Office of the Attorney General of Texas v. Laura G. Rodriguez ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
OFFICE OF THE ATTORNEY
GENERAL OF TEXAS, § No. 08-11-00235-CV
Appellant, § Appeal from the
v. § County Court at Law No. 6
§ of El Paso County, Texas
LAURA G. RODRIGUEZ,
§ (TC# 2010-1710)
Appellee.
OPINION
In this whistleblower case, the Office of the Attorney General of Texas (“OAG”) appeals
from a portion of the trial court’s order denying its plea to the jurisdiction. In three issues for
review, the OAG raises one primary complaint that Laura Rodriguez (“Rodriguez”) failed to
report a violation of law to an “appropriate law enforcement authority” as required by the
Whistleblower Act. For the reasons that follow, we affirm.
FACTUAL SUMMARY
Rodriguez was employed as a field regional administrator in the OAG’s child support
division. In January 2009, she discovered that her former executive assistant, Deborah Galindo
(“Galindo”), had added a dependent to her state-sponsored insurance plan whom Galindo claimed
was a niece, but who was, in fact, the girlfriend of Galindo’s son. Believing that Galindo had
committed insurance fraud and tampered with governmental records, Rodriguez -- acting pursuant
to OAG policy -- reported her suspicions to her immediate supervisors. One of them advised
Rodriguez to report her concerns anonymously to the Ethics Advisor, the individual designated by
the Attorney General to administer the OAG’s Fraud, Waste, and Abuse Prevention Program.
Rodriguez did so. Shortly after receiving the anonymous report, the Ethics Advisor sent the
OAG’s Deputy Attorney General for Criminal Justice a memorandum asking for his assistance
“[b]ecause allegations of fraud might involve criminal conduct.” Following an investigation by
the OAG’s Criminal Investigation Division (“CID”)1, the Ethics Advisor released a report in
which he concluded that Galindo had not committed fraud but had misstated information. He
recommended that human resources take appropriate disciplinary action. Galindo was suspended
from work for five days.
In the months that followed, Rodriguez was demoted and given a poor evaluation. She
was eventually terminated in April 2010, after the OAG’s Ombudsman released a report
concerning her claim of retaliation for reporting Galindo. Thereafter, Rodriguez sued the OAG
for violations of the Whistleblower Act. She alleged that she had a good faith belief that Galindo
violated the law and that she had reported these violations to the entities that had the authority to
“investigate, enforce, regulate, or prosecute criminal laws involving insurance fraud or tampering
with governmental records . . . .” Rodriguez identified these entities as “the Fraud, Waste, and
Abuse Prevention Program and/or the Criminal Investigation Division of [the OAG] . . . .
According to Rodriguez, her report resulted in adverse personnel actions when she was demoted
and terminated.
The OAG filed a plea to the jurisdiction asserting that Rodriguez’s claims were barred by
sovereign immunity because she failed to allege the jurisdictional facts necessary to invoke the
1
After investigators from the OAG’s Criminal Investigation Division contacted Rodriguez in response to her
anonymous report and, while they were interviewing her, Rodriguez reported her suspicions that Galindo had violated
the law.
2
Whistleblower Act. In particular, the OAG maintained that Rodriguez failed to allege that she
reported a violation of law to an “appropriate law enforcement authority” because none of the
persons to whom she made her report had the authority to prosecute criminal law violations. The
trial court denied the plea as it pertained to this basis, but granted it as it pertained to Rodriguez’s
failure to grieve her claims and failure to file the lawsuit timely. This interlocutory appeal
follows.2
STANDARD OF REVIEW
Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and is
properly asserted in plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 225-26 (Tex. 2004). Whether the trial court has subject matter jurisdiction is a
question of law, which we review de novo. Id. at 226. A plaintiff bears the burden of alleging
facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Id. In
determining whether a plaintiff has done so, we construe the pleadings liberally in the plaintiff’s
favor and look to the pleader’s intent. Id. In determining a plea to the jurisdiction, we can also
consider evidence, and must do so when necessary to resolve the jurisdictional issue. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). If evidence negates the existence of
jurisdictional facts as a matter of law, the trial court should grant the plea. City of Waco v. Lopez,
259 S.W.3d 147, 150 (Tex. 2008). However, if evidence does not negate jurisdiction as a matter
of law or if it creates a fact issue, the trial court should deny the plea. Id.
THE WHISTLEBLOWER ACT
The Whistleblower Act contains an express waiver of immunity from suit. Specifically, a
public employee who alleges a violation of the Act may sue the employing state or local
2
See TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(8)(West Supp. 2012)(permitting state agency to file
interlocutory appeal from denial of plea to the jurisdiction).
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government entity for the relief provided by the Act. TEX.GOV’T CODE ANN. § 554.0035
(West 2012). In determining whether an employee has alleged a violation, we consider whether
the factual allegations would actually constitute a violation of the Act. State v. Lueck, 290
S.W.3d 876, 881 (Tex. 2009). However, a plaintiff need not prove her claim to satisfy the
jurisdictional hurdle, and the burden of proof with respect to the jurisdictional facts does not
involve a significant inquiry into the substance of the claims. Id.
