the Fannin County Community Supervision and Corrections Department v. Glenda Spoon ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00103-CV
THE FANNIN COUNTY COMMUNITY SUPERVISION
AND CORRECTIONS DEPARTMENT, Appellant
V.
GLENDA SPOON, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court Nos. CV-10-39887, CV-12-40666
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
The Fannin County Community Supervision and Corrections Department (Department)
appeals the denial of its plea to the jurisdiction in a whistleblower action filed by its former
employee, Glenda Spoon. “[W]histleblowing is ‘the act of a man or woman who, believing that
the public interest overrides the interest of the organization he [or she] serves, publicly “blows
the whistle” if the organization is involved in corrupt, illegal, fraudulent, or harmful activity.’” 1
Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 727 (Tex. 1990) (Doggett, J.,
concurring) (quoting CONFERENCE ON PROFESSIONAL RESPONSIBILITY, WHISTLE BLOWING: THE
REPORT OF THE CONFERENCE ON PROFESSIONAL RESPONSIBILITY vii (Kate Blackwell, Ralph
Nader & Peter J. Petkas eds., 1972)). The whistleblower’s “hope is that the law will arrive and
protect not only the person’s rights[,] but the peace and good order of the community.” Id. at
728. Whistleblowers may face adverse employment actions. Id. “‘Almost always, their
experiences are traumatic, and their careers and lives are profoundly affected.’” Id. (quoting
ALAN F. WESTIN, WHISTLEBLOWING! LOYALTY AND DISSENT IN THE CORPORATION 2 (1981)).
Our democratic society “‘needs the services of the whistleblower to provide information
necessary for its rules to be enforced.’” Id. (quoting John A. Robertson, Commentary:
Whistleblowing and the Role of the Federal Government, in WHISTLEBLOWING IN BIOMEDICAL
RESEARCH 159, 159–60 (Judith P. Swazey & Stephen R. Scher eds., 1981)). Thus, we must
“encourage the honest and concerned employee to blow the whistle on illegalities and actual
1
“The term [whistleblowing] is derived from the act of an English bobby blowing his whistle upon becoming aware
of the commission of a crime to alert other law enforcement officers and the public within the zone of danger. Like
this corner law enforcement official, the whistleblower sounds the alarm when wrongdoing occurs on his or her
‘beat,’ which is usually within a large organization.” Winters, 795 S.W.2d at 727; TAYLOR BRANCH & CHARLES
PETERS, BLOWING THE WHISTLE: DISSENT IN THE PUBLIC INTEREST 18 (1972).
2
malpractices . . . [and] protect [her] against recrimination.” Id. Sections 554.001 through
554.010 of the Texas Government Code, commonly referred to collectively as the Texas
Whistleblower Act, do just that. See TEX. GOV’T CODE ANN. §§ 554.001–.010 (West 2012).
“The Act evidences two legislative purposes: (1) to protect public employees from retaliation by
their employer when, in good faith, employees report a violation of the law, and (2) to secure
lawful conduct on the part of those who direct and conduct the affairs of public bodies.” City of
New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex. App.—Austin 2004, no pet.).
Spoon, a former community supervision officer with the Department, alleged that she
was terminated for reporting what she believed were various violations of the law to Fannin
County District Attorney Richard Glaser. 2 Wielding the powerful shield of sovereign immunity,
the Department challenged the trial court’s subject-matter jurisdiction to hear the dispute. Under
the Texas Whistleblower Act (the Act), sovereign immunity is expressly waived when a public
employee alleges a violation of Chapter 554 of the Texas Government Code. TEX. GOV’T CODE
ANN. § 554.0035. After an evidentiary hearing, the trial court (1) determined that Spoon had met
the requirements for protection under the Act, (2) found that the Department’s sovereign
immunity was waived by the Act, and (3) denied the Department’s plea to the jurisdiction. We
affirm the trial court’s ruling.
2
Spoon also sued Department Director Debra Roberts, 336th Judicial District Court Judge Laurine Blake, and other
officials in their individual capacities. The trial court granted summary judgment to the various officials in their
individual capacities, and that ruling is not challenged on appeal.
3
I. Factual Background
Under the Act, governmental immunity is waived if the plaintiff (1) is a public employee
and (2) alleges a violation of the Act. Id.; see State v. Lueck, 290 S.W.3d 876, 881–82 (Tex.
2009). 3 A violation of the Act occurs when a governmental entity retaliates against a public
employee for making a good-faith report of a violation of law to an appropriate law enforcement
authority. TEX. GOV’T CODE ANN. § 554.002(a). To defeat the Department’s plea to the
jurisdiction raising sovereign immunity, Spoon was required to make a prima facie showing on
each element of the alleged violation of the Act. See Lueck, 290 S.W.3d at 881–82.
