Court of Appeals of Texas,

Dallas.

GRAYSON COUNTY, Texas, Appellant,

v.

Sherry L. WEBB, Appellee.

No. 05–02–00659–CV.

|

Sept. 19, 2002.

Before Justices RICHTER, FARRIS,¹ and ROSENBERG.²

OPINION

Opinion By Justice FARRIS.

*1 In this interlocutory appeal, Grayson County (the County) contends in two issues the trial court erred in denying the County’s motion to dismiss Sherry L. Webb’s retaliatory discharge claim under chapter 451 of the labor code because Webb (1) failed to exhaust her administrative remedies prior to filing suit and (2) did not plead a recognized cause of action allowing the recovery of damages and attorney’s fees. We resolve the County’s issues against it and affirm the trial court’s denial of the motion to dismiss.

Factual and Procedural Background

Webb, a corrections officer employed by the County in the sheriff’s department, injured her knee at work. Webb was subsequently terminated and filed suit, alleging she was discharged for filing a workers’ compensation claim and because of her gender. The County claimed Webb was terminated due to her failure to keep her supervisor informed about her medical status. The County filed a motion to dismiss, arguing the trial court lacked jurisdiction over Webb’s claims due to her failure to exhaust her administrative remedies. The trial court granted the motion to dismiss as to Webb’s gender discrimination claims, but denied the motion as to Webb’s retaliatory discharge claim under chapter 451 of the labor code. The County timely filed this interlocutory appeal of the trial court’s refusal to dismiss Webb’s retaliatory discharge claim. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2002).

Exhaustion of Remedies

In its first point of error, the County contends the trial court did not have jurisdiction over Webb’s retaliatory discharge claim because Webb failed to exhaust her administrative remedies by utilizing the grievance process set out in the sheriff’s department’s rules and regulations. We review a trial court’s ruling on a motion to dismiss for lack of subject matter jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Chapter 451 of the labor code prohibits an employer from discharging or otherwise discriminating against an employee because the employee has, in good faith, filed a workers’ compensation claim. Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996); Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 2 (Tex.2000). Although chapter 451 does not contain a statutory administrative review process that an employee must exhaust prior to filing suit, the employee is required to exhaust mandatory administrative procedures established outside the statute. Wilmer Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001) (per curiam).³ The County claims the sheriff’s department’s rules and regulations established such a mandatory administrative procedure. Webb does not dispute that she failed to utilize this grievance process prior to filing suit, but contends the process did not apply to her termination.

The grievance process specifically applies to promotions, demotions, pay increases, pay reductions, and working conditions. The regulations provide that termination of employment is a reduction in pay and benefit and, therefore, “the procedures associated with reduction of any rank, salary/pay or benefit (above) apply before termination is effective.” The procedures for reductions in pay or benefit simply reference the procedures for demotion or reassignment. The procedures for demotion or reassignment require the County to provide to the terminated employee a clear, behavioral based written statement of facts outlining (1) the specific performance or qualification deficiencies (knowledge, skill, or ability) of the affected employee; (2) the steps, if any, previously taken by the sheriff’s department to facilitate and promote competence in the affected employee prior to disciplinary demotion or reassignment; (3) the employee has the opportunity to present, in writing, any opposing view which the employee might hold to the sheriff; (4) the employee has the right to the counsel of, but not representation by, an attorney; and (5) the employee has the option to appeal the disciplinary reduction in pay or benefit to the sheriff.⁴

*2 Because the County has the burden to establish lack of jurisdiction in the trial court, we narrowly construe the rules and regulations the County relies upon to limit jurisdiction. Dallas Indep. Sch. Dist. v. Powell, 68 S.W.3d 89, 91 (Tex.App.-Dallas 2001, no pet.). The grievance procedure applied to terminations based on performance or qualification deficiencies. However, Webb contends she was not terminated due to a performance or qualification deficiency, but for filing a workers’ compensation claim. Because the grievance procedures did not clearly apply to Webb’s retaliatory discharge claim, Webb was not required to exhaust those procedures prior to filing suit. See id. at 91 (grievance procedure for “wages, hours of work, or conditions of work” did not encompass claim that discharge was due to employee filing workers’ compensation claim); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 677–78 (Tex.App.-Corpus Christi 2001, no pet.) (denial of plea to jurisdiction appropriate when grievance process did not clearly apply to retaliatory discharge claim).

