Vincent v. West Texas State University

• Decision Date: 14 March 1995
• Docket Number: No. 07-94-0171-CV,07-94-0171-CV
• Citation: 895 S.W.2d 469
• Parties: 98 Ed. Law Rep. 1113 Christina VINCENT, Appellant, v. WEST TEXAS STATE UNIVERSITY, Thomas Kale, Marvin Patton, Ed Dempsey, Ray Blevins, and Ray Turman, Appellees.
• Court: Texas Court of Appeals

Page 469

895 S.W.2d 469

98 Ed. Law Rep. 1113

Christina VINCENT, Appellant, v. WEST TEXAS STATE UNIVERSITY, Thomas Kale, Marvin Patton, Ed Dempsey, Ray Blevins, and Ray Turman, Appellees.

No. 07-94-0171-CV.

Court of Appeals of Texas Amarillo.

March 14, 1995.

Law Offices of Charles W. Crow, Charles Crow, Amarillo, for appellant.

Atty. Gen. of Texas, Asst. Atty. Gen., General Litigation Division, Jose M. Rangel, Austin, for appellee.

Before REYNOLDS, C.J., and DODSON and QUINN JJ.

QUINN, Justice.

Christina Vincent (Vincent) appeals from an Order Granting Defendants' Plea to the Jurisdiction and Order Granting Defendants' Motion for Summary Judgment. In five points of error, she contends that abatement rather than dismissal was the proper remedy, that dismissal deprived her of due process in claiming damages under the Texas Tort Claims Act and the theory of wrongful discharge, that summary judgement was improper due to existing issues of law and fact, and that dismissal violated public policy and 42 U.S.C. § 1983. We disagree and, therefore, overrule each point.

FACTS

According to the second amended petition, Vincent sued West Texas State University (WTS), and WTS employees Thomas Kale, Marvin Patton, Ed Dempsey, Ray Blevins and Ray Turman (collectively referred to as the Employees) for sexual harassment, retaliation, denial of "free speech" accorded by the Texas Constitution, violation of the "Texas Constitution, Article 3a," and wrongful termination. Each allegation arose from the sexually harassing conduct of Dempsey, Blevins and Turman, her co-employees at WTS. Furthermore, she averred that her superiors, Kale and Patton, did nothing to end the misbehavior, that her job performance underwent unjust criticism, and that her eventual discharge violated official policy and procedure.

Vincent never complained of her treatment to the Equal Employment Opportunity Commission (EEOC) nor the Texas Human Rights Commission (Commission). Instead, she notified the WTS president of her grievance.

Eventually, suit was filed on August 23, 1991. The Appellees joined issue by answer and amended their pleading on June 8, 1992, to allege sovereign and quasi-judicial immunity. Approximately seventeen months later, on November 10, 1993, WTS and the Employees moved for summary judgment. They believed themselves entitled to same not only because of the immunity accorded a sovereign but also their opponent's failure to exhaust administrative remedies. Twelve days later, Vincent filed her first amended petition which, for the most part tracked the original. However, on November 30, 1993, approximately four days before the pending summary judgment motion was heard, a second amended petition was filed. It too focused upon the conduct and causes of action underlying her first two pleadings. Added, however, were allegations complaining of her termination in violation of established policy and procedure, denial of "free speech to complain about [the sexually harassing] conduct ... [in] violation of the Texas Constitution, Article 1, § 8," denial of her "right to be free of sexual harassment and to complain and receive relief as assured by Texas Constitution, Article 3a [sic]," and wrongful discharge "for exercising her right of free speech to complain about the Defendants' failure to follow procedures and policies...."

Accompanying the second amended pleading was Vincent's response to the motion for summary judgment. In it, she suggested that the proceeding should be abated while she secured legislative permission to sue the State for sexual harassment, that only the claim of sexual harassment would require legislative approval, that she could, in the alternative, immediately proceed under the Texas Tort Claims Act, that the motion was tantamount to a special exception, and that she complied with the administrative review procedures demanded by the Texas Commission on Human Rights Act.

The trial court ultimately entered both an "Order Granting Defendants' Plea to Jurisdiction" and an "Order Granting Defendants' Motion for Summary Judgment." The former dismissed the suit to the extent that it averred claims against the Employees "in their official capacities." The latter mentioned no specific basis but simply ordered that Vincent "take nothing" from her six antagonists.

