Phelan v. Texas Tech University, 012308 TXCA7, 07-07-0171

• Date: 23 January 2008
• Docket Number: 07-07-0171-CV
• Parties: R. SCOTT PHELAN, APPELLANT v. TEXAS TECH UNIVERSITY, APPELLEE
• Court: Texas Court of Appeals

R. SCOTT PHELAN, APPELLANT

v.

TEXAS TECH UNIVERSITY, APPELLEE

No. 07-07-0171-CV

Court of Appeals of Texas, Seventh District, Amarillo

January 23, 2008

FROM THE 200^TH DISTRICT COURT OF TRAVIS COUNTY; NO. D-1-GN-05-002964; HONORABLE MARGARET A. COOPER, JUDGE.

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Patrick A. Pirtle, Justice

Appellant, Dr. R. Scott Phelan, appeals from two separate orders granting summary judgment in favor of Appellee, Texas Tech University, and denying summary judgment in his favor. By four points of error, Phelan contends the trial court erred in granting Texas Tech's motion for summary judgment because (1) an adverse personnel action taken after a governmental employee files an assault charge against a supervisor is covered by the Texas Whistleblower Act,¹ (2) he did report illegal governmental action to a proper law enforcement agency, (3) Texas Tech did deny Phelan his due process rights, and (4) did deprive him of his "liberty interests" in violation of Article 1, § 19 of the Texas Constitution. We affirm.

Factual and Procedural Background

The facts of this case are extensively set out in our opinion in companion case, Norville, et al. v. Phelan, No. 07-07-0035-CV, issued this same date. Except as otherwise relevant to discussion of the issues in this case, those facts need not be repeated.

On August 23, 2005, Phelan filed this suit claiming Texas Tech violated the Texas Whistleblowers Act by unlawfully retaliating against Phelan for making a good faith report of a violation of law by another public employee, Scott Norville. Phelan subsequently amended his petition to assert additional claims for unlawful taking of his property right to continued employment without due process under Article 1, §§ 17 and 19 of the Texas Constitution and wrongful termination. Texas Tech filed its motion for summary judgment. Phelan then supplemented his petition to assert a claim for deprivation of a "liberty interest" under Article 1, §§ 17 and 19 of the Texas Constitution, responded to Texas Tech's motion for summary judgment, and filed a cross-motion for summary judgment. On December 12, 2006, without specifying any grounds, the trial court granted Texas Tech's motion as to Phelan's claims of (1) violation of constitutional due process, (2) common law wrongful termination, and (3) violation of the Texas Whistleblower Act. The trial court's order did not address Phelan's motion for summary judgment or his newly-pled liberty interest claim. Texas Tech then filed a second motion for summary judgment addressing Phelan's liberty interest claim. On February 9, 2007, again without specifying any grounds, the trial court granted Texas Tech's second motion for summary judgment and denied Phelan's motion for summary judgment. Phelan appeals the entry of the December 12, 2006, and February 9, 2007 orders.

Standards of Review

For a party to prevail on a motion for summary judgment, that party must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). To establish entitlement to judgment as a matter of law, a movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Mkts, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant's motion for summary judgment should be granted if the defendant disproves at least one essential element of the plaintiff's cause of action or establishes all the elements of an affirmative defense as a matter of law. Shaw v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.-Houston [1st Dist.] 1996, writ denied).

We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, this Court must apply well-established standards which are: (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) in deciding whether there is a disputed material fact issue precluding summary judgment, 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. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997), citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Review of the denial of a motion for summary judgment is governed by the same standard as governs review of the granting of such a motion. Delta Airlines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex.App.-Waco 1997, writ denied).

When an order granting summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, as here, the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented, and if the reviewing court determines that the trial court erred, renders judgment the trial court should have rendered. Id. See Bank of America, N.A. v. Amarillo National Bank, 156 S.W.3d 108, 110 (Tex.App.-Amarillo 2004, no pet.).

The burden is on the moving party to show there is no evidence of one or more of the essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a. See Duvall v. Texas Department of Human Services, 82 S.W.3d 474, 477 (Tex.App.-Austin 2002, no pet.). To make such a showing, the defendant must prove there are no genuine issues of material fact concerning one or more elements of the plaintiff's cause of action and that he is entitled to judgment as a matter of law. Ho v. University of Texas at Arlington, 984 S.W.2d 672, 681 (Tex.App.-Amarillo 1998, pet. denied), citing Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

Once the party meets this initial burden, the non-movant must submit or identify evidence in the record raising a genuine issue of material fact as to each element of their claim or defense challenged by the defendant's motion. Tex. R. Civ. P. 166a. A fact is "material" if it might affect the outcome of the suit under governing law, and an issue is "genuine" if it is real and substantial, as opposed to merely formal, pretended, or a sham. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5^th Cir. 2001). The non-movant may not raise a genuine issue of material fact by submitting conclusory allegations, improbable inferences, or unsupported speculation. See First Union Nat. Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 930 (Tex.App.-Dallas 2005, no pet.).

Whistleblower Cause of Action

The Texas Whistleblower Act prohibits a state or local government from taking 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) (Vernon 2004). The cause of action created by the Act is purely statutory creating a right unknown at common law. Scott v. Godwin, 147 S.W.3d 609, 621 (Tex.App.-Corpus Christi 2004, no pet.); City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex.App.-Austin 1996, writ denied). The statute was enacted to protect public employees who report illegal activity and enhance openness in government while compelling compliance with the law. Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 503 (Tex.App.-Corpus Christi 1992, writ denied). Because the statute is remedial in nature, it is to be liberally construed. Roberts v. Titus County Memorial Hosp., 159 S.W.3d 764, 769 (Tex.App.-Texarkana 2005, pet. denied), cert. denied, 564 U.S. 1095, 126 S.Ct. 1070, 163 L.Ed.2d 862 (2006). And, whether a violation of law has been reported to an appropriate law enforcement authority is a question of law to be decided by the court. City of Fort Worth v. DeOreo, 114 S.W.3d 664, 668 (Tex.App.-Fort Worth 2003, no pet.).

To establish a claim for retaliation under the Act, the claimant must prove the following elements: (1) he is a public employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) he suffered retaliation as a result of making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex.App.-San Antonio 2004, no pet.).

The Act defines a "law" as a state or federal statute, ordinance of a local governmental entity, or rule adopted under a statute or ordinance. Tex. Gov't Code Ann. § 554.001(1) (Vernon 2004).² An "appropriate law enforcement authority" is a governmental entity that the employee in good faith believes is authorized to "regulate under or enforce the law alleged to be violated in the report" or "investigate or prosecute a violation of criminal law." Tex. Gov't Code Ann. § 554.002(b) (Vernon 2004).

To establish a "good faith" reporting, the complainant must show that his belief was reasonable in light of the employee's training and experience. Texas Dep't of Transportation v....