X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In this interlocutory appeal, Midland Independent School District and Tom Holland, MISD’s assistant superintendent for personnel, appeal the trial court’s denial of MISD’s plea to the jurisdiction and Holland’s motion for summary judgment. HOLDING:Reversed and rendered in favor of MISD and Holland. MISD argues that Watley failed to comply with the requirements of �554.006 regarding the timely initiation of administrative remedies before filing suit under the Whistleblower Act. MISD terminated Watley on March 10, 2000. She immediately initiated a grievance proceeding. She withdrew the grievance proceeding, however, on the next business day after being rehired. After working for the school district for approximately three additional months, Watley was involuntarily discharged again June 2, 2000. Watley did not attempt to either re-institute her previous grievance or initiate a new grievance at any time after June 2, 2000. The court finds that Watley did not initiate grievance proceedings as required by �554.006 by failing to present a grievance of any kind after the discharge June 2, 2000. This is a jurisdictional defect which precludes Watley from bringing her Whistleblower Act claim, the court holds. Watley also alleged a claim for retaliatory discharge. The Dallas Court of Appeals rejected an argument for the creation of a common law claim for retaliatory discharge in Guiet v. Hogan & Assocs. Inc., No. 05-98-01560-CV (Tex. App. – Dallas June 28, 2001, pet. denied)(not designated for publication). The court determined that a common law claim for retaliatory discharge is inconsistent with the general rule that an action for wrongful termination will not lie in favor of an at-will employee except in limited exceptions, most of which have been created by statute. The court agrees with the holding in Guiet. The Texas Supreme Court created a common law cause of action to protect at-will employees in Sabine Pilot Service Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985), for cases in which an employee is terminated for refusing to perform an illegal act. However, the exception created by Sabine Pilot does not overcome a governmental entity’s sovereign immunity. The Tort Claims Act is a special provision that waives immunity from suit only to a limited degree. Texas Education Code �11.151(a), on the other hand, is a general waiver of immunity from suit. If a general statutory provision conflicts with a special provision, the provisions shall be construed, if possible, to give effect to both. Additionally, if two statutes cannot be reconciled, the court gives precedence to the Tort Claims Act as the later-enacted, more specific statute controlling waiver of sovereign immunity from both suit and liability in tort cases. City of San Antonio v. Butler, 131 S.W.3d 170 (Tex. App. San Antonio 2004, pet. filed). “While we believe that �11.151(a) of the Education Code is a general waiver of immunity from suit, we conclude that the application of �11.151(a) is limited by the Tort Claims Act. There is no waiver of immunity for intentional torts.” The trial court, therefore, does not have jurisdiction over Watley’s common law causes of action, all of which allege intentional torts. The court finds that derivative immunity is conferred on Holland, an employee of MISD. OPINION:Wright, CJ; Wright, CJ, McCalland McCloud, S.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.