Texas Ninth District Court of Appeals Judge Leanne Johnson | electjusticeleannejohnson.com
BEAUMONT -- A three-panel appellate court has affirmed a ruling in favor of the city of Beaumont that granted the city’s plea to the jurisdiction and dismissed the claim of a former city fire chief.
Justice Leanne Johnson of the Texas Ninth District Court of Appeals at Beaumont wrote the Oct. 10 opinion. Justices Steve McKeithen and Charles Kreger concurred.
The judges affirmed the decision from the Jefferson County District as they ruled against all three of Billy Fratus' issues. The former fire chief had sued the city, asking for damages, declaratory relief and injunctive relief with allegations that Beaumont had violated the Texas Constitution and Chapter 21 of the Texas Labor Code when it fired him while he was on disability.
Considering the city is protected by immunity, Johnson wrote, “Here, [the] injury alleged has already occurred, the only plausible remedy is an award of money damages. A party may not circumvent the state’s sovereign immunity by characterizing a suit for money damages as a claim for declaratory judgment.”
Ultimately, Fratus failed to state a claim that would overrule the city’s immunity. He was also denied equitable relief as he has not established a claim against a city official, or any claim for equitable relief that is substantial enough to best the city’s plea to jurisdiction.
Fratus also argued that his protected speech led to the city firing him out of retaliation. He said Beaumont Fire Chief Anne Huff took issue with his decision to participate in the public uproar against Huff after she allegedly illegally fired a firefighter. But the judges determined, “[Fratus] has not pleaded facts that establish the basis for this allegation, nor does he explain how the matters about which he allegedly spoke are matters of public concern.”
Instead, because nothing shows that Fratus’ allegations concerning any speech were made outside of the department, and that he made the comments as a citizen concerned about a public matter, it is not considered protected under the Constitution.
The judges also disagreed with Fratus' argument that he suffered discrimination that is banned in the Texas Commission on Human Rights Act (TCHRA) “for race and retaliation,” according to the opinion. Although the act does waive sovereign immunity, it is only for the cases that satisfy a prima facie claim, which this case does not.
Before the judges determined whether Fratus took part in a protected activity (that allegedly led to discrimination against him), they noted that Fratus did not even plead an adverse employment action that would back his TCHRA claim. Yes, he was fired, the court ruled, but after he appealed through the collective bargaining agreement, he was later reinstated.
Finally, Fratus initial lawsuit said that he was making a claim under the Texas Open Meetings Act (TOMA). He alleged “un-noticed” collective bargaining agreements as well as arbitration hearings for personnel issues are invalid. But the judges said this claim does not satisfy that briefing requirements “because it lacks citations to the record or to applicable authority and therefore presents nothing for our review.”
Because Fratus failed to show that his issues overruled the immunity of the city, the judges affirmed the dismissal of the case.