Report to internal IA department of school district not protected by Whistleblower Act, but report to PD officer was

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Anita Connally v. Dallas Independent School District, 08-15-00310-CV ( Tex. App— El Paso, December 21, 2016)

This is a Texas Whistleblower Act case where the El Paso Court of Appeals affirmed-in-part and reversed-in-part the granting of the school district’s plea to the jurisdiction. This is a 32 page opinion.

DISD hired Connally in 2009 as its Director of Compliance, with part of her duties being to make recommendations for University Interscholastic League rules. In order to prevent illegal recruiting of student-athletes, the UIL requires the filing of a Prior Athletic Participation Form (“PAPF”) to ensure that a student-athlete transferring into a new high school actually lives within the new school’s attendance zone. This triggers a host of other forms to be signed and submitted. Connally pointed to several instances of what she categorized as inaccurate or fraudulent forms. She was not in charge of reviewing the forms so had no power to enforce compliance. Connally reported her suspicions of wrongdoing at various times to three departments within DISD: (1) the Office of Professional Responsibility (OPR); (2) the Internal Audit Department (IA); and (3) the Professional Standards Office (PSO) as well as to (4) the Chief and Assistant Chief of the DISD police department; and (5) the PSO’s manager, Jeremy Liebbe, who was a commissioned police officer and a former detective with the DISD police department.  Connally participated as an expert on UIL rules during the investigations. PSO issued a detailed report in which it confirmed virtually all of Connally’s reports of wrongdoing, including falsification of government forms.  Sometime later, Connally was terminated for reported performance issues. She sued under the Texas Whistleblower’s Act. DISD filed a plea to the jurisdiction which was granted.

The court first held none of the departments (OPR, IA, and PSO) were appropriate law enforcement authorities as they only had the power for internal review against employees. None of these departments had any outward facing authority to investigate criminal law violations against third parties. Likewise, the PSO manager, Liebbe, was not in the role of a police officer while he acted as a manager and had no outward facing authority regarding PSO roles. No law authorizes an individual police officer who is commissioned through a police agency, the unfettered authority to conduct an investigation of any nature he chooses without the permission or authority from the agency. Even though Liebbe briefly held his commission with the DISD police department after his transfer, there is nothing in the record to suggest that the DISD police department had authorized him to continue to investigate criminal law violations. The Texas Supreme Court made it clear that it is the governmental arm or entity to which the report is made that is the key focus, and that any report must be made to an individual within that governmental arm or entity. However, DISD police department has the authority to investigate virtually all violations of criminal laws occurring within its jurisdictional boundaries. While the UIL Rules are not criminal in nature, the falsification of a governmental record is a violation of §37.10 of the Texas Penal Code. This falls under the DISD PD authority, which is outward reaching. Therefore, the granting of the plea is sustained as to all reports except the falsification reports to the Chief and Assistant Chief. The claims associated with those reports are reversed and remanded for trial.

If you would like to read the opinion click here. The Panel includes Chief Justice McClure , Justice Rodriguez, and Justice Hughes. Justice Hughes delivered the opinion of the court. Attorneys for the appellant: Giana Ortiz and Daniel A. Ortiz . Attorneys for the Appellee: Kathryn Long and Carlos G. Lopez

 

City initiated termination procedure by suspending employee, so no causal link for report made after suspension but before termination letter

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David Jones v. City of Port Arthur, Texas, 09-14-00442-CV (Tex. App— Beaumont, November 17,2016)

Jones was employed as an operator of a residential garbage truck with the City of Port Arthur. After he was terminated he sued under the Texas Whistleblower Act. Essentially, Jones reported his truck was leaking potentially flammable hydraulic fluid to the City’s Public Works Department and the Solid Waste Management Division Superintendent.  However, he was told the leak was not a problem, the minor repair fixed it and he needed to drive the truck.  He refused, asserting the truck was unsafe to operate on the roadway. He was suspended until his ultimate termination. Jones asserts that during his suspension he reported the violation to OSHA and TCEQ.  The trial court granted the City’s plea to the jurisdiction and motions for summary judgment. Jones appealed.

To be a “good faith” report, an employee must not just believe the entity was an appropriate law enforcement authority under the Act, but his belief must be “reasonable in light of the employee’s training and experience.” He must show that a reasonably prudent public employee in similar circumstances would have believed he had made the report to an appropriate authority and that the report was a violation of law. Jones testified he had obtained two associates degrees, one in management development and the other in process technology. He served in the United States Marine Corps and was assigned to a supply unit.  He does not have training as a mechanic. The court held Jones failed to present evidence that it was reasonable, in light of his training and experience and the circumstances presented, for him to believe the conduct he reported was a violation of the law.  The court held his report to the City Manager did not qualify and neither did any of the internal reports made to different departments. Even if a report is made in good faith, there must be a causal link. The plaintiff must show that the person who took the adverse employment action knew of the employee’s report of illegal conduct. Both reports to outside agencies were made after his supervisor send Jones home indefinitely and initiated termination proceedings. The start of the adverse action was the indefinite suspension, not the final date the termination letter was signed.   Further, no evidence exists the decision maker was aware of the complaints to OSHA or TCEQ prior to the termination letter. As a result, no causal connection exists.

