigation. Relying on labor code
15
section 21.211, it contends that her TCHRA retaliation claim is barred because
she elected to pursue a claim based on the same facts under the Whistleblower
Act. Citing the supreme court’s recent decision in City of Waco v. Lopez, the
City additionally argues in a post-submission brief that Shilling’s claim involving
Craven is not actionable under the Whistleblower Act.6 No. 06-0089, 2008 WL
2702182 (Tex. July 11, 2008).
Section 21.211 of the labor code provides that “[a] person who has
initiated an action in a court of competent jurisdiction or who has an action
pending before an administrative agency under other law . . . based on an act
that would be an unlawful employment practice under this chapter may not file
a complaint under this subchapter for the same grievance.” T EX. L AB. C ODE
A NN. § 21.211. Although in the context of considering whether the TCHRA
preempted a common law cause of action, this court considered section 21.211
in Jackson v. Creditwatch, Inc. 84 S.W.3d 397, 402–03 (Tex. App.— Fort
Worth 2002), rev’d in part on other grounds, 157 S.W.3d 814 (Tex. 2005).
There we reasoned in part as follows:
Rather than preclude other causes of action that might arise from
an employment practice made unlawful by the TCHRA, this
language implies that a plaintiff cannot have two bites at the apple.
6
… Subject-matter jurisdiction cannot be waived and can be raised at any
time. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008).
16
That is, a plaintiff cannot first sue a defendant-employer for a non-
TCHRA cause of action for conduct arising from the same facts as
employment discrimination and then pursue a claim of employment
discrimination through the administrative review system established
under the TCHRA; or, a plaintiff cannot elect to pursue an
administrative remedy under some other administrative review
system, and then file with the TCHR[A administrative review
system] as well. This provision requires a plaintiff to pick a remedy
....
Id. (quoting Perez v. Living Ctrs.–Devcon, Inc., 963 S.W.2d 870, 873–74 (Tex.
App.—San Antonio 1998, pet. denied)). This interpretation, which other courts
have adopted as well, is consistent with the supreme court’s interpretation of
section 21.211 in Lopez. See Lopez, 2008 WL 2702182, at *6 (“The election
of remedies language simply means that a claimant can pursue a remedy for
discrimination under federal law or under grievance-redress systems in
existence at the local level, but pursuing either of these options precludes later
initiating a [T]CHRA complaint.”); Turner v. Richardson ISD, 885 S.W.2d 553,
561 (Tex. App.—Dallas 1994, writ denied) (considering argument that
appellants could have timely filed Whistleblower Act claims, pursued TCHRA
administrative remedies until permission to sue was granted, and then amended
suit to add TCHRA claim and reasoning that, under section 21.211, appellants
“were expressly prevented from maintaining both actions simultaneously”);
Stancu v. Cent. Apartment Mgmt., Inc., No. 394-CV-2440-D, 1997 WL
278127, at *2 (N.D. Tex. May 14, 1997) (mem. op.) (“[Section] 21.211
17
merely provides that if a person has already initiated a lawsuit or other
proceeding permitted by law, order, or ordinance, he may not file a complaint
with the Commission on Human Rights for the same practice. It is in this sense
alone that he elects his remedy.”); see also Williams v. Vought, 68 S.W.3d
102, 111 n.9 (Tex. App.—Dallas 2001, no pet.).
Here, Shilling sought review of her Whistleblower Act claims through the
City’s local grievance procedure. The facts underlying the basis of one of her
City-provided retaliation complaint forms is that she “reported that
[Montgomery] and [Anderson] wanted to terminate [Craven] because he had
participated in a sexual harassment investigation previously.” Shilling also filed
a charge of discrimination with the TWC on or about January 30, 2007. The
basis of her charge of discrimination complaint is that the City terminated her
after she “reported and opposed efforts to terminate Norm Craven for
participation in a sexual harassment investigation.” Shilling thus began
administrative proceedings with the City based in part on her claim regarding
Craven and also filed a charge of discrimination with the TWC based on the
same (indeed identical) complained-of conduct involving Craven. This she
cannot do. Having initiated administrative proceedings with the City regarding
conduct involving Craven, Shilling was unambiguously prohibited by labor code
section 21.211 from contemporaneously pursuing her complaint with the TWC
18
based on the same grievance involving Craven. See T EX. L AB. C ODE A NN. §
21.211.
