Jefferson County, Texas v. Cherisse Jackson

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00197-CV
_________________
JEFFERSON COUNTY, TEXAS, Appellant
V.
CHERISSE JACKSON, Appellee
__________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-197,513
__________________________________________________________________
OPINION
In this interlocutory appeal, Jefferson County challenges the ruling the trial
court made denying its plea to the jurisdiction. The appeal arises from an
employment discrimination and whistleblower suit filed by Cherisse Jackson, a
County employee who works at the Jefferson County Correctional Facility (the jail).
In her suit, Jackson alleged that the County should have promoted her and that the
County should not have demoted her from her position as a sergeant at the jail to the
position she currently holds as a corrections officer.
1
In one appellate issue, the County argues the trial court should have dismissed
all of Jackson’s claims. We hold that Jackson failed to meet her burden to establish
that the district court possessed jurisdiction to conduct additional proceedings in
Jackson’s case; as a result, we reverse the trial court’s ruling on the plea to the
jurisdiction and order Jackson’s suit dismissed. Tex. R. App. P. 43.2(c).
Background
In September 2015, Jackson sued the County alleging that Sheriff Mitch
Woods1 and other officers in the Sheriff’s Department had discriminated and
retaliated against her after she refused to cooperate with a request she alleged Deputy
Cathy Werner made of her while investigating the alleged misconduct of another
County employee, April Swain. The pleadings and evidence before the trial court
show that Deputy Werner is assigned to the Internal Affairs Division of the Sheriff’s
office.
When the County investigated Swain, it was seeking to determine whether
Swain and an inmate had been involved in a sexual encounter at the jail. In Jackson’s
suit, Jackson claimed that Deputy Werner approached her to determine whether
Jackson had witnessed the alleged encounter between Swain and the inmate.
According to Jackson’s pleadings, she informed Deputy Werner that she had not
1
Sheriff Woods retired in 2016.
2
personally observed the incident. In any event, Jackson claims that Deputy Werner
then asked Jackson to give the County a written statement claiming that she had seen
the alleged encounter while viewing a monitor that jailers use to monitor activities
inside the jail. Jackson’s pleadings do not specify the time or the date that Deputy
Werner allegedly made this request.
On September 1, 2015, Jackson filed a claim with the Equal Employment
Opportunity Commission (EEOC) complaining that the County had retaliated
against her for refusing to provide Deputy Werner with a written statement critical
of Swain. Jackson’s EEOC complaint alleges that Deputy Werner contacted Jackson
in January 2014 and that Deputy Werner asked her to provide a written statement
critical of Swain’s conduct. According to Jackson’s EEOC complaint, she refused
Deputy Werner’s request, and the County then engaged in a series of acts that
resulted in her demotion to the position of corrections officer and in the County’s
decision not to promote her to a position as a lieutenant.
Six days after Jackson filed her EEOC claim, she sued the County in district
court. In her original petition, Jackson claimed the County retaliated against her after
she refused to provide the county with a statement critical of Swain’s conduct. She
alleged the retaliation she suffered affected her job, and by retaliating against her,
3
the County violated the Whistleblower Act.2 See Tex. Gov’t Code Ann. §§ 554.001-
.010 (West 2012) (Whistleblower Act). The claims in Jackson’s initial petition
alleged only that the County’s conduct violated the Whistleblower Act. Id.
When the County responded to Jackson’s suit, it filed a plea to the jurisdiction.
A plea to the jurisdiction is a dilatory plea, which governmental entities typically
use to defeat a plaintiff’s action without regard to whether any of the plaintiff’s
claims have merit. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). In its plea, the County denied that it demoted Jackson because she had
participated in the investigation that involved Swain. The County noted that
Jackson’s interview with Deputy Werner had occurred several months before
Jackson was demoted. The County also alleged that it had legitimate reasons to
demote Jackson, explaining that Jackson was demoted following a Disciplinary
Review Board hearing, which found that in May 2015, Jackson engaged in
insubordinate conduct toward Lieutenant Hawkins, a superior officer. The day after
the incident involving Jackson’s alleged insubordinate conduct, Lieutenant Hawkins
filed a written complaint, directed at Jackson, charging Jackson with handling a
2
The original petition that Jackson filed does not allege that the County
violated the Texas Commission on Human Rights Act. See Tex. Lab. Code Ann. §§
21.001-.556 (West 2015 & Supp. 2017) (Texas Commission on Human Rights Act,
or TCHRA). Jackson added her TCHRA claim after the County filed its plea.
4
phone call that Hawkins made on the previous day in a way that violated the
County’s written policies. The County also alleged that a Disciplinary Review
Board, after considering Lieutenant Hawkins’ charges, found the charges had merit
and recommended that Jackson be demoted from her position as a sergeant at the
jail.
The County supported the facts alleged in its plea with thirty documents,
alleging that the information in the documents supported its claim that Jackson’s
demotion had been based on the incident involving Lieutenant Hawkins, an incident
that it claimed was unrelated to the investigation that it had conducted earlier into
Swain’s alleged misconduct. According to the County, the decisions it made about
Jackson’s job were made for legitimate reasons, which it claimed were unrelated to
its investigation of Swain.3
The documents attached to the County’s plea support the County’s allegation
that it demoted Jackson because Lieutenant Hawkins filed a grievance against
Jackson that a Disciplinary Review Board determined had merit. The evidence
before the trial court when it ruled on the County’s plea included Lieutenant
3
The County failed to properly authenticate the documents that it submitted
to the trial court with its plea. But the record does not show that Jackson objected to
the authenticity of the documents. In reviewing the parties’ arguments, we have
considered the documents the County filed with its plea as evidence the trial court
considered in ruling on the County’s plea.