A. Spoon’s Pleadings
Spoon alleged that she became aware of matters of public concern and “certain illegal
acts which were occurring within the internal operations” of the Department. According to
Spoon’s third amended petition, she reported the following matters to Glaser:
1. The Department’s office manager, Gail Young, who was a candidate for the
position of Fannin County Tax Assessor, was using the Department’s “equipment,
including paper, envelopes, stamps, computers, and internet resources to promote
her campaign” during the Department’s normal business hours.
2. Roberts and Department Assistant Director Todd Maxey told Spoon and other
employees that the Department’s former director, Hal Fowler, had embezzled
Department funds.
3. Roberts and Maxey were falsifying the HIV training records of the Department’s
employees and were denying employees access to their training records.
4. Records detailing the reporting history of Steven Harrison, whose community
supervision was being supervised by the Department though he had been placed
on community supervision in Collin County, were being shredded before
3
Spoon’s status as a public employee is not at issue in this appeal.
4
returning Harrison’s file to Collin County due to his “close romantic relationship
with the County Judge of Fannin County.”
5. Maxey committed family violence against his wife, but was using a contact at the
Department who had a connection with the Office of the Fannin County Justice of
the Peace to make sure charges against him were thrown out before they were sent
to the district attorney’s office.
6. Blake, who was taking an active role in Young’s campaign and the campaigns of
other Republicans, told Young “not to bring her mix-raced child to any public
campaign events.”
Spoon claimed that her termination was a retaliatory effort to silence her whistleblowing and to
end any further inquiry into the Department’s operations.
The petition set forth the following timeline of relevant events:
• On Friday, June 18, 2010, Spoon met with Glaser 4 to express her concerns about the six
possible violations and matters of public concern.
• On that day, Glaser was also concerned about the issues Spoon reported and planned to
contact the Texas Rangers to initiate an investigation, but instead met with Blake to
discuss Spoon’s allegations.
• On Monday, June 21, 2010, Spoon reported to work. Young approached Spoon and
asked her if she knew why Glaser and Blake would want to meet with Roberts, who was
then on vacation. Spoon responded that she was unsure why such a meeting would have
been requested.
• On Tuesday, June 22, 2010, Roberts returned from vacation and met with Blake and
Glaser at the courthouse.
• On Wednesday, June 23, 2010, Spoon reported to work. Young advised her that the
courthouse meeting had resumed and that Roberts was meeting with the human resources
department later that day.
• When Roberts returned from her June 23 meetings, she met with Spoon and told her that
she was no longer employed by the Department.
4
Spoon pled that she believed in good faith that Glaser had the authority to investigate the above-referenced matters
and to prosecute any violations of the law.
5
Spoon’s petition alleged that Roberts told her to either immediately resign her position or face
termination on the ground that she had “gone outside the chain of command.” Spoon refused to
resign and was immediately terminated. According to Spoon, Roberts instructed her not to speak
with Glaser because Glaser was already aware of the decision to terminate her.
B. The Department’s Plea to the Jurisdiction
The Department relates a very different version of the events leading to Spoon’s
termination and contends that its version of the facts conclusively establishes that the
Department’s sovereign immunity was not waived under the Act. The Department’s factual
recitation focuses on Spoon’s management, in her capacity as a community supervision officer
(CSO), of Pamela Sue Garza’s community supervision. Garza had been sentenced to a
Substance Abuse Felony Punishment Facility (SAFPF). In order to be admitted and receive bed
space in a SAFPF, Garza was required to complete SAFPF documents. In her role as CSO,
Spoon met with Garza, explained the SAFPF program, and attempted to secure her signature on
some of the routine paperwork required of all individuals admitted into the SAFPF program,
including a document titled “Consent for the Release of Confidential Information” (the Release).
Garza refused to sign the release during her initial visit with Spoon, and Spoon never requested
that Garza sign the Release after the initial visit. Instead, Spoon asked Blake and Roberts what
to do because she believed that a SAFPF would not accept Garza without the Release.
According to Roberts, Spoon said that Garza did not belong in the SAFPF program and that she
did not believe a defendant could actually be sentenced to a SAFPF without signing the Release.
6
Blake (1) suggested that the Department contact the director of the SAFPF program to
determine whether Garza could be admitted into a SAFPF without a signed Release and, if so, to
identify the procedure for securing Garza’s admission and (2) informed the Department that she
would sign an order relieving Garza from the requirement of an executed Release after the
Department obtained the SAFPF program director’s recommendation on the appropriate verbiage
for such an order. Someone affiliated with the SAFPF program told Roberts that the program
had never accepted an individual into a facility without a properly executed release. Garza’s
SAFPF status hearing was set for June 18, 2010, and Spoon understood that the paperwork to
secure her admittance into a SAFPF had to be completed before that hearing. Before she left for
vacation, Roberts instructed Spoon at least twice to contact the district attorney’s office for
assistance in preparing whatever documents were necessary to satisfy Blake and SAFPF program
administrators so that Garza could be admitted into the SAFPF without a signed Release.
According to the Department, instead of following Roberts’ instruction, Spoon went
first to Maxey, and then to Young, and asked them both what to do about the Release. Both told
her to draft a proposed order for Blake’s signature; however, Roberts had previously explained to
Spoon that the Department’s employees lacked the expertise to prepare proposed court orders.
