Larsen v. Santa Fe Independent School Dist.

• Decision Date: 28 July 2009
• Docket Number: No. 14-07-01038-CV.,14-07-01038-CV.
• Citation: 296 S.W.3d 118
• Parties: Erik LARSEN, Appellant, v. SANTA FE INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

296 S.W.3d 118

Erik LARSEN, Appellant, v. SANTA FE INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 14-07-01038-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 28, 2009.

Rehearing Overruled August 20, 2009.

Cletus P. Ernster, J L Carpenter, Houston, TX, for appellants.

Clay T. Grover, Houston, TX, for appellees.

Panel consists of Justices FROST, BROWN, and BOYCE.

OPINION

WILLIAM J. BOYCE, Justice.

Erik Larsen appeals from an order granting summary judgment in favor of Santa Fe Independent School District ("the District") in connection with Larsen's lawsuit for retaliatory discharge following his filing of a workers' compensation claim. See Tex. Lab.Code Ann. § 451.001 (Vernon 2006). Before reaching the merits, we must determine whether Larsen's asserted failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction. We conclude the trial court had jurisdiction and affirm.

Background

Larsen began working on an at-will basis as a police officer for the District on October 16, 2003. He was injured while participating in a work-related training exercise on October 5, 2005 and took a leave of absence from his job. The District reported Larsen's injury to its workers' compensation administrator on October 11, 2005. Larsen began receiving workers' compensation benefits thereafter.

As an at-will employee, Larsen was governed by the District's Leave and Absence Policy ("the Policy"). Under the Policy, an employee who has exhausted all available leave and cannot return to work may be terminated. The Policy was included in the District's employee handbook for the 2005-2006 school year. The Policy provides that employee leave taken pursuant to the Family Medical Leave Act ("FMLA") runs concurrently with any accrued sick and personal leave taken. The FMLA provides up to 12 weeks of unpaid, job-protected leave from employment. 29 U.S.C. §§ 2612(a)(1), 2614(a)(1) (2006).

At the time of Larsen's October 2005 injury, he already had accrued and exhausted three sick and personal leave days for the 2005-2006 school year. Larsen did not return to work from his October 2005 injury before exhausting all of his available leave. Larsen testified in his February 2007 deposition that he remained unable to work.

Finance Director Ryan Boone, who handled workers' compensation issues for the District, informed Superintendent Dr. Jon Whittemore before January 23, 2006 that Larsen had exhausted all of his available leave. Whittemore sent a letter to Larsen dated January 23, 2006 stating that Larsen's FMLA and other leave time expired on January 18, 2006, and that the District was terminating Larsen's employment because of his inability to return to work upon the expiration of his leave.¹

According to Whittemore, Larsen was required to file a grievance with the District if he wanted to appeal his employment termination through administrative means. The District's grievance procedure allowed an at-will employee to file a grievance within 15 days of the date the employee first learned of the action giving rise to the grievance. Whittemore testified that he was uncertain whether Larsen had to invoke the District's grievance procedure before he could sue the District based on a retaliatory discharge claim stemming from his workers' compensation claim.

Larsen testified in his deposition that he spoke in December 2005 with his supervisor, Police Chief John Gerami, who told Larsen he likely would be terminated and had no recourse. Larsen testified that Gerami's statement prompted him to refrain from investigating or pursuing any administrative remedies available to him through the District's grievance procedure. Before his injury, Larsen signed the "Employee Handbook Acknowledgment" form and agreed to abide by all District procedures for the 2005-2006 school year. According to Larsen, he was unaware that his employee handbook outlined the District's grievance procedure or his eligibility to utilize the procedure. Larsen further testified that he did not refer to his employee handbook following his termination, and that speaking with Gerami was the only action he took to investigate any procedures for contesting his termination.

In his original petition, Larsen asserted that the District terminated his employment in retaliation for his filing of a workers' compensation claim seeking benefits under the Texas Workers' Compensation Act. The District filed a verified plea to the jurisdiction asserting that Larsen failed to exhaust administrative remedies. Larsen responded to the District's verified plea to the jurisdiction; the trial court denied the District's verified plea to the jurisdiction on April 17, 2007.²

The District filed a traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c), contending that (1) Larsen failed to establish a causal link between his discharge and his filing of a workers' compensation claim; (2) the District terminated Larsen's employment pursuant to the neutral application of the Policy; and (3) Larsen failed to establish a retaliatory motive. Larsen responded and addressed each ground the District asserted in its summary judgment motion. The trial court signed an order granting summary judgment in favor of the District.

