### IN THE TENTH COURT OF APPEALS
No. 10
- 13
- 00029
- CV MICHAEL V. PISHKO, I NDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, N.K. ANAND , INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND TEXAS A& M UNIVERSITY , Appellant s v. DR. LALE YURTTAS , Appellee

From the 361st District Court Brazos County, Texas Trial Court No. 12
- 000579
- CV
- 361

MEMORANDUM OPINION

Lale Yurttas originally sued the Texas A&M University System, Texas A&M University , and two of its employees, Michael V. Pishko and N.K. Anand, in their official and individual capacities . She assert ed a discrimination claim under Te xas Labor Code section 21.051 and a defamation claim. In her first amended petition, Yurttas omitted the Texas A&M University System as a defendant.Pishko v. Yurttas Page 2

Yurttas allege s that she is a former employee of the University; she had been employed as a nontenure

- trac k lecturer and then senior lecturer on a year

- to

- year
contract in the Chemical Engineering Department . She also served various leadership roles at the depa rtmental and university level. In June 2010 , Yurttas was notified that her employment with the University would be terminated effective July 31, 2011 as part of a reduction in force (RIF). Pishko , then

- department head, a nd Anand, then

- Associate
Dean of the Department of Engineering, were involved in the te rmination decision , and Yurttas alleges that their decision was motivated by their discriminatory animus pertaining to her gender, age, race, and religion

. After Yurt tas filed her first amended petition, t he University, Pishko, and Anand filed a plea to th e jurisdiction seeking dismissal on sovereign

- immunity grounds of all claims against the University, except for the Labor Code claims, and of all claims against Pishko and Anand in their official capacities. The University also filed a motion
to dismiss o n behalf of Pishko and Anand; it sought dismissal of all claims against Pishko and Anand under subsection 101.106(e) of the Tort Claims Act. In her second amended petition, Yurttas added a free

- speech retaliation claim
under the Texas Constitution and a ci vil conspiracy claim against Pishko and Anand. In her fourth amended petition, Yurttas added a retaliation claim under section 21.051
of the Labor Code. In all of her petitions, Yurttas alleged that the University was liable
for Pishko’s and Anand’s acti ons under the doctrine of respondeat superior beca u se they were acting in the course and scope of their employment and that Pishko and Anand were acting as the University ’s agents in their actions against Yurttas.Pishko v. Yurttas Page 3

At the hearing on the plea to the jurisdic tion and the motion to dismiss, counsel for Yurttas did not oppose the plea to the jurisdiction. In her brief, Yurttas notes that an approved order granting the plea has been submitted to the trial court. The trial court denied the motion to dismiss, and this interlocutory appeal followed. In two issues, Pishko and Anand assert that subsection 101.106(e) applies to
Yurttas’s tort claims against them in their individual capacities and that the trial court erred in denying the motion to dismiss the tort claims against them in their individual capacities. In response, Yurttas initially contends that we lack jurisdiction because no interlocutory appeal lies from a denial of a motion to dismiss under subsection 101.106(e). Yurttas is incorrect:

Section 51.0 14(a)(5) of the Civil Practice and Remedies Code allows an appeal from an interlocutory order that “ denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political su bdivision of the state. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014(a)(5). The Supreme Court of Texas has held that section 51.014(a)(5) authorizes interlocutory appeal of an order denying a motion to dismiss pursuant to section 101.106(e) because section 51.014(a)(5) encompasses any order d enying assertion of an employee’ s immunity regardless of the procedural vehicle through which such assertion is raised. Tex. Dep’t. Aging & Disability Servs. v. Cannon, 383 S.W.3d 571, 576 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied) (citing Austin State Hosp. v. Graham, 347 S.W.3d 298, 299

- 301 (Tex. 2011) )

. S ubs ection 101.106 (e) provides: “ If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately bePishko v. Yurttas Page 4

dismissed on the filing of a motion by the governmental unit. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.106(e) (West 2011).
We review de novo a trial court’s denial of a motion to dismiss under subsection 101.106(e) because it is a question of immunity and thus subject

- matter jurisdiction

. City of Webster v. Myers, 360 S.W.3d 51, 56 (Tex. App.

— Houston [1st Dist.] 2011, pet.
de nied) ; City of Corpus Christi v. Eby, No. 13

- 09

- 00205

- CV, 2011 WL 1437002, at *2 (Tex. App.

