Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-14-002459, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Chief Justice Rose, Justices Field and Bourland
Rose, Chief Justice
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.
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).
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.
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.
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.
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.
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).
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 ...