5
Hawkins’ written complaint, which addressed the incident involving Jackson’s
insubordinate conduct. Lieutenant Hawkins filed her complaint on May 27, 2015,
alleging that, on May 26, 2015, Jackson exhibited insubordinate and unprofessional
conduct by hanging up on Lieutenant Hawkins twice after she telephoned Jackson
seeking to locate another officer that she needed to contact so that she could
complete her duty roster for the next day.
After the County filed its plea, but before the hearing the trial court conducted
on the County’s plea, Jackson amended her petition several times. In amended
pleadings, Jackson added claims alleging the County’s retaliatory conduct violated
the Texas Commission on Human Rights Act. She also added a claim alleging that
she was entitled to a declaratory judgment that the County had violated her rights.
See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2015 & Supp. 2017) (TCHRA); Tex.
Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2015) (Uniform Declaratory
Judgments Act).
In her Third Amended Petition, Jackson’s live petition for this appeal,4
Jackson alleged that the County retaliated against her based on the manner she had
4
Jackson styled her live pleading as “Plaintiff’s (Revised) Second Amended
Petition[.]” After comparing Jackson’s Second Amended Petition, which she filed
on May 2, 2017, with her (Revised) Second Amended Petition, which she filed on
May 4, 2017, we conclude that Jackson intended her “revised” petition to function
as an amended petition. See Tex. R. Civ. P. 64. Under the Texas Rules of Civil
Procedure, plaintiffs must denominate their pleadings as original, amended, or
6
participated in the investigation involving Swain, and that the County’s conduct
violated her rights under the Texas Whistleblower Act, the Texas Commission on
Human Rights Act, and the collective bargaining agreement between Jefferson
County and the Jefferson County Sheriff’s Association. See generally Tex. Gov’t
Code Ann. §§ 554.001-.010; Tex. Lab. Code Ann. §§ 21.001-.556. Jackson also
alleged that the County’s retaliatory conduct, which she claimed was connected to
the investigation the County conducted about Swain, violated her rights to speak
freely and to be treated equally under the Texas Constitution. See Tex. Const. art. I,
§§ 3, 3a, 8, 19. Each of Jackson’s claims hinged on her ability to prove that the
County’s conduct occurred in retaliation for her alleged refusal to provide the
County with a statement critical of Swain’s conduct at the jail.
In response to Jackson’s Third Amended Petition, the County supplemented
its plea. The County’s supplemental plea addresses the claims the County did not
expect that Jackson would file when it filed its plea. For example, the County’s
supplemental plea addresses Jackson’s claims seeking declaratory relief. The County
alleged that these claims were invalid because none of Jackson’s declaratory
supplemental petitions. Nothing in the rules of procedure allow a party to style a
petition as a “revised” petition. See id. So, we refer to Jackson’s “(Revised) Second
Amended Petition” in the opinion as Jackson’s Third Amended Petition. See Tex. R.
Civ. P. 71 (providing that a party’s mistaken designation of a pleading is to be treated
as if the pleading was properly designated).
7
judgment claims had been based on a facially valid claim. Because the County’s plea
and the evidence that it produced challenge the existence of a causal relationship
between Deputy Werner’s investigation and its decisions about Jackson’s job, we
review the evidence the trial court considered to determine whether the evidence the
County produced shifted the burden of proof to Jackson on causation. If it did, we
are then required to determine whether Jackson met her burden to prove that an issue
of material fact existed on Jackson’s claim that the County’s decisions affecting her
job were made because of her alleged refusal to provide the County with a statement
critical of Swain.
When the trial court ruled on the County’s plea, the evidence before the court
showed that Lieutenant Hawkins filed a disciplinary complaint against Jackson
before the County decided to demote her. The complaint filed by Hawkins alleges
that Jackson engaged in unprofessional and insubordinate conduct. The evidence
goes on to show that the grievance filed by Lieutenant Hawkins resulted in two
different Disciplinary Review Board5 hearings. Both of the Boards that heard
5
The documents the County filed included a copy of the Collective
Bargaining Agreement between the Jefferson County Officer’s Association and
Jefferson County. The Collective Bargaining Agreement creates a disciplinary
review hearing procedure, and it calls for disciplinary matters to be heard by a
Disciplinary Review Board. Under the Collective Bargaining Agreement, each
Disciplinary Review Board consists of seven officers, six of which who are chosen
randomly from the Sheriff’s Department. The six randomly selected officers serve
8
Lieutenant Hawkins’ grievance found that Jackson engaged in insubordinate and
unprofessional conduct toward a superior officer. Following the hearings, both
Boards forwarded recommendations to the Sheriff recommending that Jackson
should be demoted for having engaged in misconduct.6
The investigation and the disciplinary proceedings involving Jackson
consumed nearly the entirety of the six-month period during which Jackson was
eligible to be considered for a promotion to lieutenant.7 In her pleadings, Jackson
alleged that she achieved a passing score on a competitive exam, which the County
administered to a group of officers to determine whether these officers should be
considered for a possible promotion. Jackson alleged that she took the exam in April
2015. Lieutenant Hawkins filed her complaint about Jackson in late May 2015, and
one-year terms. The head of the Board, selected annually by the Sheriff, serves a
one-year term.