The Department alleged that, when Spoon met with Glaser, she told him of the conflicting
instructions she had received from Roberts, Maxey, and Young. The Department argued that
Spoon was generally gossiping about the Department, complaining about having to draft the
SAFPF document, and discussing her dissatisfaction with Maxey and Roberts—not reporting any
legitimate violations of law. The Department viewed Spoon’s communication to Glaser as an
7
inappropriate discussion about internal work matters that should have been handled internally
through the proper chain of command, as set forth in the Code of Ethics contained in the
Department’s administrative (or policy and procedure) manual.
Despite instructions to secure the necessary documents by contacting the district
attorney’s office, Spoon was unable to provide the court with either the signed Release or the
proposed draft order waiving the Release requirement. The Department claimed that, since
Roberts assumed leadership of the Department, Spoon is the only CSO who was unable to secure
all required SAFPF paperwork prior to the thirty-day status hearing. According to the
Department, Roberts considered Spoon’s failure inexcusable and terminated her for that reason
in addition to her failure to follow the chain of command.
Reciting its version of the facts, the Department’s plea to the jurisdiction argued that
Spoon did not make a good-faith report of a violation of any law to an appropriate law
enforcement authority. Specifically, the Department argued (1) that the petition failed to specify
any law allegedly violated by the Department; (2) that, alternatively, Spoon’s deposition
testimony contradicted the assertions in her petition which could be construed as violations of
law and conclusively established that no violation of law was reported to Glaser; and (3) that
Spoon could not establish a causal connection between her termination and any alleged good-
faith report of a violation of law because the Department established, as a matter of law, that
Roberts was not aware of any legitimate report when she decided to terminate Spoon’s
employment. The Department’s plea attacked both the sufficiency of Spoon’s pleadings and the
existence of jurisdictional facts.
8
II. Standard of Review
Whether a trial court has subject-matter jurisdiction is a question of law subject to
de novo review. Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex.
2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “‘A plea to the
jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject matter
jurisdiction.’” In re K.M.T., 415 S.W.3d 573, 575 (Tex. App.—Texarkana 2013, no pet.)
(quoting Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)). A plea to the jurisdiction can
be used to challenge the plaintiff’s pleadings, the existence of jurisdictional facts to support the
pleadings, or both.
In reviewing a trial court’s ruling on a plea to the jurisdiction, we first look to the
pleadings to determine if jurisdiction is proper. City of Waco v. Kirwan, 298 S.W.3d 618, 621
(Tex. 2009). “A plaintiff has the burden of pleading facts which affirmatively demonstrate the
trial court’s jurisdiction.” Salazar v. Wilson, No. 08-13-00171-CV, 2014 Tex. App. LEXIS
5175, at *5 (Tex. App.—El Paso May 14, 2014, no pet. h.) (citing Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). When a plea to the jurisdiction challenges the
pleadings, we look to the pleader’s intent, construe the pleadings liberally in favor of
jurisdiction, and accept the allegations in the pleadings as true to determine if the pleader has
alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the case.
Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings affirmatively
negate the existence of jurisdiction, then a trial court may grant a plea to the jurisdiction without
allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.
9
If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence on that issue even where those facts may implicate the merits of the cause of
action. Kirwan, 298 S.W.3d at 622. In this context, the trial court’s review “mirrors that of a
traditional summary judgment motion.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 634 (Tex. 2012). “Initially, the defendant carries the burden to meet the summary
judgment proof standard for its assertion that the trial court lacks jurisdiction.” Id. “If it does,
the plaintiff is then required to show that a disputed material fact exists regarding the
jurisdictional issue.” Id. If the relevant evidence is undisputed or fails to raise a fact question on
the jurisdictional issue, the plea to the jurisdiction is determined as a matter of law. Id.; Kirwan,
298 S.W.3d at 622 (“A plea should not be granted if a fact issue is presented as to the court’s
jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the
jurisdiction must be granted.”). In considering this evidence, we take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Kirwan, 298 S.W.3d at 622; see Tex. Dep’t of Transp. v. Ingram, 412
S.W.3d 129, 134 (Tex. App.—Texarkana 2013, no pet.).
Section 554.0035 of the Texas Government Code provides the following waiver of
immunity:
A public employee who alleges a violation of this chapter may sue the employing
state or local governmental entity for the relief provided by this chapter.
Sovereign immunity is waived and abolished to the extent of liability for the relief
allowed under this chapter for a violation of this chapter.
