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City of Austin v. Baker

Court of Appeals of Texas, Third District, Austin

June 21, 2018

The City of Austin, Appellant
Donald Baker, Appellee


          Before Chief Justice Rose, Justices Field and Bourland


          Jeff Rose, Chief Justice

         This suit arises from the 2013 restructuring of the organized crime division of the Austin Police Department ("APD"). Donald Baker alleges the City of Austin retaliated against him for reporting certain personnel decisions as possible violations of state or federal law. See Tex. Lab. Code § 21.055 (forbidding retaliation against a person opposing a discriminatory practice). The trial court denied the City's plea to the jurisdiction and motion for summary judgment. We will affirm the trial court's order.


         Sometime in 2013, the City of Austin began restructuring APD's organized crime division to address what the City described as longstanding inefficiency and pervasive unprofessionalism. The resulting employment actions led numerous employees to file claims of discrimination with the Texas Workforce Commission and subsequently to file suit against the City. We addressed those discrimination claims in a separate opinion. See Bishop v. City of Austin, No. 03-16-00580-CV (Tex. App.-Austin June 21, 2018, no pet. h.) (affirming trial court's dismissal of claims).

         When restructuring of the organized crime division began, Art Acevedo was serving as Chief of Police and Baker was commander of the division. In May of 2013, APD transferred Baker to another division, allegedly due to Baker's reluctance to implement some of the desired changes. While additional personnel decisions were ongoing, Baker heard rumors that older employees and minorities were being disproportionately affected by the restructuring. Baker alleges that, after reviewing the numbers for himself, he "immediately began voicing his concerns regarding age, race, and ethnic discrimination." It is not clear when Baker first raised these concerns, but the evidence presented by both parties reveals he had done so by the middle of July at the latest, and the City's records confirm the concerns were forwarded up the chain of command at subsequent meetings of APD leadership.

         The parties provide consistent accounts of what happened next, although they disagree as to the legal significance of these facts. Baker became the subject of two internal investigations: in August of 2013 he received a written warning for failing to fully reprimand officers involved in an incident at the 2012 "Occupy Austin" protests, and in 2014 he was investigated for declining to fully reprimand an officer for her apparent failure to effectively manage her unit. The local media received a tip from an undisclosed source and reported that Baker was under scrutiny. In two decades of law enforcement, Baker had apparently never before been the subject of an internal investigation or any significant public scrutiny.

         After completing these internal investigations, APD issued one or more written reprimands but took no other disciplinary action against Baker. Commander Baker then applied to serve as assistant chief but was passed over twice in favor of other candidates-once in late 2013 and again in 2014. Baker alleges that before he voiced concerns about possible discrimination, Chief Acevedo had personally encouraged him to apply for a position as assistant chief. The City responds that it simply selected the most qualified candidates for the two positions.

         Baker filed a claim of retaliation with the Workforce Commission on October 17, 2014. After receiving notice of claim closure and a permission-to-sue letter, Baker sued the City under Texas Labor Code section 21.055, alleging the City had violated the Texas Commission on Human Rights Act ("TCHRA") by retaliating against him for reporting possible discrimination. The City filed a combined plea to the jurisdiction, motion for traditional summary judgment, and motion for no-evidence summary judgment, arguing that Baker has not alleged the prima facie case necessary to establish the trial court's jurisdiction over the claim. The trial court denied the motion and the City filed timely appeal.


         The trial court's jurisdiction is a question of law we review de novo. Guevara v. H.E. Butt Grocery Co., 82 S.W.3d 550, 551 (Tex. App.-San Antonio 2002, pet. denied). "Immunity from suit bars a suit against the State unless the Legislature expressly consents to the suit." Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental unit may raise the issue of immunity and challenge jurisdiction "through a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment." Alamo Heights Indep. Sch. Dist. v. Clark, __ S.W.3d__, __, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). "The TCHRA waives immunity, but only when the plaintiff states a claim for conduct that actually violates the statute." Id. (citing Garcia, 372 S.W.3d at 637).

         The Supreme Court of Texas recently clarified the analytical framework for evaluating jurisdiction over a TCHRA claim based on circumstantial, rather than direct, evidence of retaliation. See generally id. If the defendant in such a case is a governmental entity and presents evidence of a legitimate, non-retaliatory justification for the disputed employment decisions-as is the case here-the plaintiff cannot establish jurisdiction by merely pleading a prima facie claim of discrimination or retaliation. Id. at *7. "[I]f the plaintiffs' factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction." Id. (citing Miranda, 133 S.W.3d at 221, 225-26). "In determining whether a ...

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