METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellant
VIOLA M. DOUGLAS, Appellee
Appeal from the 295th District Court Harris County, Texas
Trial Court Cause No. 2015-52248
consists of Justices Jamison, Busby, and Donovan.
Hill Jamison Justice
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 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). 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
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.
then interviewed the candidates and promoted both male
candidates. Douglas was not promoted. According to Douglas,
Kelly's decision not to promote her was based in part on
the fact that Vera Bumpers had been selected to replace Kelly
as Metro's first female Chief of Police and Kelly wanted
to avoid promoting too many women to high ranking leadership
roles within Metro.
filed a discrimination charge with the Texas Workforce
Commission Civil Rights Division (TWC) in March
2015. After the requisite 180 days without a
determination from the TWC, Douglas filed this lawsuit,
bringing a gender discrimination claim in September
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.
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."
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.
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.
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")).
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
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.
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.).
Did filing the retaliation charge moot the
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
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
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 ...