Whistleblower Act report qualified even though the chief already knew about the alleged regarding the violation of law.

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Special Guest Author, Laura Mueller.

City of Fort Worth v. Pridgen, et al., No. 05-18-00652-CV (Tex. App.—Dallas June 18, 2020) (mem. op.).

This is a Whistleblower Case (Texas Government Code Chapter 554) where the Dallas Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

In a well-publicized, police use of force case, an officer, Martin, was seen on Facebook Live and on his body camera footage using force against individuals while arresting them.  Due to the incident, claims of racism were made by the public against Officer Martin, and the incident was investigated by the two plaintiffs, high ranking members of the City of Fort Worth Police Department, Pridgen and Keyes.  After reviewing the footage, these officers reported to the Police Chief, who was aware of the incident, and the officers recommended that Officer Martin be terminated.  The Chief instead only suspended the officer for ten days.  Both Pridgen and Keyes were demoted after the investigation due to the allegation that the officers release confidential information to the victims’ attorney without the city’s authorization.

Under the Whistleblower Act, immunity from suit is waived when the city employee shows that:

(1) that the plaintiff was a public employee, (2) that the defendant was a state agency or local government, (3) that the plaintiff reported in good faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.—Dallas 2008, no pet.).

Good faith in this context requires that the employee must have believed that he was reporting a violation of law and this determination must be reasonable based on the employee’s training and experience.  To be a but-for cause of an employee’s demotion, the report must have been a reason, but is not required to be the sole cause of the adverse employment action.  The issues in this case was whether: (1) it is a report of a violation of law if the person to whom they report to already knows of the violation of law; (2) that the report was not made in good faith; and (3) the report was not the cause of the officers’ demotions.

The court held that a report can be sufficient under the Whistleblower Act even if the appropriate law enforcement agency to whom it is reported already knows of the violation, in this case the report to the Chief was sufficient even though the Chief was aware of the officer’s investigation and was familiar with the facts that led to the allegations.  The court also held that the officers made their report in objective good faith even if there was other evidence that may have negated the violation of law that they could have viewed but did not.  There is no duty for an employee to investigate a violation of law before reporting it for Whistleblower Act purposes.  Finally, the court held there was a sufficient nexus between the officers’ demotions and the report of violations of law based on the Chief’s negative attitude towards the report and the evidence of inconsistencies in the investigation and discipline of the officers.

If you would like to read this opinion click here.

Texas Supreme Court holds 90-day statute of limitations is a jurisdictional prerequisite to filing suit under Texas Whistleblower Act

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City of Madisonville, et al., v Sims, 18-1047 (Tex. April 17, 2020)

This is a Texas Whistleblower Act case where the Texas Supreme Court held the 90-day deadline for filing suit is jurisdictional.

David Sims was a police officer in the Madisonville Police Department. Sims received information that his boss, Sergeant Jeffrey Covington, planned to plant drugs in Covington’s ex-wife’s car to assist in his ongoing child-custody dispute. Sims and Covington had a bad history, both before and during Madisonville PD.  Sims told the Chief of Police, Charles May, but Chief May dismissed the information. Sims later discovered, by using an administrator access login, that Covington was compiling an “investigative file” on Sims presumably to have him fired. Sims was “dishonorably discharged” shortly afterwards for violating the Department’s computer-use policy. The dishonorable designation  was later changed to honorable by a SOAH administrative law judge.   Sims sued under the Texas Whistleblower Act after the SOAH determination (which was past the 90 day deadline to file suit). The City filed a plea to the jurisdiction, which was granted. The court of appeals reversed, holding the deadline was not jurisdictional. The City appealed.

Texas Government Code § 311.034 of the Code Construction Act makes statutory prerequisites to suit jurisdictional as to claims against governmental entities. The Texas Supreme Court has held “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.”  When a statutory prerequisite to suit is not met, “whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),” the suit may be properly dismissed for lack of jurisdiction.  The Whistleblower Act clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief. But an employee with a Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act to obtain relief, including the statute of limitations. The Act states the employee “must sue” within ninety days. The ninety-day filing deadline is thus a jurisdictional statutory prerequisite to suit.  The plea should have been granted.

