Rick Milteer v. the University of Texas at Dallas ( 2014 )

Affirmed and Opinion Filed November 4, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01076-CV
RICK MILTEER, Appellant
V.
THE UNIVERSITY OF TEXAS AT DALLAS, Appellee
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-02486-2012
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Bridges
Rick Milteer appeals the trial court’s summary judgment entered in favor of the
University of Texas at Dallas (UTD) on Milteer’s whistleblower claim. In a single issue, Milteer
argues the trial court erred in granting UTD’s motion for summary judgment on the ground
limitations barred Milteer’s claims. We affirm the trial court’s judgment.
On January 31, 2012, Milteer filed his original petition alleging a claim of wrongful
termination under the Whistleblower Act. Milteer alleged he began working at UTD in
November 2008 as a network support specialist under his immediate supervisor, Dr. Ka Yui Ho,
the manager of academic computing in one of UTD’s academic departments. In May 2011,
Milteer was responsible for preparing an annual report for UTD that reported, in part, the status
of all the equipment his department oversaw. Milteer believed a certain laptop should have been
reported as stolen, but Ho instead required Milteer to list the laptop as missing on his report. In
June and July 2011, concerns about computer security arose throughout the UT system, and
outside auditors were hired to investigate. According to Milteer, “Ho made false representations
to the auditors regarding computer encryption and security within his department.” Milteer
“refused to support the statements and openly contradicted Dr. Ho’s statements to the auditors.”
Ho “became irate” and verbally abusive toward Milteer and continued the verbal abuse and was
“physically confrontational” with Milteer at one point.
Milteer reported Ho’s conduct to the University of Texas System Ethics and Compliance
Hotline and the Texas System Ethics and Compliance Hotline. Milteer also filed complaints
with, among others, the UTD human resources department, UTD property control, UTD police,
and the UTD president. Nevertheless, Ho’s conduct toward Milteer “became more combative
and retaliatory.” On July 21, 2011, Milteer was served with a notice of intent to terminate his
employment. Milteer asserted his employment was later terminated, he filed an appeal, he
obtained a hearing with UTD administrators, and the termination was finally upheld and
finalized on November 2, 2011.
UTD filed a traditional motion for summary judgment alleging Milteer’s claims were
barred by limitations. Specifically, UTD alleged Milteer was notified he was being terminated
from employment with UTD “effective August 10, 2011 at 5:00 p.m. for behavior that is
inappropriate and disruptive to the workplace and for insubordination.” Milteer was further
informed that he could appeal the termination by submitting a written request for a hearing to Dr.
Hobson Wildenthal, the UTD executive vice president for academic affairs and provost within
ten days. Milteer “invoked the applicable appeal procedures by a letter to Dr. Wildenthal dated
August 12, 2011.” Following a hearing, Wildenthal sent Milteer a letter dated November 2,
2011 informing Milteer of the decision to uphold the termination of his employment. Milteer
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received Wildenthal’s letter on November 7, 2011. Milteer waited until January 31, 2012 to file
his lawsuit, which UTD alleged was outside the limitations period mandated by the
Whistleblower Act. The trial court granted summary judgment in favor of UTD without
specifying the grounds for its ruling, and this appeal followed.
In a single issue, Milteer argues the trial court erred in granting summary judgment on his
whistleblower claim. Specifically, Milteer argues a fact issue exists “as to whether [Milteer]
knew or should have known about his whistleblower claim in time to file a grievance.” Milteer
argues he “did not recall of a whistleblower cause of action independently” and “discovered the
whistleblower action through his counsel after being advised of the result of the administrative
remedy.” Thus, Milteer argues, his counsel “timely filed the whistleblower lawsuit (within the
90 day limit).”
The standard of review for traditional summary judgment under Texas Rule of Civil
Procedure 166a(c) is well established. TEX. R. CIV. P. 166a(c). The movant for summary
judgment has the burden of showing there is no genuine issue of material fact and it is entitled to
summary judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548
(Tex. 1985); In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). In
deciding whether there is a disputed fact issue precluding summary judgment, evidence
favorable to the nonmovant will be taken as true, every inference must be indulged in favor of
the nonmovant, and any doubts must be resolved in the nonmovant’s favor. Nixon, 690 S.W.2d
at 549. Once the movant establishes its right to summary judgment as a matter of law, the
burden shifts to the nonmovant to present evidence raising a genuine issue of material fact,
thereby precluding summary judgment. Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d
675, 682 (Tex. App.—Dallas 2000, no pet.). We review the granting of a summary judgment de
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novo. Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 358 (Tex. App.—Dallas 2007,
pet. denied).
The Whistleblower Act gives plaintiffs 90 days to file a grievance; the 90 days to file a
grievance runs from the date the alleged violation of the Act occurs or was discovered by the
employee through reasonable diligence. TEX. GOV’T CODE ANN. §§ 554.005; 554.006(b) (West
2012); Tex. S. Univ. v. Carter, 84 S.W.3d 787, 790 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). A public employee must initiate action under the grievance or appeal procedures of the
employing state or local governmental entity relating to suspension or termination of
employment or adverse personnel action before suing under the Act. TEX. GOV’T CODE ANN. §
554.006(a) (West 2012). Time used by the employee in acting under the grievance or appeal
procedures is excluded from the 90-day limitations period, except as provided by subsection
554.006(d). Id. § 554.006(c). Section 554.006(d) provides:
(d) If a final decision is not rendered by the 61st day after the date procedures are
initiated under Subsection (a), the employee may elect to:
(1) exhaust the applicable procedures under Subsection (a), in which event the
employee must sue not later than the 30th day after the date those procedures are
exhausted to obtain relief under this chapter; or
(2) terminate procedures under Subsection (a), in which event the employee must
sue within the time remaining under Section 554.005 to obtain relief under this
chapter.
