Wije v. Burns

SURAN WIJE, Appellant v. DAVID A. BURNS AND THE UNIVERSITY OF TEXAS AT AUSTIN, Appellees

NO. 01-19-00024-CV

Court of Appeals For The First District of Texas

September 3, 2020

On Appeal from the 201st District Court Travis County, Texas

Trial Court Case No. D-1-GN-18-002435

MEMORANDUM OPINION

Appellant, Suran Wije, filed the underlying suit against appellees—his former employer, the University of Texas at Austin, and his former supervisor, David Burns.¹ Wije alleged, among other things, that after he resigned from his position at UT, Burns and UT falsified his personnel file in retaliation for Wije's being an "internal-only whistleblower" and thereby "de facto blacklisted" him from any future employment with UT or the State. The trial court² granted UT's plea to the jurisdiction, dismissing all of Wije's claims. Wije now appeals, asserting in three issues that the trial court erred in (1) overlooking its concurrent jurisdiction over his civil rights claims; (2) determining that sovereign immunity was not waived for his claims under 42 U.S.C. Section 1983, Title VII of the Civil Rights Act of 1964, and the Texas Tort Claims Act (TTCA); and (3) dismissing his claims on limitations grounds.

Because we conclude that the trial court lacked jurisdiction over Wije's claims, we affirm.

Background

Wije was employed by UT in the Information Technology Department for the McCombs School of Business from 2000 until 2005. David Burns, the director of the IT Department, was Wije's supervisor. Wije alleges that he experienceddiscrimination during his employment with UT, including that the IT Department secretly recorded his conversations, leaked confidential survey responses solicited by UT's human resources department to supervisors and other leaders, and excluded him from meetings. Wije also asserts that, during his employment, he acted as an "internal-only whistleblower" in raising concerns to the IT Department and other university personnel regarding software quality and the adequacy of security systems. Wije resigned, effective immediately, on November 18, 2005.³

Several years later, Wije began applying for new jobs with UT. Despite applying for numerous positions, Wije never received any requests for interviews and was ultimately unable to obtain new employment with UT. While the exact timeline is unclear, Wije asserts that by March 2016, he believed that UT had intentionally included a "lie" in his personnel file by stating that he had resigned without notice, and this representation served to place Wije on a "de facto blacklist" that prevented him from obtaining employment. The record contains an email dated April 1, 2016, in which UT HR personnel informed Wije, apparently in response to his inquiries, that "[t]he reduction in severity of your reemployment code is the action the McCombs School deems appropriate at this time," andinforming him that the "remaining code is not a ban on employment from the University of Texas at Austin or 'blacklist.'" The HR personnel further appeared to deny that he had been banned from future employment, informing him that a ban, such as the one he suspected had been placed in his file, "is enacted in very limited, legal circumstances, and would prevent you from being able to complete an application for employment."

Wije filed a complaint based on the alleged errors in his personnel file with the Equal Employment Opportunity Commission (EEOC). On July 29, 2016, the EEOC provided Wije with notice that it had dismissed his complaint and informing him of his right to file a lawsuit under federal law in federal or state court, admonishing him that his lawsuit "must be filed within 90 days of your receipt of this notice." This was postmarked August 1, 2016, but nothing in the record indicates when Wije received this notice. That same month, however, Wije filed a Texas Public Information Act request seeking records related to his employment.

Wije then filed a complaint in federal district court on October 27, 2016. That complaint asserted causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1983, and several state-law tort claims, including fraud, negligence, libel, and intentional infliction of emotional distress. The federal district court dismissed Wije's complaint. In its final order, signed May 5, 2017, and entered May 8, 2017, the federal district court expressly dismissed the TitleVII and Section 1983 claims with prejudice. The federal district court further declined to exercise its supplemental jurisdiction over the remaining state-law claims, dismissing them without prejudice. Wije appealed the dismissal to the Fifth Circuit, which dismissed his appeal for being untimely filed, and to the United States Supreme Court, which denied his writ of certiorari.

