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Nix v. City of Beaumont

Court of Appeals of Texas, Ninth District, Beaumont

October 3, 2019

MICHAEL SCOTT NIX, Appellant
v.
CITY OF BEAUMONT, TEXAS, Appellee

          Submitted on July 9, 2019

          On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-201, 849

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN CHIEF JUSTICE.

         Appellant Michael Scott Nix brings this interlocutory appeal from the trial court's order granting the City of Beaumont, Texas's ("the City") plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2018). We affirm the trial court's order dismissing Nix's claims against the City.

         Background

         On June 1, 2018, Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. In his request for declaratory relief, Nix stated that the Collective Bargaining Agreement ("CBA") between the Beaumont Firefighters Local 399 ("Union") and the City is invalid because the City failed to comply with the posting requirement as required by section 551 of the Texas Government Code. Nix alleged that his employment contract with the City is also invalid because the City failed to post the CBA. On April 20, 2015, Nix entered into a Settlement Agreement ("Agreement") with Beaumont Fire Chief, Ann Huff ("Chief"), and the Union. According to Nix, because the Agreement is a modification of his invalid employment contract, the Agreement is void.

         Nix further alleged that because there was no lawful contractual basis for his indefinite suspension on September 13, 2017, his suspension was without any legal basis. Nix requested that the trial court find that his suspension is void and order the City to reinstate him as a firefighter and restore any lost benefits and compensation he sustained as a result of his suspension. Nix also requested declaratory relief because the City had deprived him of his constitutionally protected property and liberty interests in his employment without due process of law. Nix requested a declaration that he was unlawfully, indefinitely suspended from his position as a firefighter for the City. Nix attached exhibits to his petition, which include the 2015 Agreement, the Standard Operating Guidelines for the City's Fire-Rescue Services, the Union's Grievance Procedure, the 2017 Statement of Action in the Matter of the Disciplinary Suspension of Nix, and the Rules and Regulations concerning sick and off-duty injury leave for the City's Fire-Rescue Services.

         According to the standard operating guidelines for the City's Fire-Rescue Services, upon written agreement between the Chief and an employee who is to receive an indefinite suspension without pay (termination), the Chief may hold some or all of the suspension in abeyance, and the Chief and the employee must agree to and sign a settlement agreement, which will include consequences to the employee for future policy violations within a specified time period. When an employee accepts a settlement agreement to participate in the abeyance program, the employee "must agree to waive any and all further administrative or judicial remedies regarding the indefinite suspension."

         The Agreement stated that on April 2, 2015, the Chief indefinitely suspended Nix from his employment with the Fire Department, and Nix disputed the suspension and was represented by the Union in settling the dispute. Nix agreed to immediately serve a ninety-day suspension without pay beginning April 2, 2015, and ending on June 30, 2015, and Nix agreed that the remainder of the indefinite suspension initially imposed by the Chief would be held in abeyance pending Nix's strict compliance with the terms and conditions of the Agreement. The Agreement provided that, among other things, "[b]etween April 2, 2015, and April 2, 2017, Nix shall have no sustained violations of the Fire Department's rules and regulations referencing code of conduct and/or social media."

         According to the Agreement, should Nix violate any terms of the Agreement before April 2, 2017, the Chief, in her sole discretion, could determine that Nix had violated the Agreement and reinstate Nix's indefinite suspension, and the Agreement states that "Nix hereby waives all rights to appeal the Chief's decision to an independent hearing examiner or the Civil Service Commission." The Agreement further provides that Nix "waives all rights he may have to file suit against the Chief or the City, its employees, agents or representatives, relative to any issue directly or indirectly related to this Agreement and/or his indefinite suspension." Nix also waived his right to appeal the Chief's decision to indefinitely suspend his employment as of April 2, 2015, as well as his right to appeal the terms and conditions of the Agreement. The Union agreed to all the terms and conditions of the Agreement, including Nix's waiver of his right to appeal the Chief's 2015 decision to terminate Nix and the terms and conditions of the Agreement, and any right to appeal in the future if the Chief determines Nix violated the Agreement.

         The Agreement included language assuring its finality, as Nix and the Union, jointly and severally, agreed to indemnify and hold harmless the Chief, the City, and the City's employees, agents, and representatives, from any and all claims, demands, actions, causes of action, damages, attorney's fees, and costs of court of whatever nature or character which have been or may hereinafter be asserted by any person, firm, or corporation, whomsoever claiming by, through, or under Nix, resulting from or in any manner connected with the Agreement or Nix's 2015 indefinite suspension. The Agreement further provides that Nix would hold harmless the Chief, the City, and the City's employees, agents, and representatives if the Chief reinstated Nix's indefinite suspension.

         The statement of action in the disciplinary suspension of Nix provides that on September 13, 2017, Nix was indefinitely suspended for disciplinary purposes due to violating (1) section 143.051 of the Local Government Code, (2) the City's Rules of the Firemen and Policemen Civil Service Commission, and (3) the City's Fire/Rescue Service Rules, Regulations, or Special Orders. See Tex. Loc. Gov't Code Ann. § 143.051(6), (8), (12) (West 2008). In the statement of action, the City alleged that Nix violated state and local civil service and fire department rules, regulations, and guidelines by violating sick leave regulations, and the City alleged that the instances of sick leave abuse occurred within the period covered by the Agreement.

         The City filed a plea to the jurisdiction, arguing that (1) Nix's claims are barred by sovereign immunity, (2) his constitutional claims are not ripe and lack merit, and (3) Nix failed to exhaust his administrative remedies. According to the City, the trial court lacks jurisdiction because Nix is currently appealing his termination before the Civil Service Commission ("Commission"), and the Commission has not rendered a final decision. Attached as an exhibit to its plea is an email that Nix's counsel sent to the City's personnel director, in which Nix's counsel indicated that Nix wanted to continue the hearing with the ...


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