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

Nurse who reported believed violation of overtime restrictions to legal department deemed not to have reported to proper agency under Whistleblower Act

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Erin Reding v. Lubbock County Hospital District d/b/a University Medical Center, 07-18-00313-CV, (Tex. App – Amarillo, March 18, 2020)

This is a Texas Whistleblower Act case where the Amarillo Court of Appeals affirmed the granting of the hospital district’s plea to the jurisdiction.

Reding is a registered nurse working for the Lubbock County Hospital District d/b/a University Medical Center (“UMC”). UMC announced plans for a new policy that would require nurses to sign up for two mandatory “on call” shifts per month and discipline for those who did not comply. Reding believed the proposed compulsory shifts would violate § 258.003 of the Texas Health & Safety Code, prohibiting a hospital from requiring a nurse to work mandatory overtime.  She filed a complaint with the human resources and legal departments. Reding was later terminated and she asserts the termination was retaliatory.  She brought suit under the Texas Whistleblower Act. UMC filed a plea to the jurisdiction which was granted.  Reding appealed.

Reding alleged that she “reasonably and in good faith believed that [UMC’s] legal department was the appropriate authority to whom she should report the violation.” However, the Texas Supreme Court has consistently held that “reports up the chain of command are insufficient to trigger the Act’s protections.” To qualify, the internal department must also have outward-looking powers, as an “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.” While the legal department at UMC may oversee internal compliance with the law governing nurses’ work hours, that is not the same as having the authority to enforce laws against third parties. The plea was properly granted.

If you would like to read this opinion click here. The panel consists of Chief Justice Quinn and Justices Pirtle and Parker. Memorandum Opinion by Justice Parker. The attorney listed for Reding is J. Craig Johnston.  The attorney listed for UMC is Don C. Dennis.

Texas Supreme Court holds no-evidence MSJ proper to challenge jurisdiction; TOMA waiver of immunity does not include declaratory judgment claims

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Town of Shady Shores v Swanson, 18-0413 (Tex. Dec. 13, 2019)

This is an employment case, but the focus on the opinion is a procedural one.  Importantly, the Texas Supreme Court held 1) a no-evidence motion for summary judgment was proper to raise a jurisdictional challenge and 2) the Texas Open Meetings Act (TOMA) did not waive immunity for declaratory relief, only mandamus and injunctive relief.

Swanson was the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction which was granted as to the Sabine Pilot and Whistleblower claims. The  Town later filed traditional and no-evidence summary judgment motions (on immunity grounds) as to the Texas Open Meetings Act declaratory judgment claims, which the trial court denied.  The Town took an interlocutory appeal, but Swanson kept filing motions. The trial court granted Swanson leave to file a motion for a permissive interlocutory appeal as Swanson asserted she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The court of appeals declined to issue the mandamus noting the trial court did not actually sign any orders and noted Swanson did not timely file an appeal and was not granted a permissive appeal. Court of appeals summary found here.

The court of appeals held allowing a jurisdictional challenge on immunity grounds via a no-evidence motion would improperly shift a plaintiff’s initial burden by requiring a plaintiff to “marshal evidence showing jurisdiction” before the governmental entity has produced evidence negating it.  It also held the entity must negate the existence of jurisdictional facts. After recognizing a split in the appellate courts, the Texas Supreme Court rejected the reasoning noting in both traditional and no-evidence motions, the court views the evidence in the light most favorable to the nonmovant.  Because the plaintiff must establish jurisdiction, the court could “see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.”  Thus, when a challenge to jurisdiction that implicates the merits is properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff will be required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact.  Such a challenge is proper using a no-evidence summary judgment motion.  Next, the Court held  the UDJA does not contain a general waiver of immunity, providing only a limited waiver for challenges to the validity of an ordinance or statute.  UDJA claims requesting other types of declaratory relief are barred absent a legislative waiver of immunity with respect to the underlying action. Under  TOMA, immunity is waived only “to the express relief provided” therein—injunctive and mandamus relief—and the scope does not extend to the declaratory relief sought. Thus, TOMA’s clear and unambiguous waiver of immunity does not extend to suits for declaratory relief against the entity. However, Swanson did seek mandamus and injunctive relief as well, which were not addressed by the court of appeals, even though argued by the Town. As a result, such claims are remanded to the court of appeals to address.