TEX. GOV’T CODE ANN. § 554.0035. Because the plaintiff must demonstrate that she is alleging
a violation of the Whistleblower Act before sovereign immunity is waived, the Texas Supreme
10
Court has specified that the prima facie elements of a Section 554.002 violation must be included
in the plea to the jurisdiction analysis. Mission, 372 S.W.3d at 635–36; Lucek, 290 S.W.3d at
884 (“[T]he section 554.002(a) elements must be included within the pleadings so that the court
can determine whether they sufficiently allege a violation under the Act to fall within the section
554.0035 waiver [of sovereign immunity].”). Therefore, Spoon was required to allege in her
pleadings facts establishing (1) that she was a public employee (2) with a good-faith belief that
she was reporting a violation of the law as defined by Section 554.001, (3) that the report was
made in good faith to an appropriate law enforcement authority, and (4) that her employment
was terminated. 5 See TEX. GOV’T CODE ANN. § 554.002(a). If the termination occurred, as it did
here, not later than the “90th day after the date on which the employee reported a violation of
law, the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to
be because the employee made the report.” TEX. GOV’T CODE ANN. § 554.004.
However,
[w]hile a plaintiff must plead the elements of her statutory cause of action—here
the basic facts that make up the prima facie case—so that the court can determine
whether she has sufficiently alleged a [statutory] violation, she will only be
required to submit evidence if the defendant presents evidence negating one of
those basic facts. And even then, the plaintiff’s burden of proof with respect to
those jurisdictional facts must not “involve a significant inquiry into the substance
of the claims.” Cases may exist where the trial court decides, in the exercise of its
broad discretion over these matters, that the inquiry is reaching too far into the
substance of the claims and should therefore await a fuller development of the
merits.
Mission, 372 S.W.3d at 637–38 (citations omitted).
5
It is undisputed that Spoon was a public employee, that the Department is a governmental entity, and that Spoon’s
employment with the Department was terminated.
11
III. The Plea to the Jurisdiction Was Properly Denied
A. Spoon’s Petition Was Sufficient to Confer Jurisdiction
Spoon’s petition alleged, inter alia, (1) that Young, was campaigning for the position of
Fannin County Tax Assessor and using the “Department’s equipment, including . . . computers,
and internet resources[,] to promote her campaign during the Department’s normal business
hours” and (2) that “Roberts and Maxey told employees that the Department’s former director,
Hal Fowler, had embezzled Department funds.” The petition stated (1) that Spoon reported these
activities to Glaser, (2) that she believed in good faith that she was reporting illegal activity, and
(3) that the reports were made to the appropriate law enforcement authority. We are to take
Spoon’s pleadings as true when evaluating the Department’s challenge to the pleadings.
The Department argues that Spoon’s petition fails to identify the violation of law
allegedly reported by Spoon. However, as long as a whistleblower plaintiff sets forth sufficient
facts to establish that she was a public employee who in good faith, reported a violation of law
by the City or another public employee to an appropriate law enforcement authority, she is not
required to identify in her petition the exact statute she reported as having been violated. See
Wilson v. Dallas Indep. Sch. Dist., 376 S.W.3d 319, 327 (Tex. App.—Dallas 2012, no pet.); City
of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).
The Department also argues that Spoon’s petition affirmatively negated her
Whistleblower claims because “the evidence construed in Spoon’s favor shows that Spoon failed
to satisfy all elements of her statutory claims.” This argument, based on the evidence presented
by the parties during their limited jurisdictional discovery in this case, challenges the existence
12
of jurisdictional facts rather than the pleadings. The Department points to Miranda, which
states, “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the
issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to
amend.” Miranda, 133 S.W.3d at 226–27. We find nothing in Spoon’s pleadings that
affirmatively negates the trial court’s jurisdiction and conclude that the pleadings, when
construed liberally in favor of jurisdiction, touch on each element of a Section 554.002
whistleblower claim. Thus, we address the crux of the Department’s plea—the existence of
jurisdictional facts.
B. Good Faith Belief of a Violation of the Law
The Department carried the initial burden to show that the evidence negated the existence
of jurisdictional facts. See Mission, 372 S.W.3d 629. The Department argued that the limited
jurisdictional discovery established that no violation of law was reported to Glaser in good faith.
We disagree, finding that Spoon raised material fact issues as to whether she reported a violation
of law to Glaser in good faith.
1. Evidence of Report of Illegal Campaigning
The Department contends that the campaigning acts allegedly committed by Young either
did not constitute illegal campaigning or were shown to have never been committed. The
Department further argues that, while Spoon alleged that Young was using the Department’s
paper, envelopes, and stamps during her campaign, her testimony did not conclusively establish
these allegations. Spoon testified that Young’s campaign literature was brown and turquoise and
13
that she did not recall whether the Department’s paper and envelopes were pre-printed with the
Department’s name and address. Spoon also testified that mail in the Department was taken to a
central location “where it ran through a postage machine and [was] mailed.” Citing to Roberts’
affidavit, the Department claims Spoon’s report was not made in good faith because Spoon knew
or should have known that Young could not have used (1) the Department’s printer because it
does not print in color, (2) the Department’s stamps because the Department has no stamps, and
(3) the Department’s envelopes because the envelopes are preprinted with the Department
letterhead. Neither Spoon’s testimony nor Roberts’ affidavit negates Spoon’s allegations because
the Department’s printers could have been used to print on colored paper, and postage could
have been placed on the campaign literature using the postage machine. 6 Additionally, we find
that Spoon presented evidence raising fact issues with respect to other aspects of alleged illegal
campaigning.
