Bemus G. Jackson v. UTHSC Police Department--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00553-CV
Bemus G. JACKSON,
Appellant
v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER POLICE DEPARTMENT,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-07427

Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phyllis J. Speedlin, Justice

Delivered and Filed: March 24, 2004

AFFIRMED

Appellant, Bemus G. Jackson, appeals an order granting summary judgment that dismissed his employment discrimination and retaliation claims against the University of Texas Health Science Center Police Department ("UTHSC Police Department"). We affirm.

Factual and Procedural Background

Jackson began working for the UTHSC Police Department as a guard in 1990. Jackson claims that throughout his ten years of employment with the Department, he endured a discriminatory and hostile work environment. He also claims that when he complained about the discriminatory practices, his superiors responded with criticism, harassment, and retaliation.

In 1996 and 1999 Jackson filed several grievances with the chief of the UTHSC Police Department and with the university's vice-president. These grievances raised allegations of unfair treatment, age discrimination, and retaliatory actions. The grievances were denied by UTHSC officials. Jackson also filed a complaint with the Equal Employment Opportunity Commission (EEOC) in 1996 alleging age discrimination. This grievance was later rejected by the EEOC. In June 2000, Jackson filed another complaint with the EEOC for hostile work environment, wrongful disciplinary actions, intimidation and excessive supervision, and age discrimination. Jackson retired on June 1, 2000, when his work environment allegedly became too hostile for him to continue.

On April 19, 2001, Jackson received the EEOC's notice of Right to Sue, and on July 19, 2001, Jackson sued in federal court under the Age Discrimination in Employment Act (ADEA). See 29 U.S.C. 621. Jackson's federal complaint alleged age discrimination and retaliation as the basis for his claim. On May 17, 2002, the federal court dismissed the case for lack of subject matter jurisdiction, and that same day Jackson filed suit in state court. His state suit consisted of claims under the Texas Whistleblower Act and "related federal statutes, i.e. the Civil Rights Act of 1991and the ADEA ...." On July 15, 2003, the trial court granted summary judgment in favor of the UTHSC Police Department.

Standard of Review

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one essential element of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).

Similarly, if the defendant establishes all elements of an affirmative defense to each claim, then summary judgment is proper. Chaney v. Corona, 103 S.W.3d 608, 610 (Tex. App.--San Antonio 2003, no pet.). "Once a movant establishes its right to summary judgment on the basis of an affirmative defense, the nonmovant must respond with reasons for avoiding summary judgment and must support those reasons with proof sufficient to raise a fact issue." Deaver v. Bridges, 47 S.W.3d 549, 551 (Tex. App.--San Antonio 2000, no pet.). If the nonmovant responds with proof that avoids the movant's affirmative defense, then the movant has the burden to negate the nonmovant's grounds for avoidance as a matter of law. Id.

When the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the judgment if any of the theories raised in the motion for summary judgment are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). The summary judgment in the instant case does not specify the grounds upon which the court relied. The Department sought summary judgment on three grounds: (1) Jackson's Whistleblower claim is barred by the statute of limitations; (2) Jackson's remaining claims are barred by the doctrine of res judicata; and (3) the UTHSC Police Department enjoys immunity from suit as to Jackson's age discrimination claims.

Texas Whistleblower Act

The Texas Whistleblower Act prohibits a state or local governmental entity from suspending or terminating a public employee who in good faith has reported a violation of the law to an appropriate law enforcement authority. Tex. Gov't Code Ann. 554.002 (Vernon 1994 & Supp. 2004); Villarreal v. Williams, 971 S.W.2d 622, 624 (Tex. App.--San Antonio 1998, no pet.). In this case, Jackson filed grievances with the appropriate authorities at the UTHSC. Jackson contends, however, that his complaints were ignored and his work environment became more hostile, prompting him to retire in June of 2000. Such constructive discharge or forced retirement as Jackson alleges meets the termination requirement under the Texas Whistleblower Act. See Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 774 (Tex. App.--Houston [1st Dist.] 1999, pet. dism'd w.o.j.). Therefore, the alleged violation of the Whistleblower Act is the date of Jackson's constructive discharge itself, June 1, 2000. See id.

