law public employment | employment disputes | termination of employment | discharge | employment at will |
Recent Public Employment Cases from the Texas Supreme Court (Tex. 2008)
City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(Whistleblower Act, TCHRA, anti-discrimination statute as exclusive remedy for retaliation claim at issue,
failure to satisfy prerequisites for suit by not filing with agency first)
CITY OF WACO, TEXAS v. ROBERT LOPEZ; from Limestone County; 10th district (10-04-00085-CV, 183 SW3d
825, 12-14-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Wainwright delivered the opinion of the Court.
The CHRA affords public employees like Lopez a specific and tailored anti-retaliation remedy, and he was
obliged to use it. Because he failed to do so, and the pleadings and evidence establish that he can no longer
pursue a CHRA claim, the trial court should have granted the City’s plea to the jurisdiction and dismissed the
case for lack of jurisdiction.
Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(O’Neill)(public employment, wrongful
termination claim, TTCA, tort claims, TCHRA claim, immunity waiver)
MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. GLORIA GARCIA; from Hidalgo County; 13th
district (13-04-00668-CV, ___ S.W.3d ___, 06-30-05)
– consolidated with –
05-0762 MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. MELINDA SOTUYO; from Hidalgo
County; 13th district (13-05-00021-CV, ___ S.W.3d ___, 06 30 05)
– consolidated with –
05-0763 MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. DEBORAH MEDINA; from Hidalgo
County; 13th district (13-05-00060-CV, ___ S.W.3d ___, 06 30 05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial
court.
Justice O'Neill delivered the opinion of the Court.
O’Neil v. Ector ISD, No. 07-0084 (Tex. Mar. 28, 2008)(per curiam) (teacher contract dispute, exhaustion of
administrative remedies, limitations)
HELEN O'NEAL v. ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT; from Travis County; 11th district (11-06-
00013-CV, 221 S.W.3d 286, 11-09-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court affirms the court of appeals' judgment.
Houston Municipal Employees Pension System v. Ferrell, No. 05-0587 (Tex. Nov. 30, 2007)(Green)
(public employment, UDJA, jurisdiction, nonsuit)
Justice Brister delivered a concurring opinion, in which Justice O'Neill joined. (Justice Willett not sitting)
PETITIONS DENIED BY THE TEXAS SUPREME COURT
08-0718
CONRAD G. DEOCARIZA v. CENTRAL TEXAS COLLEGE DISTRICT; from Bell County; 3rd district
(03‑06‑00653‑CV, ___ SW3d ___, 06‑19‑08))(public employment, termination, discrimination)
07-0735
TEXAS PARKS AND WILDLIFE DEPARTMENT v. MILBURN DEARING, KENNETH HEAD, AND MIKE WARREN,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; from Travis County; 3rd district (03-05-
00499-CV, 240 SW3d 330, 08-03-07, pet. denied June 2008) [Separate opinion in 03-05-00499-CV]
(class action, interlocutory appeal, public employment, age discrimination, reclassification of position)
This is an interlocutory appeal from the re-certification of a class action following this Court's reversal and
remand of the original certification order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (West 1997 &
Supp. 2006). Appellees Milburn Dearing, Kenneth Head, and Mike Warren, individually and on behalf of others
similarly situated (collectively, Dearing), sued their employer, the Texas Parks & Wildlife Department, alleging a
disparate-impact theory of age discrimination under chapter 21 of the Texas Labor Code in regard to the
Department's reclassification of their game-warden positions. See Texas Parks & Wildlife Dep't v. Dearing, 150 S.
W.3d 452, 466 (Tex. App.-- Austin 2004, pet. denied) (Dearing I), cert. denied, 544 U.S. 960 (2005); see also
Tex. Lab. Code Ann. § 21.051 (West 2006). The plaintiffs sought certification of a class of approximately 130
fellow game wardens whom they claim were similarly situated. Eighty-eight of the putative class members have
since intervened as plaintiffs. The district court denied a plea to the jurisdiction and summary-judgment motions
asserted by the Department and certified the class.
