Court Applies Exclusive Remedy to Preclude Recovery in ROCIP Case

The Dallas Court of Appeals has affirmed a judgment in a retaliatory discharge case on the basis that the legislature has not waived governmental immunity for the suit. The case, Ellis v. Dallas Area Rapid Transit, (No. 05-18-00521-CV) was decided March 13, 2019. The court affirmed the dismissal of the lawsuit, “because we are bound by controlling supreme court precedent in this area of perplexing legislative enactments.”

Ellis filed suit against DART for workers’ compensation retaliation and race discrimination on December 23, 2016, approximately two years after his firing. As to the former claim, Ellis alleged that after he sustained an on-the-job injury, DART harassed, discriminated against, and fired him because he in good faith filed a workers’ compensation claim “and/or hired a lawyer to represent him in his claim and/or instituted or caused to be instituted in good faith a proceeding under Subtitle A of Chapter 451 of the Labor Code.” See TEX. LAB. CODE ANN. § 451.001. As a political subdivision of the state, DART filed a plea to the jurisdiction against Ellis’s chapter 451 retaliation claim, asserting governmental immunity. The trial court granted the plea and Ellis appealed.

Waiver of governmental immunity is an area of law on which the Supreme Court has written extensively over the last 25 years, starting first with City of LaPorte v. Barfield, 898 S.W.2d 288, 298–99 (Tex. 1995) and ending with Travis Central Appraisal District v. Norman, 342 S.W.3d 54, 58, 59 (Tex. 2011). In Barfield, the court concluded that a political subdivision’s immunity from workers’ compensation retaliation claims had been clearly and unambiguously waived by the Public Subdivisions Law. Sixteen years later, in Norman, the court concluded that an intervening amendment to the Labor Code had resurrected immunity for retaliation claims brought by employees of political subdivisions.

The year after Ellis’ termination, but prior to the resolution of his claim, the Dallas Court observed, the legislature once again amended Chapter 504, “this time to provide damage limitations on the liability of political subdivisions for workers’ compensation retaliation claims brought by their employees—the very claims that Norman held were no longer actionable as a result of the 2005 amendments.” Thus, the court considered the question whether immunity to such suits had now been effectively waived. It rejected the contention.

As much as the 2005 amendments to Chapter 504 muddied the immunity waters, the 2017 amendments failed to clear them up. While it appears nonsensical that the legislature would add a general damage limitation for Chapter 451 claims brought by employees of political subdivisions if it did not intend to waive governmental immunity from suit, the amendment did not purport to alter the express directive found in Section 504.053(e), that “[n]othing in this chapter waives sovereign immunity or creates a new cause of action.” Moreover, at the same time the damage limitation was enacted, Chapter 451 was amended to specifically waive immunity for claims of first responders, as defined in Section 421.095 of the Texas Government Code, but not for others like Ellis, a bus driver. Thus, if immunity were waived for all employees of political subdivisions as a result of the damage limitation, as Ellis argues, why would it then be necessary for the legislature to grant an express waiver of immunity for retaliation claims of first responders? And finally, confounding the analysis here is that Ellis’s cause of action arose and his suit was filed before the effective date of the 2017 amendments.

We cannot conclude in these circumstances that a waiver of governmental immunity is clear and unambiguous, as is required. Like the Norman court, we view the law as “too internally inconsistent” to meet that standard.

The opinion of the Court of Appeals was authored by Justice Ken Molberg, a new member of the court who took office as part of the Democratic sweep of Dallas-area courts in 2018. Before taking a district court bench in 2009, Justice Molberg practiced law in the field of workers’ comp in Dallas County for more than 30 years.