City of Comanche v. Michelle Florence--Appeal from 220th District Court of Comanche County

Opinion filed August 23, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00285-CV

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CITY OF COMANCHE, Appellant

v.

MICHELLE FLORENCE, Appellee

On Appeal from the 220th District Court

Comanche County, Texas

Trial Court Cause No. CCCV-06-04306

M E M O R A N D U M O P I N I O N

Michelle Florence claimed that the City of Comanche wrongfully terminated her employment, and she sued the City and Bill Flannery, the City Administrator. The City ultimately filed a plea to the jurisdiction, and the trial court denied that plea. Because we find that the trial court did not have jurisdiction, we reverse and render.

The City hired Florence as an employee in May 2001. Subsequently, Flannery fired Florence allegedly for insubordination. Florence, however, maintains that she was fired after she had discussed certain work-related problems with Flannery. One of those problems involved Florence=s allegations that Flannery Awas talking to others about her job related injury.@ Another of the problems that she discussed with Flannery was that AFlannery was overheard by [Florence] asking another employee about whether or not [Florence] was having an affair with the Police Chief.@ Florence maintains that she talked with Flannery because that was the action dictated in the employee=s personnel manual.

When Florence was hired, she was given a copy of the City=s written employee=s personnel manual. Florence maintains that the personnel manual constitutes a contract between her and the City. It is important to Florence=s lawsuit against the City that the manual constitutes a contract. If the manual does not constitute a contract, then her employment is at-will. Further, if the manual does not constitute a contract, then there is no possibility of waiver of governmental immunity and the trial court would not have jurisdiction of this lawsuit.

Although it has alleged various sub-points, the City has written in its brief that there is only one issue in this interlocutory appeal: sovereign immunity. Sovereign immunity refers to the state=s immunity from suit and from liability. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Sovereign immunity protects the state and various divisions of state government. Id. Governmental immunity, on the other hand, protects political subdivisions of the state, including counties, cities, and school districts. Id.

Political subdivisions of the state, including cities, are entitled to governmental immunity from suit unless that immunity has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Immunity from suit and immunity from liability involve two different principals. Governmental immunity from suit defeats a trial court=s subject-matter jurisdiction. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 26 (Tex. 2004); DallasArea Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Ector County v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.CEastland 2004, no pet.). Immunity from liability protects the governmental entity from liability even though immunity from suit has been waived. Reata, 197 S.W.3d at 374. A claim of governmental immunity from suit is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225 26; Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). Whether a court has subject-matter jurisdiction is a legal question that we review de novo. Miranda, 133 S.W.3d at 226; Breedlove, 168 S.W.3d at 865.

The City of Comanche is a political subdivision of the state and is, therefore, entitled to immunity from suit unless that immunity has been waived. If it has not been waived, then the trial court has no subject-matter jurisdiction in this case.

Florence has the burden to establish that the trial court had subject-matter jurisdiction. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When deciding a plea to the jurisdiction, the plaintiff=s allegations must be accepted as true. City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex. App.CCorpus Christi 1998, pet. dism=d w.o.j.). Also, we must construe the allegations liberally in favor of the plaintiff. Miranda, 133 S.W.3d at 226. The trial court may also consider evidence when necessary to resolve any jurisdictional issue. Id. at 223.

Florence attempts to establish subject-matter jurisdiction by alleging that she had a contract with the City, that the contract modified her status as an at-will employee, and that a suit for the breach of that contract was not precluded by governmental immunity because of the application of Tex. Loc. Gov=t Code Ann. ' 271.152 (Vernon 2005).

While we do not hold that Section 271.152 applies to cases like this one, for purposes of this appeal, we will proceed as though it does. Section 271.152 provides for a waiver of immunity from suit in certain instances when a local governmental entity enters into a contract for goods or services and there is a claim for breach of that contract against the governmental entity. See also Tex. Loc. Gov=t Code Ann. ' 271.151 (Vernon 2005) (definitions). Unless there is a specific agreement otherwise, employment may be terminated by either the employer or the employee for good cause, for bad cause, or for no cause at all. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501 (Tex. 1998).

In Federal Express Corp. v. Dutschmann, 846 S.W.2d 282 (Tex. 1993), Federal Express discharged an employee for allegedly making false delivery records. The employee maintained that she was fired in retaliation for making sexual harassment complaints. The handbook for employees contained a statement that employment was at-will, that the manual was not an employment contract, and that it could be modified at any time. The employee signed an agreement acknowledging the fact that she had received the handbook. The employee also acknowledged that the handbook was not a contract and that it did not alter her status as an at-will employee. The court held that there was no contract restricting the employment-at-will relationship.

Herod v. Baptist Foundation of Texas, 89 S.W.3d 689 (Tex. App.CEastland 2002, no pet.), involved a similar situation. There, an employee manual contained language to the effect that the manual was not a contract of employment and that it did not change the at-will status of employment. The employee had acknowledged receipt of the manual. The receipt contained the same disclaimer. Citing Federal Express, this court held that the disclaimer negated the possibility that the at-will status of the employment arrangement had been modified. AA disclaimer in an employee handbook . . . negates any implication that a personnel procedures manual places a restriction on the employment at will relationship.@ Federal Express, 846 S.W.2d at 283.

Here, there was no specific agreement to alter Florence=s employment-at-will status. The personnel manual for the City of Comanche contained the following language:

Nothing contained in this manual is to be construed as a guarantee or as a contract of employment. All employees hold their positions at the will and pleasure of the City and such positions may be terminated or otherwise adversely affected with or without cause.

Florence completed and signed an application for employment when she was hired by the City. The application contained the following language:

I hereby understand and acknowledge that, unless otherwise defined by applicable law, any employment relationship with this organization is of an Aat will@ nature, which means that the Employee may resign at any time and the Employer may discharge Employee at any time with or without cause. It is further understood that this Aat will@ employment relationship may not be changed by any written document or by conduct unless such change is specifically acknowledged in writing by an authorized executive of this organization.

These two statements disclaim any intent that anything in the policy manual constituted a contract to alter the at-will status of the employment arrangement. Because there is no contract of employment, Florence cannot invoke Section 271.152 B even if it is applicable to claims of this nature B to provide for a waiver of governmental immunity. Because the City is protected from suit by governmental immunity, the trial court did not have subject-matter jurisdiction over Florence=s claim against the City. The City=s issue on appeal is sustained.

We reverse the trial court=s order denying the City of Comanche=s plea to the jurisdiction, and we render judgment dismissing the lawsuit against the City of Comanche.

JIM R. WRIGHT

August 23, 2007 CHIEF JUSTICE

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.