Texas Youth Commission v. Thomas Bollinger ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-11-00152-CV
________________________
TEXAS YOUTH COMMISSION, APPELLANT
V.
THOMAS BOLLINGER, APPELLEE
On Appeal from the 126th District Court
Travis County, Texas
Trial Court No. D-1-GN-03-00162, Honorable Stephen Yelenosky, Presiding
May 28, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The Texas Youth Commission 1 appeals a judgment entered in favor of Thomas
Bollinger, following a jury trial of his Texas Whistleblower Act claim. 2 In three issues,
1
Effective December 1, 2011, the Texas Youth Commission was abolished and the powers and duties of
that agency were transferred to the newly created Texas Juvenile Justice Department. See generally
TEX. HUMAN RESOURCES CODE, §§ 201.001 – 261.152 (W EST 2013). For purposes of this opinion, we will
continue to refer to the Texas Youth Commission simply as TYC.
2
See Tex. Gov’t Code Ann. §§ 554.001-.010 (West 2012). Throughout the remainder of this opinion, we
will refer to those provisions as either the “Whistleblower Act” or simply the “Act.”
TYC asserts (1) the trial court lacked jurisdiction because Bollinger’s evidence of a
Whistleblower Act claim was legally insufficient; (2) Bollinger’s evidence at trial was
legally and factually insufficient to establish causation; and (3) the trial court’s causation
instruction to the jury was erroneous. In his cross-appeal, Bollinger contends the trial
court erred by failing to award reinstatement in its judgment. We reverse the trial court’s
judgment and render judgment that Bollinger take nothing.
BACKGROUND
In December 2007, Bollinger filed his Third Amended Petition alleging TYC
violated the Texas Whistleblower Act by retaliating against him for making numerous
good faith reports concerning violations of law by his TYC supervisor, Jerome Parsee.
In May 2010, the trial court denied TYC’s motion to dismiss based on allegations that
Bollinger’s reports were (1) not made in good faith, (2) did not allege violations of law
and (3) were not directed to an appropriate law enforcement authority. In June 2010, a
five-day jury trial was held. At the conclusion of Bollinger’s case-in-chief and again at
the close of all evidence, TYC moved for a directed verdict based upon the same
grounds. The trial court granted a directed verdict in favor of TYC as to all reports,
save two: (1) the “Fire Alarm Report” based on Bollinger’s complaint of unsafe working
conditions contained in his Statement of Grievance dated November 7, 2001, and (2)
the “Pepper Spray Report” based on his allegation in an email dated November 10,
2001, that Parsee authorized the misuse of pepper spray.
The jury subsequently returned a verdict in Bollinger’s favor and, in its judgment,
the trial court awarded him $45,850 in past lost wages, $43,150 in compensatory
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damages, $16,000 in attorney’s fees and pre/post judgment interest. Bollinger
subsequently moved to modify the trial court’s judgment to include reinstatement. After
a hearing, the trial court denied Bollinger’s motion and issued Findings of Fact and
Conclusions of Law. TYC appeals the monetary judgment and Bollinger appeals the
denial of reinstatement. Because disposition of TYC’s first issue resolves the
controversy, we pretermit TYC’s remaining issues and Bollinger’s cross-issue. See
TEX. R. APP. P. 47.1.
DISCUSSION
By its first issue, TYC asserts Bollinger presented legally insufficient evidence
that he made a “good faith report of a violation of law” to an “appropriate law
enforcement authority,” essential elements of a Texas Whistleblower Act claim. TYC
reasons that because those elements are totally lacking, there is no basis in law to
support a judgment in Bollinger’s favor. We agree.
STANDARD OF REVIEW
In a legal sufficiency review, this Court must credit favorable evidence to the
verdict if reasonable jurors would have done so, disregard contrary evidence unless
reasonable jurors could not have done so, and reverse the jury’s determination only if
the evidence presented at trial would not enable reasonable and fair-minded people to
reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005). We sustain legal sufficiency challenges if the record reveals: (1) the complete
absence of evidence of a vital fact; (2) the court is barred by the rules of evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered
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to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively
establishes the opposite of a vital fact. Id. at 810. More than a scintilla of evidence
exists if the evidence rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601
(Tex. 2004). In applying this standard of review, we must be mindful that the jurors are
the sole judges of the credibility of the witnesses and the weight to be given to their
testimony. City of Keller, 168 S.W.3d at 819.
THE TEXAS WHISTLEBLOWER ACT
The Texas Whistleblower Act prohibits any state or local government from taking
an 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) (W EST
2012). The statute was enacted to protect public employees who report illegal activity
and to enhance openness in government while compelling compliance with the law.
