Vicki Ward v. Lamar University, Texas State University System and James Simmons, 14-14-00097-CV. (Tex. App. – Houston [14th] May 12, 2015)
This is a Texas Whistler Blower Act case where the 14th Court of Appeals affirmed in part, reversed in part and remanded the case after the trial court granted the Defendants’ Plea to the Jurisdiction.
Ward worked as an Associate Vice President for Finance at Lamar University (“Lamar”) which is part of Texas State University System (“System”). While reviewing payment requests, Ward noticed suspicious financial transactions within certain departments and reported it to the police department. Ward issued a report to the President of Lamar outlining an investigation, however, the report was leaked to the media. Ward asserted the President indicated he wanted to “hurt her” as the author of the leaked report. Shortly afterwards, Ward lost the ability to approve and review procurement documents. When she appealed the reduction in duties to the Chancellor system, she was told she should take a severance and was no longer a “good fit” for the System. However, Ward was not terminated after the Chancellor conversation and remains employed. The System’s plea to the jurisdiction addressed the Whistleblower claims but not Ward’s constitutional claims. The trial court granted the plea as to the Whistleblower claims and sua sponte dismissed the free speech claims under the Texas Constitution. Ward appealed.
While analyzing the Whistleblower claims, the court noted an “adverse personnel action” is one allowing claims based on retaliatory actions “likely to deter” reporting of governmental violations of law while weeding out “petty slights” and “minor annoyances.” The standard also bars trivial claims resulting from a plaintiff’s unusual subjective feelings, while allowing claims arising from the particular circumstances of the challenged action. They also analyzed the definition of a “grievance” procedure. The court determined a fact issue exists as to whether an appeal to the Chancellor of the System is an appeal to the employer (which is actually Lamar). The court also noted a fact issue exists as to whether the employment action taken against Ward by Lamar was an “adverse action.” However, the court noted her actions against the System are different because the only actions alleged were implied threats and an offer of severance. As a result, the plea was properly granted as to the System, but improperly granted to Lamar. The court then chided the trial court for its sua sponte dismissal of the free speech claims noting the parties should be permitted to develop their own arguments and respond to attempts to dismiss without the court deciding matters sua sponte without notice to the dismissed party. The court then held the trial court improperly the plea as to Lamar and the System.
The dissent asserts the majority erred in addressing Ward’s Constitutional claims because Ward did not challenge the dismissal on appeal and they reversed an unassigned error. The court should not engage in such conduct and “[t]his is especially true when the unraised points are state constitutional issues of first impression for which the court has not one iota of merits briefing from either side.” [Comment: essentially the dissent pointed out the majority chided the trial court for ruling on issues not raised before it, yet that is exactly what the majority did by addressing issues not briefed or raised in the appeal by the parties.]
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.