Memorandum Opinion delivered August 19, 2004.
On appeal from the 156th District Court of San Patricio County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
Appellant, Suzette Bellows, brings this appeal following the dismissal of her wrongful termination claim against appellees, Dana J. Hendrick, Individually, and the District Community Supervision and Corrections Department (the Department). By six issues, appellant contends the trial court erred in granting appellees' plea to the jurisdiction and motion for summary judgment. We affirm.
As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
By her first issue, appellant contends the trial court erred in granting appellees' plea to the jurisdiction. Specifically, appellant argues: (1) the jurisdiction of the trial court was properly invoked after appellees failed to consider the appeal of her termination pursuant to the Department's policy and procedure manual; and, alternatively, (2) failure to comply with the sixty-day requirement of section 554.006 of the Texas Government Code does not mandate dismissal for want of jurisdiction. See TEX. GOV'T CODE ANN. § 554.006 (Vernon Supp. 2004). In addition, appellant argues that when an employer's grievance policy is ambiguous, a terminated employee's claim cannot be time-barred by the statutory requisites of the Whistleblower Act. See Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 320-21 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
A. Standard of Review
A plea to the jurisdiction is a dilatory plea; its purpose is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's authority to determine the subject matter of a pleaded cause of action. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex. App.-El Paso 2000, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.-Corpus Christi 1989, writ denied).
Because subject matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2003). In determining whether jurisdiction exists, rather than looking at the claim's merits, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Blue, 34 S.W.3d at 555.
It is the plaintiff's burden to allege facts affirmatively demonstrating the trial court's jurisdiction. Tex. Ass'n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.-Corpus Christi 2001, no pet.). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.
When a cause of action derives from statute, the statutory provisions are mandatory and exclusive. Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 821 (Tex. App.-Corpus Christi 1999, no pet.). If the provisions are not complied with in all respects, the action is not maintainable for lack of jurisdiction. Id.
The Whistleblower Act states that a public employee must initiate action under the grievance or appeal procedures of the employer before the employee may bring suit for wrongful termination. See TEX. GOV'T CODE ANN. § 554.006(a) (Vernon Supp. 2004). If the employer has not rendered a final decision in the grievance procedure within sixty days of the date the grievance was filed, the employee can either: (1) exhaust the grievance procedure without losing the right to sue within thirty days following the exhaustion; or (2) terminate the grievance procedure and file suit within the time remaining under the statute of limitations. See id. § 554.006(d) (Vernon Supp. 2004); City of San Antonio v. Marin, 19 S.W.3d 438, 440 (Tex. App.-San Antonio 2000, no pet.). In other words, an employee is required to initiate the employer's grievance procedure which then gives the employer an opportunity to reach a final decision within sixty days. Marin, 19 S.W.3d at 441. Only then does the statute permit an employee to file suit under the Whistleblower Act. Id.
The purpose of allowing an employer sixty days to make a final decision is to provide it with an opportunity to correct its errors by resolving disputes and thereby avoiding the expenses and efforts of litigation. Id.; Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex. App.-Austin 1996, no writ) (citing HOUSE RESEARCH ORG., BILL ANALYSIS, TEX. H.B. 1405, 71st Leg., R.S. (1989)). The Whistleblower Act clearly prohibits a suit from being filed during the sixty days following the initiation of the grievance procedure, and prematurely filing suit would violate both the spirit and letter of the statute. Marin, 19 S.W.3d at 441.
In this case, it is undisputed that appellant did not give the Department sixty days to reach a decision concerning the appeal of her termination. Appellant initiated the grievance procedure on January 23, 2002 and filed her original petition on March 4, 2002. During this time, appellees did not reach a final decision concerning appellant's grievance. Appellant gave appellees forty days to resolve the dispute before she filed suit. This violated the provisions set forth under the Whistleblower Act. See TEX. GOV'T CODE ANN. § 554.006(d); Marin, 19 S.W.3d at 441. Because appellant did not wait sixty days before filing suit, the trial court did not have jurisdiction. See Univ. of Tex. Med. Branch at Galveston v. Savoy, 86 S.W.3d 782, 787 (Tex. App.-Beaumont 2002, pet. denied) (holding that failure to satisfy mandatory statutory prerequisites to filing suit under Whistleblower Act deprives court of jurisdiction); Marin, 19 S.W.3d at 442 (same); Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 774 (Tex. App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (stating that when a party sues under a statutory cause of action the party must comply with the administrative prerequisites, which are jurisdictional); De Los Santos, 997 S.W.2d at 821 (holding that failure to comply with the statutory requirements of Whistleblower Act deprives court of jurisdiction); Farrar, 933 S.W.2d at 777 (same); but see Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex. App.-Houston [14th Dist.] 2003, pet. filed) (noncompliance with Whistleblower Act's sixty-day waiting period does not preclude jurisdiction upon trial court and therefore requires abatement instead of dismissal).
Additionally, appellant asserts that she should not be time barred by the requisite limitations of the Whistleblower Act because the Department's grievance policy is ambiguous. Appellant relies on Fort Bend Indep. Sch. Dist. v. Rivera, where the court stated that when an employer's grievance policy is ambiguous, a terminated employee's claim will not be time-barred by the statutory requisites of the Whistleblower Act. See Rivera, 93 S.W.3d at 320-21. However, in Rivera and similar cases, the ambiguities derived from whether the employer had a grievance procedure and whether the employees properly invoked that procedure. See Rivera, 93 S.W.3d at 320-21; Hohman, 6 S.W.3d at 775; Curbo v. State, 998 S.W.2d 337, 341 (Tex. App.-Austin 1999, no pet.). These cases are inapplicable because in the present case, appellant properly invoked the grievance procedure and even requested a hearing. There was no ambiguity as to whether the Department's grievance procedure existed or whether appellant invoked that procedure.