If you would like to read this opinion click here. Justice Lehrmann delivered the opinion of the Court. The docket page with attorney information is found here.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

Order granted County’s plea to the jurisdiction reversed by 13th Court of Appeals in Whistleblower Act case

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Leticia Perez v. Cameron County and Juan A. Gonzalez 13-17-00581-CV (Tex. App. – Corpus Christi & Edinburg, November 15, 2018).

This is a Texas Whistleblower Act case where the Thirteenth Court of Appeals reversed and remanded the order granting the County’s plea to the jurisdiction.

Perez worked as a deputy clerk in the Cameron County Clerk’s Office (“CCCO”). Perez asserts she had witnessed the elected clerk, Rivera, give kickbacks to CCCO vendors. She reported her concerns to the district attorney’s office and the FBI. Later, CCCO was audited for the problems which were the subject of Perez’s report to the district attorney and the FBI. Rivera allegedly “began a campaign of retaliation” against Perez which she believed was due to the report and her refusal to support Rivera’s successor. Perez filed a grievance against Rivera, who later terminated her. Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. She also brought suit for negligence against the county assistant attorney who advised her to file a grievance.  The County filed a plea to the jurisdiction, which was granted. Perez appealed.

First, Perez did not file a grievance after her termination, but the County’s grievance procedure was applicable only to active employees, not former employees. Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the procedure is not part of the required exhaustion of administrative remedies. The court held a terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees. Perez’s second point of error essentially stated that she properly plead a good faith reporting. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding “improper and illegal contracts” to CCCO’s vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in “kickbacks and contract rigging.”  Such meets the required elements for bribery and abuse of official capacity, which are both penal provisions. The court held Perez sufficiently alleged a good faith report of a violation of the law. Finally, Perez argued that the trial court accidentally dismissed her claims against Gonzalez (the attorney) as part of its ruling on the County’s plea to the jurisdiction. After granting the plea as to the County, the order then provided, “all requested relief not be granted herein is hereby expressly DENIED.” However, this unambiguous language does not finally dispose of Perez’s claims against Gonzalez. Because the order did not expressly dispose of Perez’s claims against Gonzalez or include a clear and unequivocal finality phrase, it did not dismiss those claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Rodriguez, Justice Contreras and Justice Benavides. The attorney listed for the County is Juan A. Gonzalez. The attorney listed for Perez is Javier Pena.

 

El Paso Court of Appeals holds limitations defense in Whistleblower Act case could not be raised in a plea to the jurisdiction

Sims v. City of Madisonville, 08-15-00113-CV, 2018 WL 4659572, at *1 (Tex. App.—El Paso Sept. 28, 2018, no pet. h.)

This case involves a Whistleblower Act claim against the City of Madisonville where the El Paso Court of Appeals reversed the granting of the City’s plea to the jurisdiction.

Sims was a police officer with the Madisonville Police Department from November 2004 until he was terminated on July 27, 2012. Sometime prior to termination Sims reported to Madisonville Chief of Police Charles May that he had learned Sims’ supervising officer, Sergeant Jeff Covington, and another officer were conspiring to plant narcotics in the vehicle of Sgt. Covington’s ex-wife. (Covington was in the middle of a custody battle with the ex-wife at the time.) Chief May did not utilize that information. Sims met with Chief May and Covington one day before his termination. Before the meeting, Sims accessed computer files through his own computer and discovered evidence against Covington. Sims claimed Chief May was surprised by Sims’ remote access of the computer files and concluded that Sims had violated the Department’s computer-use policies. Sims was terminated. Chief May asked the Texas Rangers to investigate Sims’ conduct. In August 2012, a grand jury indicted Sims for breaching computer security under the penal code, but the charge was later dismissed.  Sims challenged his F-5 “dishonorable discharge” designation at the State Office of Administrative Hearings ( “SOAH”). The SOAH hearing examiner found in favor of Sims, citing that the elements for a dishonorable discharge had not been met. Sims then filed suit under the Texas Whistleblower’s Act, 90 days after the SOAH hearing. Madisonville asserted that Sims’ two-year wait in filing his suit made it untimely. The trial court granted the plea to the jurisdiction and Sims appealed.

