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Fratus v. City of Beaumont

Court of Appeals of Texas, Ninth District, Beaumont

October 10, 2019

BILLY FRATUS, Appellant
v.
THE CITY OF BEAUMONT, Appellee

          Submitted on June 24, 2019

          On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-200450

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

          MEMORANDUM OPINION

          LEANNE JOHNSON, JUSTICE

         Appellant Billy Fratus appeals the trial court's order granting Appellee City of Beaumont's plea to the jurisdiction and dismissing Fratus's claims with prejudice. We affirm.

         Background

         The lawsuit began in July 2017 when Fratus filed his original petition against the City of Beaumont ("City") seeking damages, declaratory relief, and injunctive relief under the Texas Constitution and Chapter 21 of the Texas Labor Code. Fratus's original petition and his first amended petition alleged he was a Grade 4 District Fire Chief with the City of Beaumont and asserted the following claims:

[] There are two claims being presented by [Fratus],
[] for which he seeks three forms of relief, to[-]wit: declaratory; equitable/injunctive; and legal or make-whole restoration of damage-done and attorney's fees.
[] The first claim arises out of the City's violation of the Texas Constitution, for which [Fratus] seeks declaratory relief and attorney's fees, and injunctive relief.
[] The second claim arises out of [the] City's violation of the Texas Labor Code, Chapter 21, for which [Fratus] seeks make-whole restoration of damage-done pursuant to and in the amount stated in TRCP 47(c)(4).

         The petition alleged that Fratus was excluded from certain management meetings; that Beaumont Fire Chief Huff did not like that Fratus was the only Hispanic among all the fire chiefs; that Chief Huff had a "dismissive attitude" toward Fratus and excluded him from certain discretionary "perks"; that Chief Huff tried to fire Fratus; that Chief Huff was angry when Fratus was promoted; that Chief Huff "falsely accused [Fratus] of insurance fraud" over equipment that was donated to the department; that Chief Huff fired him while he was on disability; and that the City sent Fratus to a chiropractor chosen by the City during his disability and thereby "interfered with [Fratus's] relationship with his physician[.]" Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff's sexual harassment of another employee, and for disagreeing with Chief Huff's firing of one employee and her support of another former employee. Fratus's petition alleged that he appealed his termination and also filed a charge of discrimination and received a "right-to-sue" letter from the Texas Workforce Commission. When Fratus filed his petition, he was employed with the Beaumont Fire Department. Fratus also alleged that the City violated the Texas Open Meetings Act (TOMA) and as a result, the Collective Bargaining Agreement is invalid. Fratus's petition seeks:

Declaratory and injunctive relief and appropriate legal fees and costs of court for the Constitutional violations; a judgment awarding [Fratus] actual damages against the City; a mandatory temporary and permanent injunction proscribing the City and Huff from violating [Fratus's] Constitutional rights; and any other relief whether at law or in equity to which Plaintiff may show himself entitled.

         The City filed a plea to the jurisdiction claiming governmental immunity and seeking dismissal of Fratus's claims. The City's plea included the following arguments: Fratus may not bring a claim for declaratory relief based on harm that has already occurred; Fratus has not made a prima facie claim for retaliation for protected speech because his speech was not protected and he has not pleaded he suffered an adverse employment action as a result of his speech; Fratus's claim of racial discrimination fails because he has not shown he was treated differently from other persons similarly situated; and Fratus brought no ultra vires claims.

         Fratus filed a response to the City's plea and argued that he had sufficiently alleged that he had experienced discriminatory employment practices and that he was terminated. He argued that his protected-speech claim related to speech about racial discrimination and harassment, which he argued "is related to a public ...


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