Dallas/Fort Worth International Airport Board v. Sharon Funderburk

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-05-249-CV

DALLAS/FORT

WORTH

INTERNATIONAL AIRPORT BOARD APPELLANT

V.

SHARON FUNDERBURK APPELLEE

------------

FROM THE 141ST

DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------

I. Introduction

The primary issue we address in this appeal is

whether Appellant Dallas/Fort Worth International Airport Board (DFW Board) is

immune from suit for alleged violations of the Texas Commission on Human Rights

Act (TCHRA or the Act). See Tex. Lab. Code Ann. '

21.002(8)(D) (Vernon Supp. 2005), ' ' .051,

.106, .252, .254 (Vernon 1996). [1] Because we hold that Appellant falls within

the TCHRA = s definition of A employer @ as a A state instrumentality @ and

because the TCHRA waives sovereign immunity from suit as to the entities

defined by the Act as employers, we will affirm the trial court = s

judgment denying Appellant = s plea

to the jurisdiction.

II. Factual and Procedural Background

Appellee Sharon Funderburk claims that her

employer, the DFW Board, discriminated against her on the basis of her gender

by repeatedly refusing to give her promotions and pay raises. Funderburk has over thirty-two years =

experience with and service for the DFW Board = s

Department of Public Safety and repeatedly made the top score on the captain = s

test. She is also the only female

lieutenant on the DFW Board = s master

rolls. After Funderburk was passed over

for the position of captain in the Anti-Air Piracy Division, she filed a charge

of discrimination with the Texas Workforce Commission = s Civil

Rights Division, alleging gender discrimination. The Commission issued a Notice of Right to

File a Civil Action, and Funderburk filed the present suit.

The DFW Board filed a plea to the jurisdiction,

claiming that it was immune from suit for any violations of the TCHRA. Following a hearing, the trial court denied

the DFW Board = s plea to the jurisdiction, and

the DFW Board perfected this interlocutory appeal. In two issues, the DFW Board claims that the

trial court erred by denying its plea to the jurisdiction because no

legislative consent to suit exists and because the TCHRA does not clearly and

unambiguously waive governmental immunity as to the DFW Board.

III. Standard of Review

We review the trial court = s ruling

on a plea to the jurisdiction based on immunity from suit under a de novo

standard of review. Tex. Dep = t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (2004); Tex.

Natural Res. Conserv. Comm'n v. IT‑Davy , 74 S.W.3d 849, 855 (Tex.

2002). Whether undisputed evidence of

jurisdictional facts establishes a trial court = s

jurisdiction is a question of law. Miranda,

133 S.W.3d at 226 . Here, the parties

concede that the facts are undisputed.

Thus, we determine as a matter of law whether the undisputed facts

establish jurisdiction.

IV. The TCHRA Waives Immunity as to State

Instrumentalities,

and The DFW Board is a A State

Instrumentality @

The TCHRA prohibits employers from discriminating

on various grounds, including gender. See

Tex. Lab. Code Ann . ' ' 21.051,

.106. A Employer @ is

defined, for purposes of the statute = s

prohibition of discrimination, as including A a county,

municipality, state agency, or state instrumentality, regardless of the number

of individuals employed. @

Id. ' 21.002(8)(D). Thus, the law is settled that the TCHRA

clearly and unambiguously waives governmental immunity for the governmental

entities that are statutorily defined as employers. See, e.g., Little, 148 S.W.3d at

376-77 (recognizing that the Texas Department of Criminal Justice is a state

agency subject to the TCHRA = s waiver

of immunity); Tex. Dep = t of

Criminal Justice v. Cooke , 149 S.W.3d 700, 704 (Tex. App. C Austin

2004, no pet.) (stating that the TCHRA A provides

a limited waiver of sovereign immunity when a governmental unit has committed

employment discrimination on the basis of race, color, disability,

religion, sex, national origin, or age @ )

(emphasis added); King v. Tex. Dep = t of

Human Servs. ex rel. Bost , 28 S.W.3d 27, 30 (Tex. App. C Austin

2000, no pet.) (recognizing that the TCHRA A contains

such a waiver [of sovereign immunity] by including state agencies in the Act's

definition of > employer = @ ); Sauls

v. Montgomery County , 18 S.W.3d 310, 315 (Tex. App. C Beaumont

2000, no pet.) (holding that A the

Legislature has, in clear and unambiguous language, waived sovereign immunity

against elected public officials and governmental entities defined by the act

to be employers @ ).