Sims asserted that “non-compliance with the Whistleblower Act’s limitations provisions is not jurisdictional, and that an affirmative defense of limitations cannot be raised in a plea to the jurisdiction but must be proven in summary judgment proceedings.” The court agreed. Madisonville’s plea did not address any specific jurisdictional facts of Sims’ case regarding waiver of sovereign immunity.  It merely asserted the claims were untimely and argued limitations was jurisdictional. The court recognized that under certain statutes, a limitations bar could be jurisdictional, especially if the timing were indispensable to a jurisdictional question. However, that is not the contention raised or presented to the trial court by Madisonville. The court held the statute of limitations defense can be raised as an affirmative defense but not in a plea to the jurisdiction in this case.  The order granting the plea was reversed and remanded.

If you would like to read this opinion, click here. Panel consists of Justice McClure, Justice Rodriguez and Justice Hughes. Opinion by McClure. The docket page with attorney information can be found here.

Sheriff’s deputy unable to sue for TCHRA, Whistleblower Act, and collective bargaining claims says Beaumont Court of Appeals

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Jefferson County, Texas v. Cherisse Jackson, 09-17-00197-CV (Tex. App. – Beaumont, July 26, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the Plaintiff’s claims.

Jackson sued the County alleging the sheriff and Deputy Werner with IA, discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had while viewing a security monitor. Jackson refused and asserts she was later demoted, then not given a lieutenant’s position. Jackson later filed an EEOC complaint asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (“TCHRA”). Six days after Jackson filed her EEOC claim, she sued the County under the Texas Whistleblower Act. The County filed a plea to the jurisdiction which the trial court denied. The County appealed.

The County asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It asserts Jackson was demoted following a Disciplinary Review Board hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the County’s plea support the County’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a Disciplinary Review Board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply.  However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the County demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she has brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for the County are          Kathleen M. Kennedy and Quentin D. Price.  The attorney listed for Jackson is Laurence Watts

A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action says Dallas Court of Appeals

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City of Dallas v. Christopher Worden, 05-17-00490-CV )Tex. App. – Dallas, July 3, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Whistleblower Act case where the Dallas Court of Appeals reversed the denial and dismissed the Plaintiff’s claims.

Worden is a police officer who responded to a suspicious-persons call at a Wal-Mart Supercenter parking lot regarding a group of juveniles. Multiple officers arrived and separated various suspects. During the stop, Officer Nicholas Smith and Sergeant Fred Mears told Worden to take the handcuffs off of a juvenile they had detained. He was unaware at the time that Smith had been threatening to fight the juvenile or that Mears was mocking him. When Worden realized the antagonism, he again handcuffed the juvenile and placed him in the squad car. Worden reported these events (the Juvenile Incident) to his supervisor and other investigators. Then, months later, Worden and other officers responded to a report of an active shooter in a vehicle.  Video of the confrontation reportedly showed Worden “body-slamming” the suspect against the side of his car and inappropriate force. Worden was placed on paid administrative leave during the IA investigation. Worden was later suspended for 10 days due to the Juvenile incident and an additional 15 days due to the active-shooter incident. Worden appealed internally. His record was cleared for the juvenile incident and his suspension for the active-shooter incident was reduced. After returning to work, Worden was reassigned to Communications.  He brought this Whistleblower Act case, based on the juvenile incident. The City filed a plea to the jurisdiction which was denied. The City appealed.

Under the Whistleblower Act, an employee can sue only for adverse employment actions. The test for adverseness under the Act is an objective one: the action taken “must be material, and thus likely to deter a reasonable, similarly situated employee from reporting a violation of the law.” Worden alleges that Communications had “a stigma attached to it,” and that it was “for ‘troubled’ or ‘problem’ officers,” but he offers nothing more than his personal opinion to support that judgment. A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action. Worden alleges further that his assignment to the Department’s Employee Development Program (EDP) was an adverse action taken in retaliation against him for his report concerning the Juvenile Incident. Worden testified that the EDP has a “negative connotation to it” because it operates under the Internal Affairs Department and he believes the program is a remedial one. However, the record established he was “boarded and identified as a candidate” for the EDP in June 2015, shortly after he returned to work from his suspension and was assigned to the Communications Division.  However, Worden did not do anything under the program and was not required to. It therefore is not adverse. A host of other complaints were determined to be minimal issues which did not rise to the level of an adverse action. Finally, the court held Worden failed to establish a causal connection between any alleged actions and his reports. The court declined to apply a conduit theory of liability due to alleged animus from other officers. As a result, the plea should have been granted. The case was reversed and rendered in favor of the City.