6
Following the first Disciplinary Review Board hearing, Jackson complained
that a member on that board was ineligible to serve. She alleged that a disciplinary
proceeding was decided adversely against that officer within a twelve-month period,
which ended on the date that Jackson’s first hearing occurred. The Sheriff set aside
the first Disciplinary Review Board’s decision, and he awarded Jackson a second
hearing.
7
The Collective Bargaining Agreement contains a competitive test procedure.
Officers who pass the test are eligible for possible promotions during a six-month
period after passing the exam.
9
her complaint resulted in an investigation and hearings that concluded on September
15, 2015. Thus, the period in which Jackson claims she was eligible for promotion
largely overlaps with the period that Jackson was being investigated for engaging in
insubordinate conduct toward a superior officer. We also note that Jackson’s
pleadings do not allege that anyone received a promotion to lieutenant, or that any
member of an unprotected class was promoted to the position that she claims the test
qualified her to receive.
Jackson produced little evidence when she responded to the County’s plea.
Instead, she claimed that she did not have the burden to produce any evidence, and
she argued that the trial court should accept the allegations in her pleadings as if they
were true. That said, Jackson did attach eight documents to her response.8 Jackson
requested that the trial court consider the documents she attached to her response
together with the documents the County filed in resolving the County’s plea. Jackson
argued in her response that the combined documents the parties were asking the trial
court to consider created a fact issue on whether the County had retaliated against
her because she refused to provide the County with a written statement critical of
8
Jackson did not authenticate the exhibits that she attached to her response.
Still, the County never objected to the authenticity of the documents Jackson
included with her response. Thus, we consider the documents attached to Jacksons’
plea as evidence in resolving the appeal.
10
Swain’s conduct with an inmate. Jackson also alleged in her response that the County
was not immune from her claims seeking declaratory relief.
In late May 2017, the trial court denied the County’s plea. Five days later, the
County filed its notice of appeal. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (West Supp. 2017) (authorizing interlocutory review of orders denying
pleas to the jurisdiction filed by governmental entities). In a single issue, the County
argues in its appeal that the trial court committed error by overruling the County’s
plea.
Appellate Review-Pleas to the Jurisdiction
Governmental immunity protects political subdivisions of the state, including
counties, from lawsuits. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-
58 (Tex. 2011). “Governmental immunity includes both immunity from liability,
‘which bars enforcement of a judgment against a governmental entity, and immunity
from suit, which bars suit against the entity altogether.’” Lubbock Cty. Water
Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex.
2014) (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)). As a
result, without the pleader establishing that a waiver of a governmental entity’s
immunity exists for the claims the plaintiff seeks to advance in a lawsuit, trial courts
lack jurisdiction to conduct proceedings to determine the merits of complaints made
about a governmental entity’s actions. See Rusk State Hosp. v. Black, 392 S.W.3d
11
88, 95 (Tex. 2012). Put simply, a plea to the jurisdiction alleges that the trial court
cannot exercise jurisdiction over the plaintiff’s claims. See id. at 95.
Typically, governmental entities assert a claim of governmental immunity by
filing a pleading titled “plea to the jurisdiction.” See Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) (noting that immunity from suit
defeats a trial court’s jurisdiction and is “properly asserted in a plea to the
jurisdiction”). Whether a governmental entity has retained governmental immunity
from being sued are matters that courts decide as questions of law. Id. at 226. So,
when governmental entities appeal from such rulings, the rulings are reviewed under
a de novo standard. Id.
In Jackson’s case, Jefferson County’s plea to the jurisdiction challenged both
the factual sufficiency of Jackson’s pleadings and causation. The County alleged that
Jackson suffered no adverse employment actions that were related to its
investigation into Swain’s alleged misconduct. And, the County presented the trial
court with evidence supporting its allegation that its decisions about Jackson’s job
had been made for reasons unrelated to its investigation of Swain.
When a governmental entity challenges the factual sufficiency of a plaintiff’s
pleadings, the Texas Supreme Court has required that the plaintiff’s pleadings
contain alleged facts that “affirmatively demonstrate the court’s jurisdiction to hear
the cause.” Id. In evaluating whether the factual allegations in a plaintiff’s pleadings
12
are sufficient to show that the governmental entity has waived its immunity from
being sued, the pleadings are to be construed liberally, and courts must look to the
pleader’s intent. Id. Generally, courts must allow plaintiffs to have a reasonable
opportunity to file amended pleadings before the claims can be dismissed. See Tex.
A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007); Miranda, 133
S.W.3d at 226-27; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). That
said, if the pleadings show that the courts cannot exercise jurisdiction over the
plaintiff’s case, appellate courts must overturn the trial court’s denial of the plea to
the jurisdiction without allowing the plaintiff another opportunity to amend the
pleadings filed in the suit. See Brown, 80 S.W.3d at 555.
The County’s plea to the jurisdiction and the arguments it briefed challenge
whether the plaintiff produced any evidence of causation. Causation is a required
element under both the TCHRA and the Whistleblower Act. See Tex. Lab. Code
Ann. § 21.055 (West 2015) (making it an unlawful employment practice for an
employer to, among other things, retaliate against an employee because the
employee “participates in any manner in an investigation, proceeding, or hearing”);
Tex. Gov’t Code Ann. § 554.002 (making it unlawful for a state or local government
entity to retaliate against a public employee who in good faith reports the entity’s
violation of the law “to an appropriate law enforcement authority”). The evidence
the County filed with its plea challenged the merits of Jackson’s claim that the
13
County’s decisions about Jackson’s job resulted from Jackson’s refusal to provide
the County with a statement critical of Swain’s conduct at the jail.
