AFFIRM; and Opinion Filed November 2, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01120-CV

                               ERIN THORNTON, Appellant
                                         V.
                             CITY OF PLANO, TEXAS, Appellee

                      On Appeal from the 219th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 219-00832-2014

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Schenck
                                  Opinion by Justice Schenck
       Erin Thornton appeals the trial court’s order granting the City of Plano’s plea to the

jurisdiction, which dismissed her gender-discrimination and retaliation claims. In seven issues,

Thornton complains of lack of adequate notice related to the City’s plea to the jurisdiction, denial

of opportunities to obtain additional discovery, the trial court’s consideration of the City’s

evidence, and lack of opportunities to re-plead. We affirm the trial court’s judgment. Because

all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                            FACTUAL & PROCEDURAL BACKGROUND

       Thornton has worked as a police officer for the Plano Police Department (“PPD”) for

over twenty years. In 2009, Thornton transferred under Lieutenant Terry Groves. Later that

year, Thornton verbally complained to Captain Gay Schaffer about some of Lt. Groves’

comments and actions towards her that she considered to be indicative of gender-based
discrimination. The PPD conducted an administrative inquiry into Thornton’s allegations, but

the inquiry was closed without findings or resolution when Lt. Groves transferred out of

Thornton’s chain of command in early 2011. A year later, Thornton filed a written complaint

about Lt. Groves, in which she again complained of his statements and conduct beginning with

when he served as her supervisor and continuing through December 2011. The PPD conducted

an internal-affairs investigation into Thornton’s allegations, exonerated Lt. Groves of two claims,

and found the remaining claims were either not sustained or unfounded. In June 2012, one of

Thornton’s subordinate officers received a written reprimand, and Thornton later received a

written reprimand for implying that the subordinate received a written reprimand due to an

unrelated dispute between other officers. In December 2012, Thornton filed a complaint against

PPD, alleging the written reprimand was retaliation for her complaints of violations of federal

and state labor laws and civil rights. Since that time, Thornton has been the subject of at least

five internal investigations.

       On March 13, 2013, Thornton filed a charge of discrimination with the Texas Workforce

Commission. The TWC responded by dismissing the charge and notifying Thornton of her right

to sue. On March 4, 2014, Thornton sued the City for gender-discrimination and retaliation

claims. On April 29, 2014, the City filed a plea to the jurisdiction, or in the alternative, motion

for summary judgment. The next day, the City filed a motion for protection, requesting a stay of

discovery until the trial court heard the City’s plea to the jurisdiction. On May 14, 2014, the trial

court notified Thornton a hearing was scheduled on May 29, 2014, on the City’s plea to the

jurisdiction, or in the alternative, motion for summary judgment. Thornton filed a motion to

continue on the City’s motion for summary judgment and plea to the jurisdiction. The City

responded to Thornton’s motion to continue, asserting it was not seeking adjudication of its

summary judgment at an upcoming hearing, but only was seeking to adjudicate its plea to the

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jurisdiction and its motion for protection. On May 29, 2014, the trial court held the scheduled

hearing on the City’s plea to the jurisdiction. That same day, the trial court signed orders

granting the City’s plea and its motion for protection.

                                             DISCUSSION

        In her first two issues, Thornton complains of inadequate notice of the basis for the City’s

plea to the jurisdiction and the hearing on same. While we review a ruling on a challenge to a

trial court’s subject-matter jurisdiction de novo, we review complaints of notice for abuse of

discretion. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228–29 (Tex. 2004)

(holding that the scheduling of a hearing of a plea to the jurisdiction is left to the discretion of the

trial court). Similarly, we review Thornton’s third issue regarding the denial of her motion for

continuance and her sixth issue regarding the granting of the City’s motion for protection from

discovery for whether the trial court committed a clear abuse of discretion. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Killingsworth v. Hous. Auth. of City of

Dall., 447 S.W.3d 480, 496 (Tex. App.—Dallas 2014, pet. denied). A trial court abuses its

discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law. Joe, 145 S.W.3d at 161. Thornton’s complaints regarding notice are

based on the fact the City filed its plea to the jurisdiction with its motion for summary judgment.

At the trial court and on appeal, she objected to a lack of twenty-one days’ notice. TEX. R. CIV.