Wije then filed the underlying cause of action in state court on May 1, 2018.⁴ In his live pleadings, he asserted substantively identical causes of action to those he alleged in the federal suit.⁵ As factual support for his pleadings, Wije alleged that UT discriminated against him during his employment between 2000 and 2005, including by recording his conversations in secret, asking him to perform work it had not trained him to do, leaking confidential responses to personnel surveys to antagonistic and punitive managers, and excluding him frommeetings. He further alleged that, upon his resignation in 2005, UT erroneously recorded that he resigned without notice and "miscoded" the circumstances of his separation from the university, prohibiting him from being rehired.

UT filed a plea to the jurisdiction as to both itself and Burns, a Rule 91a motion to dismiss all of Wije's claims, and a motion to dismiss the tort claims against Burns. In its Rule 91a motion to dismiss, UT argued that Wije's claims had no basis in law or in fact. In its motion to dismiss the tort claims against Burns, UT observed that Wije's claims against Burns for fraud by nondisclosure, negligence, defamation, and intentional infliction of emotional distress were subject to dismissal under provisions of the TTCA as set out in Civil Practice and Remedies Code section 101.106.⁶ In its plea to the jurisdiction, UT asserted that the trialcourt lacked jurisdiction over any of Wije's claims, arguing that Wije failed to allege a waiver of UT's governmental immunity. UT asserted that the TTCA did not waive immunity for any of Wije's tort claims and that the election of remedies provision in the Texas Commission on Human Rights Act (TCHRA), codified in Texas Labor Code chapter 21 to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments," TEX. LABOR CODE § 21.001(1), barred the court from considering Wije's discrimination and retaliation claims because he had previously filed them in federal court.

In response to UT's plea to the jurisdiction, Wije amended his pleadings to assert that Labor Code Chapter 21 "expressly abrogates state sovereign and official immunity" and to "reiterate[] his employment discrimination civil rights claim under Chapter 21." He further asserted that the TTCA waived immunity. Wije then further amended his pleadings, continuing to assert causes of action for discrimination and retaliation, referring at times to Section 1983, Title VII, and the TCHRA with a specific notation that "'[Labor Code] Chapter 21' is to be addressed perhaps after discovery." Thus, Wije asserted in his live pleading claims for discrimination and retaliation under Title VII, as implemented at the state level in the TCHRA, and he asserted discrimination under Section 1983. He alsoasserted state-law claims, including various fraud allegations, negligence, defamation, intentional infliction of emotional distress, and breach of contract.⁷

The trial court held a hearing on UT's plea to the jurisdiction, Rule 91a motion to dismiss, and motion to dismiss the tort claims against Burns. The trial court granted only the plea to the jurisdiction, and this appeal followed.

Plea to Jurisdiction

A. Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat an action "without regard to whether the claims asserted have merit." Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Without subject matter jurisdiction, a court does not have the authority to render judgment and must dismiss the claims without regard to the merits. See City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). The burden is on the plaintiff to plead facts affirmatively demonstrating the trial court's jurisdiction.⁸ Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

We review whether a trial court has subject matter jurisdiction under a de novo standard. Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In doing so, we exercise our own judgment and redetermine each legal issue, without giving deference to the lower court's decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). "We construe the pleadings liberally in favor of the plaintiff[] and look to the pleader['s] intent." Miranda, 133 S.W.3d at 226.

"Sovereign immunity protects the State from lawsuits for money damages." Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Generally, "immunity from suit implicates courts' subject-matter jurisdiction" forlawsuits in which the state or certain governmental units have been sued, unless the state consents to suit. Rusk State Hosp. v. Black, 392 S.W.3d 88, 91, 93 (Tex. 2012); Miranda, 133 S.W.3d at 224; see also Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018) (immunity from suit may be asserted through plea to jurisdiction). A state agency, such as UT, shares this governmental immunity. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); see TEX. CIV. PRAC....