### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00574- CV

Texas Depart m ent of Health, App ellant

v. Lateefah Neal, Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 03- 2750 40, H ONO RAB LE ERIC M . SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

T h e Texas Depa

rtment of Hea lth (“The Depa rtment”) appea ls an order partially denying its plea to the j urisdiction. Depa rtment employ ee L atee fah Neal sued the D ep ar t m en t on

sever al claims, alleg ing among oth er t h i n gs that the Department breache d a settl ement agr eeme nt it had rea ched with Nea l following an employ ment-re lated dispute. The Depa rtment filed multipl e pleas to the jurisdiction arguing that sovere ign immunit y deprive d the trial court of jurisdiction over Nea l’s claims. The trial court denied the plea on Nea l’s brea ch claim, and the Depa rtment appea ls that ruling

. We hold that Nea l’s brea ch claim was barr ed by sovere ign immunit y . Acc ording ly , we

reve rse the tr ial court’s or der on the brea ch cla im and rende r judg ment in the Depa rtment’s favor.

F ACTUAL AND P ROCEDURAL BACK GR OUND Nea l beg an working for the Depa rtment in 1997. In September of 2002, she applied for a position as a Human Resource s Specialist I I I

. At the time, she was working as a HumanR es ource s Specialist I V. The S pecia list I I I position would technica lly have been a demo t i o n , b u t

Nea l pursued it beca

use it offe red supervisory opportunities that her Specialist I V position did not. On September 13, 2002, Ne a l le a rned that the Specialist I I I position went to a y oung er

woman of a differ ent relig ion. On October 25, 2002, Nea l filed an internal g rieva nce using a form titled “Employ ee Complaint For m.” The form offe red two options t o descr ibe the nature of her complaint, “Discr imination” and “Non-Discr iminati o n , ” an d Nea l chec ked the box next to “NonDiscrimination.” I n the narr ative portion of the form, Nea l wrote that the p an el o v er seeing the Specialist I I I hiring proce ss had violated Depa rtment policy by failing to g ive due weig ht to all parts of her application. On the same form, Nea l also complained as a separ ate matter that her supervisor had previously ignor ed her reque st to temporar ily rotate into a Specialist V position that sever al of her c o-worke rs had r otated into.

Although Nea l chec ked the “Non- Discrim i n at i o n” box on her g rieva nce form, she wrote in the narr ative portion of the form that s h e b el i ev ed at least one member of the hiring committee “used the interview and selec tion proce ss to punish [her] for letting it be known that some of the supervisory p ra ct i ce s u sed when [she] was a member of that [person’s] team wer e discriminatory .” Nea l also wrote i n t h e n ar rative portion of t he form that she “question[ ed] other possible discriminatory prac tices during this proce ss.” Nea l did not, howeve r, el ab orate on what those prac tices mig ht be.

A few day s afte r she filed her inte rn al gri ev an ce form, Nea l rec eived and signe d a Depa rtment form titled “Complaint Resolution Process Advisement.” Among other things, the form

2advised Nea l that if her complaint was based on a claim of discrimination, she had to file a complaint

with the Texas Comm ission on Human Rights within 180 day s.

On Dec ember 9, 2002, Nea l signe d a settlement ag ree ment with the Depa rtment. The agre ement did not mention discrimination; it stated only that “Ne al has complained of h er n o n selec tion for [t he Specialist I I I ] position and not having the opportunity to serve in an acting role as supervisor [i n the Specialist V position] .” Neither side admitted liability or wrong doing; rathe r, the ag ree ment was “ente red into in order to resolve the parties’ differ ence s.” The terms of the ag ree ment included the f

ollowing:

• The Depa

rtment agreed to allow Nea l to rotate into the Specialist V position for a term “not to exceed six (6) months ,” at the conclusion of which Neal would return to her Spec ialist I V position.

• The Depa

rtment ag ree d to provide Nea l human-res o u rce s or manag ement training worth up to $600.

• The Depa

rtment ag ree d to “be equitable and fa ir , a s w ith all [Department] employ ees, in future de aling s with Neal.”