If you would like to read this opinion, click here. Panel consists of Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Justice Boatright.  The attorneys listed for the City are Barbara E. Rosenberg, Ayeh Barzin Powers and Sarah Mendola.  The attorneys listed for Worden are John Peter Hagan and Cynthia J. Lambert

Plaintiff’s pro se brief insufficient to preserve arguments on appeal holds Dallas Court of Appeals

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Gilberto Hernandez v. Dallas Independent School District, 05-17-00227-CV (Tex. App. – Dallas, April 18, 2018).

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

The Dallas Independent School District (“DISD”) employed Hernandez as an elementary school teacher for approximately sixteen years. Prior to the end of the 2013/14 school year Hernandez sued DISD, DISD executive director Jacqueline Lovelace, and other employees in federal district court alleging age discrimination, sex discrimination, constitutional violations, and retaliation under the Texas Whistleblower Act for reports he filed with the TEA, DISD Office of Professional Responsibility (OPR), and Child Protective Services (CPS).  He appeared pro se. While the case was pending, DISD issued a non-renewal of his teacher contract, which was later sustained by an independent hearing examiner. After multiple amendment attempts, the federal district court declined supplemental jurisdiction. Hernandez then filed a Whistleblower claim in state court. DISD filed a plea to the jurisdiction, challenging both the pleadings and the existence of evidence which the trial court granted. Hernandez appealed.

The court of appeals first noted Hernandez did not properly file his brief or cite to record references in support. As a result, the court held “he has preserved nothing for our review.” However, it considered the legal arguments regardless. In a multi-report situation, each report must be evaluated to determine if the complained-of conduct constitutes a violation of actual law and if the report was made to an appropriate law enforcement authority. However, Hernandez’ response to DISD’s plea did not address any of his reports or why the reports should be considered submitted to an appropriate law enforcement authority. Hernandez did not carry his burden. Further, he tried to bring in federal claims on appeal, but his state law petition only contained the Whistleblower Act cause of action.  Finally, Hernandez asserts the statute of limitations, while expired, was tolled for 30 days after dismissal by the federal court under 28 USC §1367(d).  However, the trial court did not dispose of the claims based on the statute of limitations, so §1367 is inapplicable. The order granting the plea was affirmed.

If you would like to read this opinion click here. Panel consists of Justice Lang, Justice Brown, and  Justice Whitehill. Memorandum Opinion by Justice Brown.  Hernandez appeared pro se. The attorneys listed for DISD are Carlos G. Lopez, Kathryn E. Long and Oleg Nudelman.

Texas Supreme Court holds open enrollment charter schools not subject to Texas Whistleblower Act

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Neighborhood centers INC. v. Doreatha Walker; from Harris County, 16-0897, — S.W.3d. –, (Tex. April 13, 2018)

The Texas Supreme Court held that an open enrollment charter school is not subject to the Texas Whistleblower Act.

Neighborhood Centers is an open enrollment charter school which hired Doreatha Walker as a third-grade teacher. She had been on the job only a few months when she complained mold in her classroom was making her and the children sick.  When the school did not respond the way she desired, she emailed her complaint to the Houston Health Department. She also wrote to the Texas Education Agency, asserting that the School had submitted falsified test scores to the Agency before Walker arrived. The next week, Neighborhood Centers terminated Walker. She filed a WBA claim against the non-profit which holds the TEA charter. The court of appeals ruled the WBA waived immunity for Walker’s claims. The Supreme Court accepted the petition for discretionary review.

The Texas Whistleblower Act (the “WBA”) prohibits a “local governmental entity”, including a public-school district, from retaliating against an employee for reporting a violation of law by the employer. The Texas Charter Schools Act (the “CSA”) authorizes the Commissioner of Education to grant eligible entities—usually private, tax-exempt nonprofits—charters to operate open enrollment schools as “part of the public school system of this state.”  Section 12.1056(a) of the CSA states “[i]n matters related to operation of an open-enrollment charter school, an open enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district”. Walker argued the WBA waived the school’s immunity and since it was part of the public school system, the WBA applied. The Court went through a historical listing of the WBA.  It then went through the history of the CSA. Generally, open-enrollment charter schools are “subject to federal and state laws and rules governing public schools”, but they are subject to the Education Code and rules adopted under it “only to the extent the applicability to an open-enrollment charter school . . . is specifically provided.” This gives them greater flexibility in providing education.  In 2015 the Legislature amended the CSA and added Section 12.1058(c) which states “[n]otwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity . . . is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school.”  As the WBA does not specifically apply to open enrollment charter schools, the fact a charter school is a governmental entity for other purposes is not relevant. The statutory sections listing charter schools as having the same immunity as a public school district only means they have immunity from applicable claims, but the WBA is not applicable specifically to charters.  The judgement was reversed and rendered.

