Texas Supreme Court holds internal asbestos complaint was insufficient under Whistleblower Act.

 

YSLETA INDEPENDENT SCHOOL DISTRICT v. MARCELINO FRANCO, 13-0072 (Tex. December 13, 2013).

This is a Whistleblower case where the Court continued its recent set of holdings that “reports” to internal personnel who only have the authority to monitor compliance within the employer are not “appropriate law enforcement” authorities.

Only a few months ago the Court ruled in University of Texas Southwestern Medical Center v. Gentilello, 398 S.W.3d 680  (Tex. 2013) and Canutillo Independent School District v.Farran 409 S.W.3d 653 (Tex. 2013) (per curiam) that a  report of alleged violations of law is jurisdictionally insufficient if made to someone charged only with internal compliance. Here, the Court held the same and reversed the denial of the District’s Plea to the Jurisdiction.

Marcelino Franco was a principal in the Ysleta Independent School District (ISD). He sent a memorandum to his immediate supervisor reporting various “asbestos hazards” in the school. Franco claimed that the ISD violated the Asbestos Hazard Emergency Response Act, 15 U.S.C. § 2641 et seq., by failing to respond to his asbestos reports. But Franco submitted no evidence showing that the ISD enforces the Asbestos Act beyond overseeing its own internal compliance.  The ISD filed its Plea to the Jurisdiction, which was denied, and affirmed by the Court of Appeals noting a fact question existed.

The Court reversed asserting the evidence considered did not create a fact issue and internal compliance is jurisdictionally insufficient to state a cause of action against a governmental entity.

If you would like to read this opinion click here.