The Beaumont court in Sauls succinctly

explained that the TCHRA clearly and unambiguously constitutes a waiver of

sovereign immunity as to those governmental entities meeting the Act = s

definition of A employer. @

The right to bring suit is established in section

21.254, which provides, "Within 60

days after the date a notice of the right to file a civil action is received,

the complainant may bring a civil action against the respondent." Tex.

Lab. Code Ann . ' 21.254. "Respondent"

is defined as "the person charged in a complaint filed under this chapter

and may include an employer .

..." [ Id .] '

21.002(13) (emphasis added). A Respondent,"

thus, includes Montgomery County and Williams, as both are

"employers" as defined by the Act.

Hence, the language of the Act allows for suits to be brought against

governmental entities such as Montgomery County and against elected officials

such as Williams. Further, the Act

allows for courts to award both compensatory and punitive damages, except that

punitive damages may not be recovered from a governmental entity. [ Id .] '

21.2585. This exception would not be necessary if the Legislature did not

intend for governmental entities to be sued under the Act. Moreover, we do not presume the Legislature

included language without a purpose.

18 S.W.3d at 315 .

Thus, the only question presented here is whether

the DFW Board falls within the TCHRA = s

definition of an employer. Counties,

municipalities, state agencies, and state instrumentalities are all statutorily

defined as employers for purposes of the TCHRA.

See Tex. Lab. Code Ann .

' 21.002

(8)(D). Funderburk contends that the DFW

Board is a state instrumentality, and the DFW Board contends that it is not. [2] The term A state

instrumentality @ is not defined in the

TCHRA. Accordingly, we apply rules of

statutory construction and look to controlling case law to determine whether

the DFW Board is a state instrumentality.

See Tex. Gov = t Code

Ann. ' ' 311.001‑.034 (Vernon

2005) (the Code Construction Act).

Before engaging in a statutory construction

analysis, we examine the origins of the DFW Board. The DFW Board is statutorily created pursuant

to Chapter 22 of the Texas Transportation Code, A County

and Municipal Airports. @

See Tex. Transp. Code Ann.

' 22.074

(Vernon 1999 & Supp. 2005) (discussing creation of joint board); see

generally id. ' ' 22.001-.901. The functions performed by the DFW Board

include public and governmental functions exercised for a public purpose. Id. '

22.002. Additionally, a joint board like

the DFW Board may A plan, acquire, establish,

construct, improve, equip, maintain, operate, regulate, protect, and police an

airport . . . jointly operated, @ and if

the constituent agencies of a joint board are populous home-rule

municipalities, like the DFW Board = s

constituent agencies, the powers quoted above are exclusively the powers of the

board, not of the constituent municipalities.

Id . ' 22.074(c), (d); City of

Irving v. Dallas/Fort Worth Int = l

Airport Bd. , 894 S.W.2d 456, 467-68 (Tex. App. C Fort

Worth 1995, writ denied).

Moving to a statutory construction analysis

concerning the meaning of the term A state

instrumentality, @ we may consider matters

including (1) the object the legislature sought to obtain; (2) the

circumstances under which the legislature enacted the statute; (3) the

legislative history; (4) common law or former statutory provisions, including

laws on the same or similar subjects; and (5) the consequences of a particular

construction. See Tex. Gov = t Code Ann. ' 311.023

(Vernon 2005). Two of the stated

objectives the legislature sought to obtain through the enactment of the TCHRA

were to A provide

for the execution of the policies of Title VII of the Civil Rights Act of 1964

and its subsequent amendments @ and to A make

available to the state the full productive capacities of persons in this state. @ See

Tex. Lab. Code Ann . ' 21.001

(1), (5) (Vernon 1996) . These

stated objectives of the TCHRA express a legislative intent to eliminate

workforce discrimination in Texas, not to whittle away and to narrow the group

of employers prohibited from engaging in workforce discrimination. See Purdin v. Copperas Cove Econ.