If you would like to read this opinion click here. The Panel includes Chief Justice McKeithen, Justice Kreger, and Justice Horton. Justice Kreger delivered the opinion of the court.  Attorney listed for Jones is Stephen P. Webb. Attorney for the City is listed as Frank D. Calvert.

Austin Court of Appeals holds supervisor without law-enforcement powers can still qualify as appropriate law enforcement authority for Whistleblower Act purposes

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Rebekha Montie v. Bastrop County,03-16-00123(Tex. App— Austin, October 19, 2016)

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

Rebekha Montie was terminated from her job as a manager for an animal shelter in Bastrop County.  She alleged she was fired after she reported her supervisor, Diane Mollaghan, was guilty of cruelty to animals. Specifically, Montie urged that Mollaghan failed to timely euthanize shelter animals that were injured or ill and failed to maintain the animals at the shelter by not providing them with adequate water and food in violation of Tex. Penal Code §42.092 (prohibiting cruelty to non-livestock animals). The County filed a plea to the jurisdiction. After a trip up and back from the Court of Appeals, the Austin Court of Appeals ordered Montie have the opportunity to replead to demonstrate jurisdiction. After her amended pleading the County filed an amended plea, which the trial court granted. Montie appealed.

Montie first asserts the trial court should have stricken the affidavit of Littleton who is the Chief Deputy of the Bastrop County Sheriff’s Office. The court analyzed the argument but ultimately assumed the affidavit was considered since its presence or absence does not change the ultimate answer to the jurisdictional question.

The court then held Montie properly pled violations of the law as the factual allegations of cruelty to animals, if proven true, would violate Penal Code §42.092. Next, the evidence and pleadings established Montie complained to Mollaghan, who was a department head.  Essentially, Montie complained to Mollaghan about Mollaghan.  According to the court “[t]he supreme court has explained that the employee to whom a report is made must work for an entity with ‘outward-looking law-enforcement authority[]’” and simply because an individual is a supervisor does not mean they cannot also be an appropriate law enforcement authority. Montie has alleged that “she made the report to Mollaghan, that Mollaghan was the director for the animal shelter, and that Mollaghan was the supervisor for animal-control officers who investigate violations of and enforce the animal-cruelty laws that Montie contends were violated. Although Bastrop County asserts Montie’s own allegations establish that Mollaghan would have had to pass the complaint to one of her subordinate animal-control officers for investigative purposes and for possible citations, the hypothetical examples presented by the supreme court indicate that a report to an employee who does not have law-enforcement powers but works for an entity with outward-looking enforcement powers can qualify for protection.”  At the plea stage, based on the allegations in the petition, Montie properly asserted her supervisor was an appropriate law enforcement authority. As a result, the plea should not have been granted.

If you would like to read this opinion click here. The Panel includes Justice Puryear, Justice Pemberton and Justice Field. Justice Puryear delivered the opinion of the court. Attorney listed for Montie is Mr. Eric B. Storm. Attorney listed for the County is Mr. Charles S. Frigerio.

Mere inquiry into grievance procedure does not toll statute of limitations in Whistleblower case

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Irene Saldivar v. City of San Benito, Texas, 13-15-00387-CV( Tex. App— Corpus Christi , September 29,2016)

This is a Whistleblower Act case were the Thirteenth Court of Appeals affirmed the granting of the City employer’s summary judgment motion.

Saldivar was a Communications Specialist for the City of San Benito Police Department. Saldivar asserts various supervisors requested Saldivar to run criminal history checks on various City employees. She refused to do so and told her supervisors that criminal histories could only be conducted on police applicants and civilian staff that worked in the police department.  Saldivar was demoted and asserts her replacement conducted what she viewed as unauthorized criminal background checks. She notified the Texas Department of Public Safety. Saldivar was then subject to an internal investigation three months later, but the opinion did not address the grounds. As a result of the investigation, the City terminated Saldivar. Saldivar inquired as to the procedures to appeal her termination internally and was provided the grievance procedures. Two years later, Saldivar sued under the Texas Whistleblower Act. The City filed a summary judgment motion asserting Saldivar failed to file suit within ninety days of the termination. The trial court granted the City’s motion and Saldivar appealed.