• Nea l ag ree d to rele ase the Depa rtment “as well as all of its ag ents, employ ees and succe ssors from any

and all cla ims and/or cause s of action arising out of any of the fac ts made the ba sis of her c omplaint.”

On J anuar

y 1, 2 003, Nea l beg an her rotation in the Specialist V position. On April 1, 2003, the Depa

rtment terminated the position and returne d Nea l to her previous position. 1

The Depa rtment contends that it did so beca use new leg islation require d i t t o re d u ce its 1 number of manag eria l positions. The Department attached a copy of t h at l egislation to its plea to the jurisdiction and also attache d an aff idavit by a Depa

rtment employ ee explain i n g h o w the 3Three day s later, Nea l filed a char g e of discrimination with the Texas Commi ssion on Human Rights

and the Equal Employ

ment Oppo rt u n i t y Commi ssion. The char g e claimed that Nea l had been discriminated ag ainst twice—onc e when she was denied the Specialist I I I position, and once when her Specialist V pos ition was terminated after less than s ix months. Nea l claimed that the for m er incident of discrimination was based on ag e and relig ion, and the latter incident was in reta liation for the inter

nal g rieva nce she filed af

ter be ing de nied the Specia list I I Iposition. I n April of 2003, shortly afte r filing her discrimination char g e, Nea l applied for a Manag er I I Iposition at the Depar tment and was not sele cted. On De ce m b er 8, 2003, Nea l filed this lawsuit. Be sides the above- mentioned discrimination claims, which Nea l broug ht under Chapter 21 o f t h e Texas L abor Code, Nea l’s petition included a cause of action for brea ch o f t h e Dec ember 2002 settlement ag ree ment. The petition a lso me ntioned that Nea l w as denied the Manag er I I I position in April of 2003 but did not alleg e a pa

rticular disc riminatory

basis for that de nial. The State filed a plea to the jurisdiction in J anuar y of 2004. On Fe bruar

y 26, 2004, Nea l filed a second char g e of discrimination with the Aus t i n Hu m an Rights Commi ssion and the Equal Employ

ment Opportunity Commi ssion. That char g e alleg ed that the Depa rtment denied Nea l the Mana g er I I Iposition t o reta liate ag ainst her f or filing her f

irst char g e of discr imination. On November 9, 2007, Nea l filed a second orig inal petition that reiter ated her brea chof-se ttlement-ag ree m ent claim along with various discrimination claims. On May 22, 2009, the Depa rtment filed an amende d plea to the jurisdiction that arg ued the court lacke d jurisdiction ove r

Depa rtment had implemented the leg islative mandate. 4Nea l’s brea ch-of -settlement-a g ree ment claim beca us e Nea l’s petition failed to alleg e that the Depa rtm ent had waived its immunit y from the claim. A few day s afte r the Depa rtment filed its amende d plea to the jurisdiction, it filed a second plea to the jurisdiction that addre ssed only Nea l’s char g e of r etaliation re lating to the Ma nag er I I Iposition. On J uly 28, 2009, the s ame day that the t rial cour t was sche duled to hold a hea ring

on the Depa

rtment’s pleas, Nea l filed a third amende d petition and a reply to the Depa rtment’s pleas. I n the lat t er , Nea l cited Texas A& M University v. Lawson , 87 S.W .3d 518 (Tex. 2002), for the proposition that a g overnme ntal entity is not immune from suit for brea ching a settlement ag ree ment if it was not immune from suit on the claims that wer e settled. The Depa rtment addre ssed this issue at t he hearing , ar gu i n g t h at the Department was immune from sui t on the claims that wer e settl ed beca use Neal had not pursued them in the statutorily mandated fashion. I n response , Nea l arg ued that signing the settle m en t agreement equitably tolled the deadline for pursuing her claims in the statutorily mandated f

ashion until the St ate br eac hed the a g ree ment. The trial court issued an order g ranting the Depa rtment’s pleas on sever al of Nea l’s claims but denying its plea on the brea ch-of -settlement-a g ree ment claim. The Depa rtment appea ls that denial.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea that se eks dismissal of a ca se for lack of subject-matter jurisdiction. Harris County v. Syke s , 136 S.W .3d 635, 638 (Tex. 2004). We revie w de novo a trial court’s ruling on a plea to the jurisdiction. W estbrook v. Penley , 231 S.W .3d 389, 394 (Tex. 2007). Satisfy ing statutory prer equisites to suit is a jurisdictional require ment in all suits

