Ward v. Lamar Univ., 14–14–00097–CV

• Citation: 484 S.W.3d 440
• Decision Date: 12 January 2016
• Docket Number: NO. 14–14–00097–CV,14–14–00097–CV
• Parties: Vicki Ward, Appellant v. Lamar University and Texas State University System, Appellees
• Court: Court of Appeals of Texas

484 S.W.3d 440

Vicki Ward, Appellant

v.Lamar University and Texas State University System, Appellees

NO. 14–14–00097–CV

Court of Appeals of Texas, Houston (14th Dist.).

Substitute Majority and Dissenting Opinions filed January 12, 2016

Iain Gordon Simpson, Houston, TX, Larry Watts, Missouri City, TX, for Appellant.

Esteban Soto, Austin, TX, Eric L. Vinson, Austin, TX, for Appellees.

Panel consists of Chief Justice Frost and Justices Christopher and Busby

SUBSTITUTE MAJORITY OPINION

J. Brett Busby

, Justice

We issued majority and dissenting opinions in this case on May 12, 2015. We affirmed the trial court's order of dismissal in part, reversed it in part, and remanded for further proceedings. Appellees subsequently filed a motion for rehearing, and appellant filed a response. These filings narrowed the scope of the issues before us and raised a new issue of mootness that requires further consideration. We therefore grant the motion, withdraw our previous opinions, and issue substitute opinions.

Appellant Vicki Ward sued appellees Lamar University and the Texas State University System for retaliating against her in violation of the Texas Whistleblower Act. Appellees filed a plea to the jurisdiction. Subsequently, Ward filed an amended petition, adding a claim for a declaratory judgment that appellees violated several sections of the Texas Constitution. After a hearing, the trial court issued an order dismissing Ward's claims under the Whistleblower Act based on the plea and dismissing her constitutional claims sua sponte.

In her first issue, Ward argues the trial court erred in dismissing her claims under the Whistleblower Act because her amended petition and testimony sufficed to defeat a plea to the jurisdiction. We hold the trial court erred in dismissing Ward's whistleblower claims against Lamar University because there is evidence that she met the Act's grievance requirement and that Lamar took an adverse personnel action against her. The court properly dismissed Ward's whistleblower claims against the Texas State University System, however, because there is no evidence it took such an action.

In her second issue, Ward asserts the trial court erred by dismissing her free speech retaliation claim against Lamar and the System under the Declaratory Judgments Act and the Texas Constitution because no basis existed for the court's dismissal. As to Lamar, we agree that the trial court erred in dismissing this claim sua sponte. With respect to the System, however, we hold that the claim was properly dismissed on the same ground as the whistleblower claims: lack of evidence of an adverse personnel action. We affirm in part, reverse in part, and remand the case for further proceedings.

BACKGROUND

Appellant Vicki Ward filed a petition alleging that appellees had violated the Texas Whistleblower Act by taking adverse personnel action against her after she reported in good faith a violation of law to an appropriate law enforcement authority. Tex. Gov't Code Ann. §§ 554.001, et seq.

Appellees filed a plea to the jurisdiction, seeking dismissal of Ward's claims. Ward then filed an amended petition, adding a second cause of action. Specifically, Ward's amended petition sought a declaratory judgment that appellees had violated Sections 3, 3a, 8, and 19 of Article One of the Texas Constitution.

To support her claims, Ward alleged the following facts in her amended petition. Ward worked as an Associate Vice President for Finance at Lamar University Beaumont. Lamar University is a part of the Texas State University System. Ward was responsible for Lamar's finance operations, including procurement. While reviewing payment requests, Ward noticed suspicious financial transactions within certain departments of Lamar. Ward reported her concerns to Lamar's Police Chief, Jason Goodrich. Over the next several months, an investigation was conducted. The investigation produced a report, co-authored by Ward, that documented the transactions. The report was forwarded to James Simmons, who was at that time President of Lamar.¹ Eventually, the report was leaked to a television station, and the station began running stories concerning the contents of the report.