We overrule point of error one.

Existence of Cause of Action

In its second point of error, the County argues Webb did not plead a recognized cause of action allowing the recovery of damages and attorney’s fees. The County first contends Webb failed to plead and prove she exhausted her administrative remedies prior to filing suit. As discussed above, the exhaustion of remedies doctrine does not bar Webb’s retaliatory discharge claim.

Next, the County claims Webb failed to “plead and prove a causal link between the discharge and the filing of a claim for worker’s compensation.” The County essentially argues Webb was required to negate the County’s claim the discharge was for a non-discriminatory reason in order to plead sufficient facts to establish jurisdiction in the trial court. However, the purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). In determining a plea to the jurisdiction, the trial court should consider the pleadings and, if necessary, any evidence relevant to the jurisdictional issue. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Bland Indep. Sch. Dist., 34 S.W.3d at 554. We construe the pleadings liberally in favor of conferring jurisdiction, Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (per curiam), and take all factual allegations pleaded as true, unless the defendant pleads and proves the allegations were fraudulently made in order to confer jurisdiction. Cont’l Coffee Prods. Co. v.. Casarez, 937 S.W.2d 444, 449 (Tex.1996). Our task is not to determine whether Webb ultimately prevails; rather, it is to decide whether the facts alleged support jurisdiction in the trial court. Univ. of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Webb adequately pleaded and submitted evidence in response to the motion to dismiss that she was terminated due to her filing a workers’ compensation claim. She was required to do no more in order to establish jurisdiction. See Reynosa v. Univ. of Tex. Health Sci. Ctr., 57 S.W.3d 442, 444 (Tex.App.-San Antonio 2001, pet. denied).

*3 The County next contends Webb failed to plead a cause of action within the limited waiver of immunity in the Political Subdivision Act. See Tex. Lab.Code Ann. § 504.003 (Vernon 1996). It is well-established the County has waived immunity for retaliatory discharge claims to the extent allowed by the Texas Torts Claims Act. Kuhl v. City of Garland, 910 S.W.2d 929, 931 (Tex.1995) (per curiam); City of LaPorte v. Barfield, 898 S.W.2d 288, 299 (Tex.1995). The County, however, argues it is not clear a county can be substituted for a specific office, such as the constitutionally created office of sheriff, or, because Webb failed to exhaust her administrative remedies, a subordinate of the sheriff can be substituted for the sheriff.

The sheriff sued in his official capacity is not an entity distinct from the County. Battin v. Samaniego, 23 S.W.3d 183, 186 (Tex.App.-El Paso 2000, pet. denied). Further, Webb pleaded she was employed by the County. Her cause of action for retaliatory discharge is against the employer, not against an individual supervisor employed by the County. Denton County v. Johnson, 17 S.W.3d 46, 51 (Tex.App.-Fort Worth 2000, pet. denied).

The County finally contends Webb did not plead a cause of action to support a claim for attorney’s fees. The trial court dismissed all claims other than the retaliatory discharge claim. Webb cannot recover attorney’s fees for a retaliatory discharge claim. Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.1999) (per curiam); Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 631 (Tex.App.-Dallas 2001, pet. denied) (op. on denial of reh’g). Accordingly, the County did not obtain an adverse ruling from the trial court and has preserved no error for our review. Tex.R.App. P. 33.1(a).

We overrule point of error number two and affirm the trial court’s denial of the motion to dismiss.

	Footnotes
1		The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
2		The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
3		Sullivan and the cases it cited involved employees of a school district. School district employees have historically been statutorily required to exhaust administrative remedies prior to filing suit. See Tex. Educ. Agency v. Cypress Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex.App.-Dallas 1994, writ denied).
4		The record does not reflect whether the County followed these procedures in terminating Webb’s employment.