Moreno v. Tex. a & M Univ.–kingsville

• Decision Date: 05 May 2011
• Docket Number: No. 13–10–00083–CV.,13–10–00083–CV.
• Citation: 268 Ed. Law Rep. 1044,339 S.W.3d 902
• Court: Texas Court of Appeals
• Parties: Gertrud MORENO, Appellant,v.TEXAS A & M UNIVERSITY–KINGSVILLE, Appellee.

339 S.W.3d 902

268 Ed. Law Rep. 1044

Gertrud MORENO, Appellant,

v.TEXAS A & M UNIVERSITY–KINGSVILLE, Appellee.

No. 13–10–00083–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

May 5, 2011.

Gay Ellen Gilson, Corpus Christi, John E. Schulman, Dallas, for Appellant.Beth Klusmann, Office of Atty. Gen., Richard D. Naylor, Asst. Atty. Gen., Austin, for Appellee.Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.

OPINION

Opinion by Justice RODRIGUEZ.

AppellantGertrud Moreno challenges the plea to the jurisdiction and summary judgment granted in favor of appellee Texas A & M University–Kingsville (TAMUK) on Moreno's claim for retaliatory discharge under the Texas Whistleblowers Act.SeeTex. Gov't Code Ann. § 554.002(West 2004).By two issues, Moreno argues that the trial court erred in granting TAMUK's: (1)motion for summary judgment because Moreno provided sufficient evidence to support all elements of her whistleblower claim; and (2) plea to the jurisdiction because her pleadings affirmatively demonstrated subject-matter jurisdiction.We reverse and remand.

I.FACTUAL BACKGROUND

Moreno was employed by TAMUK as its Assistant Vice–President for Finance and Administration and Comptroller.Her supervisor was Thomas Saban, TAMUK's Vice–President of Finance and Administration.In December 2007, Saban asked Moreno to provide him information on the out-of-state tuition waiver available to certain TAMUK employees.Moreno researched the waiver and provided Saban the information from her research.In mid-December 2007, Saban applied for the tuition waiver for his daughter, who was to attend TAMUK in the spring semester of 2008, and paid tuition for his daughter at the Texas-resident rate.

Later in December 2007 and January 2008, Moreno received inquiries from various TAMUK officials regarding Saban's eligibility for the waiver.The waiver applied only to teachers and professors who were employed at least one-half time with higher education institutions.SeeTex. Educ.Code. Ann. § 54.059(West 2006).Moreno believed that the waiver was available only to faculty members, but ultimately, Moreno and the various officials who were questioning Saban's eligibility were uncertain whether, as Vice–President of Finance and Administration, Saban fell within that categorization.Nonetheless, Saban was eventually re-classified as a faculty member.However, TAMUK was unable to arrange for Saban to teach any classes.

At a conference in early February 2008, Moreno asked officials with the Texas Higher Education Coordinating Board(THECB) if they could clarify what would qualify an employee for the waiver.In response to her question, THECB officials informed Moreno that the work-load of the employee applying for the waiver must be fifty-percent teaching.Based on the THECB's interpretation, Saban did not qualify for the tuition waiver.

When Moreno returned to work after the conference, she conveyed this information to Saban.Saban became angry because he believed the matter had been resolved months before.He shook his finger in Moreno's face and asked why she was continuing to involve herself with this matter instead of focusing on her other work.Moreno left Saban's office.Saban later went to Moreno's office and apologized for his conduct.Moreno then informed Saban that she would be reporting the tuition issue to Rumaldo Juarez, the President of TAMUK, which she did later that day.Juarez and other TAMUK officials concluded that Saban was not eligible for the waiver, and Saban was required to pay the tuition that had been waived under his earlier application.

On February 29, 2008, Saban, along with representatives from TAMUK human resources, called Moreno to a conference room where she was given the choice of voluntarily resigning or being terminated.Moreno refused to resign, and Saban terminated her employment.Moreno was not given a reason for her termination.Moreno appealed her termination through TAMUK's grievance process, alleging that her termination was in retaliation for reporting the tuition-waiver issue.Moreno's appeal was investigated by Terisa Remelius, who, after interviewing numerous witnesses, concluded that Saban had other legitimate reasons for terminating Moreno's employment and that Moreno's termination was not retaliatory.