When Roberts was deposed, she testified that she forbade Young to campaign in the
office. Roberts also testified that Spoon would have reported a violation of law if she mentioned
to Glaser that Young was campaigning in the office. According to Glaser’s deposition
testimony, Spoon mentioned that Young was running for public office while she was still
employed with the Department. Glaser “assume[d] that [Spoon] thought that . . . [Young] should
have resigned to run.” He told Spoon that Young’s campaign was not unlawful merely due to
her continued employment. Glaser testified that Spoon offered no further details about the
6
Again, the plaintiff is only required to submit evidence if the defendant first meets its burden by presenting
evidence negating one of the plaintiff’s claims. Mission, 372 S.W.3d at 637.
14
campaign and that he would have considered campaigning on government time or using county
equipment to be a violation of law had Spoon raised these issues.
Contrary to Glaser’s assertions, Spoon testified, “Everything that I put in my petition that
was illegal activity I reported to Glaser.” Specifically, Spoon stated that she informed Glaser of
“the illegal campaigning” and that Glaser told her “that he was going to get the Texas Rangers to
investigate the department.” She specified,
[I] [t]old him that [Young] had been campaigning illegally in the office. That she
was passing out koozies in the office in our mail slots, they were sitting on our
desks as decorations I suppose, or campaigning. I said that her purse was being
used as a campaign poster. That she was driving up to the probation department
with a campaign sign on it while on the county property. 7
Spoon further testified that Young ordered a purse that displayed her campaign sign and
campaign buttons while using the front office computer during normal business hours. She
indicated that Young was using Facebook while at work and that Young’s Facebook photograph
was a photograph of her campaign sign. Spoon also testified that the purse was displayed at the
Department’s front desk, the central check-in point for individuals on community supervision.
Spoon stated, “I couldn’t believe it with my own eyes that she was using county computers or
having her staff use county computers during work hours with her logo. I couldn’t believe how
displayed it was.” She testified that she reported these activities—which she believed were
violations of law—to Glaser.
7
The Department did not negate Spoon’s allegation in the pleadings that Young was campaigning on government
time. The Department presented no evidence that Young did not place campaign koozies in employee mail slots on
government time.
15
Blake’s deposition testimony does not divulge specific details about what Glaser claimed
Spoon said to him regarding the campaign. However, Blake testified, “What I vividly recall is
my concern that any time anybody is running for office and works for a governmental entity, that
they not campaign on county time . . . . I just remember that I was very vigilant personally about
wanting to make sure that there wasn’t any campaigning on county time because that’s
inappropriate.” Viewed in a light most favorable to Spoon, Blake’s testimony supports Spoon’s
claim that she told Glaser about campaigning on government time.
In light of this testimony, we now address whether Spoon reported a violation of law in
good faith. In the context of a whistleblower claim, good faith has both objective and subjective
elements. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 683 (Tex. 2013).
Spoon’s petition stated that she met with Glaser in good faith to discuss specific, enumerated acts
which she believed “were not only illegal but were matters of public concern.” Spoon also
testified, “Everything that I put in my petition that was illegal activity I reported to Glaser.”
Thus, Spoon’s petition and testimony established the subjective prong of the good-faith
requirement.
However, the objective good-faith prong “turns on more than an employee’s personal
belief, however strongly felt or sincerely held.” Id. A whistleblower plaintiff must show that her
belief that a law was violated was reasonably based on her training and experience. See Univ. of
Houston v. Barth, 403 S.W.3d 851, 856–57 (Tex. 2013) (citing Gonzalez, 325 S.W.3d at 626).
Spoon’s many years of experience as a CSO is considered in the analysis of whether she reported
a violation of law in good faith. As a CSO, Spoon was aware of Department policies. Roberts
16
testified that she banned Young from campaigning in the office. Roberts, Glaser, and Blake all
believed that it was a violation of law to campaign on government time. Because Spoon’s boss,
the district attorney, and the district judge all believed it would be inappropriate for Young to
campaign in the office on government time and because Spoon testified that she reported such a
complaint to Glaser, Spoon demonstrated objective good faith in making the report.