P. 166a(c). As previously noted, Thornton did receive notice before the hearing that only the

plea would be heard and not the motion for summary judgment. Additionally, on appeal,

Thornton argues the notice that the plea and not the summary-judgment motion would be heard

was insufficient because it failed to identify which issues remained for consideration. After

reviewing the record, we cannot conclude the trial court’s decisions to schedule the hearing on

the City’s plea to the jurisdiction with fifteen days’ notice, deny her motion for continuance, or


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grant the City’s motion for protection from discovery constitute a clear abuse of discretion. Id.

Consequently, we overrule her first, second, third, and sixth issues.

       In her seventh issue, Thornton complains of the trial court’s decision to consider the

evidence attached to the City’s plea to the jurisdiction. Thornton details each of the objections

she made to the trial court below, the bases of which include rules 106, 107, 802, and 1006, of

the Texas Rules of Evidence. TEX. R. EVID. 106 (remainder of or related writings), 107 (rule of

optional completeness), 802 (hearsay), 1006 (summaries to prove content). However, the record

does not show the trial court ruled on these objections explicitly or implicitly. The order

granting the plea states the trial court considered the plea itself, the pleadings, arguments, and

legal authority, but does not mention the evidence the City included as a separately filed

appendix to its plea to the jurisdiction.      Accordingly, we cannot conclude that Thornton

preserved these objections for our review and thus need not address Thornton’s seventh issue.

See Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 100–01 (Tex. App.—Dallas 2010, pet. denied)

(no ruling implied where trial court’s order stated the trial court “considered” the motion, the

response, and “all other evidence on file”).

       Finally, in her fourth and fifth issues, Thornton argues that the trial court erred by failing

to give her an opportunity to re-plead and by failing to require the City to challenge pleading

defects by special exception before dismissing her claims. Thornton argues she could re-plead to

show discrimination in the City’s denial of “overtime opportunities and other ultimate

employment actions.” Similarly, at the trial court, she argued she would plead and prove that

unlike male sergeants, she was obliged to obtain pre-approval of her overtime requests and that

her requests for overtime were denied. She also argues she could re-plead to demonstrate the

retaliatory nature of the repeated internal affairs investigations she was subjected to. Thornton




                                                –4–
requests this Court require the City to specially except to any pleading defects, so she may know

what alleged deficiencies she can attempt to remedy.

       When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Miranda,

133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiffs and look to the

pleaders’ intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate

the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to

amend. Id. at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a

plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.

Id. at 227. Even if we were to construe Thornton’s arguments as adequate explanations of what

she could re-plead to cure the deficiencies in her pleadings, we could not conclude that all of the

defects raised by the City in its plea to the jurisdiction were in fact curable. For example,

Thornton’s gender-discrimination claims are premised on conduct ranging from January 2009

through March 2011, but she failed to file a complaint until January 2012, more than six months

later. TEX. LAB. CODE ANN. § 21.202 (West xxxx) (requiring a complaint to be filed no later

than the 180th day after the date the alleged unlawful employment practice occurred). Further,

her original petition was filed in March 2014, more than two years after her complaint was filed.

TEX. LAB. CODE ANN. § 21.256 (West xxxx) (requiring civil action to be brought no later than

the second anniversary of the date the complaint relating to the action is filed). Accordingly, the

trial court did not err in failing to provide Thornton an opportunity to re-plead or in failing to

require the City to challenge pleading defects by special exception before dismissing her claims.

We overrule Thornton’s fourth and fifth issues.




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                                        CONCLUSION

      We overrule Thornton’s issues and affirm the trial court’s judgment.




                                                   /David J. Schenck/
                                                   DAVID J. SCHENCK
                                                   JUSTICE

141120F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ERIN THORNTON, Appellant                             On Appeal from the 219th Judicial District
                                                     Court, Collin County, Texas
No. 05-14-01120-CV         V.                        Trial Court Cause No. 219-00832-2014.
                                                     Opinion delivered by Justice Schenck,
CITY OF PLANO, TEXAS, Appellee                       Justices Lang-Miers and Brown
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee CITY OF PLANO, TEXAS recover its costs of this appeal
from appellant ERIN THORNTON.


Judgment entered this 2nd day of November, 2015.




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