When a governmental entity produces evidence with its plea, and the evidence
shows that the entity’s decisions affecting an employee occurred for legitimate,
nondiscriminatory and non-retaliatory reasons, the burden of proof shifts to the
plaintiff to show that “a disputed material fact regarding the jurisdictional issue”
exists. Miranda, 133 S.W.3d at 228; see also Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Thus, when the County presented
evidence showing that its decisions affecting Jackson’s job were motivated by
Jackson’s insubordinate conduct toward Lieutenant Hawkins, the burden of proof
shifted to Jackson to prove that an issue of material fact existed on her claim that the
County’s decisions resulted from Jackson’s refusal to provide the County with a
statement alleging she observed Swain and an inmate while they were engaged in a
sexual encounter at the jail. See Alamo Heights Indep. Sch. Dist. v. Clark, 544
S.W.3d 755, 764 (Tex. 2018) (applying a burden-shifting evidentiary framework to
a TCHRA retaliation claim); State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009)
(noting that under the Whistleblower Act, the elements of a claim “can be considered
as jurisdictional facts, when it is necessary to resolve whether a plaintiff has alleged
a violation under the Act”); see also Garcia, 372 S.W.3d at 635 (noting that the
school’s argument suggesting that Garcia could not prove a prima-facie case
14
necessarily implied that the elements of the plaintiff’s discrimination claim were at
issue in the court’s jurisdictional inquiry). Thus, we review the trial court’s decision
using the burden-shifting framework recently approved by the Texas Supreme Court
in Clark. Clark, 544 S.W.3d at 764 (“[W]e hold that when jurisdictional evidence
negates the prima facie case or, as in this case, rebuts the presumption it affords,
some evidence raising a fact issue on retaliatory intent is required to survive a
jurisdictional plea.”).
Analysis
Retaliation Claims
The County advances several arguments claiming that it was entitled to have
all of Jackson’s claims dismissed. First, we will address the County’s argument that
the evidence that it filed with its plea rebutted the presumption created by Jackson’s
pleadings that she had valid claims. Then, we will discuss whether the evidence that
Jackson presented is sufficient to show that an issue of material fact exists on her
claim that the County retaliated against her because she refused to provide the
County with a statement critical of Swain.
The evidence before the trial court in the hearing on the County’s plea tends
to show that its decisions about Jackson’s job were based solely on the insubordinate
conduct she engaged in toward Lieutenant Hawkins, a matter that appears to be
unrelated to the County’s investigation into whether Swain had a sexual encounter
15
with an inmate at the jail. The evidence the trial court considered in ruling on the
County’s plea includes Lieutenant Hawkins’ written complaint about Jackson’s
alleged insubordinate conduct, which occurred in May 2015. The evidence the
County produced in support of its plea traces its decision to demote Jackson to the
results of two Disciplinary Review Board hearings, both of which ended in decisions
finding that Jackson engaged in insubordinate conduct toward Lieutenant Hawkins.
The evidence includes the recommendations made by those Boards to Sheriff
Woods—both Boards recommended that Jackson’s conduct should result in her
demotion. The evidence before the trial court traced the Sheriff’s decision to demote
Jackson to the recommendations he received from these Boards. Nothing in the
evidence before the trial court ties the County’s decisions about Jackson’s job to the
investigation the County conducted on the conduct allegedly committed by Swain.
Under both the Whistleblower Act and the TCHRA, the Legislature
conditioned the waivers of immunity for retaliation claims on evidence sufficient to
prove that a violation of the statutes occurred. See Clark, 544 S.W.3d at 785 (noting
that “once a defendant challenges the plaintiff’s case with evidence, the
jurisdictional inquiry focuses on the evidence and whether the plaintiff can create a
fact issue”); Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.—
Dallas 2008, no pet.) (suggesting that a plaintiff must establish but-for causation to
prove a whistleblower claim). Thus, once a trial court is faced with evidence showing
16
that the governmental entity did not violate the Whistleblower Act or the TCHRA,
the presumption favoring the employee’s pleadings evaporates, and the employee
must come forward with evidence showing that the decisions at issue occurred
because the employer engaged in conduct that violated the conduct proscribed by
these Acts. See Clark, 544 S.W.3d at 784 ((citing Lueck, 290 S.W.3d at 882)
(explaining that “when the Legislature conditions an immunity waiver on the
existence of a statutory violation, the elements of the violation are jurisdictional
facts”)); Tex. Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995)
(“These arguments persuade us that the standard of causation in whistleblower and
similar cases should be that the employee’s protected conduct must be such that,
without it, the employer’s prohibited conduct would not have occurred when it
did.”).
Although Jackson provided the trial court with additional evidence, the
additional evidence Jackson asked the trial court to consider fails to tie the County’s
decisions over Jackson’s job to the investigation the County conducted into Swain’s
alleged misconduct with an inmate. Jackson attempted to tie the matters together by
alleging that Lieutenant Hawkins, Deputy Werner, and Sheriff Woods were friends
and that they conspired to violate her rights. However, Jackson failed to produce any
evidence supporting these claims. To prove the existence of a conspiracy, Jackson
needed to do more than just allege that the officers were friends and from that fact
17
assume the three conspired to punish her for refusing to provide the County with a
statement critical of Swain. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28
S.W.3d 22, 25 (Tex. 2000) (per curiam) (noting that a plaintiff’s subjective beliefs
cannot overcome summary judgment evidence). Moreover, proving that a
conspiracy exists to violate a person’s rights under a statute requires proof that at
least two individuals were working together to accomplish an unlawful purpose, that
the members of the conspiracy had a meeting of the minds on their course of action,
and that one of the members committed an unlawful, overt act to further the course
of action. See Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998).
