City of Waco v. Lopez

• Decision Date: 11 July 2008
• Docket Number: No. 06-0089.,06-0089.
• Parties: CITY OF WACO, Texas, Petitioner, v. Robert LOPEZ, Respondent.
• Court: Texas Supreme Court

259 S.W.3d 147

CITY OF WACO, Texas, Petitioner, v. Robert LOPEZ, Respondent.

No. 06-0089.

Supreme Court of Texas.

July 11, 2008.

Rehearing Denied August 29, 2008.

Enid Allyn Patterson Wade, Greg White, Naman Howell Smith & Lee, L.L.P., Waco, Bradley A. Areheart, DLA Piper U.S. LLP, Austin, TX, for Petitioner.

R. John Cullar, Cullar & McLeod LLP, Waco, TX, for Respondent.

Ramon G. Viada III, Viada & Strayer, The Woodlands, Rance L. Craft, Office of Attorney General, Austin, TX, for Amicus Curiae.

Justice WAINWRIGHT delivered the opinion of the Court.

The City of Waco appeals the denial of its plea to the jurisdiction in this Whistleblower Act suit filed by a former city employee, Robert Lopez, alleging retaliatory discharge for reporting age and race discrimination in violation of the City's EEO policy. We hold that the Texas Commission on Human Rights Act (CHRA), TEX. LAB.CODE §§ 21.001-.556, provides the exclusive state statutory remedy for Lopez's retaliatory discharge claim because he is a covered employee under the CHRA and his retaliation claim falls squarely within the CHRA's ambit. Because Lopez's retaliation claim is not actionable under the only pleaded theory and the pleadings and evidence establish that Lopez has not satisfied the administrative prerequisites for maintaining a retaliation claim under the CHRA, we reverse the court of appeals' judgment and dismiss the case.

I. Factual and Procedural Background

On August 17, 2001, the City of Waco transferred Robert Lopez from his position as Chief Plumbing Inspector to a position in the plumbing code enforcement division. Although the City asserted that Lopez was transferred based on complaints about his attitude, Lopez filed a grievance with the City's EEO officer on August 20, 2001, complaining that the transfer was based on his age and race in violation of the City's EEO policy. He was transferred back to his original position shortly thereafter, but on October 5, 2001, the City terminated his employment for taking a City vehicle from Waco to Austin without obtaining prior approval, contrary to City policy.

On December 26, 2001, Lopez sued the City under the Whistleblower Act, TEX GOV'T CODE §§ 554.001-.010, claiming that he was fired in retaliation for filing a grievance with the EEO officer pursuant to the City's EEO policy. The City filed a plea to the jurisdiction, arguing that the CHRA was the exclusive remedy for Lopez's retaliatory discharge claim. The City also asserted that Lopez did not meet the Whistleblower Act's requirements because the EEO policy did not constitute a "law," and even if it did, Lopez did not report the alleged violation to the "appropriate law enforcement authority." Lopez countered that: 1) the CHRA does not preclude his suit under the Whistleblower Act because he did not file a complaint under the CHRA; 2) the EEO policy qualifies as a "law" under the Whistleblower Act because it was adopted by the City of Waco through a resolution; and 3) the EEO officer was the appropriate law enforcement authority to which to report an alleged violation of the EEO policy. The trial court denied the City's plea to the jurisdiction, and a divided court of appeals affirmed. 183 S.W.3d 825; see TEX. CIV. PRAC. & REM.CODE § 51.014(a)(8) (authorizing an interlocutory appeal from the denial of a plea to the jurisdiction). We granted the City's petition for review.

II. Law and Analysis

In the plea to the jurisdiction, the City argued that the trial court lacked jurisdiction because Lopez failed to allege a claim for which the City's governmental immunity has been waived, either because he failed to pursue his exclusive remedy under the CHRA or because he cannot satisfy one or more of the requirements of the Whistleblower Act as a matter of law. Sovereign immunity from suit defeats a trial court's jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.2004).

In an appeal of a ruling on a plea to the jurisdiction, a reviewing court must determine whether facts have been alleged that affirmatively demonstrate jurisdiction in the trial court. Id. The court must also consider evidence tending to negate the existence of jurisdictional facts when necessary to resolve the jurisdictional issues raised. Id. at 227. The court construes the pleadings liberally in favor of the plaintiff, and a fact question regarding jurisdiction prevents the court from granting the plea to the jurisdiction. Id. at 226-28. If the pleadings or evidence affirmatively negate a jurisdictional fact, however, a court may grant a plea to the jurisdiction without allowing the plaintiff to amend. Id. at 227. These are questions of law that we review de novo. Id. at 226-228.