A public employee who seeks relief under the Texas Whistleblower Act must sue not later than the 90th day after the date on which the alleged violation: (1) occurred; or (2) was discovered by the employee through reasonable diligence. TEX. GOV’T CODE ANN. § 554.005. The ninety-day window to file suit will normally “start to run when the cause of action accrues—in retaliation actions, when the retaliatory action occurs.” This timeframe can be tolled if the employee is pursuing relief under the appropriate grievance system. Saldivar responded that the tolling provision is triggered as soon as she gives “reasonable notice” of her intent to follow the grievance procedure, but she need not do anything else. The court disagreed. She waited more than two years after her termination to bring suit. When Saldivar asked for the grievance procedures, the City provided it but also informed her that she could not grieve or appeal a termination by the City Manager. Saldivar’s only recourse at that point was to file suit. A grievance system that does not apply to an employee’s adverse employment action cannot be used to toll.  As a result, the trial court properly granted summary judgment based on the statute of limitations.

If you would like to read this opinion click here. The Panel Includes Chief Justice Valdez, Justice Garza and Justice  Longoria. Justice Longoria delivered the opinion of the court. The attorney listed for Saldivar is Peter M. Zavaletta.  The attorney listed for the City is J. Arnold Aguilar.

 

 

Town’s Interlocutory appeal timely under scheduling order, but permissive appeal by Plaintiff was untimely

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Sarah Swanson v. Town of Shady Shores, 02-15-00351-CV (Tex.App— Fort Worth, August 18,2016)

This is a Texas Whistleblower Act, Texas Open Meetings Act, due process, free speech and Sabine Pilot case, but the main thrust of the appeal is litigation/appellate procedure. So, this case will be of primary focus to litigators.

Swanson is the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction on the Sabine Pilot and Whistleblower Act claims. After Swanson amended, the Town filed traditional and no-evidence summary judgment motions for the remaining claims. The trial court granted the Town’s plea to the jurisdiction and Swanson did not file an interlocutory appeal. In separate orders, the trial court denied the Town’s traditional and no-evidence motions for summary judgment.  The Town filed an interlocutory appeal and asserted the automatic stay was in place. On October 30, 2015, the Town filed a motion requesting the trial court to enter an order acknowledging that all of the trial court proceedings had been stayed since Swanson was continuing to file motions and request hearings. According to the Town, during one hearing, the trial court granted Swanson leave to file a motion for a permissive interlocutory appeal. 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 San Antonio Court of Appeals stayed all proceedings during the appeal.

In its mandamus petition, the Town asks this court to direct the trial court to stay the underlying proceedings and to enter an order voiding all actions taken in the trial court since the Town filed its notice of interlocutory appeal. The Town is appealing the denial of the summary judgment motions on immunity grounds. As a result, the automatic stay applies. The automatic stay is only available, however, if the jurisdictional motion was filed and a hearing requested within a defined timeframe. The scheduling order required all dispositive motions be filed and heard by October 1, 2015. The Town filed its motions for summary judgment and a hearing was set for September 23, 2015. Even though the motions were not heard until October 21, the motions were filed and a hearing was requested prior to October 1. Thus, the automatic stay was triggered. The trial court abused its discretion in conducting hearings in violation of the automatic stay.  However, the trial court did not sign any orders. Therefore, there is nothing in the record indicating any relief can be granted, even though a violation occurred in this case. The mandamus is therefore denied.

Swanson claims that regardless of the fact she filed her appeal over forty days after the order granting the Town’s plea to the jurisdiction was signed, her appeal is timely under rule 26.1(d), which provides that “if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.”  Swanson asserts that 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. However, Swanson cites no cases nor did the court find any authority supporting her contention that she can utilize Rule 26.1(d) in this way.  As a result, her appeal is untimely. Swanson also filed a petition for permission to appeal, but it did not contain an order signed by the trial court granting her permission to appeal (mainly because the court of appeals stayed any further proceedings). Swanson failed to comply with the requirements for bringing a permissive appeal from an interlocutory order because she failed to obtain a written order granting permission to appeal.

If you would like to read this opinion click here. The Panel includes Justice Gardner, Justice Walker and Justice Gabriel. Justice Gardner delivered the opinion of the court. Attorney for the Appellant: Grace a. Weatherly. Attorney for Appellee: Thomas P. Brandt.

Failure to give affirmative defense in jury instruction was harmful error in Whistleblower Case says Fort Worth Court of Appeals

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Fort Worth Independent School District v. Joseph Palazzolo, 02-14-00262-CV (Tex. App– Fort Worth, July 7, 2016)

This is a Whistleblower case where the Fort Worth Court of Appeals reversed a jury award for the employee and ordered a new trial.

Palazzolo was an assistant principal at FWISD’s Arlington Heights High School (“AHHS”). Menchaca, the Director of FWISD’s Office of Professional Standards (“OPS”), initiated an investigation after receiving reports from several different sources, including Palazzolo, regarding alleged wrongful conduct at AHHS.  Palazzolo was responsible for receiving reports from staff of improper conduct and presenting them to OPS. Dr. Sylvia Reyna, FWISD’s Chief of Administration, began to assist Menchaca with the investigation. According to Dr. Reyna, “there had been some egregious mismanagement of the school.”  However, Dr. Reyna then submitted a report to FWISD’s Board of Education recommending that Palazzolo’s employment with FWISD be terminated for good cause based upon six grounds that were unrelated to his reports of wrongdoing at AHHS. The Board voted 6 to 3 to terminate Palazzolo’s employment.   Palazzolo brought suit under the Texas Whistleblower Act. A jury found in Palazzolo’s favor. It awarded him over $2,000,000. FWISD appealed.

