                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-13-00029-CV

MICHAEL V. PISHKO, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY, N.K. ANAND,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY, AND TEXAS A&M UNIVERSITY,
                                       Appellants
 v.

DR. LALE YURTTAS,
                                                       Appellee



                        From the 361st District Court
                            Brazos County, Texas
                      Trial Court No. 12-000579-CV-361


                        MEMORANDUM OPINION


      Lale Yurttas originally sued the Texas A&M University System, Texas A&M

University, and two of its employees, Michael V. Pishko and N.K. Anand, in their

official and individual capacities. She asserted a discrimination claim under Texas

Labor Code section 21.051 and a defamation claim. In her first amended petition,

Yurttas omitted the Texas A&M University System as a defendant.
        Yurttas alleges that she is a former employee of the University; she had been

employed as a nontenure-track lecturer and then senior lecturer on a year-to-year

contract in the Chemical Engineering Department. She also served various leadership

roles at the departmental and university level. In June 2010, Yurttas was notified that

her employment with the University would be terminated effective July 31, 2011 as part

of a reduction in force (RIF). Pishko, then-department head, and Anand, then-Associate

Dean of the Department of Engineering, were involved in the termination decision, and

Yurttas alleges that their decision was motivated by their discriminatory animus

pertaining to her gender, age, race, and religion.

        After Yurttas filed her first amended petition, the University, Pishko, and Anand

filed a plea to the jurisdiction seeking dismissal on sovereign-immunity grounds of all

claims against the University, except for the Labor Code claims, and of all claims

against Pishko and Anand in their official capacities. The University also filed a motion

to dismiss on behalf of Pishko and Anand; it sought dismissal of all claims against

Pishko and Anand under subsection 101.106(e) of the Tort Claims Act.

        In her second amended petition, Yurttas added a free-speech retaliation claim

under the Texas Constitution and a civil conspiracy claim against Pishko and Anand.

In her fourth amended petition, Yurttas added a retaliation claim under section 21.051

of the Labor Code. In all of her petitions, Yurttas alleged that the University was liable

for Pishko’s and Anand’s actions under the doctrine of respondeat superior because

they were acting in the course and scope of their employment and that Pishko and

Anand were acting as the University’s agents in their actions against Yurttas.

Pishko v. Yurttas                                                                   Page 2
        At the hearing on the plea to the jurisdiction and the motion to dismiss, counsel

for Yurttas did not oppose the plea to the jurisdiction. In her brief, Yurttas notes that an

approved order granting the plea has been submitted to the trial court. The trial court

denied the motion to dismiss, and this interlocutory appeal followed.

        In two issues, Pishko and Anand assert that subsection 101.106(e) applies to

Yurttas’s tort claims against them in their individual capacities and that the trial court

erred in denying the motion to dismiss the tort claims against them in their individual

capacities.

        In response, Yurttas initially contends that we lack jurisdiction because no

interlocutory appeal lies from a denial of a motion to dismiss under subsection

101.106(e). Yurttas is incorrect:

               Section 51.014(a)(5) of the Civil Practice and Remedies Code allows
        an appeal from an interlocutory order that “denies a motion for summary
        judgment that is based on an assertion of immunity by an individual who
        is an officer or employee of the state or a political subdivision of the state.”
        TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5). The Supreme Court of
        Texas has held that section 51.014(a)(5) authorizes interlocutory appeal of
        an order denying a motion to dismiss pursuant to section 101.106(e)
        because section 51.014(a)(5) encompasses any order denying assertion of
        an employee’s immunity regardless of the procedural vehicle through
        which such assertion is raised.

Tex. Dep’t. Aging & Disability Servs. v. Cannon, 383 S.W.3d 571, 576 (Tex. App.—Houston

[14th Dist.] 2012, pet. denied) (citing Austin State Hosp. v. Graham, 347 S.W.3d 298, 299-

301 (Tex. 2011)).

        Subsection 101.106(e) provides: “If a suit is filed under this chapter against both

a governmental unit and any of its employees, the employees shall immediately be


Pishko v. Yurttas                                                                          Page 3
dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e) (West 2011).

        We review de novo a trial court’s denial of a motion to dismiss under subsection

101.106(e) because it is a question of immunity and thus subject-matter jurisdiction.

City of Webster v. Myers, 360 S.W.3d 51, 56 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied); City of Corpus Christi v. Eby, No. 13-09-00205-CV, 2011 WL 1437002, at *2 (Tex.

App.—Corpus Christi Apr. 14, 2011, no pet.) (mem. op.).

        “[T]he Tort Claims Act’s election scheme is intended to protect governmental

employees by favoring their early dismissal when a claim regarding the same subject

matter is also made against the governmental employer.” Mission Consol. ISD v. Garcia,

253 S.W.3d 653, 657 (Tex. 2008) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e),

(f)).

                Under the Tort Claims Act’s election scheme, recovery against an
        individual employee is barred and may be sought against the
        governmental unit only in three instances: (1) when suit is filed against
        the governmental unit only, id. § 101.106(a); (2) when suit is filed against
        both the governmental unit and its employee, id. § 101.106(e); or (3) when
        suit is filed against an employee whose conduct was within the scope of
        his or her employment and the suit could have been brought against the
        governmental unit, id. § 101.106(f). When suit is filed against the
        employee, recovery against the governmental unit regarding the same
        subject matter is barred unless the governmental unit consents to suit. Id.
        § 101.106(b). Because the decision regarding whom to sue has irrevocable
        consequences, a plaintiff must proceed cautiously before filing suit and
        carefully consider whether to seek relief from the governmental unit or
        from the employee individually.

