Court of Appeals of Texas, Houston (14th Dist.).

Dana KING, Appellant

v.

UNIVERSITY OF HOUSTON, Appellee.

No. 14-94-00880-CV.

|

Nov. 22, 1995.

Panel consists of Chief Justice MURPHY, and Justices AMIDEI, and ANDERSON.

OPINION

ANDERSON, Justice.

*1 Dana King (King) appeals from a summary judgment in favor of the University of Houston (University). King sued the University for: 1) discriminating against a public employee for reporting violations of the law (whistleblower act);¹ 2) retaliating against an employee for instituting a workers’ compensation claim;² and 3) negligent supervision and hiring. The trial court granted summary judgment on all three causes of action. We affirm in part and reverse and remand in part.

King worked for the University as a plumber when he was discharged in September, 1989. The parties dispute whether his discharge was involuntary. King alleges that during his employment with the University, his supervisors asked him to violate the law on several occasions. King claims he reported his supervisors to the University police for making these requests. As a result, his supervisors reportedly harassed and discriminated against him for refusing to commit illegal acts and for reporting them to the authorities. This is the basis of his whistleblower action. His retaliation claim arises from an injury occurring on the job on September 6, 1989. According to King, he was harassed and terminated in the weeks following his injury. King also argues the University should be liable for negligently hiring the supervisors who allegedly harassed him.

King originally filed suit in federal court against the University and several of its employees. The federal court dismissed his claims against the University without prejudice in 1992 because the University asserted its right, as a state entity, to be sued in state court under the United States Constitution. U.S.C. amend. XI. Several days after the dismissal, King filed this action in state court.

The trial court did not specify the grounds relied on for granting the motion for summary judgment, but the judgment will be affirmed if any of the theories advanced by the movant are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The movant is entitled to summary judgment if it establishes there is no genuine issue of material fact and it is entitled to the judgment as a matter of law on the issues expressly set out in its motion. Tex.R. Civ. P. 166a(c). In deciding whether there is a material issue of fact in dispute, all proof favorable to the non-movant will be taken as true and every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-549 (Tex.1985).

In King’s first point of error, he contends summary judgment was improper on his retaliation claim. We agree. An employer may not discharge or discriminate against an employee for exercising rights under the Texas Workmens’ Compensation Act. Tex. L Code Ann. § 451.001 (Vernon Pamphlet 1995). Instituting a claim in good faith is one of the activities protected by the statute. The University argued in its motion for summary judgment that King is not entitled to relief under this cause of action because he never actually filed a workers’ compensation claim. The University further contends that King failed to establish a causal connection between the alleged termination and the injury.

*2 An employee, however, is protected against employer retaliation for instituting a workers’ compensation claim even if he does not file a claim prior to his termination. Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex.App.-El Paso 1992, no writ); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex.App.-Dallas 1986, no writ); The act of informing an employer of the injury is sufficient to institute a claim. See, e.g., Hinerman v. Gunn Chevrolet, 877 S.W.2d 806, 808 (Tex.App.-San Antonio 1994), rev’d on other grounds, 898 S.W.2d 817 (1995); Palmer, 852 S.W.2d at 61; Worsham Steel Co, 831 S.W.2d at 84; Mid-South Bottling v. Cigainero, 799 S.W.2d 385, 389 (Tex.App.-Texarkana 1990, writ denied); Hunt, 711 S.W.2d at 80.

The summary judgment proof establishes that King informed his supervisor that he was injured. His supervisor completed an accident report. King’s injury occurred on September 6, 1989 and he was discharged on September 25, 1989. King sufficiently “instituted a claim” under these facts. Whether King was terminated, or abandoned his job as the University contends, is irrelevant to our review. The statute protects against any type of discrimination, including termination. Tex. L Code Ann. § 451.001 (Vernon Pamphlet 1995). Once a claim is instituted, it becomes a fact question as to whether there is a causal connection between the injury and the retaliatory acts. See, e.g., Palmer, 852 S.W.2d at 61. King’s first point of error is sustained.