FWISD’s primary argument is the trial court failed to issue a jury charge for the affirmative defense of termination for unrelated reasons consistent with Government Code 554.004(b).  The record showed FWISD filed a proposed jury charge before trial that contained a question in substantially correct form implicating the §554.004(b) affirmative defense, so it preserved error on the objection.  FWISD never made or tendered a written request for an instruction on its affirmative defense, only a written question. The distinction is significant for preservation purposes because an inferential rebuttal issue may only be submitted through a jury instruction and not as a question. However, the court held it could not agree with Palazzolo that the legislature intended §554.004(b) to operate as an inferential rebuttal issue. The legislature categorized the section as an affirmative defense, which is distinctly different than an inferential rebuttal issue for jury charge purposes. Under §554.004(b), FWISD had the burden to prove that it would have terminated Palazzalo based solely on information unrelated to his reports. But if it established the required elements, it is relieved of liability. The trial court is required to submit questions raised by the written pleadings and the evidence.  FWISD properly pled the affirmative defense and should have been given the opportunity to submit a question to the jury on its application. The best practical approach is to set out the defense in clear and conspicuous terms, leaving no doubt that the charge properly conveyed the defense for the jury’s consideration. Failure to provide the instruction and question was harmful error. However, the court refused to render in FWISD’s favor outright as it noted conflicting evidence existed in the record so the real question is one for the jury. The judgment was reversed and the case remanded for a new trial.

If you would like to read this opinion click here. Panel includes: Justice Dauphinot, Justice Meier, and Justice Suddderth. Opinion delivered by Justice Meier.  Attorney for Appellant: Thomas P. Brandt. Attorney for Appellee: Paul F Wieneskie.

Entity which can pull grants for guideline non-compliance is not an appropriate law enforcement authority under Whistleblower Act

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Donna Pulkrabek v. The University of Texas Southwestern Medical Center 05-14-01341-CV (Tex. App.- Dallas, May 25th 2016) and Thobe v. The University of Texas Southwestern Medical Center 05-14-01450-CV (Tex. App.- Dallas, May 25th 2016)

These are companion Texas Whistleblower Act cases in which the Dallas Court of Appeals affirmed the granting of the Medical Center’s pleas to the jurisdiction.

Pulkrabek was employed by UTSW as manager of its Institutional Animal Care and Use Committee. As such, Pulkrabek’s job duties included monitoring compliance with National Institutes of Health guidelines and reporting any violations to the NIH Office of Laboratory Animal Welfare (OLAW). Thobe was hired by UTSW as a safety specialist. Thobe alleged UTSW committed several violations such as unauthorized surgeries and procedures on animals.  Thobe and Pulkrabek raised complaints regarding improper animal testing in violation of OLAQW to the Dean of Basic Research, the highest ranking UTSW official in charge of animal research. Six weeks later, after receiving no resolution to their complaints, Thobe and Pulkrabek raised them with the Office of Laboratory Animal Welfare (OLAW), an office within the National Institutes of Health (NIH) Within the week after her report to OLAW, UTSW placed Pulkrabek on administrative leave and ultimately terminated her. Three months later, UTSW terminated Thorbe citing inappropriate use of his workplace computer and divulging confidential information. Both filed suit under the Texas Whistleblower Act. The Medical Center filed a plea to the jurisdiction in each case which was granted. They appealed.

The specific law the claimant alleges was violated is critical to the trial court’s determination whether the report was made to an appropriate law-enforcement authority. In 1985, Congress enacted the Health Research Extension Act of 1985 (“HREA”). Under HREA if the Director of NIH determines that the conditions at a research entity receiving a grant, contract, or cooperative agreement do not meet the applicable guidelines the Director must suspend or revoke the grant or contract. However, the statute does not identify OLAW or its enforcement or regulatory powers, if any. HREA grants authority through the Director of NIH, to establish guidelines and authorizes the Director to revoke grants or contracts. The record does not show that OLAW has authority to regulate under or enforce the law allegedly violated, HREA. Although the Plaintiffs may have subjectively believed the Public Health Policy was a law and that OLAW is an appropriate law-enforcement authority, that belief must be objectively reasonable. Since the guidelines are not laws, OLAW is not an appropriate law enforcement authority and a subjective believe in either is not reasonable. The pleas were properly granted.

 

To read the opinions click here and here. Panel consists of Justices Francis, Evans and Stoddart. Memorandum Opinion issued by Justice Evans then Justice Stoddart. Attorneys for The University of Texas Southwestern Medical Center are listed as James E. Davis, Charles Roy, Yvonne Bennett, Nancy K. Juren, William T. Deane, Maria Calaf, and Angela Veronica Colmenero.  Attorney listed for Donna Pulkrabek and Patrick Thobe is Joseph Wesley Dauphinot.

