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

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.