Whitehead v. University of Texas Health Science Center at San Antonio

• Decision Date: 31 March 1993
• Docket Number: No. 04-92-00412-CV,04-92-00412-CV
• Citation: 854 S.W.2d 175
• Parties: 83 Ed. Law Rep. 865 Shirley WHITEHEAD v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, et al.
• Court: Texas Court of Appeals

Page 175

854 S.W.2d 175

83 Ed. Law Rep. 865

Shirley WHITEHEAD v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, et al.

No. 04-92-00412-CV.

Court of Appeals of Texas,

San Antonio.

March 31, 1993.

James A. Kosub, Kosub & Gaul, San Antonio, for appellant.

Leo L. Barnes, Asst. Atty. Gen., Gen. Litigation Div., Austin, for appellee.

Before REEVES, C.J., and CHAPA and RICKHOFF, JJ.

CHAPA, Justice.

Appellant, Shirley Whitehead, appeals a directed verdict granted in favor of appellees, the University of Texas Health Science Center at San Antonio, the Board of Regents of the University of Texas system, and four employees of the Health Science Center. For the reasons stated, we affirm.

The issues before this court are:

1) whether state employees may be protected from liability by the doctrine of sovereign immunity;

2) whether there was a breach of appellant's employment contract; and,

3) whether appellant was deprived of due process when she was terminated.

Whitehead's case stems from an alleged confrontation she had with John Carter, a doctor and assistant professor in the Division of Neurology in the university's Department of Medicine. Whitehead had worked in Neurology as a senior secretary. During her tenure there, she complained about Carter's violation of the university's inventory procedures and thus became the alleged victim of Carter's harassment and abusive behavior.

Later, Whitehead sought and obtained a transfer to work as a senior secretary in the Geriatric Education Center of the Department of Dental Diagnostic Science. In her new position, Whitehead worked under Lavonne Banse, an administrative secretary who was Whitehead's immediate supervisor. Whitehead also worked under Stella Schwab, an administrative assistant in the Department of Dental Diagnostic Science who handled personnel matters. She also worked under Michele Saunders, the director of the Geriatric Education Center.

On April 10, 1987, Whitehead went to Neurology to use a photocopier since the one in her department was broken. After she made copies, she stopped by the office of her friend Diana Reyes. She allegedly spoke to Reyes about a personal matter and two work-related matters. While Whitehead spoke to Reyes, John Carter stopped at the door and asked why Whitehead was in the Neurology division. He allegedly became upset and refused to let Whitehead leave until she told him why she was there. Whitehead claimed at one point she tried to leave, but was pushed back by Carter's body as he stood sideways in the doorway. Carter admitted that he briefly blocked the exit. Whitehead returned to her office and reported to her superiors and to university police that she was harassed by Carter.

Later, Banse and Saunders met with Whitehead on April 20. Due to Whitehead's confrontation with John Carter and prior incidents, Banse and Saunders complained to Whitehead that she was frequently out of the office, that she abused her lunch hour, that she was a slow worker, and that she was disrespectful. A written reprimand was signed on April 20, but Whitehead refused to accept it. Whitehead claims she did not receive the reprimand until April 30, the day she was fired.

On April 30, Whitehead was called to a meeting with Schwab, Saunders, and Banse. Again, Whitehead's superiors complained about her conduct and work performance. The confrontation with John Carter was discussed as an example of Whitehead's frequent absences from the office. Whitehead was provided with a written list of her secretarial duties. Schwab allegedly told Whitehead that she must comply with them. Whitehead was also told she must follow the instructions in the written reprimand, one of which said she could no longer go to Neurology during work hours. Schwab and Saunders testified that Whitehead refused to fulfill her duties or to comply with their instructions.

Whitehead claimed she never refused to do her duties. She said that she only told them she "did not see how they could ask me to stay away from neurology." Whitehead also said she was asked to admit that she behaved improperly with John Carter, to which Whitehead said, "I can never admit to something of which I am not guilty." Schwab terminated Whitehead that day for insubordination.

Afterward, Whitehead filed an appeal of termination under the university's grievance policies. A hearing was scheduled, but Whitehead called to reschedule it. In a letter to Whitehead's attorney, the university said that the hearing could be postponed until a mutually convenient time. Whitehead never got back with the university to set up a new hearing.