Therefore, we find that the trial court did not err in granting appellees' plea to the jurisdiction. Thus, appellant's first issue is overruled.
In issues three and four, appellant contends the trial court erred in granting appellees' summary judgment as to her Whistleblower Act claim because there was sufficient evidence that she reported a violation of law to an appropriate law enforcement authority. Because these issues are related to appellant's claim under the Whistleblower Act, we need not address them due to the disposition of appellant's first issue. See Tex.R.App.P. 47.1.
III. SUMMARY JUDGMENT
By her second and fifth issues, appellant contends the trial court erred by granting summary judgment as to: (1) the claim for injunctive relief in the form of reinstatement; and (2) the claim of intentional infliction of emotional distress. A. Standard of Review
In the appeal of a traditional summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action or whether the defendant has conclusively established all elements of his affirmative defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Crain v. Smith, 22 S.W.3d 58, 59 (Tex. App.-Corpus Christi 2000, no pet.); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A defendant who conclusively negates at least one essential element of a plaintiff's claim or who conclusively establishes all the elements of an affirmative defense is entitled to summary judgment. Alvarez v. Anesthesiology Assocs., 967 S.W.2d 871, 874 (Tex. App.-Corpus Christi 1998, no pet.). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant's favor. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985). The propriety of a summary judgment is a question of law; therefore, we review the trial court's granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.-Corpus Christi 2000, pet. denied).
B. Analysis 1. Reinstatement
First, we address appellant's claim for reinstatement. Specifically, appellant sought reinstatement as a remedy for violation of her: (1) right to free speech under article I, section 8 of the Texas Constitution; (2) property interests without due course of law under article I, section 19 of the Texas Constitution; and (3) rights under the Whistleblower Act. Because of the disposition of appellant's first issue, we need not address appellant's claim for reinstatement based on an alleged violation of her rights under the Whistleblower Act. See TEX. R. APP. P. 47.1.
Furthermore, as to the constitutional claims, appellant only argues that the trial court erred in granting the summary judgment because the remedy of reinstatement was not addressed in appellees' motion. However, a review of the record reveals appellees did address appellant's rights under the Texas Constitution by asserting that appellant's constitutional claims fail as a matter of law. Because the motion addressed the claims on which appellant's remedy of reinstatement was based, the trial court did not err by granting summary judgment. Appellant's second issue is overruled.
2. Intentional Infliction of Emotional Distress
Although the record is unclear as to whether appellant's claim of intentional infliction of emotional distress was brought under the Whistleblower Act or as a common law cause of action, we will address this issue as though the claim was brought under common law. However, if appellant's claim was brought pursuant to the Whistleblower Act it would not be addressed on appeal due to a lack of jurisdiction as noted above.
A plaintiff establishes intentional infliction of emotional distress if she can show: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) defendant's conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Extreme and outrageous conduct is conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). This tort "does not lie for ordinary employment disputes," and the kind of extreme conduct necessary to raise a fact question of intentional infliction of emotional distress in the workplace "exists only in the most unusual of circumstances." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612-13 (Tex. 1999); Reyna v. First Nat'l Bank in Edinburg, 55 S.W.3d 58, 68 (Tex. App.-Corpus Christi 2001, no pet.). Employers supervise, review, criticize, demote, transfer, discipline, and terminate employees. Bruce, 998 S.W.2d at 612; Reyna, 55 S.W.3d at 68. While this is often stressful and unpleasant for an employee, and at times may even be unwarranted, the employer nevertheless "must have latitude to exercise these rights in a permissible way, even though emotional distress results." Bruce, 998 S.W.2d at 612; Reyna, 55 S.W.3d at 68.
In this case, the facts do not reveal that Hendrick's conduct was extreme and outrageous. Appellant was asked to attend a meeting where she was introduced as a new employee. She was given business cards and a name plaque for her desk. Following the meeting, appellant met with Hendrick in his office and was terminated. These actions were not so extreme in degree as to go beyond all possible bounds of decency, nor can they be regarded as atrocious and utterly intolerable in a civilized community. See Twyman, 855 S.W.2d at 621; see also, e.g., Sebesta v. Kent Elecs. Corp., 886 S.W.2d 459, 464 (Tex. App.-Houston [1st Dist.] 1994, writ denied) (holding exit parade for terminated employee during busiest part of day was not extreme and outrageous); Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 921 (Tex. App.-San Antonio 1997, writ denied) (holding verbal abuse, refusal to allow plaintiff lunch breaks, and hostile demonstrations when plaintiff left work sick was not extreme and outrageous conduct); Garcia v. Andrews, 867 S.W.2d 409, 412 (Tex. App.-Corpus Christi 1993, no writ) (holding conduct of manager who made sexually suggestive and embarrassing remarks to plaintiff and mentally undressed her, was not extreme and outrageous).
Hendrick conclusively negated the existence of extreme and outrageous conduct. See Alvarez, 967 S.W.2d at 874. Therefore, the trial court did not err in granting summary judgment as to the claim of intentional infliction of emotional distress. Appellant's fifth issue is overruled.
Because of the disposition of appellant's fifth issue, we need not address appellant's sixth issue as it addresses Hendrick's affirmative defense to appellant's claim of intentional infliction of emotional distress. See TEX. R. APP. P. 47.1.
Accordingly, the judgment of the trial court is affirmed.