Id. (emphasis added).

        [S]ection 101.106 is intended to “force a plaintiff to decide at the outset
        whether an employee acted independently and is thus solely liable, or

Pishko v. Yurttas                                                                      Page 4
        acted within the general scope of his or her employment such that the
        governmental unit is vicariously liable.” Garcia, 253 S.W.3d at 657. In
        turn, section 101.106’s election scheme favors the expedient dismissal of
        governmental employees when suit should have been brought against the
        government. Id. An early determination of who constitutes the proper
        defendant “narrows the issues for trial and reduces delay and duplicative
        litigation costs” by removing a plaintiff’s ability “to plead alternatively
        that the governmental unit is liable because its employee acted within the
        scope of his or her authority but, if not, that the employee acted
        independently and is individually liable.” Id. Thus, when determining
        the meaning of section 101.106’s various provisions, we must favor a
        construction that most clearly leads to the early dismissal of a suit against
        an employee when the suit arises from an employee's conduct that was
        within the scope of employment and could be brought against the
        government under the TTCA.

Tex. Adjutant General’s Office v. Ngakoue, ___ S.W.3d ___, ___, 2013 WL 4608867, at *4

(Tex. Aug. 30, 2013).

        [W]hen suit is filed against both a governmental unit under the TTCA and
        its employee [,] … “the employee shall immediately be dismissed on the
        filing of a motion by the governmental unit.” [TEX. CIV. PRAC. & REM.
        CODE ANN. § 101.106(e)]. By filing such a motion, the governmental unit
        effectively confirms the employee was acting within the scope of
        employment and that the government, not the employee, is the proper
        party. Further, subsection (e) does not provide for dismissal of the
        governmental unit, so when the employee is dismissed under that
        provision, the suit then proceeds solely against the government, assuming
        immunity is otherwise waived.

Id., ___ S.W.3d at ___, 2013 WL 4608867, at *6.

        Yurttas first argues that, because she agreed to the University’s plea to the

jurisdiction, she no longer has claims “under this chapter” (the Tort Claims Act) against

the University and subsection 101.106(e) is not triggered. But because the University’s

motion to dismiss was filed after the filing of Yurttas’s first amended petition and

before Yurttas’s agreement to the plea to the jurisdiction, we must look to the first


Pishko v. Yurttas                                                                       Page 5
amended petition to determine the applicability of subsection 101.106(e). See Myers, 360

S.W.3d at 58 n.4 (citing Brown v. Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st

Dist.] 2008, no pet.); and Villasan v. O’Rourke, 166 S.W.3d 752, 762 (Tex. App.—

Beaumont 2005, pet. denied)); see also Skoda v. Montague County, No. 02-09-00362-CV,

2010 WL 3075718, at *2 (Tex. App.—Fort Worth Aug. 5, 2010, pet. denied) (mem. op.)

(“Even if the plaintiff amends her petition after the governmental entity files a motion

to dismiss, the amended petition does not moot the right created by the filing of a

motion under section 101.106.”). In her first amended petition, Yurttas asserted a

defamation claim against the University, Pishko, and Anand. We thus disagree that

subsection 101.106(e) was not triggered.

        Yurttas next argues that subsection 101.106(e) does not require dismissal of her

pending tort claims against Pishko and Anand because she has sued them in their

individual capacities. But every court that has addressed this precise issue has held that

subsection 101.106(e) applies when the governmental employee is sued in his

individual capacity, and Yurttas cites no contrary authority. See Tex. Bay Cherry Hill,

L.P. v. City of Fort Worth, 257 S.W.3d 379, 399-401 (Tex. App.—Fort Worth 2008, no pet.)

(“whether a plaintiff sues a governmental employee in the employee’s official or

individual capacity is irrelevant under the applicable subsections of section 101.106 and

because all tort theories alleged against a governmental unit are assumed to be claims

under the Tort Claims Act for purposes of section 101.106. … [A] suit under the Tort

Claims Act against a governmental unit bars a same-subject-matter suit against an

employee in both the employee’s official and individual capacities. We therefore hold

Pishko v. Yurttas                                                                   Page 6
that Cherry Hill’s assertion that it sued Haskin only in her individual capacity does not

bar dismissal under subsection (e).”); see also Myers, 360 S.W.3d at 58-60; Eby, 2011 WL

1437002, at *6; Skoda, 2010 WL 3075718, at *2; Cox v. City of Fort Worth, 762 F.Supp.2d

926, 932-33 (N.D. Tex. 2010).

        Accordingly, the trial court erred in denying the University’s motion to dismiss

Pishko and Anand. We sustain Appellants’ two issues and reverse the trial court’s

order denying the University’s motion to dismiss Pishko and Anand.           We render

judgment dismissing Pishko and Anand from the pending suit in the trial court and

remand this case for further proceedings consistent with this opinion.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered, and remanded
Opinion delivered and filed October 31, 2013
[CV06]




Pishko v. Yurttas                                                                  Page 7
