City of Richland Hills v. Childress

• Decision Date: 16 September 2021
• Docket Number: 02-20-00334-CV
• Parties: City of Richland Hills, Texas, Appellant v. Barbara Childress, Appellee
• Court: Texas Court of Appeals

City of Richland Hills, Texas, Appellant v. Barbara Childress, Appellee

No. 02-20-00334-CV

Court of Appeals of Texas, Second District, Fort Worth

September 16, 2021

On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067-305366-19

Before Sudderth, C.J.; Kerr and Womack, JJ.

MEMORANDUM OPINION

Dana Womack Justice

I. Introduction

Appellee Barbara Childress, former police chief of Appellant City of Richland Hills, Texas, sued the City for age discrimination after the City terminated her employment. In this accelerated appeal, ^[1] the City complains that the trial court erred by denying its motion for summary judgment that asserted a plea to the jurisdiction and challenged Childress's damages claim for lost wages. Because Childress provided sufficient evidence to raise a fact question on her age-discrimination claim, and because the City fails to show that evidence of compensable lost wages is a jurisdictional prerequisite to this suit, the trial court did not err by denying the City's plea to the jurisdiction. Therefore, we affirm the trial court's order to the extent that it denied dismissal of Childress's age-discrimination claim for want of jurisdiction.

II. Background

After serving nearly thirty-four years as the City's Chief of Police, Childress was fired on March 29, 2018, at age sixty-nine and replaced by an employee who was twenty-five years younger.^[2] Childress filed a charge of discrimination with the Texas Workforce Commission, received a notice of right to sue, and then filed the underlying suit against the City in January 2019, claiming age discrimination and retaliation in violation of Chapter 21 of the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.051, .055. The City subsequently filed a motion for summary judgment, asserting a plea to the jurisdiction based on governmental immunity from suit under the Texas Labor Code because it contended that Childress had no evidence to support all elements of her claims.^[3] As part of its plea, the City attached several exhibits, including Childress's deposition transcript and the affidavit of City Manager Eric Strong.

Childress claimed that she had always received above-average performance evaluations during her tenure as Chief of Police and had never received any criticism of her job performance from her superiors until November 2017, when a police department employee filed a formal grievance alleging that Childress had discriminated against males in her recent hiring decisions. Strong, Childress's supervisor, promptly began an internal investigation into the grievance. Strong notified Childress of the discrimination complaint against her on December 4, 2017, and told Childress not to discuss the investigation with anyone other than her attorney. Childress signed a written acknowledgement that stated, "I have been ORDERED not to discuss this internal investigation with anyone, other than my attorney, including but not limited to witnesses. I have further been ORDERED not to authorize others on my behalf to initiate discussion with witnesses." Three days later, Strong provided Childress with an amended complaint adding an allegation that Childress had retaliated against employees for taking leave protected by the Family Medical Leave Act, and Childress again signed an acknowledgment of the order not to discuss the investigation with anyone other than her attorney.

Despite these orders, Childress talked to the police department's senior sergeant about the details of his job position, which had been created as part of the department's reorganization that also had involved Childress's hiring decisions challenged by the grievance. Although Childress did not believe that this discussion was related to the investigation into the complaints against her, Strong disagreed. According to Strong, Childress told him that she had also spoken about the investigation to at least one other person who was not affiliated with the City, but she would not say who it was because "she had assured the people she had talked to that she would maintain confidentiality about their identity." Strong testified in his affidavit that at that time, in early December 2017, he thought that he and Childress did not have a "high level of mutual trust" and that their working relationship had been "irreparably damaged" by her conduct.

Strong did not make a formal finding or take any disciplinary action against Childress regarding the grievance at that time, but he told Childress that he did not want her to continue serving as the City's police chief. Childress was nearing completion of an accreditation project for the police department with the Texas Police Chiefs Association, which she told Strong she thought she would finish by March 2018. Therefore, Strong told Childress that if she did not either resign or retire by the end of March 2018, he would "involuntarily end her employment with the City."

Strong eventually completed his investigation into the grievance against Childress in late December 2017 or early January 2018, and he determined that the complaints were "not sustained or could not be substantiated." A few weeks later, Childress sent a memo to Strong on February 27, 2018, stating, "I am asking you to reconsider your decision to let me go. I am ready and able to continue serving as the Chief of Police of Richland Hills and desire to do so." Childress sent Strong another memo a week later reiterating her desire to stay on with the City as Chief of Police. Strong rejected Childress's request and asked Childress again either to resign or retire by the end of March 2018.

When Childress did not give her two-week notice of resignation or retirement, Strong filed his own complaint against Childress on March 16, 2018. In this complaint, Strong alleged that Childress had violated City policy by discussing confidential internal investigations, failing to cooperate with an investigation, and having "impeded and tainted the investigation by refusing to disclose to the City Manager with whom she discussed confidential information." Strong charged that these actions amounted to insubordination and failure to follow a lawful order from the City Manager.

Although Childress denied these allegations, Strong issued written findings on March 26, 2018, that sustained his claims against Childress. In the findings, Strong stated that Childress had admitted to discussing the internal investigation with two people in addition to the senior sergeant but that she also had talked to "at least two other people" whose identities she did not disclose.^[4] Strong notified Childress that a disciplinary hearing would be held two days later and warned her that he was considering terminating her employment.

Childress vigorously contested Strong's findings in a written response, asserting that she had not talked to the senior sergeant about the investigation; that a person had told her "what they were hearing" about the investigation but that Strong never gave Childress a direct order to divulge that person's identity; and that she had informed the two police captains, her seconds-in-command, about the investigation only in connection with the captains' supervisory job duties, and she had told Strong that she had done so. Childress concluded,

As a tenured chief with 34 years of experience at Richland Hills, with [an] unblemished record, I am acutely aware of my responsibilities and have done nothing to taint this investigation and certainly nothing that would rise to the level of termination. Using my best judgment as a tenured chief and fully understanding the circumstances of which I was faced, I acted in an appropriate manner by [e]nsuring that the leadership of the department understood the issues we were facing so that we could make accurate and reasoned decisions during a tumultuous time. Had I done otherwise I would have been derelict in my duties to the community and to the employees of the department.

Despite Childress's protests, Strong fired Childress the next day.

Based on these facts, the City sought dismissal, asserting that Childress had not established a waiver of the City's immunity from suit because she had no evidence to support all elements of her claims and that she had no compensable lost wages as a matter of law. After Childress filed a response and after a hearing, the trial court dismissed Childress's retaliation claim but not her age-discrimination claim. The City now appeals.

III. Discussion

In two issues, the City contends that the trial court erred by denying part of its motion for summary judgment-first, because the City's plea to the jurisdiction established that Childress had not carried her burden to show that the City had waived its governmental immunity, and second, because Childress's current wages and retirement-account payments must be offset against her damage claims for lost pay. The City argues that because Childress receives retirement payments from the City in addition to her wages from a new job, which together exceed the compensation she had received from the City, she has suffered no economic damages as a matter of law.

A. Plea to the Jurisdiction

1. Standard of Review

A trial court's ability to hear a case lies in its subject-matter jurisdiction. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). "A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction." Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A plea to the jurisdiction may be used to assert governmental immunity and defeat a court's subject-matter jurisdiction. Id. A trial court's ruling on a plea to the jurisdiction is reviewed de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015).

If a plea...