In King’s second point of error, he contends the trial court erred by granting summary judgment on his negligent supervision and hiring claim. The University raised sovereign immunity as a defense to this claim³ because it is a state entity. See Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976); The University of Texas Medical Branch at Galveston v. Greenhouse, 889 S.W.2d 427, 431 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Under the doctrine of sovereign immunity, the state is not liable for the negligence of its employees absent a constitutional or statutory provision for liability. University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). For the state to waive sovereign immunity, it must do so by clear and unambiguous language. Id. The legislature has waived immunity for some negligence claims by enacting the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 100.01 et seq (Vernon Supp.1995). This act limits the imposition of liability on the state to tortious acts caused by the operation or use of a motor-driven vehicle or motor-driven equipment, and to damages caused by the condition or use of tangible personal or real property. Tex. Civ. Prac. & Rem.Code Ann. § 101.021. King, however, did not allege his damages resulted from state owned property or equipment. Thus, immunity has not been waived for his claims. Even if this were a pleading defect, we could not reverse the summary judgment because King failed to raise this ground in his response to the University’s motion for summary judgment or on appeal. See San Jacinto River Authority v. Duke, 783 S.W.2d 209 (Tex.1990) (per curiam).⁴

*3 Also in his second point of error, King contends the trial court erred by granting summary judgment on his cause of action for “violations of public policy.” His petition included this claim in the same section as his negligence claim. It is unclear from his brief whether he is asserting “violations of public policy” as a separate and independent claim from negligence. However, King’s response to the University’s motion for summary judgment urged the trial court to use its “inherent power to create law” to recognize this cause of action. King’s brief only discusses negligent supervision and hiring for this point of error. He has not provided any argument or authority on “violations of public policy” in his brief. He has therefore waived appellate review. Trenholm v. Ratliff, 646 S.W.2d 927, 934 (Tex.1983); Emery v. Rollins, 880 S.W.2d 237, 238 (Tex.App.-Houston [14th Dist.] 1994, writ denied). King’s second point of error is overruled.

King also contends summary judgment was improper on his whistleblower cause of action. A state employer may not terminate, suspend, or otherwise discriminate against a public employee who in good faith reports a violation of the law. Tex. Gov’t Code Ann. § 554.002 (Vernon 1994). A suit must be brought under this statute by the 90th day after the date on which the alleged violation occurred or was discovered by the employee through reasonable diligence. Tex. Gov’t Code Ann. § 554.005 (Vernon 1994). According to King, he was terminated September 25, 1989. King first filed suit against the University on March, 20, 1990. Thus, King did not bring suit within the ninety day period. King contends the University continued to harass him as late as November, 1990 and therefore his claim should not be barred. However, the statute only protects public employees and he was no longer an employee of the University after September, 1989. King’s third point of error is overruled.

The judgment of the trial court on King’s retaliation claim is reversed and remanded for a new trial. The remainder of the judgment is affirmed.

	Footnotes
1		Tex.Rev.Civ. Stat. Ann. art. 6252-16a (Vernon Supp.1989), repealed by Acts 1993, 73rd Leg., ch. 268, § 46(1), Tex. Gen. Laws 583, 986 (current version at Tex. Gov’t Code Ann. § 554.001 et seq (Vernon 1988)) (hereinafter current version will be used).
2		Tex.Rev.Civ. Stat. Ann. art. 8307c (Vernon Supp.1989), repealed by Act May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(1), Tex. Gen. Laws 987, 1273 (current version at Tex. L Code Ann. § 451.001 et seq (Vernon Pamphlet 1995) (hereinafter current version will used).
3		The University’s answer does not appear in the record. Sovereign immunity is an affirmative defense that must be pleaded. Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex.1988). However, even an unpleaded affirmative defense may be the basis for summary judgment if the opposing party does not object to the lack of pleading in its written response or before rendition of judgment. Roark v. Stallworth, 813 S.W.2d 492, 494-495 (Tex.1991).
4		King’s brief does state, “Summary judgment is not proper when a pleading amendment could cure any defect”, but he writes this to address his cause of action for “violations of public policy.” Nowhere in his brief does he state that his negligence claim could have been pleaded properly under the Tort Claims Act.