Jackson provided the trial court with no such evidence, and there is nothing in the
record suggesting that Sheriff Woods, Lieutenant Hawkins, and Deputy Werner
agreed on a course of action to retaliate against Jackson for refusing to provide the
County with a statement critical of Swain.
In her brief, Jackson suggests that dismissing her claims would be premature
at this early stage of her case. She claims that if given more time, she could obtain
evidence supporting her claims. But Jackson’s argument is hollow. The discovery
period that applies to Jackson’s case ended in June 2016, nearly a year before the
trial court denied the County’s plea.9 In the trial court, neither party presented any
9
The record also does not show that Jackson ever asked the trial court to
extend the discovery deadlines that applied to her suit. See Tex. R. Civ. P.
18
depositions or affidavits to support their claims. The evidence the parties filed in the
trial court and the fact that the discovery deadlines that apply to the case have passed
suggests to us that the parties engaged in little, if any, formal discovery. Because the
evidence the County produced traces its decisions to the incident involving
Jackson’s insubordinate conduct toward a superior officer, we are unpersuaded that
allowing Jackson to ask the trial court to extend the discovery deadlines would result
in Jackson discovering any evidence that might support her claims. In sum, the
evidence before the trial court fails to prove that an issue of material fact exists on
Jackson’s claims that the County retaliated against her because she refused to
provide the County with a statement alleging that she saw Swain engage in a sexual
encounter with an inmate.
We turn to Jackson’s remaining retaliation claims, which assert that the
County retaliated against Jackson by removing her duties to maintain a closed-circuit
monitoring system at the jail, denied her the right to access the grievance procedures
available to her under the Collective Bargaining Agreement between the County and
the Jefferson County Sheriffs’ Association, denied her the right to a fair appeal of
190.3(b)(1)(B)(ii) (requiring discovery in a Level 2 case to be completed within nine
months after any party files its first response to the other party’s written discovery).
Under Rule 190.3, because Jackson’s original petition included a request for
disclosure, Jackson’s opportunity to obtain discovery from the County ended in June
2016. Id.
19
her grievance, and subjected her to a hostile work environment. As to these claims,
the County argues that it could not be sued on a Whistleblower Act claim for the
same conduct Jackson could have complained about when she filed her
administrative complaint with the EEOC. As to these claims, we agree that the fact
that Jackson had the right to begin proceedings against the County under the TCHRA
prevents her from suing the County on these same claims under the Whistleblower
Act.
The TCHRA “provides the exclusive state statutory remedy for public
employees alleging retaliation arising from activities protected under the
[TCHRA].” City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008). Under the
TCHRA, it is unlawful for an employer to retaliate or discriminate against an
employee who “participates in any manner in an investigation, proceeding, or
hearing.” Tex. Lab. Code Ann. § 21.055(4). As a public employee, Jackson had to
use the “specific and tailored anti-retaliation remedy” available to her under the
TCHRA rather than seek remedies based on the same alleged misconduct under the
Whistleblower Act. See Lopez, 259 S.W.3d at 156. We conclude that Jackson was
not entitled to rely on the Whistleblower Act on her complaints that the County took
some of her job duties away from her, that the County denied her rights under the
Collective Bargaining Agreement, that the County denied her a fair appeal of her
grievance, and that the County subjected her to a hostile work environment.
20
The County also argues that Jackson failed to exhaust her remedies on her
claims that the County took some of her job duties away from her, that the County
denied her rights under the Collective Bargaining Agreement, that the County denied
her a fair appeal of her grievance, and that the County subjected her to a hostile work
environment. Under the TCHRA, exhaustion of remedies must occur before a trial
court can acquire jurisdiction over a party’s TCHRA claims. See Specialty Retailers,
Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Tex. Parks & Wildlife Dep’t
v. Dearing, 150 S.W.3d 452, 459 (Tex. App.—Austin 2004, pet. denied). Exhausting
one’s administrative remedies under the TCHRA requires a plaintiff to (1) file a
complaint with the Texas Workers Compensation Commission (TWCC) or the
EEOC within 180 days of the alleged discriminatory act;10 (2) allow the TWCC 180
days to dismiss or resolve the complaint; and (3) sue in a district court within 60
10
The purpose of the THCRA includes “provid[ing] for the execution of the
policies of Title VII of the Civil Rights Act of 1964 and its subsequent
amendments[.]” Tex. Lab. Code Ann. § 21.001(1) (West 2015). Thus, the Texas
Workers Compensation Commission has provided that the charge of discrimination
may be filed with the Texas Workers Compensation Commission, Civil Rights
Division or with “an EEOC office.” 40 Tex. Admin. Code § 819.41(c) (Westlaw
through 43 Tex. Reg. No. 3836) (Tex. Workforce Comm’n, Equal Emp’t
Opportunity Complaints & Appeals Process). As a result, the Texas Supreme Court
has suggested that “[a] claimant may file a complaint with either the EEOC, the
federal agency authorized to investigate charges of discrimination, or the [TWCC],
the Texas equivalent.” Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 504
n.4 (Tex. 2012).