5ag ainst a g overnme ntal entity

. Tex. Gov’t Code Ann

. § 3 1 1

. 0 34 (West Supp. 2010). Fa ilure to

comply with a jurisdi ctional requirement deprives t he trial court of the power to act, other than t o deter mine that it lacks jurisdiction. City of Desoto v. W hite , 288 S.W .3d 389, 393 (Tex. 2009).

DISCUSSIO N Nea l argues, as she did below, that the Depa rtment was not immune from her brea chof-se ttlement-ag ree ment claim beca use th e Depa

rtment was not immune from the claim that the ag ree ment settled. Nea l relies heavily on Lawson , 87 S.W .3d 518, in which a plurality of the Texas Supreme Court held that when a g overnme ntal entity ag ree s to settle a lawsuit from which it is not i m m u n e, i t i s not immune from a suit for brea ching the settlement ag ree ment. Id

. Lawson i s a plurality decision lacking prec edential value, see Univ. of T ex . Me d

. Branch v. Y

ork , 871 S.W .2d 175, 176-77 (Tex

. 1994), but assuming that its logic applies her e, t he question we must answe r i s whether the Depa rtment was immune fr om suit on t he cla ims it settled with Nea l. The pa rties disag ree on the nature of those claims. The Depa rtment argues that the claims did not involve an alleg ation of discrimination, wher eas Nea l arg ues that they did. We will 2

assume for the sake of analy sis that Nea l is corr ect. See Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004) (merit of State’s plea to jurisdiction initially d epends on fac ts alleg ed in plaintiff’s plea ding)

.

Gene rally speaking , State ag encie s are immune from suit on all claims for which the L eg islature has not wa ived immunity

. Id

. at 224. Chapter 21 of the Texas L abor Code inc ludes a

Reca ll that Nea l chec ked the box next to “Non- Discrimination” on her g rieva nce form but 2 also mentioned “possible discr iminatory prac tices” in the na

rra tive portion of the for

m. 6waiver of immunit y for cl aims of employ ment discrimination. See Tex. L ab. Code Ann. §§ 21.002(8)( D), 21.051, 21.254 (West 2006 & Supp. 2010); Mission Consol. Indep. Sch. Dist.

v. Garcia , 253 S.W .3d 653, 660 (Tex. 2008); Texas Dep’ t of Criminal Justice v. Cooke , 149 S.W .3d 700, 704 (Tex. Ap p . — Au s t i n 2004, no pet.). The waiver applies, howeve r, only if the claimant strictly satisfies t he procedura l require ments outlined in Chapter 2 1

. See Specialty Retailers, Inc.

v. DeM oranville , 9 3 3 S

. W .2d 490, 492 (Tex. 1996); Texas Parks & W ildlif e Dep’ t v. Dearing , 150 S.W .3d 452, 458 (Tex. App.—Austin 2004, pet. denied)

. Among these require ments is that the claimant must file a discrimination complaint with the Texas Workforce Commi ssion Civil Rights Division within 180 day s o f t h e alleg ed discriminatory act. See Tex. L ab. Code Ann.

3 §§ 21.201-.202 (West 2006). I n the case of an alleg ed discriminatory employ ment decision, the 180- day limit ations period beg ins to run when the employ ee is informed of the decision. Texas Dep’ t of Pub. Safety v. Alexande r , 300 S.W .3d 62, 7 0 (Tex. App.—Austin 2009, pet. denied)

. The timely filing of an administrative complaint is a mandatory and jurisdictional prer equisite to filing suit. Id

.