Id. § 554.006(d).
Here, the summary judgment evidence shows Milteer was terminated from employment
with UTD “effective August 10, 2011 at 5:00 p.m.” On August 12, 2011, Milteer sent
Wildenthal a letter requesting an expedited appeal of the notice of decision to terminate
employment and seeking documents related to “all Tangible Employment Actions” including,
among other things, all disciplinary actions. That same day, Milteer sent an email to David
Gleason, director of employee services in the UTD human resources management office. The
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email was copied to more than a dozen recipients in the UTD system, including Wildenthal. In
the email, Milteer asked Gleason to “please explain how UT Dallas claims to protect their
employees from being fired, harassed, retaliated and falsifying allegations against an employee
for calling UT Dallas hotline?” In the email, Milteer also cited the non-retaliation provisions of
the UT System providing protection from retaliation for employees reporting suspected
wrongdoing or calling the hotline. Following an appeal hearing on October 11, 2011, Wildenthal
sent Milteer and his attorney a letter dated November 2, 2011 in which Wildenthal stated it was
his final decision that Milteer’s termination should be upheld. On November 7, 2011, Milteer
received Wildenthal’s letter.
Thus, limitations on Milteer’s claim under the Whistleblower Act began to run on the
date of his termination, August 10, 2011. Carter, 84 S.W.3d at 793. On October 12, 2011,
sixty-one days after Milteer initiated appeal procedures, no final decision had been rendered on
Milteer’s appeal; however, Milteer chose to wait until his appeal was exhausted following a
hearing and Wildenthal’s letter making his termination final, which Milteer received on
November 7, 2011. Thus, the record shows Milteer elected to exhaust the applicable appeal
procedures, in which case he was required to sue not later than the 30th day after the date those
procedures were exhausted in order to obtain relief under the Whistleblower Act. TEX. GOV’T
CODE ANN. § 554.006(d)(1) (West 2012). Accordingly, limitations had run when Milteer filed
his suit against UTD on January 31, 2012, eighty-five days after he received the letter notifying
him that his appeal had been exhausted. See id.
Milteer argues a fact issue exists as to whether he knew or should have known of his
whistleblower claim in time to file a grievance. On the contrary, the record affirmatively
demonstrates that, on August 12, 2011, two days after his termination, Milteer emailed
Wildenthal and others at UTD raising the issue of retaliation and citing the non-retaliation
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provisions of the UT System providing protection from retaliation for employees reporting
suspected wrongdoing or calling the hotline. Thus, on August 12, 2011, Milteer was aware he
had been terminated and was aware of the allegedly wrongful nature of the termination due to
“retaliation.” See Villareal v. Williams, 971 S.W.2d 622, 626 (Tex. App.—San Antonio 1998,
no pet.) (terminated employees were aware they had been terminated and aware of allegedly
wrongful nature of termination due to “temporal proximity” following their whistleblowing
activities).
To the extent Milteer relies on his affidavit, attached to his response to UTD’s motion for
summary judgment, to create a fact issue, we conclude it does not. In his affidavit, Milteer stated
he did not know, “nor could [he] have even suspected” his termination was based on a
whistleblower action until November 9, 2011, when his attorney received Wildenthal’s letter
notifying Milteer his termination was final. An affidavit of an interested party may serve as
competent summary judgment proof so long as such affidavit evidence is clear, positive, direct,
credible, free from contradiction, and susceptible of being readily controverted. TEX. R. CIV. P.
166a(c); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no
pet.). Conclusory statements in affidavits are not competent evidence to support a summary
judgment. Id. A conclusory statement is one that does not provide the underlying facts to
support the conclusion. Id. As we have discussed, Milteer knew he was terminated on August
10, 2011, and he contacted UTD officials two days later seeking an appeal of his termination and
asking Gleason to “please explain how UT Dallas claims to protect their employees from being
fired, harassed, retaliated and falsifying allegations against an employee for calling UT Dallas
hotline?” Milteer’s statement he did not know his termination was based on a whistleblower
action is directly contradicted by his contact with UTD officials, and he fails to provide any
underlying facts supporting his statement. As such, his statement is conclusory and not
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competent summary judgment evidence. See id. Under these circumstances, the trial court did
not err in granting summary judgment on the grounds limitations barred Milteer’s claims. See
TEX. GOV’T CODE ANN. § 554.006(d); Nixon, 690 S.W.2d at 546. We overrule Milteer’s single
issue.
We affirm the trial court’s judgment.
131076F.P05
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RICK MILTEER, Appellant On Appeal from the 429th Judicial District
Court, Collin County, Texas
No. 05-13-01076-CV V. Trial Court Cause No. 429-02486-2012.
Opinion delivered by Justice Bridges.
THE UNIVERSITY OF TEXAS AT Justices Lang and Evans participating.
DALLAS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee THE UNIVERSITY OF TEXAS AT DALLAS recover its
costs of this appeal from appellant RICK MILTEER.
Judgment entered November 4, 2014.
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