Texas Supreme Ct. Holds Whistlblowers’ Reports to Supervisors Insufficent

rsh web iconUT South Western v Gentilello, NO. 10-0582, ____S.W.3d____ (Tex.  February 22, 2013)

This is a Texas Whistleblower Act case where the question is whether or not the report of alleged illegal activity to a supervisor who has the ability to refer violations elsewhere to enforce laws and regulations is an “appropriate law enforcement authority” under the Act.  The case is important, not simply because it’s from the Texas Supreme Court, but because it outlines elements of when a report to a supervisor is  and is not a  report applicable to trigger protection under the Act.

The opinions begins with the Court stating “the Act’s constricted definition of a law enforcement authority requires that a plaintiff’s belief be objectively reasonable. On that score, purely internal reports untethered to the Act’s undeniable focus on law enforcement—those who either make the law or pursue those who break the law—fall short. Other states’ whistleblower law accommodate internal reports to supervisors; Texas law does not” which sets the tone for the rest of the opinion. Id at *2.

Dr. Larry Gentilello, a professor of surgery at The University of Texas Southwestern Medical Center (UTSW), occupied the Chair of the Division of Burn, Trauma and Critical Care.  Gentilello complained to a supervisory faculty member alleging that trauma residents were treating and operating on patients without the supervision of an attending physician, “contrary to proper Medicare and Medicaid requirements and procedures.”  Later he was stripped of his faculty position and filed this Whistleblower suit.  UTSW argued that since Gentilello cannot establish a proper “report” under the Act, governmental immunity still applied and the University filed a Plea to the Jurisdiction. The trial court granted the Plea, but the court of appeals reversed.

The Supreme Court held, based on Gentilello’s training and experience, he should have known his supervisor, who had purely internal authority, was not a law-enforcement authority, thereby failing the “good faith” element of the Act’s jurisdictional requirements.  While his supervisor was charged with making sure Medicaid/Medicare regulations are followed internally, the supervisor was a law-compliance authority, not a law-enforcement authority. The Court noted, almost off-handedly, that only the United States Secretary of Health and Human Services (HHS Secretary) can “regulate under” or “enforce” Medicare/Medicaid rules.

The Court made it clear that a proper law-enforcement authority must have 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. Theauthority of the entity to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-enforcement authority status.  However, it then noted that this opinion should not be read to say that a report can never be made internally, and gave an example of a police officer reporting her partner to a police supervisor for a narcotics violation. The important aspect is not whether the report was an internal one or not, but whether the one reported too has the authority to investigate, enforce, or prosecute people outside of the entity, such as police supervisors.

The Court appears slightly dismayed the Plaintiff would make the argument that internal complaints satisfy the Act’s requirements and continuously referenced that it has “repeatedly held” such reports do not qualify. The Court reversed and rendered, dismissing Gentilello’s claims.

An important aspect to take away from this case is more of a strategic one. The court of appeals essentially held the “good faith” belief element was a question for the jury and fact questions existed in the case.  The Supreme Court did not expressly state so, but it implicitly held that the “objective” component of the good faith belief can be a question of law for the court to decide. So, for governmental employers, presenting evidence in a Plea to the Jurisdiction establishing that there is no objective good faith belief the one reported to is an appropriate law enforcement authority, forces the trial court and court of appeals to examine that issue and make the call, even if fact questions exist as to the subjective belief.  Even if disputed testimony exists as to whether a reasonable employee, with the same training and experience, would objectively believe the supervisory is an appropriate authority, that is a legal question for the court to decide and one which should not be submitted to the jury. The standard seems to be whether the employee “should have known” the supervisor was or was not a proper authority.

If you wish to read this opinion, please click here.

Texas A&M University–Kingsville v Moreno, NO. 11-0469, (Tex. February 22, 2013).

This is one of two Whistleblower cases decided by the Court today; the other being UT South Western v Gentilello, NO. 10-0582, (Tex.  February 22, 2013).  Moreno, an assistant vice president and comptroller of Texas A&M University–Kingsville (TAMUK) claimed her supervisor, Thomas Saban, fired her for reporting to the TAMUK president that Saban’s daughter had received in-state tuition in violation of state law. TAMUK filed a Plea to the Jurisdiction asserting the report to the President was not a report to an “appropriate law enforcement authority.”  Trial court granted the Plea, the court of appeals reversed, and TAMUK’s petition for review was granted.

The Court, citing to its reasoning and opinion in Gentilello held the President was not an appropriate law enforcement authority under the Act and therefore governmental immunity has not been waived. A whistleblower cannot reasonably believe his supervisor is an appropriate law-enforcement authority if the supervisor’s power extends no further than ensuring the governmental body itself complies with the law. And while the President can apply corrective action to third-parties (other tuition paying students) such authority is merely making sure the University complies with the law on out-of-state tuition and is not the type of law enforcement authority directed by the Act. The Court reversed and rendered dismissing Moreno’s claims.

If you wish to read this opinion, please click here.