Her e, it is undisputed that Nea l filed her first complaint with the Texas Commi ssion

on Human R ights more than 200 day s afte r t he Depar t m en t alleg edly discriminated aga inst her in denying her the Specialist I I I position. Thus, Nea l did not satisfy the statutory prer equisites to filing

s uit on that alleg ed discrimination, which means that the Depa rtment did not waive its immu n i t y from suit on it. This, in turn, means that the trial court lacke d jurisdiction over any claim based on

The Texas Commi ssion o n Human Rights was the rele vant ag ency when Nea l filed her 3 complaint in 2003. See Tex. L ab. Code Ann. § 21.0015 ( West 2006). 7the alleg ed discrimination. See id

. The question then become s what eff ect this lack of jurisdiction 4 has on Nea l’s rela ted brea ch-of -settlement-a g ree ment claim. The parties ag ree that Lawson should g uide our a

naly sis. I n Lawson , a university fac ulty member sued his em p l oy er for violations of the Whis tlebl o we r Ac t
. L a wson , 87 S.W .3d at 518-19. As it has with suits for employ ment discrimination, the leg islature has waived the St at e’ s immunit y from suits broug ht under the Whis tleblower Act provided that the complainant satisfies cer tain administrative prer equisites. See Tex. Gov’t Code Ann. §§ 554.0035, .006 (West 2004). L awson had satisfied those prer equisites and initiated a valid lawsuit befor e th e p ar t i es settled. Lawson , 87 S.W .3d at 519. A dispute arose shortly there after, an d L awson sued the university for brea ching the settlement ag ree ment. Id

.

As this summary reve als, the prese nt case differ s from Lawson in a cruc ial respe ct: L awson had a statutorily rec og nized c laim (i.e., a claim for which the State had waived immunit y ) pending in the trial court when he settled with the State. Id

. at 521. Nea l asks us to extend Lawson to a situation wher e the claimant had not even init i at ed , m u ch less completed, the administrative proce ss that could have led to a waiver of the State’s immunit y and bestowed jurisdiction on the trial court. I n other words, Nea l asks us to exten d Lawson to a situation wher e she “settled a claim that, at that point in time, had no adjudicative value in our court sy stem.” Donna Indep. Sch. Dist. v. Grac ia , 286 S.W .3d 392, 395 (Tex. App.—Corpus Christi 2008, no pet.). W e dec line to do so.

We note that the trial court granted the Depa rtment’s plea to the jurisdiction “[a]s to 4 Plaintiff’s claim s o f d i s crimi nation arising out of Plaintiff’s non-selec tion for the position of HR Specialist I I Ion or about Septembe r 12, 2002.” 8Ex tending Lawson to such a situation would counter mand the bedroc k principle that State ag encie s are cate g orica lly immune from suit unless the L eg islature has exp ressly waived immunit y . See Texas Natural Res. Conser va tion Comm’n v. IT-Davy , 74 S.W .3d 849, 855 (Tex. 2002) (“[I ]t is the L eg islature’s sole province to waive or abrog ate sovere ign immunit y .”). The leg islature has not waived immunit y from suit over settlement ag ree ments g ener ally

. See Lawson , 87 S.W .3d at 520 (“We have held that a g overnme ntal entity . . . does not, mere ly

by enter ing into

a contra ct, waive immunit y from suit.”). I t is important to note that the Lawson plurality expressly

avowe d t h i s rule, id ., and found a waiver of immunit y in the situation at bar only beca use it conclude d that the L eg islature intended one. See id

. at 522 (“A llowing suit ag ainst the g overnme nt for brea ch of an ag ree ment settling a claim for which immunit y has been waived does not interfe re with t h e L egislature’ s policy choice s. On the contra ry , having deter

mined to allow suits on such claims and presc ribed the available reme dies, the L eg islature must surely have considere d—indeed, hoped—that claims would often be settled. I f any thing, for the g overnme nt to be immune from the enfor ceme nt of such settlements would impair the p u rp o s es o f the waiver by limit ing its eff ectivene ss in case s not tried t o a final judgme nt.”). Her e, in contra st, we wo u l d undermine the leg islature’s intent if we allowed Nea l to sue despite her failure to satisfy the statutory prer equisites contained in Chapte r 21 of the la bor code

. Other courts o f appeals have declined to extend Lawson in case s like this one, and

we find their rea soning persua sive. I n Gracia , 286 S.W .3d 392, the plaintiff was a public-school teac her whose contra ct wa s t er m i nated over an alleg ed hazing incident. He rea ched a settlement ag ree ment with the scho o l district that had employ ed him “just as [he] was instit uting the administrative proce ss that the State cre ated for challeng ing the termination of teac hing contra cts.”