 

Employee not entitled to injunctive relief in Whistleblower Act case

Beaumont Independent School District v. Shaunte Guillory 09-15-00531-CV (Tex. App. – Beaumont, May 12th 2016)

This is a Whistleblower Act case where a teacher unsuccessfully tried to get a temporary injunction to prevent retaliation (i.e. a vote by the school board to terminate her.)

Guillory was an principal at Jones-Clark  Elementary School. An investigator from the Texas Education Agency (“TEA”), was investigating the previous principal for test cheating and Guillory cooperated fully. According to Guillory’s petition, “[t]hat incident clearly sparked the successive acts of retaliation against Guillory.” Guillory asserted she met and was interviewed an investigator from the District Attorney’s office, who was inquiring about the previous principal and improper testing during the STAAR exam. On the same date, she received a letter from BISD which stated that she was reassigned to King Middle School as an assistant principal and her annual salary would be cut. Guillory asserted claims for retaliation under the Texas Whistleblower Act and retaliation for exercise of free speech. She requested a temporary restraining order, temporary injunction, and permanent injunction contending the loss of her employment would “cause irreparable financial loss.” BISD asserted it had been investigating alleged testing improprieties since the 2012-2013 school year.  BISD also asserted it was unaware she made any reports to investigators. Finally it asserted she was reassigned to an assistant principal position at a different campus, and that the “decision was made after learning that Jones-Clark Elementary School would receive a ‘Needs Improvement’ rating for the second consecutive year based on the campus’[s] STA[A]R test results.”  BISD filed a plea to the jurisdiction. The trial court conducted a lengthy hearing on Guillory’s application for temporary injunction. The trial court signed an order granting Guillory’s application for temporary injunction. BISD appealed.

The court first examined the testimony and pleadings present as held Guillory has failed to establish that she suffered retaliation under the Whistleblower Act as a result of making a report since no one knew she reported anything to law enforcement. Further, since Guillory did not raise retaliation in her administrative hearing, she cannot raise it in the judicial review phase. The trial court enjoined BISD from taking action to propose termination or nonrenewal of Guillory’s employment. Because the trial court lacked subject matter jurisdiction over Guillory’s two causes of action  the trial court likewise lacked subject-matter jurisdiction to enter a temporary injunction against BISD.

If you want to read the opinion please click here. Panel: Chief Justice McKeithen, Justice Kreger and Justice Horton. Opinion issued by Chief Justice McKeithen. Attorneys for Shaunte Guillroy are Iain Gordon Simpson and Larry Watts. Attorneys for Beaumont Independent School District are Jonathan Griffin Brush and Clay T. Grover.

Plaintiff’s amended pleading and response filed after signed order granting plea is issued should have warranted reconsideration says 1st District Court of Appeals

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Ronald Williams v. Metropolitan Transit Authority 01-15-00299-CV (Tex. App. – Houston [1st Dist.], March 22, 2016).

This is a Texas Whistleblower Act case where the 1st District Court of Appeals reversed the granting of a plea to the jurisdiction by the Metropolitan Transit Authority (“Metro”).

Williams alleged that he worked for Metro for nine years as a maintenance worker. Williams claimed that another Metro employee, R. Ratcliff, requested him to be complicit in carrying out criminal acts while on the job. No further explanation of what they are was mentioned in the opinion.  Williams claimed that, after he notified Metro about the treatment, Metro employees further retaliated against him by alleging that Williams had assaulted them.  Ultimately Williams was terminated. Williams sued for Whistleblower claims. Metro filed a plea to the jurisdiction which the trial court granted. Williams appealed.

Part of the case turns on whether Williams reported to an appropriate law enforcement authority. Part of the case is procedural as the trial court granted the plea, but before notice of the order Williams filed a Third Amended Petition and amended response asserting he reported claims to two Metro police officers. After analyzing the procedural history, the court held Williams did not need to file a motion for new trial in order to amend his pleadings and supplement his response to the Plea. “Texas Courts have signaled a preference for allowing a plaintiff an opportunity to amend before dismissing a suit in response to a plea to the jurisdiction.” And while Williams could have waived the preference by not acting (as many others have done), Williams did act by filing the amended petition and response the same day as the hearing. Williams should be permitted to return to the trial court, so the order granting the plea is reversed. [Comment: while typically a party would need to file some procedural mechanism such as a motion to reconsider or motion for new trial in order to submit additional evidence or pleadings, the court seems to indicate that is not the preferred case when dealing with a plea to the jurisdiction.]

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Keyes and Justice Higley. Memorandum Opinion by Justice Higley. The attorney listed for Williams is Todd Webb.  The attorney listed for Metro is Hao Pham Le.