If you would like to read this opinion click here. Justice Hecht delivered the opinion of the Court. Justice Justice Johnson delivered a concurring opinion.

Supervisor’s directive that employee “snitch” on anything going wrong is not “criminal activity” under the Texas Whistleblower Act

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Metropolitan Transit Authority of Harris County, Texas v. Ronald Williams 01-17-00724-CV (Tex. App—Houston, January 25, 2018)

This is a Texas Whistleblower Act suit where the First District Court of Appeals in Houston reversed the denial of the employer’s plea to the jurisdiction and rendered judgment for the Metro Authority.

Williams was a track maintainer for Metro. Williams complained to Metro’s compliance officer asserting a hostile work environment by his supervisor, Ratcliff.  Williams alleged Ratcliff instructed him to “snitch” on anyone or anything going wrong on the track and that when Williams expressed reservations Ratcliff became hostile. Later a incident occurred between Williams and another Metro employee, Fred Burton. Burton reported the incident to the Metro police the next day. Burton asserted Williams began to curse at him, calling him a derogatory name for a black person, and threatening to fight him off Metro property. Three other people were witnesses to the incident, including Ratcliff. Williams wrote a response to the incident but asserts Burton’s accusations were retaliation for Williams’ complaint against Ratcliff. Police charged Williams with assault by threat and Metro terminated Williams. On an aside, after Williams was terminated, another employee reported Ratcliff and Burton for theft of Metro property and Williams cooperated with the investigation.  Williams filed suit under the Texas Whistleblower Act. Metro filed a plea to the jurisdiction which the trial court denied. Metro appealed.

“Snitch” means to report on someone else. Williams’ attempt to change the meaning is unsupported in the text of his report. In the context of the entire passage, Ratcliff asking Williams to be his eyes and ears on the track conveys the idea that Williams would watch what other people were doing and report to Ratcliff. Nothing in this passage indicates that Ratcliff was engaged in any criminal activity and seeking Williams’s help in the process.  Simply because Williams was later charged with a crime by another employee does not mean Williams was retaliated against  for his report to the compliance officer. Metro produced evidence that another employee reported the criminal acts of Ratcliff and Burton after Williams was fired. Metro’s evidence established that an officer was assigned to investigate the allegations and that the first time the officer spoke to Williams was after he had been terminated. Metro could, therefore, not retaliate against him because of anything he provided the officer.

If you would like to read the opinion click here. Panel consists of Chief Justice Radack, Justice Higley, Justice Bland. Memorandum opinion by Justice Valdez. The attorney listed for Ronald Williams is Todd Webb. The attorneys listed for Metropolitan Transit Authority of Harris County are Daniel Nicholas Ramirez and Hao Pham Le.

Dallas Court of Appeals holds ex-police officer failed to establish his termination was in retaliation for whistleblower report of “pronoun confusion” in PD assault report

Michael Hackbarth v. University of Texas at Dallas  05-16-01250-CV (Tex. App— Dallas, January 4, 2018)

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the trial court’s granting of the University’s motion for summary judgment.