It is undisputed that Lopez has not specifically alleged a violation of, or filed a complaint under, the CHRA. In his Whistleblower Act claim, Lopez has only complained that the City of Waco violated its own EEO policy, which he contends carries the force of law. Lopez contends that, because he did not specifically complain that the CHRA has been violated, he either was (1) precluded from asserting a retaliation claim under the CHRA or (2) was not required to assert his retaliation claim under the CHRA exclusively. We disagree with both of these contentions.

A. The CHRA's Anti-Retaliation Provision

The CHRA makes it unlawful for an employer to retaliate "against a person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing." TEX. LAB.CODE § 21.055. Covered "employees" under the Act include public employees (except elected officials) and covered "employers" include counties, municipalities, state agencies, and state instrumentalities, regardless of the number of individuals employed. Id. § 21.002(7), (8)(D). The discriminatory practices made unlawful under the Act include adverse employment decisions based on race, color, disability, religion, sex, national origin, or age. Id. § 21.051.

Although Lopez never pled a CHRA claim, his internal grievance with the City complaining of age and race discrimination and his related retaliation claim indisputably implicate the CHRA's anti-retaliation provision, Section 21.055. Nevertheless, based on the "under this chapter" language in the CHRA's anti-retaliation provision, Lopez asserts that the Whistleblower Act is the only statute that afforded him any protection for having reported the EEO policy violation because he never filed a CHRA complaint with the Commission on Human Rights or its successor, the Texas Workforce Commission civil rights division (collectively "the Commission"),¹ or otherwise invoked the CHRA.

We reject Lopez's characterization of the CHRA and argument that his retaliation claim was not actionable under the CHRA. Lopez complained of age and race discrimination to the City's EEO officer and alleges he was fired for doing so. The CHRA plainly proscribes retaliation for having opposed conduct made unlawful by the CHRA, irrespective of the merits of the underlying discrimination claim. See TEX. LAB.CODE § 21.055; Cox & Smith Inc. v. Cook, 974 S.W.2d 217, 224 (Tex.App.-San Antonio 1998, pet. denied) ("The employee is not required to show ... [the] actual existence of an unlawful practice, only that she held a good faith reasonable belief that the employer engaged in activity made unlawful by Title VII or the TCHRA."); accord Tex. Dep't of Assistive & Rehabilitative Servs. v. Abraham, No. 03-05-00003-CV, 2006 WL 191940, at *7 (Tex. App.-Austin Jan.27, 2006, no pet.) (mem. op.) (not designated for publication) (same).

The CHRA's catch-all retaliation language covers a wide array of situations in which discrimination may have been alleged by the employee or someone else. An internal grievance alleging conduct that is actually prohibited by the CHRA reasonably equates to opposition to discriminatory conduct "under" the CHRA, regardless of whether a formal CHRA complaint has been filed.² The touchstone is not availment, but availability of the CHRA remedies. Furthermore, Lopez's interpretation of the "under this chapter" language would create a significant enforcement gap in the statute that is contrary to the purpose of the statute. If an aggrieved employee must expressly invoke the CHRA or its procedures as a predicate to pursuing a retaliation claim, an employer could avoid liability for retaliation by swiftly firing the employee. Such an absurd result cannot be intended by the Legislature.

Furthermore, remedial action pursuant to an internal report of discrimination may reduce liability or damages exposure under the Act,³ and it would be incongruous to allow an employer to eliminate or reduce damages by providing an internal grievance system while simultaneously depriving an employee of statutory protection for utilizing that system. The reasonable reading of the CHRA's "under this chapter" language is that actionable retaliation exists when an employer makes an adverse employment decision against an employee who voices opposition to conduct made unlawful under the CHRA, regardless of whether the employee has already filed a formal complaint with the Commission.⁴

B. The CHRA's Exclusivity

Although Lopez could have asserted his retaliation claim under the CHRA, he contends that the CHRA is not an impediment to his Whistleblower Act claim unless he specifically invoked the CHRA as part of the internal grievance process or filed a formal complaint with the Commission. Lopez posits that he can elect to proceed under the CHRA or the Whistleblower Act, which generally prohibits governmental entities from suspending or terminating the employment of "a public employee who in good faith reports a violation of law by the employing governmental entity ... to an appropriate law enforcement...