21
days of receiving a right-to-sue letter, but no more than two years after the date that
the plaintiff filed the administrative complaint. Tex. Lab. Code Ann. §§ 21.202, .208,
.254, .256 (West 2015). Jackson’s EEOC complaint, which started her TCHRA
proceeding, fails to mention any claims beyond Jackson’s complaints about being
demoted and about not being promoted.
Jackson’s EEOC charge of discrimination11 alleges:
I refused to lie for IAD investigator Cathy Werner when she was
protecting a friend from discrimination charges by white coworker
April Swain. I was targeted by Werner, her command friends, and
sheriff. I was falsely accused to be denied promotion, and then Sheriff
falsely [and] illegally accused me [and] demoted me.
“The crucial element of a charge of discrimination is the factual statement
contained therein.” Preston v. Tex. Dep’t of Family & Protective Servs., 222 F.
App’x 353, 357 (5th Cir. 2007) (per curiam). While complaints that are filed before
administrative agencies by persons who have no legal training are to be liberally
construed, Jackson’s additional claims, which allege that the County took some of
her duties away from her, that the County interfered with her rights to file grievances,
that she was denied a fair appeal of her grievance, and that the County subjected her
to a hostile work environment are separate and distinct claims from Jackson’s
11
Jackson filed her EEOC charge on September 1, 2015. The record in the
trial court shows that on May 21, 2016, Jackson’s attorney forwarded a copy of
Jackson’s EEOC complaint to the Texas Workers Compensation Commission, Civil
Rights Division.
22
complaints about being demoted and not being promoted. See id. We conclude that
Jackson’s administrative complaint filed with the TCHRA failed to put the County
on notice that it needed to investigate any claims beyond the investigation required
to determine why Jackson was not promoted and to determine why the Sherriff
demoted Jackson from her position as sergeant. See Bexar Cty. v. Gant, 70 S.W.3d
289, 293 (Tex. App.—San Antonio 2002, pet. denied) (explaining that because the
employee’s lawsuit included complaints about allegedly unlawful employment
practices not included in the administrative charge, the employee failed to exhaust
his administrative remedies about conduct that he failed to include in his
administrative charge); see also Tex. Lab. Code Ann. § 21.201 (West 2015)
(describing the contents to include in the administrative stage of a TCHRA case).
The failure to exhaust one’s administrative remedies deprives the trial court
of jurisdiction to hear a plaintiff’s unexhausted claims. See Clint Indep. Sch. Dist. v.
Marquez, 487 S.W.3d 538, 558 (Tex. 2016) (recognizing that the “exhaustion of
administrative remedies is an issue of subject-matter jurisdiction”); Schroeder v.
Tex. Iron Works, Inc., 813 S.W.2d 483, 487 (Tex. 1991) (“Construing the [TCHRA]
to require exhaustion is consistent with its purpose to provide for the execution of
the policies embodied in Title VII, 42 U.S.C. § 2000e et seq.”). We hold that Jackson
exhausted her administrative remedies only for two of her claims, that the County
demoted her in retaliation for her alleged refusal to provide a statement critical of
23
Swain and that the County retaliated against her by failing to select her for a
promotion because she allegedly refused to provide a statement about Swain. See
Preston, 222 F. App’x at 357 (concluding that the employee had exhausted her
remedies on some of her claims but not others, given the factual allegations in the
employee’s administrative complaint).
Having carefully considered the parties’ briefs and the evidence before the
trial court when it ruled on the County’s plea, we conclude that Jackson failed to
meet her burden to present a prima-facie case rebutting the County’s evidence
showing that the County’s decisions about Jackson’s job were unrelated to her
alleged refusal to provide the County with a statement critical of Swain. As for
Jackson’s remaining claims, we conclude that Jackson both elected to pursue a
TCHRA remedy by filing an EEOC complaint and that she failed to exhaust her
administrative remedies as for her claims that the County took some of her job duties
away from her, prevented her from accessing the grievance procedure, interfered
with her right to appeal, and subjected her to a hostile work environment. In
conclusion, we hold the trial court erred when it denied the County’s plea
challenging the trial court’s authority to hear all of Jackson’s Whistleblower Act and
TCHRA claims.12
12
In her brief, Jackson argues that the County should have raised its
complaints that her pleadings were insufficient by filing special exceptions or by
24
Declaratory Judgment and Constitutional Claims
Jackson’s pleadings include several claims for declaratory relief, which
Jackson based on article I, sections 3, 3a, 8, and 19 of the Texas Constitution. See
Tex. Const. art. I, §§ 3, 3a, 8, 19. Article I, section 3 provides that all persons have
equal rights; article I, section 3a provides that equality under the law shall not be
denied because of a person’s sex, race, color, creed, or national origin; article I,
section 8 provides that all persons shall be at liberty to speak; article I, section 19
provides that no person shall be deprived of life, liberty, property, privileges or
immunities, except by due course of law. Id. According to Jackson, governmental
immunity does not bar declaratory judgment claims when an individual is seeking
to vindicate her constitutional rights.
moving to dismiss under Rule 91a of the Texas Rules of Civil Procedure. See Tex.
