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Metropolitan Transit Authority of Harris County v. Douglas

Court of Appeals of Texas, Fourteenth District

February 27, 2018


         On Appeal from the 295th District Court Harris County, Texas Trial Court Cause No. 2015-52248

          Panel consists of Justices Jamison, Busby, and Donovan.


          Martha Hill Jamison Justice

         This is an employment discrimination and retaliation case. In one issue, Metropolitan Transit Authority of Harris County, Texas (Metro) brings this interlocutory appeal challenging the trial court's denial of Metro's plea to the jurisdiction[1] based on Viola M. Douglas's purported failure, before filing this lawsuit, to exhaust administrative remedies for her retaliation claims in compliance with the Texas Commission on Human Rights Act (the Act).[2] Douglas moved to dismiss the appeal as moot, contending that she exhausted her administrative remedies after Metro filed its plea. We conclude that the appeal is not moot because there are live controversies between the parties, as discussed below, and therefore, we deny the motion to dismiss. We further conclude that governmental immunity has been waived as to the retaliation claims and Douglas was not required to exhaust her administrative remedies prior to asserting her retaliation claims in the trial court. Consequently, the trial court did not err in denying Metro's plea to the jurisdiction. We affirm.


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

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

         Douglas filed a discrimination charge with the Texas Workforce Commission Civil Rights Division (TWC) in March 2015.[4] After the requisite 180 days without a determination from the TWC, Douglas filed this lawsuit, bringing a gender discrimination claim in September 2015.[5]

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

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

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


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

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

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

         When a plea to the jurisdiction challenges the plaintiff's pleadings, we determine whether the pleadings, construed in the plaintiff's favor, allege facts sufficient to affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). If the plaintiff pleaded facts making out a prima facie case and the governmental unit instead challenges the existence of jurisdictional facts, we consider the relevant evidence submitted. Id. We review a trial court's ruling on a plea to the jurisdiction de novo. Id. at 192. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the plaintiff. Id. We indulge every reasonable inference and resolve any doubts in the plaintiff's favor. Id.

         Because the legislature intended for state law to correlate with federal law in employment discrimination cases, we may look to analogous federal cases when applying the Act. Id. (citing Tex. Lab. Code § 21.001 and Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003)). The legislature has mandated that all statutory prerequisites to suit are jurisdictional requirements in suits against governmental entities. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012) (citing Tex. Gov't Code § 311.034). The Act requires a person claiming to be aggrieved by an unlawful employment practice to file a complaint with TWC within 180 days of the alleged unlawful employment practice. Tex. Lab. Code § 21.201(a), (g). Accordingly, filing a timely complaint with the TWC is a jurisdictional prerequisite to filing suit for unlawful employment practices against a governmental entity. Chatha, 381 S.W.3d at 511-12, 514; see also Tex. Dep't of Transp. v. Esters, 343 S.W.3d 226, 231 (Tex. App.-Houston [14th Dist.] 2011, no pet.).[6]

         I. Did filing the retaliation charge moot the appeal?

         We first address whether the appeal is moot because Douglas filed a retaliation charge and, as she asserts, exhausted her administrative remedies. See Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 384 n.9 (Tex. App.- Houston [14th Dist.] 2009, pet. denied) (explaining that courts lack subject-matter jurisdiction over a moot claim). Metro argues that the appeal is not moot because Douglas did not cure fatal jurisdictional deficits, in that (1) Douglas waited until December 16, 2016 to file her complaint as to retaliation and thus it was untimely as to any actions taken before June 22, 2016; and (2) the retaliation claims are not an actionable employment action for which Metro's governmental immunity has been waived, and thus even if Douglas's administrative remedies had been exhausted, the trial court still lacks jurisdiction over the claims.[7]

         An appeal is moot when there is no longer a live controversy between the parties and appellate relief would be futile. Rice v. Rice, 533 S.W.3d 58, 61 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Stated differently, a case is moot when the court's action on the merits cannot affect the parties' rights or interests. Id. (citing Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012)); see also City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.-Dallas 2007, no pet.) ("The mootness doctrine dictates that courts avoid rendering advisory opinions by only deciding issues that present a 'live' controversy at the time of the decision.").

         In this case, there are live controversies between the parties about the timeliness of Douglas's retaliation charge and whether Douglas's retaliation claims constitute actionable adverse employment actions under the Act. Thus, this appeal is not moot. We ...

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