RECENT TEXAS SUPREME COURT DECISIONS ANOTHER WHISTLE BLOWER LOSES IN THE SUPREME COURT, JURISDICTIONAL DISMISSAL OKAY'D State of Texas and TxDOT v. Lueck, No. 06-1034 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed)(allegation of regulatory noncompliance insufficient, report not to proper law-enforcement authority, dismissal on the pleadings by plea to the jurisdiction approved; no opportunity to amend given) City of Desoto, Tx v. White, No. 07-1031(Tex. Jun. 19, 2009)(public employment, police officers, disciplinary process, election of grievance remedies, city's failure to give pre-appeal notice not jurisdictional) City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright) (Whistleblower Act versus Texas Commission on Human Rights Act, TCHRA, state anti-discrimination statute as exclusive remedy for retaliation complaint, exhaustion of administrative remedies, prerequisites for suit) Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(Opinion by Justice O’Neill) (public employment, wrongful termination claim, TTCA, tort claims, TCHRA claim, immunity waiver) CASES DECIDED BY THE HOUSTON COURTS OF APPEALS Miller v. City of Houston [and its police chief] (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Mirabal) (city civil service, disciplinary proceeding appeal, plea the jurisdiction)(hearing examiner was not authorized to impose a suspension of more than fifteen days) (applying City of Waco v. Kelley, 53 Tex. Sup. Ct. J. 338, 2010 WL 571974 (Tex. Feb. 19, 2010)) REVERSED AND REMANDED: Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-01018-CV Lt. Ken Miller v. City of Houston and Harold Hurtt Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton Santi v. UTHSC at Houston (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala) (public employment dispute, discrimination, retaliation under the TCHRA, plea to the jurisdiction granted) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala Before Justices Keyes, Alcala and Hanks 01-09-00186-CV Kristi Santi v. The Univerity of Texas Health Science Center at Houston, A Component Institution of the University of Texas System Appeal from 190th District Court of Harris County Trial Court Judge: Hon. Patricia J. Kerrigan EXHAUSTION OF ADMINISTRATIVE REMEDIES NOT APPLICABLE Larsen v. Santa Fe I.S.D. (Tex.App.- Houston [14th Dist.] Jul. 28, 2009)(Boyce) (public employment, workers compensation retaliation, what constitutes school law?, exhaustion of administrative remedies not required here) AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Brown and Boyce) 14-07-01038-CV Erik Larsen v. Sante Fe Independent School District Appeal from 10th District Court of Galveston County Trial Court Judge: DAVID EDWARD GARNER ADEA Claim By University Employee Held Barred by State Immunity Sullivan DDS v. UTHSC at Houston Dental Branch (Tex.App. - Houston [1st Dist.] Dec. 11, 2008)(Alcala) (Tex.App. - Houston [1st Dist.] Dec. 11, 2008)(Alcala)(governmental immunity, public employment, ADEA claim, no property interest) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Justices Taft, Keyes and Alcala 01-08-00327-CV Cornelius C. Sullivan, D.D.S. v. University of Texas Health Science Center at Houston Dental Branch, Peter T. Triolo, Jr., D.D.S., Catherine M. Flaitz, D.D.S., and James T. Willerson, M.D. Appeal from 80th District Court of Harris County Trial Court Judge: Hon. Lynn Bradshaw-Hull Fired fire department employees were not entitled to civil service review, panel majority says; one justice dissents Jackson v. City of Texas City (Tex.App.