Texas Supreme Court holds OIG attorney’s report to OIG supervisor is a report to a proper law enforcement authority under Whistleblower Act

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MCMILLEN v. TEXAS HEALTH & HUMAN SERVICES COMMISSION, 15-0147 (Tex. February 26, 2016)

This is a Texas Whistleblower Act case where the Texas Supreme Court remanded the case back to the trial court holding McMillem made a report to a  proper law enforcement authority – his own.

Michael McMillen, an attorney, served as Deputy Counsel for the Commission’s Office of the Inspector General (“OIG”). McMillen was asked to research the legality of the Commission’s practice of obtaining payments from certain recipients of Medicaid benefits. McMillen prepared a memorandum concluding the Commission’s actions lacked legal justification. His memorandum, however, cited neither statutes nor case law.  He submitted the memo to an OIG supervisor as well as the OIG Internal Affairs Division and the Commission’s Executive Commissioner. Several months later McMillien was terminated. He brought suit under the Texas Whistleblower Act. The Commission filed a plea to the jurisdiction which the trial court denied but the Court of Appeals reversed holding McMillien did not report to a proper law enforcement authority.

To be a report in “good faith,” an employee’s belief about the reported-to authority’s powers must be “reasonable in light of the employee’s training and experience.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002). An authority’s power to discipline its own or investigate internally does not support a good-faith belief.  To qualify the authority must have outward-looking powers. Under 42 U.S.C. § 1396p(b)(1) it prohibits any “adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan,” with limited exceptions under which “the State shall seek adjustment or recovery.” Based on the record, the Court held the report qualifies as a report under this section. And since the Commission, “through [its] office of inspector general, is responsible for the investigation of fraud and abuse in the provision of health and human services and the enforcement of state law relating to the provision of those services”  McMillen’s report was to the property law enforcement agency. This authority extends far beyond the Commission itself.  If someone is to make such a report, it would be to the OIG. To the extent other Texas agencies violate §1396p(b), the OIG also has power to enforce the law. The fact it was an internal investigation does not change the fact the OIG is the proper authority to make any such report and the OIG is the agency with power to enforce such laws.

If you would like to read this opinion click here. Per Curiam opinion. The attorneys listed for McMillen are  Manuel Quinto-Pozos  and Philip Durst.  The attornes listed for THHSC are David G. Halpern and  Shelley Nieto Dahlberg.

Former IT employee’s termination for performance problems was not disciplinary matter, so employee had to follow grievance procedure before suing under Whistleblower Act

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Wilfrido Mata v. Harris County, Texas, 14-14-00363-CV (Tex. App. – Houston [14th Dist.], February 18, 2016)

This is a Texas Whistleblower Act case where the 14th Court of Appeals affirmed the granting of a plea to the jurisdiction based on the Plaintiff’s failure to comply with administrative prerequisites.

Mata was employed by the Harris County Sheriff’s Office as the Director of Infrastructure Technology. In September 2009, Chief Administrative Officer John Dyess informed Mata that the Sheriff’s Office would undergo a security audit of its computer systems. Sheriff Adrian Garcia convened a meeting to discuss the audit. Mata told the meeting attendees that the “Harris County Infrastructure Technology Office” and its director, Bruce High, should be involved in the security audit. Dyess objected to informing Director High. Mata contends he objected to this “unlawful intrusion into the Harris County computer system,” but Sheriff Garcia and Dyess ordered him to cooperate. Mata informed the FBI who had several meetings with him. Mata later informed Dyess about his cooperation with the FBI and his belief the audit was unlawful. Mata was fired within a year of the meeting, but did not initiate an administrative appeal or grievance. Mata sued but his claims were dismissed when the trial court granted the County’s plea to the jurisdiction. Mata appealed.

The Harris County Sheriff’s Office Department Manual contains procedures relating to appealing or grieving a termination, but not a disciplinary matter.  The uncontroverted evidence demonstrated Mata was terminated because of continued performance problems.  “Dyess testified that Mata’s termination was a business decision; he was fired because he could not perform his job.”  As a result, it was not a disciplinary matter.  Because procedures were available and Mata did not initiate the remedies prescribed by the Sheriff’s Office, the trial court lacked jurisdiction to hear his whistleblower suit.  The court did note Mata presented an affidavit of a former employee attesting to the inapplicability of the grievance procedure, but held the affidavit contained legal conclusions and nothing else. It was not competent evidence.

If you would like to read this opinion click here. Panel: Justice Boyce, Justice Busby and Justice Brown. Memorandum Opinion by Justice Boyce.  The attorney listed for Mata is John Denholm II.  The attorneys listed for the County are Bruce S. Powers and F. Clinton Gambill, II.

Plea was properly denied due to need to develop record; further split in courts of appeal regarding jurisdictional nature of SOL continues

Beaumont Independent School District v. George W. Thomas Jr. 09-15-00029-CV (Tex. App. – Beaumont, January 28, 2016).

This is a Texas Whistle Blower Act case where the Ninth Court of Appeals affirmed in part and reversed in part the denial of a plea to the jurisdiction filed by the Beaumont Independent School District (“BISD”).