On August 10, 1988, Whitehead filed this lawsuit against the Health Science Center and the Board of Regents. Also named in the suit were John Carter, Michele Saunders, Stella Schwab, and Lavonne Banse, in their individual and official capacities. In her pleadings, Whitehead raised the following causes of action: (1) she suffered severe emotional distress and humiliation due to the assault, battery and false imprisonment inflicted by John Carter; (2) that Saunders, Schwab and Banse retaliated against Whitehead or failed to stop the retaliation against her for exercising her First Amendment rights under the federal constitution, such as the right to petition for redress of grievances and the right of association; (3) that Saunders, Schwab and Banse deprived her of procedural and substantive due process by not complying with the university's discipline policies before Whitehead's termination; and (4) that all the defendants named in her pleadings breached her employment contract. Whitehead sought injunctive relief for reinstatement of job, $250,000 in compensatory damages, $100,000 in punitive damages, back pay and attorney fees.

A jury trial began on March 18, 1991. After the presentation of appellant's evidence, appellees orally moved for a directed verdict. Arguments were heard before the court on March 20 and 21, 1991. The court granted directed verdict on each of the four causes of action. A final judgment was entered on April 2, 1992 against appellant. Pursuant to appellant's request, the court also filed findings of facts and conclusions of law on June 1, 1992.

Findings of fact are reviewable for legal and factual sufficiency of the evidence to support them. First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.--Tyler 1979, writ ref'd n.r.e.). Unless the trial court's findings of facts are challenged by a point of error on appeal, they are binding upon the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.) (citing Zelios v. City of Dallas, 568 S.W.2d 173, 175 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.)). Conclusions of law are reviewable when attacked as erroneous as a matter of law, but not when attacked on grounds of sufficiency of the evidence to support them, as if they were finding of fact. Kinabrew, 589 S.W.2d at 146; see also Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.).

"The test to be applied by an appellate court when considering the propriety of an instructed verdict is that such court should view all testimony adduced on the trial in light most favorable to the losing party, disregarding all conflicts in testimony, and indulging in every reasonable deduction in favor of the party against whom the instructed verdict was granted.... If, under this test, there is no evidence to raise a fact issue to go to the jury, or the moving party is entitled to judgment as a matter of law, then the instructed verdict must be affirmed on appeal." Louis v. Parchman, 493 S.W.2d 310, 313 (Tex.Civ.App.--Fort Worth 1973, writ ref'd n.r.e.); Dalton v. Texas Sulphur Products, Inc., 482 S.W.2d 24, 25-26 (Tex.Civ.App.--Amarillo 1972, no writ).

On appeal, Whitehead raises four points of error of which we have isolated three distinct issues as set forth at the beginning of this opinion. We limit our review to these points in deciding whether the motion for directed verdict was correctly granted. See Tex.R.App.P. 74(d). See also Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex.1991); Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 552 (Tex.App.--Dallas 1991, no writ).

In her first point of error, Whitehead contends that "the trial court erred in granting sovereign immunity to employees sued individually and in their official capacity because the law recognizes suits against individual public employees sued under 42 U.S.C. 1983." ¹ Although Whitehead's one-paragraph argument is somewhat unclear, it appears she complains that her causes of action against the four public employees named in her pleadings were improperly barred because the trial court invoked sovereign immunity to protect state employees from liability for both individual and official acts.

Before analyzing this question, we initially note three defects in her complaint. First, no where does the record show that the trial court invoked sovereign immunity to protect the public employees from liability for acts committed in their individual capacity. Also, Whitehead fails to direct this court to any place in the record which would support this allegation. See TEX.R.APP.P. 74(f). The record only shows that the court applied sovereign immunity to protect the state government and its agencies from liability.

Second, Whitehead lodges no complaint about whether the trial court incorrectly invoked the doctrine of "official immunity" to protect the four employees named in her suit from liability. Unlike sovereign immunity, "official immunity" protects public employees from liability for acts committed in their individual or personal capacity. See Baker v. Story, 621 S.W.2d 639, 644 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.). Because this is not raised as a point of error, we will limit our discussion to sovereign immunity and refrain from addressing "official...