- Houston [1st Dist.] July 24, 2008)(Keyes) (public employment, fire department, dismissal, failure to obtain EMT treated as not disciplinary, civil service protections inapplicable, civil service commission) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Taft, Keyes and Alcala 01-07-00026-CV Anthony Jackson and James Nunez v. City of Texas City and Debbie Lesco, Texas City Civil Service Director Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss Dissenting Opinion by Justice Alcala Court of Appeals throws out judgment against state university in whistleblower suit and remands case; one justice dissents. Univ. of Houston v. Barth (Tex.App. - Houston [1st Dist.] July 3, 2008) (jury award in tenured professor's Whistleblower suit reversed; case remanded to the trial court) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Justices Nuchia, Alcala and Higley 01-06-00490-CV The University of Houston v. Stephen Barth Appeal from 113th District Court of Harris County Trial Court Judge: Hon. Patricia Hancock Dissenting Opinion by Justice Alcala Woods v. City of Galveston (Tex.App.- Houston [14th Dist.] June 24, 2008) (Guzman) (public employment disputes, discrimination suit by fire fighter) AFFIRMED: Opinion by Justice Guzman Before Justices Brock Yates, Guzman and Brown) 14-06-01022-CV Tarris Woods v. City of Galveston, Texas and City of Galveston Fire Fighters' and Police Officers' Civil Service Commission Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Stephens v. City of Houston (Tex.App.- Houston [1st Dist.] June 12, 2008)(Keyes) (Suits against the City of Houston, UDJA claims stemming from termination of city employment moot, no standing, DWOJ) DISMISS APPEAL: Opinion by Justice Keyes Before Justices Taft, Keyes and Alcala 01-06-00851-CV Bartholomew U. Stephens v. City of Houston, et als Appeal from 270th District Court of Harris County Trial Court Judge: Hon. Brent Gamble City of Santa Fe, Texas v. Boudreaux (Tex.App.- Houston [14th Dist.] May 29, 2008)(Guzman) (labor and employment law, public employment, provision of collective bargaining voided as unconstitutional private delegation of legislative power) REVERSED AND RENDERED: Opinion by Justice Guzman Before Justices Brock Yates, Guzman and Brown 14-06-00299-CV City of Santa Fe, Texas v. Victor Boudreaux and Jeremy Creech Appeal from 56th District Court of Galveston County Trial Court Judge: Lonnie Cox Strouse v. City of Houston (Tex.App.- Houston [14th Dist.] May 29, 2008)(Frost) (public employment, police discipline, suspension, grievance) REVERSED AND REMANDED: Opinion by Justice Frost Before Justices Fowler, Frost and Seymore 14-06-00618-CV Darrell H. Strouse v. City of Houston and Harold L. Hurtt, in His Official Capacity as Chief of Police of the Houston Police Department Appeal from 164th District Court of Harris County Trial Court Judge: Martha Hill Jamison Green v. Fort Bend ISD (Tex.App. - Houston [1st Dist.] Dec. 20, 2007)(Higley)(employment law, school law, workers comp appeal, judicial review suit) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Taft, Hanks and Higley 01-06-01157-CV Robert F. Green v. Fort Bend Independent School District Appeal from 240th District Court of Fort Bend County (Judge Thomas R. Culver, III) Villegas v. Harris County (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Bland) (termination of employment, Title VII, Section 1983 claim of violation of due process rights) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Chief Justice Radack, Justices Alcala and Bland 01-07-00031-CV David Villegas v. Harris County and Ron Hickman, Harris County Constable, Precinct 4 Appeal from 80th District Court of Harris County (Judge Kent Sullivan) Graves v. Chief Mack (Tex.App.- Houston [14th Dist.] Dec. 11, 2007)(Frost)(public employment, termination, discharge) AFFIRMED: Opinion by Justice Frost Before Chief Justice Hedges, Justices Frost and Guzman 14-07-00163-CV Elisa Graves v. Kenneth Mack, In his Official Capacity as chief of Police, and The City of Galveston, Texas Appeal from 122nd District Court of Galveston County (John A. Ellisor JR.) Montgomery County v. Park, No. 05-1023 (Tex. Nov. 30, 2007)(Opinion by Chief Justice Jefferson)(public employment, WBA, what constitutes an adverse employment personnel action); from Montgomery County; 10th district (10-04-00231-CV, ___ S.W.3d ___, 10/19/05) The Court reverses the court of appeals' judgment and renders judgment. Houston Municipal Employees Pension System v. Ferrell, No. 05-0587 (Tex. Nov. 30, 2007)(Justice Green) (public employment, UDJA, jurisdiction, nonsuit); Decision below: Harris County; 1st district (01-03-00925-CV, 177 S.W.3d 502, 05/20/05) Justice Brister delivered a concurring opinion Vandevender v. Woods, No. 05-0956 (Tex. Apr. 27, 2007)(Willett)(public employment, benefits) Looper v. HCCS (Tex.App.