Next, the Department relies heavily on the fact that Spoon’s counsel has refused to
identify any law allegedly implicated by Spoon’s reports, despite numerous opportunities to do
so. “The Whistleblower Act defines ‘law’ as a state or federal statute, an ordinance of a local
governmental entity, or ‘a rule adopted under a statute or ordinance.’” Barth, 403 S.W.3d 851,
854 (quoting TEX. GOV’T CODE ANN. § 554.001(1)). Because the Act is remedial in nature, it
should be liberally construed to effect its purpose. Town of Flower Mound v. Teague, 111
S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet. denied) (citing Castaneda v. Tex. Dep’t of
Agric., 831 S.W.2d 501, 503 (Tex. App.—Corpus Christi 1992, writ denied), superseded by
statute on other grounds, Act of May 25, 1995, 74th Leg., R.S., ch. 72, 1995 Tex. Gen. Laws
3812. An employee is protected by the Act if she believes and reports in good faith that a
violation has occurred, even where she is wrong about the legal effects of the facts (i.e., there
was no actual violation of law in fact). Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d
638, 642 (Tex. App.—Corpus Christi 2001, pet. denied); Lastor v. City of Hearne, 810 S.W.2d
742, 743–44 (Tex. App.—Waco 1991, writ denied). Also, an employee need not identify the law
allegedly violated when making the report. But there “must be some law prohibiting the
complained of conduct to give rise to a Whistleblower claim.” Llanes, 64 S.W.3d at 642. The
17
conduct reported by the employee must implicate some law for the employee to be protected by
the Act. Id. “Otherwise, every complaint, grievance, and misbehavior could support a claim
under the Act. Thus, to recover under the Act, an employee must have a good-faith belief that a
law, which in fact exists, was violated.” Id. at 643.
In the face of a plea to the jurisdiction, a trial court must have before it the facts and
arguments that would assist it in evaluating whether it has subject-matter jurisdiction. While an
employee is not required to identify in her petition the statute, ordinance, or rule that was
allegedly violated, “at some point during the litigation, the employee-plaintiff must make that
identification.” Wilson, 376 S.W.3d at 327 (holding that plaintiff-appellant challenging
dismissal of whistleblower claim for failure to report violation of law must identify in trial court
law allegedly violated to preserve argument for appeal). In response to the Department’s
numerous requests that Spoon identify the law allegedly violated, Spoon simply responded that
identification of the law allegedly violated is not required. However, “the specific law violated
is critical to the determination of whether the report was made to appropriate authority.” See
Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188–89 (Tex. App.—Dallas 2012, pet.
denied). 8 Thus, Spoon should have responded and identified the law or laws she believed were
violated by the conduct described in her report. Id. at 189.
However, (1) because the trial court denied the plea to the jurisdiction, thereby implicitly
concluding that an existing law was implicated, (2) because we have found no other case in
8
The appellate court in Mullins noted that Mullins identified alleged violations of law during the appellate
proceedings, thereby enabling the court to analyze whether Mullins’ reports implicated violations of the law and
whether the reports were made in good faith to the appropriate law enforcement authority. Mullins, 357 S.W.3d at
188–89. Here, Spoon’s counsel failed to even identify any alleged violation of law on appeal.
18
which counsel has failed to identify the law allegedly violated by the conduct described in the
report, and (3) because all of the witnesses, including the district attorney and district judge,
testified that it was illegal to campaign for office on government time, we will undertake to
determine if a law exists prohibiting the conduct Spoon complained of.
Believing that Spoon’s allegations might stem from violations of the Department’s
internal policies, the Department correctly argues that a violation of a department’s internal
policies does not always constitute a violation of the law. See Harris Cnty. Precinct Four
Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex 1996); see Barth, 403 S.W.3d at 856;
Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex. App.—Austin 1998, no pet.); Burnet
County Sheriff’s Dep’t v. Carlisle, No. 03-00-00398-CV, 2001 WL 23204, at *6 (Tex. App.—
Austin Jan. 11, 2011, no pet.) (not designated for publication). However, a rule adopted under a
statute or ordinance or an ordinance of a local governmental entity constitutes a law under the
Act, and we find that Spoon’s report implicated such a rule. See TEX. GOV’T CODE. ANN.
§ 554.001(1).
As applicable to this case, Section 76.002(a) of the Texas Government Code gives the
district judges within each judicial district the authority to establish a community supervision and
corrections department. TEX. GOV’T CODE ANN. § 76.002(a) (West 2013). 9 “The judicial
9
Employees of the Department are not state employees, except for purposes of worker’s compensation under
Chapter 501 of the Texas Labor Code and indemnification provisions and provisions providing defense by the
Attorney General under Chapter 104 of the Texas Civil Practice and Remedies Code. TEX. GOV’T CODE ANN. §
76.006(c) (West 2013).
19
districts served by a department shall pay the salaries of department employees.” TEX. GOV’T
CODE ANN. § 76.006(b) (West 2013). 10 Section 76.006(a) reads,
The department shall contract for all employee benefits with one county served by
the department and designated for that purpose by the judges described by Section
76.002. To the extent that employee benefits are provided by a county under this
subsection, the employees are governed by personnel policies and benefits equal
to personnel policies for and benefits of other employees of that county.
TEX. GOV’T CODE. ANN. § 76.006(a).