Shilling argues that the City must first demonstrate that her termination
in retaliation for objecting to the City’s alleged efforts to terminate Craven
would be an unlawful employment practice under the labor code. But we will
not adopt a construction of section 21.211 that will render it meaningless or
lead to absurd results. See Watts v. City of Houston, 126 S.W.3d 97, 100
(Tex. App.—Houston [1st Dist.] 2003, no pet.). Shilling’s interpretation of
section 21.211 would render it virtually meaningless because the City may
perpetually contest any finding that it engaged in an unlawful employment
practice.
We hold that the trial court erred by denying the City’s plea to the
jurisdiction on this ground. Accordingly, we sustain this part of the City’s
second issue.
We now turn to the City’s post-submission argument relying on Lopez
that Shilling’s claim involving Craven is not actionable under the Whistleblower
Act. Lopez sued the City of Waco under the Whistleblower Act, claiming that
his employment with the city was terminated for filing a grievance with the
city’s equal employment opportunity officer. Lopez, 2008 WL 2702182, at *1.
He had complained that he was transferred from one position to another
19
because of his age and race in violation of the City of Waco’s EEO policy. Id.
The city filed a plea to the jurisdiction challenging Lopez’s Whistleblower Act
claim, arguing in part that the TCHRA was the exclusive remedy for Lopez’s
retaliatory discharge claim. Id. The supreme court agreed and held that the
TCHRA provides the exclusive state statutory remedy for public employees
alleging retaliation arising from activities protected under the TCHRA. Id. at *1,
7. The court limited its holding “to retaliatory discharge claims premised on the
type of harm the [T]CHRA was enacted to redress.” Id. at *7. Consequently,
“the Whistleblower Act must yield to the [T]CHRA for retaliation claims arising
from allegations of employment discrimination made unlawful under the
[T]CHRA.” Id. at *6.7
Here, Shilling sued the City under the Whistleblower Act. As we
mentioned above, the facts underlying the basis of one of her City-provided
retaliation complaint forms is that she “reported that [Montgomery] and
7
… Texas Supreme Court decisions generally apply retroactively unless the
supreme court exercises its discretion to modify that application and expresses
so in its opinion. Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992); Bowen
v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex. 1992). The court’s
opinion in Lopez does not indicate that it is to be applied prospectively, nor are
we convinced that an exception to this rule is appropriate under the
circumstances. See Elbaor, 845 S.W.2d at 250 (considering three factors used
to determine whether decision should be applied prospectively or retroactively).
20
[Anderson] wanted to terminate [Craven] because he had participated in a
sexual harassment investigation previously.” The basis of her charge of
discrimination complaint filed with the TWC is that the City terminated her after
she “reported and opposed efforts to terminate Norm Craven for participation
in a sexual harassment investigation.” Shilling’s claim that the City terminated
her in retaliation for reporting and opposing the City’s desire to terminate
Craven for his participation in a sexual harassment investigation is thus
premised on the type of harm that the TCHRA was enacted to address.
Because the TCHRA provides the exclusive state statutory remedy for
retaliation claims arising from activities protected under the TCHRA, the trial
court does not have jurisdiction over Shilling’s Whistleblower Act claim
involving Craven. 8 See id. at *7. Accordingly, we sustain this part of the
City’s second issue.
VI. C ONCLUSION
Having overruled the City’s first issue, we affirm the trial court’s order
denying the City’s plea to the jurisdiction as to Shilling’s W histleblower Act
claims that are not premised on Shilling’s report involving Craven. However,
8
… Aside from its first issue, which we have overruled, the City does not
challenge the other allegations that Shilling alleges constitute Whistleblower Act
violations.
21
having sustained the City’s second issue challenging Shilling’s TCHRA
retaliation claim involving Craven, we reverse the trial court’s order abating
Shilling’s action and ordering her “to ELECT to proceed under the Texas
W histleblower Act o[r] the Texas Commission on Human Rights Act on her
claim that her employment was terminated in retaliation for her objection to
Defendant’s alleged efforts to terminate the employment of Norm Craven, such
election to be made on or before seven days after the expiration of the
abatement period[,]” and render judgment dismissing her TCHRA retaliation
claim for want of jurisdiction. See T EX. R. A PP. P. 43.2(c). Having additionally
sustained the part of the City’s second issue challenging Shilling’s
Whistleblower Act claim involving Craven, we render judgment dismissing that
claim for want of jurisdiction. See id. 9
DIXON W. HOLMAN
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED: August 21, 2008
9
… To avoid any confusion by the parties, Shilling’s Whistleblower Act
claims not premised on Shilling’s report involving Craven remain pending in the
trial court.
22