Castaneda v. Tex. Dep’t of Agriculture, 831 S.W.2d 501, 503 (Tex.App.—Corpus Christi
1992, writ denied). The cause of action 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.).
To establish a claim for retaliation under the Act, a claimant must prove the
following elements: (1) claimant was 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) claimant suffered retaliation as a result
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of making the report. County of Bexar v. Steward, 139 S.W.3d 354, 357-58 (Tex.App.—
San Antonio 2004, no pet.). In the context of a whistleblower claim, “good faith” has
both a subjective and objective component. See Texas Dep’t of Transp. v. Needham,
82 S.W.3d 314, 321 (Tex. 2002). The subjective component ensures that an employee
actually believes that he is reporting a violation of law to an appropriate law
enforcement agency, while the objective component ensures that the employee’s beliefs
are objectively reasonable “in light of the employee’s training and experience.” Id. at
320. (citing Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). Under the
objective component, a claimant is entitled to protection “if a reasonably prudent
employee in similar circumstances” would have held those beliefs. Id.
VIOLATION OF LAW
The Act defines a “law” as (1) a state or federal statute, (2) an ordinance of a
local governmental entity, or (3) a rule adopted under a statute or ordinance. TEX.
GOV’T CODE ANN. § 554.001(1) (W EST 2012). Although an employee need not identify a
specific law when making a report and need not establish an actual violation of law at
trial, the employee must identify some law prohibiting the complained of conduct to give
rise to a whistleblower claim. Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638,
642-43 (Tex.App.—Corpus Christi 2001, pet. denied). “Otherwise, every complaint,
grievance and misbehavior could support a claim under the Act.” Id. Violations of an
agency’s internal procedures and policies will not alone support a claim. Mullins v.
Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188 (Tex.App.—Dallas 2012, pet. filed) (citing
Llanes, 64 S.W.3d at 642). See Vela v. City of Houston, 186 S.W.3d 49, 53
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(Tex.App.—Houston [1st Dist.] 2005, no pet.) (“Violation of the City’s internal policies
are not ‘laws’ under the Act. [Citations omitted]”).
APPROPRIATE LAW ENFORCEMENT AUTHORITY
The Act requires the aggrieved employee to make his report to “an appropriate
law enforcement authority.” See TEX. GOV’T CODE ANN. § 554.002(a)-(b) (W EST 2012).
The Act defines an appropriate law enforcement authority as “part of a state or local
governmental entity . . . 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. at § 554.002(b). This “limited definition of a
law enforcement authority does not include an entity whose power is not shown to
extend beyond its ability to comply with a law by acting or refusing to act or by
preventing a violation of law by acting or refusing to act.” City of Elsa v. Gonzalez, 325
S.W.3d 622, 628 (Tex. 2010). See Needham, 82 S.W.3d at 319 (holding the definition’s
limiting language means the entity must have the authority to regulate, enforce,
investigate, or prosecute the particular law reported to have been violated). See also
Duvall v. Tex. Dep’t of Human Services, 82 S.W.3d 474, 481-82 (Tex.App.—Austin
2002, no pet.) (holding that the authority to take remedial action to internally discipline
an employee does not equate to the authority to regulate under, enforce, prosecute, or
investigate a violation of law).
Applying the subjective and objective components of good faith to this
requirement means the reporting employee must possess an actual belief that the entity
receiving the report was authorized to regulate under or enforce the law allegedly
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violated, or investigate or prosecute a violation of criminal law; and, those beliefs must
have been reasonable in light of the reporting employee’s training and experience.
Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Gentilello, No. 10-0582, 2013 Tex.
LEXIS 154, at *6 (Tex. Feb. 22, 2013).
In Gentilello, the Supreme Court held that a person or entity with authority to
ensure internal compliance with the law does not, per se, make that person or entity an
appropriate law enforcement authority within the meaning of the Act. In order to meet
the requirements of the Act, a claimant must show that the person or entity to whom the
report was made had “free-standing regulatory, enforcement, or crime fighting
authority.” Id. at *1. Furthermore, as clarified in Texas A & M University – Kingsville v.
Moreno, No. 11-0469, 2013 Tex. LEXIS 155, at *2 (Tex. Feb. 22, 2013), the reported-to
person or entity must be charged with more than mere internal adherence to the law
allegedly violated. An “appropriate law enforcement entity” does not include persons
charged with mere internal adherence to the law allegedly violated who are responsible
for reporting suspected illegalities to external entities. The Act protects employees who
report violations to authorities that actually promulgate regulations or enforce the laws,
or to authorities that pursue criminal violations. Id. at *3.