ABATEMENT V. DISMISSAL

In point one, Vincent contends that the court erred in dismissing rather than abating her action. Abatement would have afforded her an opportunity to secure legislative approval to pursue her claim for sexual harassment against the State, preserve her work product developed to date, and avoid the need to file another suit. We disagree and overrule the point for several reasons.

a. Argument Untimely

First, the argument initially appeared in Vincent's response to the motion for summary judgment. The latter, like her second amended petition, was filed four days before the December 3rd summary judgment hearing and in violation of the deadline prescribed by Texas Rule of Civil Procedure 166a(c). The record does not reveal whether she obtained leave of court to so act belatedly. Under this circumstance, we may not consider the response or its contents. Washington v. City of Houston, 874 S.W.2d 791, 794 (Tex.App.--Texarkana 1994, no writ); Atchley v. NCNB Texas Nat'l Bank, 795 S.W.2d 336, 337 (Tex.App.--Beaumont 1990, writ denied); Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 n. 1 (Tex.1988); accord, Equisource Realty Corp. v. Crown Life Ins. Co., 854 S.W.2d 691, 694-95 (Tex.App.--Dallas 1993, no writ) (holding that the legality of the summary judgment therefore depends solely upon the sufficiency of the movant's evidence and authorities). ¹

b. No Need for Legislative Consent

Even had Vincent timely urged abatement rather than dismissal, the trial court, nevertheless, acted properly. Contrary to her suppositions, sovereign immunity did not pretermit recovery for sexual harassment. The bar was waived when the legislature passed the Commission on Human Rights Act (CHRA). That statute forbade an employer from discriminating. Furthermore, the term "employer" encompassed political subdivisions, state agencies and instrumentalities, as well as public institutions of higher learning. Tex.Rev.Civ.Stat.Ann. art. 5221k, 2.01(5). WTS fell within, at the very least, the latter category and was subject to private suit. Id. at §§ 6.01(a) & (e) & 7.01(a) & (g). ² Therefore, granting Vincent abatement to secure legislative approval to do that already permitted by statute would have been meaningless.

WRONGFUL DISCHARGE AND THE TORT CLAIMS ACT

In points of error two and three, Vincent protests the trial court's decision to dismiss, for lack of jurisdiction, those portions of the suit invoking the Tort Claims Act (the Act) and "wrongful discharge". In doing so, it purportedly violated her due process rights. Through point four the Appellant objects to summary judgment since the Act allegedly negated the Appellees' sovereign immunity. We again disagree and overrule each point.

a. Claims against WTS and the Employees in Their Official Capacities

To the extent that Vincent sued WTS and the Employees in their official capacities, she sued the State of Texas. Tyrell v. Mays, 885 S.W.2d 495, 499 (Tex.App.--El Paso 1994, writ dism'd); Alcorn v. Vaksman, 877 S.W.2d 390, 403 (Tex.App.--Houston [1st Dist.] 1994, no writ). That implicated the doctrine of sovereign immunity which deprived the court of subject-matter jurisdiction. State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961). Thus, dismissal was mandatory unless Vincent could show that the state somehow waived the bar. Id.; Pickell v. Brooks, 846 S.W.2d 421, 424-25 (Tex.App.--Austin 1992, writ denied). She attempted to do so by invoking the Tort Claims Act.

The Act constitutes a limited waiver of sovereign immunity. To invoke it, though, the injury complained of must relate to or be caused by a "condition or use of tangible personal property or real property." Tex.Civ.Prac. & Rem.Code Ann. § 101.021(2). Furthermore, only those items having a "corporeal, concrete, and palpable existence" are considered tangible. University of Texas Med. Branch v. York, 871 S.W.2d 175, 178 (Tex.1994). Thus, it was incumbent upon Vincent to illustrate how a condition or use of tangible property injured her. ³

The tangible items at bar, according to the Appellant, were WTS' student newspaper and a job discrepancy form. With regard to the newspaper, she purportedly suffered embarrassment and stress from an article describing the harassment inflicted upon her by her co-workers. With regard to the job form, it allegedly injured her by incorporating false information.

Had either paper item come in physical contact with her body in a manner resulting in injury, then Vincent would have stood on firm ground. Yet, the item which actually injured her, assuming injury resulted, was not the physical documents but the information printed on them. Furthermore, information is intangible; it lacks the "corporeal, concrete, and palpable" existence required by the Act. University of Texas Med. Branch v. York, 871 S.W.2d at 178-79; Washington v. City of Houston, 874 S.W.2d 791, 795-96 (Tex.App.--Texarkana 1994, no writ). That someone may affix the information on to a tangible item, such as a record, does not by trick of alchemy render it corporeal. Id. Thus, and as a matter of law, neither the WTS newspaper article nor the discrepancy form satisfied the Act's prerequisites. The wall of sovereign immunity stood.

To the extent that Vincent may now alternatively argue that the Commission on Human Rights Act (CHRA) waived the immunity as described above, relief, nevertheless, would remain unavailable. She did not satisfy the statute's administrative perquisites.

The CHRA, Tex.Rev.Civ.Stat.Ann. art. 5221k, § 1.01 (Vernon 1987), recodified, Tex.Labor Code Ann. § 21.001 (Vernon Pamp.1995), proscribes various types of...