- Houston [14th Dist.] Nov. 29, 2007)(Hedges)(public employment, breach of contract, defamation, IIED, WBA) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Frost 14-07-00040-CV Stan H. Looper and Cynthia M. Scott v. Houston Community College System, Bruce Leslie, Diana Castillo, and Reynaldo Garay Appeal from 152nd District Court of Harris County (Hon. Ken P. Wise) Prairie View A&M Univ. v. Dickens , 243 SW3d 732 (Tex.App.- Houston [14th Dist.] Oct. 30, 2007)(Frost) (jurisdiction, individual capacity claims, official capacity claims, sovereign immunity) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost Before Justices Anderson, Fowler and Frost 14-06-00966-CV Prairie View A&M University, Doris Price, Individually and as Vice President of Prairie View A&M and George Wright, Individually and as President of Prairie View A&M University v. Brian Dickens Appeal from 164th District Court of Harris County (Hon. Martha Hill Jamison) Governmental official entitled to sovereign immunity dismissal, and to interlocutory appeal when the trial court denies plea to the jurisdiction Texas A & M Univ. Sys. v. Koseoglu, No. 05-0321, 223 SW3d 835(Tex. Sep. 7, 2007) (Opinion by Justice Green) (public employment, sovereign immunity, breach of settlement agreement, interlocutory appeal, ILA, opportunity to amend) Slade v. TSU , 232 SW3d 395 (Tex.App.- Houston [1st Dist.] Aug. 30, 2007)(Nuchia)(government entities, sovereign immunity to breach of contract suit, public employment) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia Before Justices Nuchia, Keyes and Higley 01-06-00990-CV Priscilla D. Slade v. Texas Southern University Board of Regents Appeal from 61st District Court of Harris County (Hon. John Donovan) Texas Department of Human Services v. Okoli (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Taft) (WBA, sovereign immunity, DWOJ, interlocutory appeal) DISMISS APPEAL: Opinion by Justice Taft Before Justices Taft, Jennings and Alcala) 01-07-00103-CV Texas Department of Human Services v. Oliver Okoli Appeal from 61st District Court of Harris County (Trial court judge: Hon. John Donovan) In librarian's suit against the same university, Supreme Court holds that there was no evidence of breach of contract Baylor University v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht)(employment dispute) Justice Johnson delivered a concurring opinion in Baylor Univ. v. Coley on the issue of jury instruction Respondent Betty A. Coley contends that her former employer, petitioner Baylor University, by reassigning her responsibilities to others and thus effectively demoting her, breached her contract and forced her to resign from her tenured faculty position. The trial court rendered judgment for Baylor based on the jury’s failure to find that Coley had been constructively discharged, defined in the charge as “mak[ing] conditions so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The court of appeals reversed and remanded, holding that the jury should have been asked whether Baylor constructively discharged Coley by “‘mak[ing] a material change in the position to which [she] was entitled under the contract.’”