Ward alleged that after the report was leaked, Simmons "indicated he was interested in hurting [her] as author of the report more than he was interested in correcting the corruption uncovered in the report." Ward lost the ability to approve and review procurement documents. When she asked Simmons about this limitation of her duties, he allegedly replied, "Stop looking at departments and their spending, [sic] you have caused enough trouble." Ward also alleged that she lost authority over her department. Priscilla Parsons was named Senior Associate Vice President of Finance. During a meeting, Simmons allegedly stated that Ward had no authority in the Finance Department.

Ward alleged that she then initiated an appeal to the Chancellor of the System as well as to Simmons and Dr. Cruse Melvin, whom Simmons had appointed as one of her superiors. No formal grievance or appeal policy was identified by any of the parties, either in their pleadings or at the hearing.

Ward subsequently received a phone call from Fernando Gomez, the Vice Chancellor of the System, informing her that her appeal had been received. During the conversation, he allegedly told her "she would have to go." Gomez said Ward would be given a severance package to resign. He told her he was an attorney and could help "settle things" because Ward was not a "good fit." He further told her that she was an employee at will. Ward asked Gomez if he was threatening to fire her. He replied that he was only an attorney and could not fire anyone. He repeated his severance package proposal, and Ward again asked Gomez if he was threatening to fire her. He said "no" but reiterated that Ward was an employee at will. Gomez said, "Remember, I can help you. If not, I will call HR and they will send you a letter." Ward responded that she could not make a decision at that point and did not understand why she was being threatened because she was merely safeguarding Lamar. Gomez ended the conversation by saying, "Well, I will be sending you a letter and contacting HR." He then hung up. It is undisputed that Ward was not terminated following this conversation and remains employed by Lamar as Associate Vice President for Finance.

During a hearing on appellees' plea to the jurisdiction, Ward testified that her former procurement responsibility had allowed her to identify the malfeasance. She also testified that the number of people under her supervision had been reduced. Ward had overseen between 45 and 50 employees, but after the report was filed, approximately 15 people were removed from her supervision. Furthermore, Parsons ran meetings outside Ward's presence, and Ward now had to report to Parsons, whereas before Ward reported directly to the Vice President for Finance. Ward's job title remained the same, however, and her pay increased from $100,000 to $104,000.

Because the plea to the jurisdiction was filed before Ward's amended petition, it did not address Ward's constitutional claims. At the hearing on the plea, appellees' counsel declared that the court could dismiss the entirety of the complaint on its own motion for failing to allege a constitutional violation but offered to file another plea addressing Ward's constitutional claims if the court desired. The court did not respond to this offer at the hearing, and no motion or plea seeking dismissal of those claims appears in the record. Following the hearing, the trial court issued an order dismissing Ward's claims under the Texas Constitution sua sponte and granting appellees' plea to the jurisdiction as to Ward's claims under the Texas Whistleblower Act. This appeal followed.²

ANALYSIS

I. The trial court erred in dismissing Ward's whistleblower claims against Lamar but properly dismissed those claims against the System.

A. Standard of review

In her first issue, Ward contends the trial court erred in dismissing her claims under the Texas Whistleblower Act because she presented both allegations and evidence sufficient to defeat appellees' plea to the jurisdiction. If a governmental unit has immunity from suit, a trial court lacks subject-matter jurisdiction over a suit against the unit. City of Houston v. Ranjel, 407 S.W.3d 880, 887 (Tex.App.—Houston [14th Dist.] 2013, no pet.)

. A challenge to a trial court's subject-matter jurisdiction may be asserted by a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). We review a trial court's decision on a plea to the jurisdiction de novo. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).

A plaintiff has the burden to allege facts demonstrating jurisdiction, and we construe the pleadings liberally in the plaintiff's favor. Miranda, 133 S.W.3d at 226

. When the governmental unit challenges the existence of jurisdictional facts, and the parties submit evidence relevant to the jurisdictional challenge, we must consider that evidence when necessary to resolve the jurisdictional issues raised.

Ranjel, 407 S.W.3d at 887

. The court must take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228. If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the issue must be resolved by the trier of fact. Id. at 227–28. On the other hand, if the evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law. Id. at 228. This standard generally mirrors that of a summary judgment. Id.

B. Applicable law

Both in the trial court and on appeal, Lamar and the System advance several arguments to support the dismissal of Ward's whistleblower claims.³ First, they contend that Ward failed to initiate a...