II.PROCEDURAL BACKGROUND

Moreno sued TAMUK and Saban, alleging violations of the Texas Whistleblowers Act and her right to free speech.¹TAMUK filed a plea to the jurisdiction, arguing that Moreno failed to plead and prove facts sufficient to support the elements of her whistleblower claim and therefore failed to show a waiver of TAMUK's sovereign immunity.After discovery, TAMUK also filed a traditional motion for summary judgment, arguing that Moreno failed to create a fact issue that she(1) in good faith reported a violation of law, (2) in good faith made her report to an appropriate law enforcement authority, and (3) was terminated in retaliation for making a report.²Moreno responded to the summary judgment motion, contesting each ground advanced by TAMUK.³The trial court granted TAMUK's plea to the jurisdiction and motion for summary judgment and dismissed Moreno's claims with prejudice.This appeal followed.

III.STANDARD OF REVIEW AND APPLICABLE LAW

Because the elements of a whistleblower claim are jurisdictional, a plaintiff must affirmatively plead facts and, if appropriate, produce evidence demonstrating those elements to show a waiver of the defendant's sovereign immunity.State v. Lueck,290 S.W.3d 876, 883(Tex.2009)(holding that the elements of a whistleblower claim are jurisdictional facts);Tex. Dep't of Parks & Wildlife v. Miranda,133 S.W.3d 217, 225, 227(Tex.2004)(holding that “if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised”).If the plaintiff creates a fact issue with her evidence as to each element, it would be improper to grant the defendant's plea to the jurisdiction.SeeCity of Waco v. Lopez,259 S.W.3d 147, 150(Tex.2008)(citingMiranda,133 S.W.3d at 227–28).Similarly, to avoid traditional summary judgment, a whistleblower plaintiff must create fact issues as to all the challenged elements of her claim.SeeTex.R. Civ. P. 166a(c).

Our review of Moreno's challenges to TAMUK's plea to the jurisdiction and summary judgment is therefore one and the same.In other words, to both establish waiver of immunity, and accordingly, subject-matter jurisdiction, and avoid summary judgment, Moreno must have created a genuine issue of material fact on each of the elements of her whistleblower action.Seeid.;see alsoMiranda,133 S.W.3d at 227–28(holding that, where a plea to the jurisdiction implicates jurisdictional facts and evidence related to those facts, the plaintiff must create a genuine issue of material fact to avoid dismissal for lack of subject-matter jurisdiction).In deciding whether there is a fact issue, we consider as true any evidence favorable to the non-movant.SeeLlanes v. Corpus Christi Indep. Sch. Dist.,64 S.W.3d 638, 641(Tex.App.-Corpus Christi2002, pet. denied)(citingAm. Tobacco, Inc. v. Grinnell,951 S.W.2d 420, 425(Tex.1997))(other citations omitted);see alsoMiranda,133 S.W.3d at 228(acknowledging that, in the context of a plea to the jurisdiction, the standard for reviewing evidence of jurisdictional facts mirrors the standard for reviewing traditional summary judgment evidence).Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor.SeeLlanes,64 S.W.3d at 641(citations omitted);see alsoMiranda,133 S.W.3d at 228(citations omitted).

The elements of a whistleblower cause of action are contained in section 554.002 of the government code:

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(a);seeLueck,290 S.W.3d at 881.Thus, the elements of a whistleblower claim are: (1) that the plaintiff was a public employee, (2) that the defendant was a state or local governmental entity, (3) that the plaintiff reported in good faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiff's report was the but-for cause of the defendant's suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.SeeTex. Gov't Code. Ann.. § 554.002(a);Tex. Dep't of Human Servs. v. Hinds,904 S.W.2d 629, 636(Tex.1995)(explaining the causation element);Scott v. Godwin,147 S.W.3d 609, 621(Tex.App.-Corpus Christi2004, pet. dism'd)(laying out the five elements).

We note that the Whistleblower Act is designed to enhance openness in government and compel the State's compliance with law by protecting those who inform authorities of wrongdoing.Llanes,64 S.W.3d at 641.“Because the Act is remedial in nature, it should be liberally construed to effect its purpose.”City of Houston v. Levingston,221 S.W.3d 204, 218(Tex.App.-Houston[1st Dist.]2006, no pet.);Llanes,64 S.W.3d at 641(citingCastaneda v. Tex. Dept. of Agric.,831 S.W.2d 501, 503(Tex.App.-Corpus Christi1992, writ denied))(other citations omitted).“A liberal construction does not restrict the statute, but enlarges its scope and effect to effectuate the true legislative purpose.”Castaneda,831 S.W.2d at 503.

IV.DISCUSSION

The first two elements of Moreno's whistleblower claim are undisputed—Moreno is a public employee, and TAMUK is a state governmental entity.Thus, whether TAMUK should have prevailed in the trial court depends on whether Moreno raised fact issues regarding the...