9Id

. at 395. Be cause completing that administrative proce ss was (like completing the administrative

proce ss at issue here ) a prer equisite to the State waiving its immunit y from suit, the court held that Lawson did not permit the teac her to sue the State for brea ching the settlement ag ree ment. Id

. The Waco court of appea ls has adopted Gracia ’s analy sis of Lawson in the eminent-domain context. See City of Midlothian v. ECOM Real Estate Mgmt., Inc. , No. 10-09-00039- CV, 2010 Tex. App. L EXI S 547, at *14-17 (T ex. App.—W aco Jan. 27, 2010, pet. g rante d) (mem. op.)

.

We echo the Gracia court in acknow ledg ing the potential for abuse under our curr ent reg ime; in theory , the State could deliberately thwart potentially meritorious claims by settling them, waiting until their limit ations periods had run, and then brea ching the settlement ag ree ment without fear of suit. See Gracia , 286 S.W .3d at 395. As the Gracia court noted, howeve r, the supreme

5 court “has forestalled [ a] waiver -by -conduc t exception to sovere ign immuni ty in si t u ations wher e

an administrative remedy is available .” Id

. (citing IT-Davy , 74 S.W .3d at 857). Thus , we ca n n o t avoid the conclusion that parties “who settle claims ag ainst g overnme ntal entities while their case s

are in the administrative proc ess[] cannot r eturn to the a dminist rative pr ocess or turn to the cour

ts when a g overnme ntal entity

alleg edly brea ches a

settlement ag ree ment’s terms.” Id . at 395 n.4. 6 Nea l sug g ests, as she did in the trial court, that we can avoid this outcome by holding that the statute of limit ations on her discrimination claim was equitably tolled when the Depa rtment signe d the settlement ag ree ment. We disag ree . “[B]eca use the statutory filing require ments” for employ men t -d i s crimination claims ag ainst the State “ar e jurisdictional” and there fore We do not mean to sug g est that the De partment did so her e. 5 Such parties can, howeve r, alway s seek the L eg islature’s consent to sue. Tex. Civ. Prac. 6 & Rem. Code Ann. §§ 107.001-.005 (West 2011); Fede ral Sign v. Texas S. Univ. , 951 S.W .2d 401, 411 (Tex. 1997). 10cannot be waived, “the doctrine of equitable estoppel is not applicable ” to such claims. Czerwinski

v. University of Tex. Health Sci. Ctr. , 116 S.W .3d 119, 123 (Tex. App.—Houston [14t h Dist.] 2002, pet. denied) ; see also Guev ara v. H.E. Butt Groce ry Co. , 82 S.W .3d 550, 552-53 (Tex. App.—San Antonio 2002, pet. denied) (doctrine of equitable tolling does not apply to jurisdictional prer equisite of exhausting a dminist rative r emedies in c laims filed under la bor code ). I n sum, Nea l failed to meet the mandatory and jurisdictional 180-day filing deadline

on any discrimination claims arising from her application for

the Specialist I I I position. Thus, the Depa rtment did not waive its immunit y from sui t on those claims. I t follows that the Department did not waive its immunit y from suit for brea ching the ag ree ment settling those claims. Lawson does not contra dict this result; indeed, in its emphasis on eff ectua ting the leg islature’s intent, it fully supports it. Finally , beca

use the 180-day filing deadline is ma ndatory and jurisdictional, equitable tolling is not available to Ne al.

CONCLUSION

The trial court err ed by not g ranting the Depart ment’s plea to the jurisdiction on Nea l’s brea ch-of

-settlement-a g ree ment claim. We r ever se the trial court’s order on that claim and rende r judg ment in the Depa rtment’s favor.

__________________________________________

David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Reverse d and Rende red Filed: May

6, 2011 11