Larsen filed a motion for new trial. The trial court did not expressly rule on Larsen's motion and it was overruled by operation of law. Larsen now appeals from the trial court's summary judgment order.³ The District asks us to dismiss Larsen's claim for lack of subject matter jurisdiction based on an asserted failure to exhaust administrative remedies or, in the alternative, to affirm the summary judgment order on the merits.

Analysis

An employer cannot terminate or discriminate against an employee in retaliation for filing a workers' compensation claim in good faith or causing in good faith a proceeding to be held under the Texas Workers' Compensation Act. Tex. Lab. Code Ann. § 451.001(1), (3). Larsen asserts that the District violated section 451.001 by terminating his employment in retaliation for filing a workers' compensation claim in connection with his October 5, 2005 injury.

As a threshold matter, we first address the District's contention that subject matter jurisdiction is lacking because Larsen failed to exhaust administrative remedies in connection with his retaliatory discharge claim. Determining whether a court has subject matter jurisdiction is a question of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-Houston [14th Dist.] 2008, pet. denied).

I. Exhaustion of Administrative Remedies

Courts of general jurisdiction are presumed to have subject matter jurisdiction absent a contrary showing that the Texas Constitution or other law has conferred jurisdiction on another court, tribunal, or administrative body. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002); see also Tex. Const. art. V, § 8; Tex. Gov't Code Ann. §§ 24.007-.008 (Vernon 2004). The administrative bodies upon which jurisdiction can be conferred include state agencies, see, e.g., Tex. Lab.Code Ann. § 410.251 (Vernon 2006); local commissions, see, e.g., Tex. Lab.Code Ann. §§ 21.152, 21.201 (Vernon 2006); bodies created under the grievance or appeals procedure of an employing state or local governmental entity, see, e.g., Tex. Gov't Code Ann. § 554.006 (Vernon 2004); and municipal civil service commissions, see, e.g., Tex. Loc. Gov't Code Ann. §§ 143.006, 143.127(d) (Vernon 2008).

Administrative bodies may exercise only those powers the law confers upon them in clear and express language. Subaru of Am., Inc., 84 S.W.3d at 220. Courts will not imply the existence of additional authority for administrative bodies, nor may these bodies create for themselves any excess powers. Id. In deciding whether an administrative body has exclusive jurisdiction, we look to its authorizing legislation for an express grant of exclusive jurisdiction, or for a "pervasive regulatory scheme" indicating an intent to confer exclusive jurisdiction. Employees Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 909 (Tex.2009).

"Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency's action." Subaru of Am., Inc., 84 S.W.3d at 221 (citing Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000)). "Until then, the trial court lacks subject matter jurisdiction and must dismiss the claims within the agency's exclusive jurisdiction." Id.

A. Overview of Case Law Addressing Exhaustion of Administrative Remedies by Terminated School District Employees

Determining whether a terminated school district employee must exhaust administrative remedies before suing depends on the context of a particular claim. Answering this question requires a focus on whether the plaintiff (1) was a contractual or an at-will employee;⁴ and (2) asserts claims based on the Texas Labor Code,⁵ the Texas Education Code,⁶ the Texas Commission on Human Rights Act,⁷ or the Texas or United States constitutions.⁸

Two parameters guide our analysis here: Larsen was an at-will school district employee, and he sued only under Texas Labor Code section 451.001. Larsen did not have a contract, and he did not predicate his suit on any other statutory, constitutional, or common law rights.

The Texas Supreme Court expressly left open the question of whether a terminated school district employee must exhaust administrative remedies before pursuing a retaliatory discharge claim under section 451.001. See Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353-54 & n. 8 (Tex.2005) (trial court cannot acquire subject matter jurisdiction by waiver; because plaintiff conceded that exhaustion was required, "we ... assume this is correct without deciding it"); Wilmer-Hutchins Indep. Sch. Dist. v....