— Corpus Christi Apr. 14, 2011, no pet.) (mem. op.). “[T] he Tort Claims Act ’ s election scheme is intended to protect governmental employees by favoring their early d ismissal when a claim regarding the same subject matter is also made aga inst the governmental employer.” Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008) (citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.106(e), (f))

. Under the Tort Claims Act ’ s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f). When suit is filed against the employee, recovery against the governmental unit regarding the same subject matter is barred unless the governmental unit consents to suit. Id. § 101.106(b). Because the decision regarding whom to sue has irrevocable consequence s, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.
Id. (emphasis added). [S]ection 101.106 is intended to “force a plaintiff to decide at th e outset whether an employee acted independently and is thus solely liable, orPishko v. Yurttas Page 5

acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Garcia, 253 S.W.3d at 657. In turn, section 101.106’s election scheme favors the expedient dismissal of governmental employees when suit should have been brought against the government. Id. An early determination of who constitutes the proper defendant “narrows the issues for trial and reduces delay and duplicative litigation costs” by removing a plaintiff’ s ability “to plead alternatively that the governmental unit is liable because its employee acted within the scope of his or her authority but, if not, that the employee acted independently and is individually liab le.” Id. Thus, when determining the meaning of section 101.106’s various provisions, we must favor a construction that most clearly leads to the early dismissal of a suit against an employee when the suit arises from an employee's conduct that was within the scope of employment and could be brought against the government under the TTCA. Tex. Adjutant General’s Office v. Ngakoue, ___ S.W.3d ___, ___, 20 13 WL 4608867, at *4 (Tex. Aug. 30, 2013). [W] hen suit is filed against both a governmental unit under the TTCA and its employee [,] ... “the employee shall immediately be dismissed on the filing of a motion by the governmental unit.” [ T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.106(e)]. By filing such a motion, the governmental unit effectively confirms the emp loyee was acting within the scope of employment and that the government, not the employee, is the proper party. Further, subsection (e) does not provide for dismissal of the governmental unit, so when the employee is dismissed under that provision, the su it then proceeds solely against the government, assuming immunity is otherwise waived. Id., ___ S.W.3d at ___, 2013 WL 4608867, at *6.
Yurt tas first argues that, because she agreed to the University’s plea to the jurisdiction, she no longer has claims “under this chapter” (the Tort Claims Act) against the University and subsection 101.106(e) is not triggered. But because the University’s
motion to dismiss was filed after the filing of Yur t tas’s first amended petition and
before Yurtta s ’s agreement to the plea to the jurisdiction, we must look to the firstPishko v. Yurttas Page 6

amended petition to determine the applicability of subsection 101.106(e). See Myers, 360 S.W.3d at 58 n.4 ( citing Brown v. Xie, 260 S.W.3d 118, 122 (Tex. App.

— Houston [1st Dist.] 2008, no pet.); and Villasan v. O’Rourke, 166 S.W.3d 752, 762 (Tex. App.

— Beaumont 2005, pet. denied) ) ; see also Skoda v. Montague County, No. 02

- 09

- 00362

- CV, 2010 WL 3075718, at * 2 (Tex. App.

— Fort Worth Aug. 5, 201 0 , pet. denied) (mem. op.) (“ Even if the plaintiff amends her petition after the governmental entity files a motion to dismiss, the amended petition does not moot the right created by the filing of a
motion under section 101.106.”). In her first amended petition, Yurttas asserted a defamation claim against the University, Pishko, and Anand. We thus disagree that subsection 101.106(e) was not triggered. Yurttas next argues that subsection 101.106(e) does not require dismissal of he r pending tort claims against Pishko and Anand because she has sued them in their individual capacities. But every court that has addressed this precise issue has held that subsection 101.106(e) applies when the governmental employee is sued in his individual capacity , and Yurttas cites no contrary authority

. See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 399

- 401 (Tex. App.

— Fort Worth 2008, no pet.) (“ whether a plaintiff sues a govern mental employee in the employee’ s official or individual capacity is irrelevant under the applicable subsections of section 101.106 and because all tort theories alleged against a governmental unit are assumed to be claims under the Tort Claims Act for purposes of section 101.106.

... [A] suit under the Tort Claims Act against a governmental unit bars a same

- subject

- matter suit against an employee in both the employee ’ s official and individual capacities. We therefore holdPishko v. Yurttas Page 7

that Cherry Hill’ s assertion that it sued Haskin only in her individual capaci ty does not bar dismissal under subsection (e). ”); see also Myers, 360 S.W.3d at 58

- 60; Eby, 2011 WL 1437002, at *6; Skoda, 2010 WL 3075718, at *2; Cox v. City of Fort Worth, 762 F.Supp.2d 926, 932

- 33 (N.D. Tex. 2010). Accordingly, the trial court erred in denying the University’s motion to dismiss
Pishko and Anand. We sustain Appellants’ two issues and reverse the trial court’s order denying the University’s motion to dismiss Pishko and Anand. We render judgment dism issing Pishko and Anand from the pending suit in the trial court and remand this case for further proceedings consistent with this opinion.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Reversed and rendered , and remanded Opinion delivered a nd filed October 31 , 2013 [CV06 ]