R. Civ. P. 91 (Special Exceptions); Tex. R. Civ. P. 91a (Dismissal of Baseless Causes
of Action). To the extent the trial court might have relied on these arguments, the
trial court committed error because a governmental entity may challenge the facial
validity of a plaintiff’s claims in a plea to the jurisdiction. See Miranda, 133 S.W.3d
at 227 (“If the pleadings affirmatively negate the existence of jurisdiction, then a
plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity
to amend.”). This Court has previously rejected an argument practically identical to
the one Jackson raises in her case in another case that involved another plaintiff and
another governmental entity. See Jackson v. Port Arthur Indep. Sch. Dist., No. 09-
15-00227-CV, 2017 Tex. App. LEXIS 3527, at **16-18 (Tex. App.—Beaumont
Apr. 20, 2017, no pet.) (mem. op.) (concluding that a school employee’s argument
that the District could use only special exceptions or a Rule 91a motion to test her
pleadings lacked merit since a plea to the jurisdiction can be used to test the facial
validity of a plaintiff’s pleadings).
25
Yet “immunity from suit is not waived if the constitutional claims are facially
invalid.” Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015).
Jackson’s article I, section 3 and section 3a claims imply that she could establish a
valid basis for her claims that the County discriminated against her in violation of
her rights—that is, that she could prove that she was treated differently than other,
similarly situated, employees. Yet none of the evidence the parties asked the trial
court to consider established that Jackson had been treated any differently than other,
similarly situated, employees. The evidence in the record that shows how Jackson
was treated tends to show that the Sheriff’s decisions to demote Jackson and in not
promoting her were made based on at least two legitimate government objectives—
following the recommendations made by boards created through a collective
bargaining procedure, and enforcing discipline within a system that emphasizes
requiring employees of a lower rank to obey legitimate commands and requests
when they are made by officers with a higher rank. See id. at 13-14. Because Jackson
failed to respond to the County’s plea with evidence showing that she could prove
the County retaliated against her for refusing to provide the County with a statement
about Swain’s alleged conduct involving an inmate, we conclude that Jackson’s
article I, section 3 and 3a claims are facially invalid. Because Jackson’s equal rights
claims are facially invalid, we hold that the County did not waive its immunity from
suit on those claims. Id.
26
To obtain declaratory relief on her article I, section 19 due course of law claim,
Jackson needed to show that she has a constitutionally protected liberty or property
interest being classified as a sergeant or in being promoted to the position of
lieutenant. Id. at 15 (citing Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929
(Tex. 1995) (“Before any substantive or procedural due-process rights attach,
however, the Petitioners must have a liberty or property interest that is entitled to
constitutional protection.”)). Generally, a constitutionally protected right is a vested
right; it is not merely an expectation that one might be able to obtain or maintain a
classification or job. Id.
Generally, public employees do not have vested property interests in their
jobs. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985); Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564 (1972). While the Collective
Bargaining Agreement gave Jackson some rights, we find nothing in that Agreement
that purports to give employees who work for the Sheriff a constitutionally protected
interest in their rank. For example, under the Collective Bargaining Agreement, the
Sheriff need not follow whatever recommendations Disciplinary Review Boards
might make.13 While the Collective Bargaining Agreement creates a process for the
13
Article 28, Section IV provides:
27
handling of disciplinary matters as well as a process for qualifying candidates for
promotion, the rights Jackson enjoys under the Collective Bargaining Agreement do
not give her any vested interest in her job. See Klumb, 458 S.W.3d at 15. Because
Jackson’s due-course of law claims are facially invalid, we hold that the County did
not waive its immunity from suit on those claims. Id.
Next, we turn to Jackson’s article I, section 8, free-speech claim. Generally,
to bring a valid claim for violating a defendant’s constitutionally protected right to
engage in free speech a plaintiff must allege facts showing that (1) the speech that is
the subject of the case involves a matter of public concern, (2) the employee’s
interest in commenting on the matter was greater than the employer’s interest in
efficiently managing its affairs, and that (3) the employee’s speech motivated the
employer to take the adverse employment action that lies at the heart of the plaintiff’s
Within ten (10) days of receipt of the written recommendation by the
D.R.B., the Sheriff shall determine the disciplinary action to be taken
against the affected member. The Sheriff may accept or reject either in
whole or in part the recommendation of the D.R.B.
Additionally, Article 14, Section IV of the Collective Bargaining Agreement
provides no right of appeal from decisions that the Sheriff might make about who
should be promoted. Instead, the agreement allows the Sheriff to choose from among
the group that passes the competitive exam who should receive a promotion. Finally,
Article 11 of the Collective Bargaining Agreement provides that “all power and
authority which has not been abridged, delegated, granted or expressly limited by
some written provision of this Agreement is retained by the County and by the
Sheriff.”
28
action. See Thompson v. City of Starkville, Miss., 901 F.2d 456, 460 (5th Cir. 1990)
(citing Frazier v. King, 873 F.2d 820, 825 (5th Cir. 1989)). While Jackson’s free-
speech claims rely on the Texas Constitution’s free-speech clause, article I, section
8 is not generally treated as granting rights extending beyond those protected by the
First Amendment to the U.S. Constitution. See Comm’n for Lawyer Discipline v.
Benton, 980 S.W.2d 425, 434 (Tex. 1998). For example, except for cases involving
an action that amounts to a prior restraint, the Texas Supreme Court has refused to
hold that the Texas Constitution’s free-speech clause affords a plaintiff any greater
rights than those afforded under the First Amendment. See generally Tex. Dep’t of
Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003); Operation Rescue-Nat’l v.
Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 557-560 (Tex.
1998). Jackson has never claimed that the County’s conduct created a prior restraint
on her constitutional rights.
