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

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.