For purposes of our analysis, Spoon is governed by Fannin County’s personnel policies
and procedures. Section 158.009 of the Texas Local Government Code allows a commissioner’s
court to “adopt, publish, and enforce rules regarding: . . . matters relating to the selection of
county employees and their procedural and substantive rights, advancement, benefits, and
working conditions of county employees.” TEX. LOCAL GOV’T CODE ANN. § 158.009 (West
2008). On April 24, 2000, the Commissioner’s Court of Fannin County adopted Section 3.09 of
the Fannin County Personnel Policy Manual (the Manual), which has been in effect since that
time. Section 3.09, titled “Policy on Political Activity,” states,
County employees shall not: . . .
b. Directly or indirectly coerce, attempt to coerce, command, or advise another
person to pay, lend, or contribute anything of value to a party, committee, organization,
agency, or person for a political reason; or
c. Use any equipment, property or material owned by the County for political
activity or engage in political activity while on duty for the County.
FANNIN COUNTY PERSONNEL POLICY MANUAL § 3.09 (2000), available at http://tools.cira.
state.tx.us/users/0045/docs/Treasurer/Current_Fannin_County_Personnel_Manual_2-3-14.pdf
10
The Department serves only Fannin County.
20
(last visited July 15, 2014). Therefore, Section 3.09 of the Manual constitutes a law within the
meaning of the Act. See discussion in City of Waco v. Lopez, 183 S.W.3d 825, 829 (Tex. App.—
Waco 2005), overruled by 259 S.W.3d 147 (Tex. 2008).
2. Evidence of Report of Embezzlement
Moreover, Spoon introduced evidence establishing that she reported possible
embezzlement by another public employee. According to Spoon, the issue of embezzlement of
Department funds by the former Department director, Fowler, was a regular topic of discussion
by Roberts, Maxey, and Department employees Lisa Ayers and Corey Baker. Glaser and Blake
testified that the issue of embezzlement was not mentioned. However, Spoon testified,
I told [Glaser] that [Maxey] had said that Hal Fowler had embezzled money when
he left and that was the reason for the budget problems in the probation
department. And that [Roberts] was going to tell Judge Blake about the
embezzlement. And when she told us at the office that—when she learned at the
barbecue cook-off that Judge Blake and Hal Fowler went to the same church, that
she decided not to tell Judge Blake about Hal’s embezzling money. I did not
believe that Hal embezzled money, that I couldn’t understand why the budget
problems that possible [Maxey] needed to be looked at about his budgeting issue.
It might be him and not Hal Fowler.
Section 554.002(a) of the Act protects a public employee “who in good faith reports a
violation of law by . . . another public employee.” TEX. GOV’T CODE. ANN. § 554.002(a).
Fowler was a public employee prior to his retirement. Spoon was alleging that Roberts believed
Fowler had embezzled money but secreted the fact. Clearly, embezzlement of the Department’s
funds implicates the Texas Penal Code’s theft statute. See TEX. PENAL CODE ANN. § 31.02
(West 2011). The Department argues that Spoon’s report was not made in good faith because
(1) it was based solely on rumors, and (2) Spoon’s testimony that she did not believe Fowler
21
embezzled money established that Spoon lacked a subjective good-faith belief when making the
report. 11
Spoon testified that it was common knowledge that Fowler embezzled funds and that
people around the office discussed the matter openly. Whistleblower actions can be based on
this type of first-hand hearsay. Tex. Dep’t of Criminal Justice v. McElyea, 239 S.W.3d 842, 853
(Tex. App.—Austin 2007, pet. denied) (“it is permissible for a whistleblower’s knowledge about
violations of law to be based on hearsay”) (citing Castaneda, 831 S.W.2d at 504 (lack of
personal knowledge does not conclusively negate subjective good faith)). Although Spoon
testified that she did not personally believe Fowler had embezzled funds, she indicated that
people in the office said that funds had been embezzled, suggested that perhaps Maxey was
involved, and felt the matter serious enough to report to Glaser.
Based on the evidence presented, which we view in a light most favorable to Spoon, we
conclude that Spoon raised fact issues as to whether she reported violations of law to Glaser in
good faith. 12 Accordingly, we overrule this point of error. 13
11
Spoon testified,
[Maxey] said that [Fowler] took an enormous amount of money when he left of time, like
vacations and sick leaves and all that . . . . But evidently he got a large check . . . for vacation and
sick leave that he had already taken. Actually taken in the physical sense but he got a financial --
paid for it again for the second time. And that was a large check.
The Department argues that Spoon’s testimony establishes that she did not have a good-faith objective belief that
embezzlement occurred because (1) the act Spoon described in her testimony does not amount to embezzlement, and
(2) no one in Spoon’s position would believe that Fowler’s acts constituted embezzlement. However, when we view
the evidence in the light most favorable to Spoon, it appears that she testified that, according to Maxey, Fowler was
paid for vacation and sick leave twice and that he was not entitled to the second payment.
12
The Texas Government Code states,
22
C. Evidence of Causal Connection
The Department argues that Spoon failed to show a causal link between her report and
Roberts’ decision to terminate her. To show causation, “a public employee must demonstrate
that after he reported a violation of the law in good faith to an appropriate law enforcement
authority, the employee suffered discriminatory conduct by his employer that would not have
occurred when it did if the employee had not reported the illegal conduct.” City of Fort Worth v.
Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) (citing Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d
629, 633 (Tex. 1995)); see Steele v. City of Southlake, 370 S.W.3d 105, 117 (Tex. App.—Fort
[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.
TEX. GOV’T CODE ANN. § 554.002(b). In this context, good faith means,
(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the
law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and
(2) the employee’s belief was reasonable in light of the employee’s training and experience.
Id. (citing Tex. Dep’t of Trans. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002). The Department concedes that Glaser
was the appropriate law enforcement authority with respect to the illegal campaigning and embezzlement
allegations.
13
The Department’s prayer for relief on appeal states,
Alternatively, for the sake of judicial economy so that legally-insufficient claims are not left to be
re-evaluated by this Court again on appeal after trial or after another plea is filed to narrow the
issues for trial, Appellant asks this Court to reverse and order dismissal of each and every claim that
fails to establish all elements of a violation of the Texas Whistleblower Act and concerning which
the district court therefore lacks jurisdiction to consider.
The Department cites no authority which would support their entitlement to this requested relief. The parties in this
case conducted limited jurisdictional discovery. It appears that depositions of key witnesses were timed. In essence,
the Department seeks summary judgment based on this limited discovery. We need not entertain the Department’s
request at this stage in the litigation.
23
Worth 2012, pet denied). A causal connection can be proven by circumstantial evidence.
Zimlich, 29 S.W.3d at 69.
Here, Spoon met with Glaser, Glaser immediately discussed that meeting with Blake,
Blake met with Roberts on the first day that Roberts returned from vacation, and Spoon was fired
one day after Roberts’ meeting with Blake. Roberts testified that her decision to terminate
Spoon was based, in part, on what Blake told her. When viewed in the light most favorable to
Spoon, there is sufficient circumstantial evidence to show a causal link between her report and
her termination. Furthermore, because Spoon was terminated within days of her reports to
Glaser, there is a rebuttable presumption that her termination occurred as a result of the report.
See TEX. GOV’T CODE ANN. § 554.004(a).
Next, Section 554.004 of the Texas Whistleblower Act provides,
It is an affirmative defense to a suit under this chapter that the employing state or
local governmental entity would have taken the action against the employee that
forms the basis of the suit based solely on information, observation, or evidence
that is not related to the fact that the employee made a report protected under this
chapter of a violation of law.
TEX. GOV’T CODE ANN. § 554.004(b). The Department argues that undisputed evidence
conclusively established its affirmative defense that Roberts did not know of Spoon’s report to
Glaser and that Spoon was terminated for reasons other than her report.
The Department relies primarily on Roberts’ deposition testimony that Spoon was fired
(1) for failure to follow her direct order regarding the Garza SAFPF order and (2) for failure to
follow the chain of command by first bringing complaints about the Department and internal
gossip to the attention of the district attorney. The Department’s assertions were not
24
conclusively established by the record. While Roberts testified that she told Spoon several times
to talk with the district attorney about the order (which Spoon eventually did), Spoon testified
that it was her idea to go to the district attorney’s office. Spoon also testified that she needed
clarification about what to do with the order because Maxey told her to draft the order while
Roberts told her not to do so. Also, we have found that Spoon reported what she believed were
violations of law to Glaser, and Roberts testified that Department employees are not required to
go through the chain of command when reporting violations of law.
The Department also contends that it is undisputed that Roberts was the sole decision
maker, Roberts did not consult with Glaser or Blake before deciding to terminate Spoon, and
Roberts had no knowledge of the substance of Spoon’s report to Glaser at the time she decided to
terminate Spoon. However, (1) Spoon testified she reported all of the six enumerated complaints
in her petition—including violations of law—to Glaser, (2) Glaser discussed the Spoon meeting
with Blake, (3) Blake’s affidavit suggests that illegal campaigning was mentioned to her by
Glaser, (4) Roberts met with Blake, (5) Roberts testified that the decision to terminate Spoon
came after her meeting with Blake, (6) Roberts said her decision was, in part, based on the
conversation she had with Blake, and (7) Spoon testified that Roberts told her there was no
further need to contact Glaser because Glaser was already aware of Roberts’ decision to
terminate her employment. This evidence allows for a multitude of inferences, many of which
are contradictory, to be drawn. As a result, the reason for Spoon’s termination and Roberts’
knowledge of Spoon’s report to Glaser are disputed issues of material fact. The Department has
failed to meet its burden of conclusively negating the element of causation.
25
Viewed in the light most favorable to Spoon, the evidence does not, in our view,
(1) negate the jurisdictional facts demonstrating Spoon’s prima facie case under the Act or
(2) conclusively establish the Department’s affirmative defense. Rather, we find that the
evidence raises fact issues as to whether Spoon was terminated for making a good-faith report to
Glaser of a violation of the law. Accordingly, the Department’s plea to the jurisdiction was
properly denied.
IV. Conclusion
The judgment of the trial court is affirmed.
Jack Carter
Justice
Date Submitted: June 3, 2014
Date Decided: July 16, 2014
26