Alaniz v. Galena Park Independent School Dist.

• Decision Date: 14 May 1992
• Docket Number: No. C14-91-0702-CV,C14-91-0702-CV
• Citation: 833 S.W.2d 204
• Parties: 76 Ed. Law Rep. 615 Edward ALANIZ, Appellant, v. GALENA PARK INDEPENDENT SCHOOL DISTRICT, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 204

833 S.W.2d 204

76 Ed. Law Rep. 615

Edward ALANIZ, Appellant, v. GALENA PARK INDEPENDENT SCHOOL DISTRICT, Appellee.

No. C14-91-0702-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 14, 1992.

Syd Phillips, Houston, for appellant.

Jeffery D. Horner, Timothy J. Brightman, Kenneth A. Zimmern, Houston, for appellee.

Before JUNELL, ROBERTSON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Edward C. Alaniz appeals from a summary judgment entered in favor of appellee in his employment termination lawsuit alleging violation of the "Texas Whistleblower Act." In three points of error, appellant contends the trial court erred in finding he was not a public employee, he did not report a law violation to an appropriate law enforcement authority, and he was not terminated, suspended, or discriminated against by appellee. We affirm.

Appellant was employed by Servicemaster Corporation (Servicemaster) from November 14, 1988, until May 22, 1990, as a Custodial Supervisor. Appellee, Galena Park Independent School District, acquired its custodial services through a written contract with Servicemaster. Appellant performed custodial duties on appellee's various campuses and managed, instructed, and trained custodial personnel within the District. In early May, 1990, appellant reported alleged thefts from the soft drink machine at North Shore High School to Raymond Morgan, District Assistant Superintendent, and Terry Lloyd, North Shore High School Assistant Vice-Principal. On May 22, 1990, Larry Helgesen, Servicemaster Manager, terminated appellant for insubordination in bypassing him and directly reporting to the District administration without his knowledge.

In his first point of error, appellant complains the trial court erred in finding he was not a public employee hired by appellee. Specifically, he claims he performed services for compensation under a written contract with appellee through its agent, Servicemaster. He alleges his employment by Servicemaster thereby constitutes public employment by appellee, a local governmental body. We disagree.

When reviewing a summary judgment, (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, (2) evidence favorable to the non-movant will be taken as true, and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-59 (Tex.1985); Turboff v. Gertner, Aron & Ledet Investments, 763 S.W.2d 827, 829 (Tex.App.--Houston [14th Dist.] 1988, writ denied).

The "Texas Whistleblower Act" (the Act) precludes a state or local government from terminating "a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith." City of Houston v. Leach, 819 S.W.2d 185, 193 (Tex.App.--Houston [14th Dist.] 1991, no writ); TEX.REV.CIV.STAT.ANN. art. 6252-16a § 2 (Vernon Supp.1992). Under this Act, a "public employee" is defined as:

[A] person who performs services for compensation under a written or oral contract for a state or local governmental body. The term does not include an independent contractor.

TEX.REV.CIV.STAT.ANN. art. 6252-16a § 1 (3) (Vernon Supp.1992) (emphasis added).

The summary judgment proof before us indicates:

1. Appellant signed a written employment agreement with Servicemaster on November 14, 1988, in which his duties entailed full-time supervisory work at an $8 hourly rate.

2. Servicemaster and appellee contracted for support management services commencing on August 1, 1988. Their agreement states in part:

GENERAL CONDITIONS:

a. Independent Contractor: Except for specific duties and responsibilities described in paragraph 1 above, in which Servicemaster is acting as School's agent, Servicemaster agrees that in all other respects its relationship to the School will be that of an independent contractor, and that it will not act or represent that it is acting as an agent of the School or incur any obligation on the part of the School without written authority of the School.

Paragraph 1 states that Servicemaster agrees to perform the managing function of support services. Servicemaster agrees to furnish all coordinating management, supervisory, training and technical personnel. These personnel shall be direct agents and employees of Servicemaster.

3. On May 21, 1990, Tom Parris, North Shore High School Principal, sent a memo to Larry Helgesen, Servicemaster Manager, informing him that appellant had told some custodians that other custodians had stolen money out of the Coke machine. Parris recommended that appellant stay off his campus unless he was delivering Servicemaster equipment because he grossly abused the proper chain of command.

4. On May 22, 1990, Larry Helgesen initiated a Servicemaster Separation Report terminating appellant's employment for insubordination in failing to report directly to him and directly reporting to the school administration without his knowledge.

5. Appellant admitted in Appellee's Requests for Admission that he only had an employment contract with Servicemaster, and never entered into an employment contract with appellee.

6. The affidavit of Larry Helgesen asserts that Servicemaster is employed as an independent contractor for appellee. He states that terminating appellant's Servicemaster employment for insubordination was solely his own decision. Prior to appellant's discharge,...