Hackbarth was hired as a police officer for the University after retiring from the Dallas Police Department after 28 years of service. While on the force, a specific student at theno  University alleged her boyfriend, Rana, assaulted her. The investigator, MacKenzie, closed the case by allowing the complainant to sign a statement of non-prosecution, but instructed Rana to have no further contact with the complainant. MacKenzie issued an alert to officers to the escalating violence between the couple and that both had refused to prosecute. It advised officers to “take appropriate action” if they made contact and an offense had occurred.  Several months later Hackbarth along with Lt. Montgomery, were dispatched to a disturbance at the University library involving both students. Both denied any altercation.  When MacKenzie reviewed Hackbarth’s report he recognized the names. After consulting with the prosecutor, MacKenzie wanted an arrest for Rana, but Hackbarth insisted no violation occurred.  MacKenzie instructed Montgomery to draft an affidavit in support of an arrest warrant which Hackbarth disagreed with some of the wording. Hackbarth reported the incident to the Chief of Police. The Chief investigated and determined “pronoun confusion” caused an error in the report. Hackbarth complained to the DA and Texas Rangers. Rana later pleaded no contest to Class C assault in municipal court. The University’s assistant director over police performed a month-long investigation into the entire department and determined the complaints were unfounded. However, he listed several other performance failures, which launched an additional investigation. This second investigation revealed Hackbarth violated several department policies at different times and his supervisors relinquished their control over him due to his dominating behavior. MacKenzie was disciplined for failing to arrest Rana initially months before. Hackbarth was terminated along with his immediate supervisor, Brushwiller. After exhausting an appeal panel made up of law enforcement officers from other agencies, Hackbarth filed this whistleblower lawsuit. The trial court granted the University’s motion for summary judgment, which Hackbarth appealed.

When determining whether an agency expresses a negative attitude toward a whistleblower report, courts focus on the words and conduct of the final decision-makers who ultimately approved of the adverse employment action. The assistant director of police at the University made no recommendation or even opinion as to discipline or action to the Chief. It was the assistant director, on his own, who initiated the second investigation with no direction from the Chief or University PD. In determining whether an agency engaged in retaliatory conduct, the plaintiff may present evidence the agency treated a similarly-situated employee differently than it did the plaintiff.  The two examples offered by Hackbarth of comparators (who were progressively disciplined for other infractions) were not true comparators. The assistant director never determined either of these two comparing officers conducted investigations that were “inadequate, and completely devoid of any customary police investigatory procedures” or had the attitude problems attributable to Hackbarth. Brushwiller was also terminated, but made no whistleblower reports.  No evidence presented creates a fact issue to any of these comparative facts. As a result, the trial court properly granted the summary judgment.

If you would like to read this opinion click here.  Panel consists of Chief Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Chief Justice Francis. The attorneys listed for Hackbarth are David K. Watsky and Bob Gorsky. The Attorney listed for the University Of Texas At Dallas is Andrew Harris.

TOMA posting inside City Hall with a “cancelled” stamp on an agenda controlled, regardless of other agendas says 13th Court of Appeals

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City of Donna, Texas, David Simmons, Jose Garza, Simon Sauceda, Irene Munoz and Sonia Gallegos v. Oscar Ramirez 13-16-00619-CV (Tex.App— Corpus Christi, November 9, 2017)

This is a Texas Whistleblower Act case where the Corpus Christi Court of Appeals affirmed the denial of the City Defendants’ plea to the jurisdiction.

Ramirez, the City’s former city manager, brought causes of action against the City under the Texas Whistleblower Act and the Texas Open Meetings Act (“TOMA”). He asserts he was terminated after he reported the Chief of Police and municipal judge for ordering him to waive certain municipal fees. He asserts the meeting where the City Council terminated him was not conducted properly under TOMA. He brought suit against the City and individual officials. The City Defendants filed a plea to the jurisdiction, which the trial court denied. The City Defendants appealed.

