Mullins v. Dallas Indep. Sch. Dist.

• Decision Date: 05 January 2012
• Docket Number: No. 05–11–00465–CV.,05–11–00465–CV.
• Parties: James MULLINS, Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

276 Ed. Law Rep. 1061

357 S.W.3d 182

James MULLINS, Appellant,

v.DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 05–11–00465–CV.

Court of Appeals of Texas, Dallas.

Jan. 5, 2012.

Steven E. Clark, Zak Duffy, Walter G. Pettey, III, McDole, Kennedy & Williams, P.C., Hance W. Burrow, III, Goins Underkofler Crawford & Langdon, LLP, Dallas, TX, for Appellant.

Carlos G. Lopez, Jamison Newberg, Kathryn E. Long, Vincent Lopez Serafino Jenevein, P.C., Dallas, TX, for Appellee.

Before Justices MORRIS, O'NEILL, and FILLMORE.

OPINION

Opinion By Justice MORRIS.

This case involves a claim brought under the Texas Whistleblower Act. The trial court granted the Dallas Independent School District's plea to the jurisdiction and dismissed James Mullins's claim. In a single issue, Mullins contends the trial court erred in granting the plea because he presented sufficient evidence to raise a question of fact about the trial court's jurisdiction over his claim. We conclude Mullins failed to meet his burden to raise a fact question on the issue of subject matter jurisdiction. We affirm the trial court's order granting the plea.

I

Before filing this lawsuit, James Mullins was employed in the maintenance department of the Dallas Independent School District. On August 13, 2009, Mullins sued DISD setting forth various claims based on the termination of his employment. Among the causes of action asserted were claims under the Texas Whistleblower Act. Mullins claimed he was terminated in retaliation for reporting to DISD's Office of Professional Responsibility violations of law by DISD and its employees. DISD answered and filed numerous motions in response to the petition. At issue here is DISD's “Third Plea to the Jurisdiction and Partial Motion to Dismiss Plaintiff's Claim Pursuant to the Texas Whistleblower Act.”

In its third plea to the jurisdiction, DISD claimed sovereign immunity. It contended the trial court had no subject matter jurisdiction over one of Mullins's claims under the Whistleblower Act. Specifically, DISD argued that Mullins's claim based on a 2008 e-mail exchange with an employee in its Office of Professional Responsibility did not fall within the act's waiver of sovereign immunity because (1) Mullins's report to OPR did not allege violations of law, (2) the report was not sent to an appropriate law enforcement authority, and (3) the evidence showed Mullins did not have a good faith belief that OPR was an appropriate law enforcement authority for purposes of the Whistleblower Act. The trial court granted DISD's plea and dismissed Mullins's whistleblower claim “with respect to his September 2008 report to DISD's Office of Professional Responsibility.” This appeal ensued.

II.

Whether a trial court has subject matter jurisdiction is a question of law. See Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.2002). We review de novo whether a plaintiff has set forth facts that affirmatively demonstrate a trial court's subject matter jurisdiction. See Tex. Dep't. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Where a plea to the jurisdiction challenges the existence of jurisdictional facts, as is the case here, the court considers the relevant evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the court may rule on the plea to the jurisdiction as a matter of law. Id.

In general, school districts such as DISD are immune from suit and liability unless the legislature expressly waives sovereign immunity. See State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009). Section 554.0035 of the Texas Government Code expressly waives sovereign immunity for claims brought under the Texas Whistleblower Act. See Tex. Gov't Code Ann. § 554.0035 (West 2004). For immunity to be waived, however, the plaintiff must be a public employee and properly allege a violation of the act. See Lueck, 290 S.W.3d at 881. Whether the plaintiff has properly alleged a violation of the act is a jurisdictional question. Id. We determine whether the jurisdictional prerequisite of alleging a violation has been met by examining the elements of a violation as set forth in section 554.002 of the government code. See Tex. Dep't. of Human Servs. v. Okoli, 317 S.W.3d 800, 805 (Tex.App.-Houston [1st Dist.] 2010, pet. filed).

