So, the Legislature Has Waived Your Governmental Immunity . . . Or Has It?
As political subdivisions of the state, Texas school districts and community colleges are generally immune from claims absent an express legislative waiver. Although certain statutes, including the Texas Whistleblower Act and the Texas Commission on Human Rights Act (“TCHRA”), do contemplate the waiver of governmental immunity, it is important to remember that they do so only to the extent that the plaintiff has asserted a valid claim. This means that a school district or community college sued under these statutes may be able to bring the lawsuit to an early end by filing a plea to the jurisdiction arguing that the plaintiff has not alleged (or cannot prove) the elements of their claim, or that they failed to strictly comply with any statutory prerequisites.
A recent opinion from the Austin Court of Appeals rendered judgment dismissing the plaintiff’s claims in just such a case. Austin Indep. Sch. Dist. v. Anderson, No. 03-21-00286-CV, 2022 WL 3649357 (Tex. App.—Austin, Aug. 25, 2022, no pet. h.). School districts and community colleges should take note of this opinion for three reasons:
- Anderson held that an employee’s internal report to a school board, and in some instances even an internal police department, is not a qualifying report under the Whistleblower Act.
The Whistleblower Act protects public employees who in good faith report a violation of law by their employer or a fellow public employee, provided that the report is made “to an appropriate law enforcement authority.” An “appropriate law enforcement authority” is one that has the power to enforce the law at issue against third parties. In Anderson, the court found that the plaintiff (a school district police officer) was not protected by the Whistleblower Act when he reported criminal conduct to the school board because the board had no authority to enforce the Penal Code. Similarly, the officer’s report to his superior that another officer had violated the Family and Medical Leave Act (“FMLA”) did not qualify as protected activity because the police department had no “outward-looking powers” to enforce the FMLA. And while an internal report to a police department alleging criminal conduct by its own employee might be “made to an appropriate authority” in some instances, the court found that the officer’s allegation that his colleague was sleeping on the job did not qualify as a “good-faith report of criminal activity” because the officer did not subjectively believe sleeping on duty constituted theft under the Penal Code, and any such belief would not be objectively reasonable.
Ultimately, because the police officer could not prove that he made a good-faith report of a violation of law to an appropriate law enforcement authority, the Austin Court of Appeals found that he failed to demonstrate a valid waiver of the school district’s immunity under the Whistleblower Act, and rendered judgment in favor of the school district.
- Anderson confirmed that a plaintiff’s failure to meet his evidentiary burden, even at the tail end of the TCHRA’s burden-shifting analysis, has jurisdictional implications.
TCHRA discrimination and retaliation claims that rely on circumstantial evidence are analyzed under the three-step burden-shifting framework established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green. Under Texas Supreme Court precedent, all three burden-shifting steps are jurisdictional. Applying this rule to the plaintiff’s retaliation claim, the Anderson court first assumed—without deciding—that the plaintiff met his initial burden to establish a prima facie case of retaliation. However, after finding that the district had satisfied its burden of providing legitimate, non-retaliatory reasons for its employment decisions (the second step in the burden-shifting framework), the court found that the plaintiff failed to satisfy the final burden-shifting step because he had not demonstrated that the district’s proffered reasons were merely pretexts for retaliation. The Austin Court of Appeals held that this failure deprived a court of subject-matter jurisdiction over his TCHRA claims, and rendered judgment in favor of the school district on these claims as well.
- Anderson offers a reminder that a plea to the jurisdiction may still shorten litigation even if the trial court denies it.
Although the trial court initially denied the district’s plea to the jurisdiction, the district was still able to resolve the jurisdictional issue before having to proceed with litigation, conduct a trial, or appeal from a final judgment. This is because, under Texas law, governmental entities generally have a right to an immediate interlocutory appeal of jurisdictional decisions, and the proceedings in the trial court are generally stayed pending that appeal. Accordingly, this case serves as a great reminder that pleas to the jurisdiction are an extremely effective tool for challenging subject-matter jurisdiction early on in a lawsuit, even when a trial court erroneously denies the plea.
If you have any questions regarding potential waivers of governmental immunity, or if you would like to discuss best practices for addressing jurisdictional issues, please reach out to Thompson & Horton’s Employment Law Team.