The 13th Court first addressed the TOMA violations. The City Charter had a special provision for notice and removal of the City Manager. The City Council could act to terminate at a properly posted meeting, but the City Manager had the right to request another meeting with charges. After the first meeting, Ramirez’ lawyer requested the charges and the second meeting. After it was scheduled, the lawyer requested it be reset and the City Secretary advised him it was reset. And while she provided txts to the council members about the reset and stamped “cancel” on the agenda inside City Hall, the agenda posted outside City Hall did not change.  The meeting proceeded as originally scheduled and the City Council affirmed the termination. The court held Ramirez had standing to sue under TOMA as an interested member of the public.  Under TOMA, a stamp of “canceled” tells the public the meeting would not be held. The fact the notices outside City Hall did not change did not save this defect. The language of §551.050 of TOMA specifically states a posting must exist in the City Hall.  As a result, the trial court did not err. Under the Texas Whistleblower Act, the elements of a  claim must be included in the pleadings so that the court can determine whether they sufficiently allege a violation and therefore waive immunity. The Texas Constitution states, in relevant part, that an entity may not “lend its credit or to grant public money or thing of value in aid of, or to any individual…” Tex. Const. art. III, §§ 50, 52(a).  Additionally, while not expressly listed by statute, the factual allegations trigger various penal statutes as well, including abuse of official capacity under Tex. Penal Code §39.02(a)(West 2015). Ramirez asserts he was ordered to waive and/or discount certain bills and/or charges for certain city services, e.g., sewer and water bills, fees for pavilion rental at the city park, and/or cemetery fees. Such actions, if true, could possibly violate both the Texas Constitution and the penal code. Recognizing that Ramirez’s burden of proof at this stage does not involve a significant inquiry into the substance of his Whistleblower claim, the court held he properly pled a claim. Ramirez’s Whistleblower and TOMA claims were brought solely against the City, while Ramirez’s declaratory judgment action was brought solely against certain appellants in their individual capacities. Since the individuals cannot claim the City’s immunity as a defense for a plea, their part of the appeal is not authorized under the interlocutory appeal statute raised. Tex. Civ. Prac. & Rem. Code §51.014(a)(8)(West 2015).  As a result, the trial court did not err in denying the plea.

If you want to read this opinion, click here. The panel consists of Justice Valdez Justices, Conteras, and Hinojosa. Justice Hinojosa delivered the opinion of the court. To see the attorneys listed for the Appellants and Appellee click here.

Employer could not negate a negative so lost on plea to the jurisdiction in Whistleblower case.

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Billy D. Burleson, Jon J. Mark, and Craig A. Bennight v. Collin County Community College District, 05-15-01361-CV(Tex. App— Dallas, February 8, 2017)

In this Whistleblower Act case, the Dallas Court of Appeals reversed the granting of the College’s plea to the jurisdiction as a fact question exists within the record.

Three police officers, Billy Burleson, Jon Mark, and Craig Bennight (collectively, the “Officers”) were employed by the Collin County Community College District (“College”). Bennight and Burleson were investigating the theft of books from the College bookstore and assert the investigation revealed possible corruption regarding bookstore funds and operations. When they reported their suspicions to the Police Chief of the College they allege they were ordered to close their investigation. Mark asserts he also filed a complaint with the Chief because he was ordered to lock an intoxicated person in a closet for four hours. After their internal grievance procedures were denied, they all filed suit under the Texas Whistleblower Act. The College responded with a plea to the jurisdiction asserting no adverse personnel action exists and they did not properly follow the grievance procedures. The trial court granted the plea and the Officer’s appealed.

The court first held the College improperly tried to supplement the clerk’s record with an addendum to the plea, so such evidence was not considered. Next, the College did not challenge whether the Officers’ petition states sufficient jurisdictional facts and the College’s plea evidence provides the relevant evidence. Thus, the issue is whether the College’s evidence conclusively negates the Officers’ allegations of an adverse personnel action.  As to Mark, six days after his report to the Police Chief, he was “written up” with an “Employee Coaching Form”  which contains (under the Constructive Feedback section) the phrase “describing the job responsibilities or behavior that need to change and how the employee needs to change to meet expectations. (Note: Employee Coaching is not considered formal discipline. However, an employee’s failure to meet and sustain acceptable performance or behavior may result in formal disciplinary action in the future.)”  Examining the reprimand in context, the write-up could constitute an adverse employment action. As to Bennight, he was reassigned to a deep night shift, which he asserts he could not perform the duties of an investigator because he could not file cases when the District Attorney’s Office is closed. He was also transferred to a different campus which he asserts was less prestigious. The College did not present evidence the transfer was less prestigious or that he could still file with the DA, therefore was not able to produce evidence no adverse personnel action existed. For Burleson, he was also transferred to a new shift. The College asserts that while he was informed he would be sent to a new shift, that change never happened. However, the evidence relied upon by the College is not before the court, therefore the court held the College failed to negate the adverse employment action. As a result, the trial court improperly granted the plea.

If you would like to read this opinion click here. The Panel includes Justice Bridges, Justice Lang-Miers, and Justice Whitehill. Justice Whitehill delivered the opinion of the court. Attorney for the Appellant: Chad M. Ruback. Attorney for the Appellee: Charles J. Crawford.