Thomas was an In School Suspension (“ISS”)  teacher at BISD.  The Principal had informed Thomas that he was on the payroll until the Summer but that is when the new directives were given. Thomas asserts he was told to not have ISS students sign in at the classroom, but he ignored that instruction and continued to require a sign-in sheet.  Thomas asserts he reported the order to require a different type of sign-in process to the Texas Education Agency (“TEA”) and local law enforcement as a form of attendance fraud. Thomas asserts in the fall term he was told he was not on the payroll for that term.  BISD filed a plea to the jurisdiction asserting Thomas does not hold a teaching certificate, was an employee at will, and it was entitled to immunity.  Further Thomas’ claims were barred by the statute of limitations. The trial court denied the plea and BISD appealed.

The court first held Thomas’ Sabine Pilot claims for wrongful-discharge are barred by governmental immunity.  Second, the Texas Whistleblower Act requires an employee seeking relief under the Whistleblower Act to file suit no later than the 90th day after the date on which the alleged violation either occurred or is discovered, however the employee must complete any grievance procedure first. “Reading sections 554.005 and 554.006 together, the time used by the plaintiff in following the grievance procedures is tolled and excluded from the ninety-day time limit to bring a suit.”  Therefore, Thomas did not file outside the statute of limitations. Further, the Court held the statute of limitations is an affirmative defense, not proper in a plea. [Comment, this is part of a split in the circuit’s involving an SOL being jurisdictional after a change in the legislature as outlined in DeMagaloni v. Bexar Cnty. Hosp. Dist., No. 04–12–00691–CV, 2013 WL 4829133, at *2 (Tex. App.–San Antonio Sept. 11, 2013, no pet.) (mem.op.) and  El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151 (Tex .App.–El Paso 2010, no pet.)]   Finally, the court held that given the lack of a response from Thomas and his assertion he was not given notice of the plea hearing to know he should file a response, it is reasonable for the trial court to deny the plea to allow the record to be developed and a proper hearing notice provided. As a result, the plea should be granted in part and denied in part at this time.

If you would like to read this opinion click here. Chief Justice McKeithen, Justice Horton and Justice Johnson. Memorandum Opinion by Justice Johnson.  The attorneys listed for the BISD are Clay T. Grover and Caitlin Sewell.  The attorneys listed for Thomas are Kevin Laine and B. Adam Terrell.

14th Court of Appeals holds claims for attorney’s fees can save a declaratory judgment claim from mootness.

Vicki Ward v. Lamar University, Texas State University System and James Simmons 14-14-00097-CV (Tex. App. Houston [14th Dist.], January 12, 2016)

This is a Texas Whistleblower case. The panel previously issued an opinion (summary found here), but after a motion for rehearing, withdrew that opinion and issued a new one addressing an additional argument of mootness. However, the end result was still the trial court’s order being affirmed in part, reversed in part, and remanded.

Without restating most of the facts and holdings, this summary will simply list the differences from the prior opinion. However, for ease of reference, the general facts are simply that Ward worked in the finance department of the University System and noticed what she termed suspicious financial transactions. Her report on the subject was provided to the media and law enforcement. Afterwards, Wards duties were rearranged and she lost the ability to approve and review certain documents. She remained employed but resigned after the appeal was filed.

The original panel opinion noted a fact issue existed as to the adverse personnel action regarding the employer (Lamar) but the System is a different entity. The majority chided the trial court for sua sponte dismissing the constitutional claims; however, the dissent asserts Ward did not challenge the dismissal on appeal and the majority reversed an unassigned error. Lamar and the System argue for the first time on rehearing that Ward’s free speech retaliation claim under the Declaratory Judgments Act and the Texas Constitution became moot because she resigned before appellate briefing was filed.  The majority was not happy Lamar and the System did not address this argument in its original brief. The majority held that the claims were not technically moot because Ward sought attorney’s fees.  A party does not need to “win” to get attorney’s fees under the Declaratory Judgment Act, and therefore the claims are not moot.

The dissent asserts the claim for attorney’s fees does not save a declaratory judgment or injunction claim from mootness. The dissent goes through an analysis taking the majority’s reasoning to different degrees in order to demonstrate why the logic does not follow the law or work in practice. However, the end result is the same as the first opinion.

If  you would like to read this opinion click here. Chief Justice Frost, Justice Christopher, and Justice Busby. Opinion by Justice Busby.  Justice Frost dissented.  The attorneys listed for the Appellant are Iain Gordon Simpson and Larry Watts. The attorney listed for the Appellee is Eric L. Vinson.

Part of police detective’s Whistleblower suit can go forward, while part is time barred says Amarillo Court of Appeals

The City of Lubbock, Texas v. Lazaro Walck, 07-15-00078-CV (Tex. App. – Amarillo, November 16, 2015).

This is an interlocutory appeal in a Texas Whistleblower Act case where the Amarillo Court of Appeals reversed and rendered in part, dismissed in part, and affirmed in part the denial of the City’s Plea to the Jurisdiction.