Dev. Corp. , 143 S.W.3d 290, 301 (Tex. App. C Waco

2004, pet. dism = d) (holding economic development

corporation to be state instrumentality subject to claims made under the TCHRA

and explaining that the employment discrimination prohibitions in chapter 21

are to be generally applied). The

circumstances under which the legislature enacted the TCHRA and its legislative

history do not provide insight into the legislature = s intent

concerning the term A state instrumentality @ beyond

the plain wording of subsection (8)(D). See

Tex. Lab. Code Ann . ' 21.002

(8)(D). The Act = s former

statutory provisions, and the consequences of an exclusionary construction of

the term A state instrumentality, @

however, weigh in favor of the conclusion that the DFW Board is a state

instrumentality. As noted by the Purdin

court, the Act was amended in 1997 to expressly define A state

agency. @ Purdin , 143 S.W.3d . at

298. The term A state

agency @ was

given a broad definition as including

(A) a board, commission,

committee, council, department, institution, office, or agency in the executive

branch of state government having statewide jurisdiction;

(B) the supreme court, the

court of criminal appeals, a court of appeals, or the State Bar of Texas or

another judicial agency having statewide jurisdiction; or

(C) an institution of higher

education as defined by Section 61.003, Education Code.

Tex. Lab. Code Ann . '

21.002(14). The legislature = s

adoption of a broad definition of the term state agency evidences an intent to

prohibit discrimination in state government.

A narrow, extremely limited construction of the term A state

instrumentality @ as not including the DFW Board

would permit workplace discrimination at DFW International Airport, where

hundreds of people work. This

construction is inconsistent with the stated purposes of the TCHRA, as well as

with the legislature = s prior actions that broadened

the reach of the TCHRA by broadly defining A state

agency. @ Our statutory construction analysis compels

the conclusion that the legislature intended to include organizations like the

DFW Board within the scope of the term A state

instrumentality. @

Other courts, including this court in Tarrant

County Hospital District v. Henry , have likewise held that an entity

created pursuant to Texas statutory authority, and whose purpose includes the

performance of public and governmental functions are a state

instrumentality. See, e.g., 52

S.W.3d 434, 445-48 (Tex. App. C Fort

Worth 2001, no pet.) (holding hospital district to be state instrumentality

subject to claims made under TCHRA); Purdin, 143 S.W.3d at 301 (holding

economic development corporation to be state instrumentality subject to claims

made under TCHRA); Vela v. Waco Indep. Sch. Dist. , 69 S.W.3d 695, 700

(Tex. App. C Waco 2002, pet. withdrawn) (holding

school district C in claim made prior to amendment

defining state agency C to be state instrumentality

subject to claims made under TCHRA); Crow v. Rockett Special Util. Dist. ,

17 S.W.3d 320, 325 (Tex. App. C Waco

2000, pet. denied) (holding special utility district to be state

instrumentality subject to claims made under TCHRA). We hold that the DFW Board is a state

instrumentality subject to claims made under the TCHRA.

The DFW Board contends that it is not a state

instrumentality because it is an instrumentality of a municipality and

therefore is not an employer under the Act.

But the DFW Board took the opposite position in City of Irving C arguing

it was an agent of the state of Texas C and in

that case we upheld the constitutionality of Texas Transportation Code

subsections 22.074(c) and (d), vesting power over the airport property

exclusively with the DFW Board, to the exclusion of the municipalities. City of Irving, 894 S.W.2d at

467-68 . By virtue of this statute, the

DFW Board cannot be considered a mere agent of a municipality. See Tex.

Transp. Code Ann. ' 22.074(c), (d); City of

Irving , 894 S.W.2d at 467-68 (recognizing legislature reallocated the

regulatory authority from the cities over the property on which DFW airport is

located to the airport board). We thus

decline to adopt the DFW Board = s

argument in this case that it is merely an instrumentality of a municipality. The DFW Board, while acknowledging the above

case law supporting the conclusion that it is a state instrumentality,

nonetheless contends that the legislature = s recent

enactment of section 311.034 of the government code and the Texas Supreme Court = s recent

opinion in Wichita Falls State Hospital v. Taylor mandate a different

result. See Tex. Gov = t Code Ann. ' 311.034

(Vernon 2005); Taylor , 106 S.W.3d 692 (Tex. 2003). We address these contentions in turn and

conclude that neither the application of government code section 311.034 nor

the application of the Taylor analysis alters our determination that the

DFW Board is a state instrumentality, that a state instrumentality is defined

as an A employer @ to whom

the TCHRA applies, and that the TCHRA waives sovereign immunity for an entity

statutorily defined as an A employer. @

In 2001, the Legislature enacted the following

provision as section 311.034 of the Code of Construction Act.