THE FIRE ALARM REPORT
In accordance with TYC procedures, Bollinger filed a Grievance with the Human
Resources Department at the Marlin Orientation and Assessment Unit alleging unsafe
working conditions. In his Voluntary Statement submitted twelve days after his
Grievance, he alleged the fire alarms at the unit had been turned off for two to three
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days. In support of his contention that noncompliance with a safety condition
constituted a violation of law, Bollinger contends TYC is required by law to adopt
policies and rules governing the operation of its facilities and programs. See TEX. HUM.
RES. CODE ANN. § 242.003 (W EST 2013). He then offered evidence indicating that
possible corrective action, including probation or termination, could be taken against an
employee who violated the rules or regulations adopted by TYC.
This report fails, as a matter of law, as a good faith report of a violation of law to
an appropriate law enforcement authority. First, Bollinger failed to cite any particular
law, rule, or regulation that was being violated if fire alarms at a TYC facility were
inoperable for two to three days. To establish a colorable claim under the Act, a
claimant must identify some actual law which prohibits the complained-of-conduct.
Mullins, 357 S.W.3d at 188-89 (claimant required to identify what law or laws he
believed were violated by the conduct described in his report); Vela, 186 S.W.3d at 53
(no violation of law where claimant cites no law that he believes was violated),
Resendez v. Tex. Comm. on Environmental Quality, 391 S.W.3d 312, 323 (Tex.App.—
Austin 2012, pet. filed) (some actual law which prohibits the complained-of-conduct
must exist).
Secondly, TYC does not qualify as an “appropriate law enforcement authority.”
Although TYC may perform fire protection, fire prevention, and fire suppression
activities at its facilities, see TEX. HUM. RES. CODE ANN. § 242.068 (West 2013),
Bollinger cites no law giving TYC any legal authority to investigate or prosecute
violations of any fire protection laws, rules or regulations on any level, state or local.
Furthermore, while TYC may internally discipline an employee who fails to fulfill their
8
responsibilities concerning proper fire protection at a given facility, its power to conduct
internal investigative or disciplinary procedures does not satisfy the standard for an
appropriate law enforcement authority. Gentilello, 2013 Tex. LEXIS 154, at *17-18;
Moreno, 2013 Tex. LEXIS 155, at *1-2; Needham, 82 S.W.3d at 320-21.
Given Bollinger’s testimony at trial coupled with his experience, 3 we find there is
no evidence Bollinger had a subjective good faith belief that he was reporting a violation
of law to an appropriate law enforcement authority or that, had he held such a good faith
belief, it was objectively reasonable. See Gentilello, 2013 Tex. LEXIS 154, at *8-9;
Moreno, 2013 Tex. LEXIS 155, at *3-4; Vela, 186 S.W.3d at 53. Accordingly, we find
there is no evidence the fire alarm report represented a good faith report of a violation of
law to an appropriate law enforcement authority under the Act.
THE PEPPER SPRAY REPORT
In an email to a TYC investigator, Bollinger stated that an anonymous employee
informed him that, within the last thirty days, several TYC residents had been sprayed
with pepper spray (“OC sprays”) as a form of punishment and that this action was done
with Parsee’s authorization. 4 The email indicated that Bollinger had no idea whether the
information was correct. Attached to the email was a statement referencing TYC
reporting and investigation policies requiring any employee who had “cause to believe”
that a resident had been abused to report the allegation to the local administrator. The
3
Bollinger holds multiple degrees in the areas of Psychology, Social Science, and Social Work. He is also
a Ph.D. candidate in the area of family and human development and he has acquired numerous state
certifications. In the course of serving as an assistant superintendent for TYC for approximately four
years, he has received extensive training on TYC’s policies and procedures.
4
Although TYC authorizes the use of pepper spray at its facilities under certain circumstances, Bollinger
testified that using pepper spray as a form of punishment is not authorized.
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local administrator was then required to notify an appropriate law enforcement agency if
there was “cause to believe” that a resident had been or might be abused, neglected or
exploited. 5
Later, Bollinger filed a Voluntary Statement reiterating his email complaint and
encouraging staff to contact TYC’s youth rights staff. At trial, Bollinger testified that
allegations of abuse and neglect were made to the superintendent who would typically
assign an in-house youth rights investigator to conduct an investigation. He further
testified that in-house investigators reported to the superintendent and allegations of
abuse were usually handled within the facility. In accord, the allegations in the email
were subsequently investigated by Shirley McCullough, a youth rights investigator, who
concluded the allegation was unsubstantiated. In a memorandum to Bollinger from
Lydia Bernard, Director of Juvenile Corrections, Bernard indicated that Bollinger’s
allegations regarding improper use of pepper spray could not be confirmed because he
was unable to provide any detailed information (such as dates or times) to support the
anonymous allegations reported by him.