Walck was a detective in the City’s police department. During 2013, while enrolled in a masters-degree program at Texas Tech University, Walck sought an interview with the city manager as part of a class project, unrelated to his work as a police officer. The city manager notified the City’s chief of police of the request. Walch received an email notifying him that he was not to contact the City Manager without first seeking permission from his supervisors. Walck responded by sending emails to the city council and mayor complaining about the situation. Afterwards Walck was transferred from his position of burglary-unit detective to administrative assistant pending a formal internal affairs investigation. His permission to obtain outside employment as a security officer was also revoked. Walck filed a grievance. The City Manager, after a hearing, reinstated the outside employment permit. Later, the internal affairs investigation revealed Walck violated City policy by conducting school activities while on duty and using city equipment. However, after a grievance hearing the assistant city manager rescinded the reprimand. After he was moved back into his detective position, Walck’s attorney demanded compensation for Walck and threatened litigation. Afterwards, Walck filed suit. The City answered and filed a plea to the jurisdiction with supporting evidence.  The trial court denied the plea and the City appealed.

The court first held suit based on the suspension of Walck’s outside work permit as an adverse personnel action is barred by 90 day limitations. Tex. Gov’t Code Ann. §554.005.  Viewing the record in his favor, the continuing violation doctrine cannot aid Walck since the work permit issue was a discrete and individualized act.  The plea should have been granted as to the outside work permit claim. Next the court held the initiation of the grievance procedure under §554.006(a) is a jurisdictional requirement for the filing of suit. However, Walck neither refused to fully participate in the process nor did he represent to the assistant city manager he was satisfied with the relief he had received.  As a result, the fact he was reinstated and accepted the reinstatement is not dispositive and jurisdiction exists.  Finally, while the Plaintiff’s prayer states it seeks civil penalty not to exceed $15,000 against Chief Roger Ellis, individually, the Chief was not a party and was not sued. Because Chief Ellis is not before the trial court, resolving whether §554.008 properly can be read as granting Walck a private right of action against Chief Ellis would amount only to an advisory opinion.  That issue was therefore dismissed.

If you would like to read this opinion click here. Panel: Chief Justice Quinn, Justice Campbell and Justice Hancock. Memorandum Opinion by Justice Campbell.  The attorney listed for Walch is Phil. A. Johnson. The attorney listed for the City is Jeff Hartsell.

Former employee failed to establish the person terminating her had knowledge of her whistle blower activities so the court should have dismissed the suit

City of Killeen v. Barbara Gonzales, 03-14-00384-CV (Tex. App. – Austin, November 3, 2015)

This is a Texas Whistleblower Act case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction based on a lack of jurisdictional evidence.

Gonzales was the Director of Finance for the City until her termination by the City Manager, Morrison.  Gonzales asserts she reported Fleet Services to the Police Chief for various alleged violations including improper expenditure of City funds and unlawful pay raises granted to certain employees as well as improper claiming of car allowances by other employees. Morrison terminated Gonzales’s employment in December 2012, just a couple weeks after the Killeen Police Department finished a criminal and internal investigation of Fleet Services, a City department that Gonzales directly supervised.  Lieutenant Jeff Donohue led the investigation and issued a report in late November in which he concluded that Gonzales had lied, was insubordinate, and had ignored the orders of Chief Baldwin not to return to Fleet Services while the investigation was underway. Morrison’s stated reasons for Gonzales’s termination were: (1) her failure to properly manage Fleet Services; (2) her insubordination by attempting to interfere with the criminal and internal investigations; and (3) her untruthfulness about whether she had followed direct orders concerning the investigations.  The City filed a plea to the jurisdiction based on a lack of evidence of causation (i.e. a link between the alleged reporting activity and her termination). The trial court denied the plea and the City appealed.

To show causation, the employee must demonstrate that the person who took the adverse employment action knew of the employee’s report of illegal conduct and took action because of it. Gonzales has presented no direct evidence that Morrison had any knowledge of her reports to Chief Baldwin or other officers with the Killeen Police Department. Morrison knew of the investigation after it had started but nothing indicated she knew Gonzales had made the reports. Instead, she relies on circumstantial evidence in an attempt to create a material fact issue.  After going through the record, the court held Gonzales did not present more than a scintilla of evidence that the reports were a basis for her termination. Knowledge of a report and a negative attitude towards the reports were not enough under City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) and there was less evidence in this case. The plea should have been granted.

If you would like to read this opinion please click here. Panel: Justice Puryear, Justice Pemberton and Justice Field. Memorandum Opinion by Justice Puryear. The attorneys for the City are listed as Ms. Stephanie Schwab, Mr. Roy L. Barrett and Mr. John T. Hawkins.  The attorneys listed for Gonzales are Mr. Robert W. Schmidt, Mr. Roberto Flores, Ms. Elizabeth Shehan and Mr. L. Todd Kelly.