In order to preserve the legislature's interest in managing state

fiscal matters through the appropriations process, a statute shall not be

construed as a waiver of sovereign immunity unless the waiver is effected by

clear and unambiguous language. In a

statute, the use of A person, @ as defined by Section

311.005 to include governmental entities, does not indicate legislative intent

to waive sovereign immunity unless the context of the statute indicates no

other reasonable construction.

Tex. Gov = t Code Ann. '

311.034. But here, there is no question C and the

DFW Board does not contend otherwise C that the

TCHRA clearly and unambiguously waives sovereign immunity when the governmental

entity is one of the entities specifically listed in the TCHRA = s

definition of employer. See Tex. Lab. Code Ann. '

21.002(8)(D) (defining employer as including A a

county, municipality, state agency, or state instrumentality @ ); see

also, e.g., Little, 148 S.W.3d at 376-77; Cooke , 149 S.W.3d at 704 ; King ,

28 S.W.3d at 30 ; Sauls, 18 S.W.3d at 315 . Thus, section 311.034's mandate that a

statute not be construed as a waiver of sovereign immunity unless the waiver is

effected by clear and unambiguous language is satisfied, given our holding that

the DFW Board is a state instrumentality.

The DFW Board appears to argue that the TCHRA

must clearly and unambiguously waive governmental immunity specifically as to

it. We cannot agree with this

contention. Such a holding would require

the TCHRA to specifically list every state employer subject to the Act = s

prohibition against discrimination. The

TCHRA defines an employer as including categories of governmental employers C counties,

municipalities, state agencies, or state instrumentalities. Tex.

Lab. Code Ann. ' 21.002(8)(D). No state employer is specifically

identified. See id . Thus, under the DFW Board = s position,

the TCHRA would not waive sovereign immunity as to any governmental entity

because none are specifically identified.

The TCHRA clearly and unambiguously waives sovereign immunity as to the

governmental entities defined as employers.

A state instrumentality is defined as an employer, and the DFW Board is

a state instrumentality.

We next address the DFW Board = s

contention that the Texas Supreme Court = s

decision in Wichita Falls State Hospital v. Taylor alters the analysis

we are to apply. See 106 S.W.3d

at 692 . Taylor did not involve

the TCHRA. Taylor involved a suit

brought under section 321.003 of the Texas Health and Safety Code for a

violation of the A patient = s bill

of rights, @ which is codified in chapter

321. See id. at 693-94 . Unlike the TCHRA, however, chapter 321 of the

health and safety code contains no express language or definitions including

governmental entities within the scope of that statute. See

Tex. Health & Safety Code Ann . '

321.001-.004 (Vernon 2001). The supreme

court in Taylor undertook an extensive analysis to determine whether,

despite the absence of express language or definitions pulling state mental

health facilities within the scope of the statute, the legislature intended for

the statute to effectuate a waiver of sovereign immunity against state mental

health facilities for violations of the patient = s bill

of rights. See id. at

694-702 . Because the statute at issue

here, the TCHRA, does contain express language placing counties,

municipalities, state agencies, and state instrumentalities within the scope of

the statute, the Taylor analysis is inapplicable. [3]

We overrule the DFW Board = s first

and second issues.

V. Conclusion

Having overruled the DFW Board = s first and

second issues, we affirm the trial court = s

judgment.

SUE

WALKER

JUSTICE

PANEL B: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: January 26,

2006

[1] When the TCHRA was

recodified into the Texas Labor Code, the revised law omitted as unnecessary

the short title of the act. Little v.

Tex. Dep = t of Criminal Justice, 148 S.W.3d 374, 377-78

(Tex. 2004). In addition, the Commission

on Human Rights was recently abolished and its powers and duties were

transferred to the newly‑created Civil Rights Division of the Texas

Workforce Commission. Id. Nonetheless, for simplicity, we refer to

chapter 21 of the labor code as the TCHRA.

[2] Funderburk also

alternatively contends that the DFW Board satisfies the TCHRA = s definition of a A person @ and is therefore subject

to the Act = s waiver of

immunity. Because we hold that the DFW

Board is a state instrumentality, we do not reach Funderburk = s alternative argument

that the DFW Board satisfies the Act = s definition of a

person. See Tex. R. App. P. 47.1.

[3] The DFW Board = s contention that Taylor

alters the analysis applicable to TCHRA claims is likewise undermined by the

fact that the supreme court, after its decision in Taylor, issued Little reversing

a summary judgment for the Texas Department of Criminal Justice on the plaintiff = s TCHRA discrimination

claim.