The limitations period to sue under the Whistleblower Act is ninety days after the alleged violation occurred or was discovered by the employee. Tex. Gov't Code Ann. 554.005 (Vernon 1994); Villarreal, 971 S.W.2d at 624. However, before suing under the Whistleblower Act, the employee must initiate the grievance or appeal procedures of the employing state or local governmental entity not later than ninety days after the alleged violation. Tex. Gov't Code Ann. 554.006 (Vernon 1994 & Supp. 2004). This time spent on the grievance procedures is excluded from the ninety-day limitations period under the Whistleblower Act. Tex. Gov't Code Ann. 554.006(c). If after sixty-one days, however, the employee has not received a final decision, the employee may either exhaust the internal grievance procedures, after which the employee has thirty days to sue under the Whistleblower Act, or terminate the internal grievance procedures and sue under the Whistleblower Act within the time remaining. Tex. Gov't Code Ann. 554.006(d).

It is undisputed that Jackson exhausted the internal grievance procedures in this instance. Therefore, when Jackson retired on June 1, 2000, he had ninety days to file his claim under the Whistleblower Act. Jackson, however, did not file his state court suit until May 17, 2002, more than ninety days after the alleged Whistleblower violation. Therefore, we hold Jackson's claim is barred by limitations.

Jackson claims his state court suit was timely filed pursuant to the tolling provision of section 16.064 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 16.064 (Vernon 1997) (providing for a tolling of limitations when original suit is mistakenly filed in the wrong court). We note that Jackson's federal pleadings do not include a Whistleblower claim; therefore, we are unpersuaded by Jackson's assertion that he "mistakenly" filed his claim in the wrong court.

Jackson also argues that his limitation period begins from the date he received his EEOC right to sue letter on April 19, 2001. The Dallas Court of Appeals discussed a similar issue in Turner v. Richardson Indep. School Dist., 885 S.W.2d 553 (Tex. App.--Dallas, 1994, pet. denied). The Turners sued the school district under the Commission on Human Rights (CHR) and the Whistleblower Act. The Turners did not file their Whistleblower claim within the limitations period because they had to wait and fully exhaust their remedies to pursue their CHR claim. Their deadline to file the Whistleblower claim was June 19, 1991, and they filed their original petition on April 16, 1992. The court explained that both statutes prohibit an employer's retaliatory conduct, but the "purposes, rights protected, and remedies under the statutes are different." Turner, 885 S.W.2d at 561. Thus, the court concluded that if a plaintiff has a cause of action under each statute, "he must comply with each statute's limitation provisions or elect his remedy." Id. at 562. Similar to the CHR, the Texas Whistleblower Act has limitations and procedures that must be honored separately from any EEOC procedures. Since Jackson did not file his Whistleblower claim within the limitations period prescribed by the Whistleblowers Act, summary judgment dismissing his claim was proper.

Remaining Federal Claims

The federal district court dismissed Jackson's original federal claim under the ADEA for lack of subject matter jurisdiction because the claim was barred by Eleventh Amendment immunity. Jackson then filed in state court under the Texas Whistleblower Act along with "related federal statutes," specifically citing the ADEA and the Civil Rights Act of 1991. The UTHSC Police Department argues that the retaliation, discrimination, and ADEA claims are barred by res judicata since they were already brought in federal court.

Res judicata does not apply, however, when claims are dismissed for lack of subject matter jurisdiction, such as when barred by immunity. Texas A&M Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 418 (Tex. App.--Houston [14th Dist.] 2002, no pet.); see Lorenz v. Janssen, 116 S.W.3d 421, 424 (Tex. App.--Corpus Christi 2003, no pet.). The UTHSC is part of the University of Texas system and sovereign immunity applies to all of its employees acting within their official capacities. Whitehead v. Univ. of Texas Health Sci. Ctr. at San Antonio, 854 S.W.2d 175, 180 (Tex. App.--San Antonio 1993, no pet.). The ADEA does not abrogate the States' sovereign immunity; thus private individuals cannot sue the State under this act unless immunity has been waived. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000). Further, the Eleventh Amendment, unless expressly waived, "prevents the federal courts from exercising jurisdiction over claims against a state or a state agency." Texas A&M Univ. Sys., 93 S.W.3d at 418. Consequently, res judicata did not bar Jackson from bringing these claims in state court since they were barred by immunity and dismissed in federal court for lack of subject matter jurisdiction.

Although Jackson's claims are not barred by res judicata, they are precluded by the doctrine of sovereign immunity. This court's decision in the present matter is governed by Alden v. Maine, 527 U.S. 706 (1999). Alden holds that nonconsenting states cannot be sued for damages in state court for violations of federal statutes. Id. at 712 ("the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts."). Because the State of Texas did not consent to suit in this case, Jackson's remaining claims are barred by immunity under the Eleventh Amendment. Therefore, summary judgment was proper on the remaining federal claims.

Conclusion

We affirm the trial court's order granting summary judgment in favor of the UTHSC Police Department.

Catherine Stone, Justice