[1] We conclude that Coley presented no evidence Baylor breached her contract and that the jury was properly charged on constructive discharge, and we therefore reverse and render judgment for Baylor. . . . We need not decide whether there was any evidence Coley was constructively discharged to support submission of the issue to the jury since the jury answered the question “no”. There is no evidence that Baylor breached Coley’s employment contract. Accordingly, the judgment of the court of appeals is reversed and judgment is rendered that Coley take nothing. Texas Supreme Court Holds that Discontinued Deputy Constable Was Entitled to Grievance Hearing As A Matter of Procedural Due Process County of Dallas v. Lamar Walton, No. 04-0631 (Tex. Feb 16, 2007)(Hecht) Deputy constable was not resworn after new Dallas County Constable took office. Deputy, who was a civil service employee, sued county for damages and reinstatement alleging deprivation of his constitutional due process rights. The new Constable and the County relied on Deputy's signed acknowledgment that his employment was at will. The Supreme Court holds that a constable cannot unilaterally remove covered deputies from the civil service system by requiring the waiver, and that the deputy's signed statement thus had no legal effect. The Court determines that Deputy Walton has a valid procedural due process claim because he was denied a grievance hearing before the civil service commission, and remands to the trial court. Key cases: County of Dallas v. Wiland (Tex. Feb. 16, 2007)(Hecht)(at will employment, civil service system, public employee, governmental entities, section 1983 action CRA) Davis v. Houston Community College System (Tex.App.- Houston [1st Dist.] Jan. 25, 2007)(Alcala)(public employment, employment law, public employment, education employment law, race discrimination] AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-04-01160-CV Patricia Davis v. Houston Community College System (HCCS) Appeal from 152nd District Court of Harris County (Hon. Kenneth P. Wise) SUPREME COURT CASES Also see --> Texas Workplace Case Law Vandevender v. Woods, No. 05-0956 222 SW3d 430 (Tex. Apr. 27, 2007)(Willett)(public employment, benefits) Employer Liability for Negligence Jack in the Box, Inc. v. Skiles, No. 05-0911 221 S.W.3d 566 (Tex. Feb 9, 2007(per curiam) (workplace safety, injury, nonsubscriber employer, no duty, no liability for negligence) Fifth Club v. Ramirez, No. 04-0550 (Tex. Jun. 30, 2006)(Justice Paul Green) employer non liability for independent contractor torts, wrongful conduct, exceptions) Fifth Club v. Ramirez, No. 04-0550 (Tex. Jun. 30, 2006)(Concurrence by Justice Brister) Fifth Club v. Ramirez, No. 04-0550 (Tex. Jun. 30, 2006)(Dissenting opinion by Justice Willett) Loram Maintenance of Way v. Ianni, No. 04-0666 (Tex. Jun 30, 2006)(Justice Justice Green) (employer liability, employee conduct, off site, scope of employment, control, off duty, is duty owed?) Loram Maintenance of Way v. Ianni, No. 04-0666 (Tex. Jun 30, 2006)(concurrence by O'Neill) No common-law cause of action for whistleblowing The Ed Rachal Foundation v. D’Unger, No. 03-1101 (Tex. Apr. 21, 2006)(per curiam opinion) (whistle blowers, no common law cause of action, doctrine of employment at will) Kelley v. Humble Independent School District (Tex.App.- Houston [1st Dist.] Mar. 29, 2007)(Alcala)(teacher discrimination suit) Davis v. Houston Community College System (Tex.App.- Houston [1st Dist.] Jan. 25, 2007)(Alcala)(public employment) (employment law, public employment, race discrimination) AFFIRM TC JUDGMENT: Opinion by Justice Alcala Before Chief Justice Radack, Justices Alcala and Bland 01-04-01160-CV Patricia Davis v. Houston Community College System (HCCS) Appeal from 152nd District Court of Harris County (Hon. Kenneth P. Wise) Kelley v. Texas Workforce Commission (Tex.App.- Houston [1st Dist.] )(TWC, missed deadline to file judicial review suit, failure to name employer, DWOJ) Harris County v. Cheryl Norris, No. 01-04-01087-CV (Tex.App.- Houston [1st Dist.] Nov 9, 2006, pet filed 2/15/2007 and docketed as cause no. 07-0047)(Opinion by Justice Hanks)(employment, retaliation, whistle blowing, reporting of suspected abuse) |
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