Under section 554.002, “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.” See Tex. Gov't Code Ann. § 554.002(a). A report is made to an appropriate law enforcement authority if “the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of criminal law.” Id. § 554.002(b).

In this case, Mullins alleged that he was terminated from his position in the maintenance department of DISD as a result of a report he made to DISD's Office of Professional Responsibility. The specific report upon which Mullins relies, and upon which the trial court ruled, is contained in a series of e-mail sent in September 2008. Mullins contends he presented sufficient evidence to the trial court to at least raise a fact issue about whether the e-mail constituted a good faith report of a violation of law to an appropriate law enforcement authority.

To determine whether Mullins's claim alleges a violation of the Whistleblower Act and, therefore, falls within the scope of claims for which sovereign immunity has been waived, we must first examine the report upon which the claim is based. All of the e-mail that make up the “report” were between Mullins and George Santowski, a director of compliance with DISD's Office of Professional Responsibility. In his first e-mail, Mullins told Santowski that he had been “a vocal advocate/activist with regard to several issues for more than ten years.” Mullins then listed eight different issues about which he had made complaints or reports to a variety of other authorities. These past complaints involved allegations of: (1) improper or illegal installation of sewage ejection stations; (2) asbestos issues at DISD facilities; (3) the refusal of supervisors and administrators to pull permits properly for construction projects; (4) the refusal of supervisors and administrators to perform “backflow prevention device maintenance, repair, and/or testing;” (5) the failure by DISD to implement an effective, efficient material procurement procedure and the failure of select supervisors and administrators to exercise good stewardship of DISD resources; (6) the refusal of supervisors and administrators to investigate or correct obvious time card irregularities; (7) the abuse of authority by supervisors and administrators by intimidating employees into falsifying records; and (8) the failure of select administrators to exercise oversight responsibilities. Mullins included information about the authorities to whom he had reported his allegations including OSHA, the Texas Department of State Health Services, and the City of Dallas.¹ Mullins then stated that his past advocacy and activism with respect to these issues had resulted in, among other things, ongoing harassment, disciplinary action without cause, improper denial of professional advancement, and the creation of a hostile work atmosphere. He then asked for “feedback” from Santowski.

Santowski replied to Mullins's e-mail stating “[b]ased upon your email and our conversations you have already gone to: local, state and federal regulatory authorities with your complaints and have received no satisfaction from them.” Santowski went on to state that neither he nor Mullins could determine why the agencies “charged with the responsibility of enforcing the laws relating to the violations [Mullins] allege[d] would shirk their responsibilities and ignore the concerns that [he] raised if those concerns were valid.” Santowski ended the e-mail by telling Mullins “[u]nless I hear otherwise from you, I plan on sending your concerns to appropriate Dallas ISD officials for their evaluation.”

Mullins responded by sending Santowski more details on the reports he had made to other authorities. He suggested that Santowski send open records requests to the City of Dallas for information on the “backflow prevention device” issue. At the end of the e-mail, Mullins stated “[a]s to why an agency would shirk their [sic] responsibility in enforcing the laws that they are charged with enforcing, I can only speculate. Actually, I came to you in hopes that you could perform an investigation into why this is happening. Also I have numerous additional documents to support the allegations in my email.”

In an e-mail sent shortly thereafter, Mullins asked Santowski “[w]hat exactly is the office of OPR? Does it have any investigatory authority or role?” Santowski responded that “OPR investigates fraud, waste and abuse within the Dallas ISD. [It has] no authority to investigate local, state and federal regulatory agencies. Consequently, I need no further documentation of your contacts with these agencies and their alleged transgressions.”

In an e-mail to Santowski sent the next day, Mullins asked whether OPR included “the abuse of authority as a type of abuse that is within it's [sic] mandate to investigate.” Mullins specifically asked whether OPR had the power to investigate “retaliatory actions taken to intimidate/discipline a subordinate when that subordinate has contacted outside agencies to correct improper/illegal activities engaged in by the Dallas ISD” and whether OPR could investigate...