08-0112
R. SCOTT PHELAN v. TEXAS TECH UNIVERSITY; from Travis County; 7th district
(07-07-00171-CV, ___ S.W.3d ___, 01-23-08, pet. denied)(whistleblower act, due process claims rejected)
Phelan was an at-will employee employed pursuant to annual contracts that expired by their own terms. See
Turner v. Joshua Independent School District, 583 S.W.2d 939, 942 (Tex.Civ.App.-Waco 1979, no writ). Under
Texas Tech's rules, he was entitled to a notice of non-reappointment by issuance of a terminal contract for one
academic year. He received the required notice on non-reappointment and, at his request, review by a faculty
committee. Phelan claims that Texas Tech did not follow its procedures related to his appeal of non-
reappointment to the Tenure Advisory Committee. He asserts that it was improper for members of the Committee,
or for non-members of the Committee, to serve on the faculty Committee assembled to hear his appeal of non-
reappointment and for Eibeck's draft response to his grievance to be distributed at a Committee meeting. We
disagree. The Regents' Rules expressly permit members of the Tenure Advisory Committee, or their appointees,
to serve on the faculty committee. And, although Texas Tech's grievance procedure indicates that the procedure
does not apply to grievances related to non-reappointment and termination, there is no reciprocal provision
regarding appeals of non-reappointment. In fact, the Committee sets its own rules and can accept, or reject, any
oral or written statements. In short, there is no prohibition, as Phelan contends, against the Committee
considering any evidence including Eibeck's draft response to Phelan's grievance. We also note that Phelan
cites to no authority, legal or otherwise, in support of his contention that he was entitled to notice of the time and
place of the meeting where the Committee considered his appeal, a transcription of the meeting, or a list of what
was considered by the Committee in reaching its decision to affirm his non-reappointment. Neither has he cited
any authority authorizing a non-reappointee to appeal the composition of the Committee appointed to consider
his appeal. The Committee considered his submission with other evidence and upheld his non-reappointment.
Phelan also contends that because Texas Tech established some procedure for review of his non-
reappointment, it intended to elevate his status to something more than an at-will employee. Simply because
Texas Tech provided some procedure for faculty that are non-reappointed does not mean that it intended to
expand by implication the employment rights of a faculty member who is non-reappointed beyond those set forth
in its Regents' Rules. See Wells v. Hico Independent School District, 736 F.2d 243, 254-55 (5th Cir. 1984), cert.
dism'd, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). These procedures relate to only non-reappointment,
not contract renewal or tenure. Id. Moreover, Texas does not recognize implied teaching contracts. See Burris v.
Willis Independent School District, Inc., 713 F.2d 1087, 1090-91 (5th Cir. 1983).
Phelan's non-reappointment was not tantamount to dismissal or discharge because his contract for the specified
time of a year automatically expired at the end of its term. See Bowen, 603 S.W.2d at 235. If Phelan had any
expectation that he would be renewed for an additional year, or years, his expectation was unilateral. See
Govant, 72 S.W.3d at 76; Hix, 489 S.W.2d at 711. Moreover, no cognizable claim exists because Texas Tech
paid Phelan his full salary under his existing contract. Kinsey v. Salado Independent School District, 950 F.2d
988, 997 (5th Cir. 1992), cert. dism'd, 504 U.S. 941, 112 S.Ct. 2275, 119 L.Ed.2d 201 (1992). Thus, Phelan's
due process claims fail as a matter of law and his third point of error is overruled.
08-0060
CARLOS GUERRA v. SANTA ROSA INDEPENDENT SCHOOL DISTRICT; from Cameron County; 13th district (13-
06-00681‑CV, 241 SW3d 594, 08-28-07, pet. denied) as redrafted (public employment, schools, declaratory
judgment, DJA)
This appeal is taken from a final summary judgment rendered in favor of the Santa Rosa Independent School
District ('SRISD") and against Carlos Guerra. On appeal, Guerra contends that the trial court lacked jurisdiction
and erred in granting summary judgment in favor of SRISD. We hold that SRISD established its entitlement to
judgment as a matter of law on its claim for declaratory relief. Accordingly, we affirm the judgment of the trial
court. ... Guerra was employed as the Superintendent of SRISD beginning June 28, 2004. On February 6, 2006,
SRISD's Board of Trustees voted to request Guerra's resignation pursuant to paragraph 1.2 of his employment
contract which states:
08-0039 CYNTHIA M. SCOTT v. HOUSTON COMMUNITY COLLEGE SYSTEM, BRUCE LESLIE, DIANA
CASTILLO, AND REYNALDO GARAY; from Harris County; 14th district (14-07-00040-CV, ___ SW3d ___, 11-29-
07, pet. denied April 2008) (public employment disputes, breach of employment contract, IIED, WBA)
Appellants, Stan H. Looper and Cynthia M. Scott, appeal the trial court's grant of summary judgment on claims of
breach of contract, defamation, intentional infliction of emotional distress, negligent hiring, and violations of the
Texas Whistleblower Act in favor of appellees, Houston Community College System ("HCCS"), Bruce Leslie,
Diana Castillo, and Reynaldo Garay. We affirm.
07-1022 JOSEPHINE S. ALOBAIDI v. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON;
from Harris County; 14th district (14-06-00303-CV, ___SW3d ___, 10-30-07, pet. denied March 2008)(public
employment, retaliatory discharge, suits against universities)