City of Lubbock v. Walck, 07-15-00078-CV
| Decision Date | 16 November 2015 |
| Docket Number | No. 07-15-00078-CV,07-15-00078-CV |
| Parties | THE CITY OF LUBBOCK, TEXAS, APPELLANT v. LAZARO WALCK, APPELLEE |
| Court | Texas Court of Appeals |
On Appeal from the 72nd District Court Lubbock County, Texas
Trial Court No. 2014-509,907, Honorable Ruben Gonzales Reyes, Presiding
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellee Lazaro Walck filed a Whistleblower Act1 suit against his employer, the City of Lubbock. When the trial court denied the City's plea to the jurisdiction, the City brought this interlocutory appeal.2 We will reverse and render in part, vacate and dismiss in part, and otherwise affirm the order of the trial court.
At the time of the events leading to his suit, Walck was a detective in the City's police department. During 2013, while enrolled in a masters-degree program at Texas Tech University, Walck sought an interview with the city manager as part of a class project, unrelated to his work as a police officer. The city manager notified the City's chief of police, Roger Ellis, of the request.
On July 8, 2013, Chief Ellis sent an e-mail to Assistant Chief Wayne Bullock requesting that Walck's supervisor tell him not to contact the city manager without permission from his superiors. Walck explained to his supervising sergeant that his intended meeting with the city manager was related only to his masters-degree program, but Chief Ellis's order stood.
Two days later, on July 10, Walck sent an e-mail to Lubbock's mayor and members of its city council, complaining of this situation. Also on July 10 a lieutenant in Walck's chain of command notified him of his immediate transfer from his position of burglary-unit detective to administrative assistant in "person crimes" pending a "formal" internal affairs investigation.
In a July 12 memo to the officers in his chain of command, Walck requested information about the internal affairs investigation and the reason for his transfer. Walck expressed the belief his transfer was "a form of punishment and an adverse decision was made for exercising [his] First Amendment right." Some forty-five minutes after submitting the memo, Walck received notice that his permit to work as an off-duty security officer at a local restaurant was suspended.
On an unspecified date, Walck submitted a grievance that was heard by Chief Ellis on July 29. In an August 9 memo, Chief Ellis ruled Walck's grievance concerned the suspension of his outside work permit. According to the memo Walck, among other things, stated at the hearing he had lost $1,100 in wages because of the suspension of his permit. Chief Ellis affirmed the suspension.
The record shows on August 12 Walck submitted a written grievance on a City grievance form concerning the suspension of his outside work permit. An attached narrative stated, "This is an appeals request in reference to Chief Ellis' decision to continue having my outside employment permit suspended until the conclusion of the administrative investigation." Walck also stated that as of August 12 he had lost income of $1,980 from his outside work. Walck concluded the narrative stating, "I am suffering a severe financial hardship not being able to work my overtime at [the restaurant], and I believe having my outside overtime work permit taken away from me is an excessive form of punishment for the allegations brought against me." An assistant city manager conducted a hearing on Walck's August 12 grievance on August 26. Walck received a favorable ruling, described in the assistant city manager's memo dated August 29.
The memo recites the hearing's purpose was consideration of the suspension of Walck's outside work permit. It indicates the assistant city manager considered written and oral testimony. After stating findings, the memo concludes, "there was no basis or justification to suspend your outside work permit; therefore, I am directing the Lubbock Police Department to reinstate your outside work permit immediately." Walck received notice of the decision on September 3.
Walck was ordered to report to internal affairs for further questioning. He had not been questioned since July 17. The questioning did not address new facts but raised allegations of new policy violations. Walck later was ordered to return for more questioning on September 12.