As a general rule, when employees are complaining about speech that they
made pursuant to their job duties, as compared to speech they made as a citizen, their
speech is not protected. The question is “whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether it merely concerns
those duties.” Lane v. Franks, ___ U.S. ___, 134 S. Ct. 2369, 2379 (2014). In her
pleadings, Jackson alleged that her job duties included supervising the closed-circuit
monitors, and she alleged that the system was removed from her supervision because
29
she refused to provide the County with the statement critical of Swain. Even so,
nothing in Jackson’s pleadings or in the evidence suggests that Jackson ever claimed,
much less proved, that she made any public statements addressing the County’s
handling of the investigation that it conducted about Swain’s alleged conduct at the
jail.
Here, Jackson’s pleadings and the evidence in the record show that the speech
Jackson has complained about involved her internal communications about Deputy
Werner’s request with supervisors above her in the chain of command. Nothing in
the record shows that Jackson’s claims related to any speech that she made to anyone
outside her department. Thus, the speech at issue in Jackson’s case is not treated as
the speech of a citizen engaging in exercising her First Amendment rights.
We conclude that Jackson’s pleadings fail to allege a facially valid free-speech
claim. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Caleb v. Carranza, 518
S.W.3d 537, 544 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Thus, the trial court
should have dismissed Jackson’s free-speech claims. See Caleb, 518 S.W.3d at 545.
Collective Bargaining Agreement Claims
Finally, we turn to Jackson’s claim that she was entitled to have the trial court
grant a declaratory judgment finding that the County had violated her rights under
the Collective Bargaining Agreement. In her pleadings, Jackson alleged that the
County violated the Collective Bargaining Agreement by mishandling the scoring
30
of the test the County gave to her and other officers in April 2015, and that the
County violated the Collective Bargaining Agreement by empaneling a Disciplinary
Review Board that included an officer who was not qualified to serve.
Regardless of her theories, Jackson’s pleadings failed to allege or establish
that the Legislature had waived a county’s immunity from suit for breach of contract
claims. Under Texas law, political subdivisions, such as counties, enjoy immunity
from suit unless the Legislature has enacted a statute waiving their right to rely on
their immunity from suit. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006). Merely by entering into a contract, such as the Collective
Bargaining Agreement here, or by violating an agreement’s terms, a county does not
waive its immunity from being sued. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,
408 (Tex. 1997) (“The act of contracting does not waive the State’s immunity from
suit.”); Potter Cty. v. Tuckness, 308 S.W.3d 425, 431-32 (Tex. App.—Amarillo
2010, no pet.) (concluding that no cause of action for breaching a contract existed
against the County where the Legislature had not waived the County’s immunity
from suit); see also Patterson v. Marcantel, No. 09-16-00173-CV, 2017 Tex. App.
LEXIS 10046, at **37-38 (Tex. App.—Beaumont Oct. 26, 2017, no pet.)
(concluding that governmental immunity prevented a former deputy sheriff
employed by Liberty County from suing Liberty County on a claim alleging the
County had breached an unwritten agreement).
31
Even if Jackson could establish that a valid waiver of immunity existed on her
claims alleging that the County breached the Collective Bargaining Agreement,
Jackson’s rights under that agreement are subject to an arbitration clause that
required Jackson to arbitrate her claims. Article 18, section I of the Collective
Bargaining Agreement requires that all matters, except matters involving wages,14
“be resolved by the provisions in this article.” Article 18, section III of that same
agreement required Jackson to arbitrate any matters that remain unresolved after she
followed the procedures governing grievances.
Jackson failed to allege that she had filed claims in arbitration over the
County’s alleged breach of the Collective Bargaining Agreement, and she failed to
allege that she had exhausted her claims by pursuing them in arbitration before suing.
We conclude the trial court lacked jurisdiction over Jackson’s claims alleging that
the County had violated the Collective Bargaining Agreement.
In conclusion, no matter how Jackson might try to re-plead her various claims,
on this record the trial court lacked jurisdiction over the claims Jackson advanced in
her suit. See Tex. Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors, Inc.,
14
Article 19 of the Collective Bargaining Agreement contains a schedule of
the hourly, monthly, and yearly wage for the various classifications of officers
employed by the County. In any event, Jackson did not allege that the County failed
to pay her the wages required based on her classifications in Article 19 of the
Collective Bargaining Agreement.
32
92 S.W.3d 477, 484-85 (Tex. 2002) (concluding that the court of appeals erred by
allowing the plaintiff the opportunity to re-plead when it was apparent that the
plaintiff had failed to exhaust its administrative remedies before suing and the
governmental entity was immune from a breach of contract claim). As a result,
allowing Jackson the opportunity to re-plead her claims would be useless. As a
matter of public policy, courts will not require a party to perform useless acts.
Mackey v. Lucey Prods. Corp., 239 S.W.2d 607, 608 (1951) (“The law does not
require the doing of a vain and useless thing, and by our opinions and judgments we
will not so require.”).
Conclusion
Although the County raises several additional arguments in its brief to support
dismissing Jackson’s claims, we need not address them since Jackson failed to
present evidence showing that the trial court could exercise jurisdiction over her
claims. See Tex. R. App. P. 47.1. For the reasons we have discussed, we reverse the
trial court’s order denying the County’s plea, we render judgment granting the
County’s plea, and we order Jackson’s suit dismissed, with prejudice. See Harris
Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (noting that a judgment dismissing
a case with prejudice was appropriate when the trial court lacked jurisdiction because
of a sovereign immunity bar).
33
REVERSED AND RENDERED.
______________________________
HOLLIS HORTON
Justice
Submitted on September 28, 2017
Opinion Delivered July 26, 2018
Before McKeithen, C.J., Horton and Johnson, JJ.
34