Again, these reports concerning the alleged misuse of pepper spray fail, as a
matter of law, as a good faith report of a violation of law to an appropriate law
enforcement authority. In support of his contention that the use of pepper spray
constituted a violation of law, Bollinger again relies on the statutory requirement that
TYC adopt policies and rules governing the operation of its facilities and programs. See
TEX. HUM. RES. CODE ANN. § 242.003 (W EST 2013). Relying then on a provision of the
5
Bollinger does not contend that TYC policy or procedures prohibited him from directly reporting any
alleged abuse to another state agency or law enforcement authority.
10
Family Code defining “abuse,” TEX. FAM. CODE ANN. § 261.001(1) (W EST SUPP. 2012),
he contends TYC employment guidelines provide for probation or termination of an
employee who uses excessive force against a resident.
Notwithstanding these contentions, there is an absence of evidence indicating
Bollinger had a subjective good faith belief that he was reporting an actual violation of
law. His email is ambivalent as to whether anything untoward had occurred with
respect to the residents under the care and supervision of TYC and it appears his
reports were made merely for the purpose of satisfying his compliance with TYC
policies and procedures regarding the reporting of abuse. His email expressly indicates
he has no personal knowledge regarding the truth of the allegations and, at trial, he
testified “[t]he only thing I wanted to do was follow [TYC’s] policies and procedures.”
Even if we interpret Bollinger’s email to allege a violation of law such as an
assault; TEX. PENAL CODE ANN. § 22.01(a)(1) (W EST 2008), or assault of a child; id. at
22.04(a) (W EST SUPP. 2012), we note that TYC would be responsible to pass this
information on to “an appropriate law enforcement agency” if its local administrator’s
investigation produced cause to believe abuse had occurred. See TEX. FAM. CODE ANN.
§§ 261.308(a), (b), 261.402(b) (W EST 2008). See also TEX. FAM. CODE ANN. §
261.105(e) (W EST SUPP. 2012) (requiring TYC to develop guidelines appropriate for
referral of child abuse to a “law enforcement agency”), § 261.3011 (W EST 2008)
(requiring the Texas Department of Family and Protective Services, in consultation with
an appropriate law enforcement agency, to develop guidelines and joint protocols for
joint investigations of child abuse allegations). While TYC’s personnel policies permit
TYC to discipline an employee who uses excessive force against a resident, TYC’s
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ability to conduct internal investigative or disciplinary procedures does not satisfy the
standard for an “appropriate law enforcement authority.” Gentilello, 2013 Tex. LEXIS
154, at *17-18; Moreno, 2013 Tex. LEXIS 155, at *1-2; Needham, 82 S.W.3d at 320-21.
If TYC’s investigation indicated there were sufficient grounds for the filing of criminal
charges, it would be required to submit a report to a court, district attorney, and/or an
appropriate law enforcement agency recommending action. See TEX. FAM. CODE ANN. §
261.308(a), (b) (W EST 2008).
Given Bollinger’s testimony at trial coupled with his experience, we find there is
no evidence Bollinger had a subjective good faith belief that he was reporting a violation
of law to an appropriate law enforcement authority or that, had he held such a good faith
belief, it was objectively reasonable. See Gentilello, 2013 Tex. LEXIS 154, at *8-9;
Vela, 186 S.W.3d at 53. See also Tex. Dep’t of Crim. Just. v. Terrell, 18 S.W.3d 272,
275 (Tex.App.—Tyler 2000, pet. denied) (allegations of illegal conduct premised upon
rumor and innuendo do not establish a factual basis upon which a fact-finder would
conclude a reasonable employee with the same level of training and experience would
have made such a report). 6
Accordingly, we find there was no evidence Bollinger’s fire alarm report or pepper
spray report represented a good faith report of a violation of law to an appropriate law
enforcement authority. As such, there was legally insufficient evidence at trial that
6
At trial, Bollinger failed to offer any evidence that the second-hand report of an anonymous tip represents
“cause.” See, for example, TEX. FAM. CODE ANN. § 261.304(a) (W EST 2008) (“If the department receives
an anonymous report of child abuse . . ., the department shall conduct a preliminary investigation to
determine whether there is some evidence to corroborate the report,” and “[u]nless the department
determines that there is some evidence to corroborate the report of abuse, the department may not
conduct the thorough investigation required by this chapter or take any action against the person accused
of abuse.”)
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would enable reasonable and fair-minded persons to reach the verdict under review.
TYC’s first issue is sustained, thereby pretermitting TYC’s remaining issues and
Bollinger’s cross-issue. Tex. R. App. P. 47.1.
Conclusion
The trial court’s judgment is reversed and a judgment that Bollinger take nothing
is rendered.
Patrick A. Pirtle
Justice
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