Walck received a letter of reprimand from Sergeant Chad Brouillette, dated September 25. The letter contained a brief description of Walck's actions regarding the contact with the city manager, and recited that the internal affairs investigation revealed that Walck, "by [his] own admissions," was "working on school related projects, scheduling interviews for school related projects and sending emails related to school related projects while on duty and using city equipment." The letter stated Walck's actions violated two provisions of the Lubbock Police Department manual and four policies of the City of Lubbock Employee Policy Manual. Walck filed a written grievance on September 27, requesting removal of the letter of reprimand from his file. The grievance form narrative included Walck's statement that he believed the letter of reprimand was an act of retaliation by Chief Ellis.
A grievance hearing to consider the letter of reprimand was held on October 22, before another assistant city manager. An October 23 letter expressed the assistant city manager's ruling. He indicated testimony was received at the hearing and he found "no credible evidence to support the alleged violation of the policy that formed the basis of your letter of reprimand." He ordered the letter of reprimand rescinded and its originals or copies sent to Walck or his attorney.
Walck's attorney sent a demand letter to the City dated December 19, which recited the history of the personnel actions and the grievances, stated that Walck hadbeen moved back to his position as a detective, but had incurred over $3000 in lost outside work income, had incurred attorney's fees and had suffered the emotional toll of the investigation and the personnel actions. The letter requested compensation of $8,000 under the Whistleblower Act, and threatened litigation. The record does not provide what, if any, response the City made.
Walck filed suit against the City under the Whistleblower Act on January 21, 2014.3 The City answered and filed a plea to the jurisdiction with supporting evidence. Walck's response also was supported by evidence. A hearing was conducted and the trial court denied the City's plea by written order. This interlocutory appeal followed.
The Whistleblower Act provides "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." TEX. GOV'T CODE ANN. § 554.002. The act provides "[a] public employee whose employment is suspended or terminated or who is subjected to an adverse personnel action in violation of [the act] is entitled to sue for injunctive relief, actualdamages, court costs, and reasonable attorneys' fees." TEX. GOV'T CODE ANN. § 554.003(a). The act's purpose is twofold: (1) protecting public employees from retaliation by their employer when, in good faith, they report a violation of law, and (2) securing lawful conduct by those who direct and conduct the affairs of government. City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.).
Under the Whistleblower Act, governmental immunity is expressly waived when a public employee alleges a violation of Chapter 554 of the Government Code. TEX. GOV'T CODE ANN. § 554.0035. Whether a claimant's whistleblower complaint comes within the act's waiver of governmental immunity may be addressed through a plea to the jurisdiction. Ortiz v. Plano Indep. Sch. Dist., No. 02-13-00160-CV, 2014 Tex. App. LEXIS 7, at *2 (Tex. App.—Fort Worth Jan. 2, 2014, pet. denied) (mem. op.) (citing Canutillo ISD v. Farran, 409 S.W.3d 653, 655-57 (Tex. 2013)).
"Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). A municipality may assert governmental immunity in a suit for money damages against it. City of San Antonio v. Alamo Aircraft Supply, Inc., 448 S.W.3d 507 (Tex. App.—San Antonio 2014, no pet.) (citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)); see Suarez v. City of Texas City, 465 S.W.3d 623, 631 (Tex. 2015) ()." "[Governmental] immunity from suit defeats a trial court's subject matter jurisdiction . . . ." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
Review of the trial court's ruling on a plea to the jurisdiction begins with the live pleadings. Id. A plaintiff must affirmatively demonstrate the trial court's jurisdiction. Miranda, 133 S.W.3d at 226. "When a plea to the jurisdiction challenges the existence of facts alleged by the pleader to establish the trial court's subject-matter jurisdiction, the trial court must consider relevant evidence submitted by the parties." Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). This standard generally mirrors that of a traditional summary judgment. Id. at 228; TEX. R. CIV. P. 166a(c). Thus, the trial court may consider affidavits and other summary judgment-type evidence. FKM P'ship v. Board of Regents of Univ. of Houston Sys, 255 S.W.3d 619, 628 (Tex. 2008). The court takes as true evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the...
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