Appropriate Law Enforcement Authority
Under the Whistleblower Act, a state or local governmental entity may not suspend or
terminate the employment of, or take other adverse personnel action against, an employee who
makes a good faith report to an appropriate law enforcement authority that the entity or another
employee has violated the law. TEX.GOV’T CODE ANN. § 554.002(a); Lueck, 290 S.W.3d at
878. As defined by the Act, 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.” Id. at §
554.002(b). Good faith, in the context of an appropriate law enforcement authority, means that:
“(1) the employee believed the governmental entity was authorized to (a) regulate under . . .
enforce . . . (b) investigate or prosecute a violation of . . . law; and (2) the employee’s belief was
reasonable in light of the employee’s training and experience.” Tex. Dept. of Transp. v.
Needham, 82 S.W.3d 314, 321 (Tex. 2002).
Report to the Ethics Advisor
On appeal, the OAG challenges the reasonableness of Rodriguez’s belief that the Ethics
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Advisor, as head of the Fraud, Waste, and Abuse Prevention Program, and the OAG’s Criminal
Investigation Division were appropriate law enforcement authorities.3 Specifically, the OAG
argues that Rodriguez’s belief could not have been reasonable because the Ethics Advisor’s
authority to discipline employees internally did not equate to authority to regulate under, enforce,
prosecute, or investigate criminal violations, which, the OAG maintains, Rodriguez knew were
reported to and handled by an outside law enforcement agency. We are not persuaded by this
argument.
The evidence supports Rodriguez’s belief that the Ethics Advisor was an appropriate law
enforcement authority. Rodriguez produced the OAG’s “Agency Integrity Program” policy
providing for the promulgation of rules, practices, and standards to “reduce the risk of fraud,
waste, and abuse in the workplace.” The policy covers “unethical, fraudulent, and/or illegal
conduct” and is “designed to provide a method to identify, prevent, detect, and report” such
conduct. As defined by the policy, fraud is “the use of one’s occupation for obtaining personal
benefit (including benefit for family/friends) through the deliberate misuse or misapplication of
the OAG’s resources or assets.” [Emphasis in original]. The policy requires an employee to
report unethical, fraudulent, and/or illegal conduct to certain identified individuals, including the
employee’s immediate supervisor and the Ethics Advisor.4 Indeed, the policy mandates that any
person who receives a report of fraud has a duty to refer the matter immediately to the Ethics
3
The OAG also challenges the adequacy of Rodriguez’s reports to her immediate supervisors and the Ombudsman.
However, Rodriguez did not identify these individuals in her Second Amended Petition or in her original and
supplemental responses to the OAG’s plea to the jurisdiction as individuals whom she believed were appropriate law
enforcement authorities. She merely identified them as individuals to whom she reported her suspicions. While we
can consider evidence in determining a plea to the jurisdiction, the evidence must be relevant to the jurisdictional
issue. See Bland Indep. Sch. Dist., 34 S.W.3d at 554. Since Rodriguez did not identify her immediate supervisors
and the Ombudsman as “appropriate law enforcement authorities,” the status of these individuals as such is irrelevant
to the jurisdictional inquiry. We therefore decline to address the OAG’s challenge to the adequacy of Rodriguez’s
report to her supervisors and the Ombudsman.
4
The policy permits an employee to report unethical, fraudulent, and/or illegal conduct anonymously.
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Advisor, the person designated by the Attorney General as the individual “having the exclusive
authority” to investigate “activity which possible constitutes a violation of law. . . .” In his
deposition, the Ethics Advisor testified that “employees can report fraud, waste, and abuse . . .
directly to me.” And as we have already noted, the Ethics Advisor asked the OAG’s Deputy
Attorney General for Criminal Justice for his assistance in investigating the fraud allegation
because it “might involve criminal conduct.”
Essentially, Rodriguez produced evidence establishing that OAG employees were not just
instructed but were required to report unethical, fraudulent, and/or illegal conduct to their
supervisors and the Ethics Advisor. Rodriguez also produced evidence that the Ethics Advisor
had the authority to investigate allegations of fraud involving criminal conduct, and, in fact,
exercised that authority here. In light of the foregoing and indulging all reasonable inferences in
favor of Rodriguez, we conclude that she produced evidence of her good faith belief that the Ethics
Advisor was authorized to investigate criminal laws related to fraud and that her belief was
reasonable in light of her training and experience.5 See Moreno v. Tex. A&M Univ.-Kingsville,
339 S.W.3d 902, 912-13 (Tex.App.--Corpus Christi 2011, pet. filed)(holding that whistleblower
produced sufficient evidence of her good faith belief by reporting suspected violations of the
tuition waiver provision, as required by university policy, to university president who had the
power to enforce compliance with the tuition waiver provision); Univ. of Tex. Sw. Med. Ctr. At
Dallas v. Gentilello, 317 S.W.3d 865, 871 (Tex.App.--Dallas 2010, pet. granted)(holding that
whistleblower produced sufficient evidence of good faith by reporting Medicaid and Medicare
violations to his supervisor who set policies and had power to investigate violations); see also Tex.
5
Because we conclude that Rodriguez’s good faith belief that the Ethics Advisor was an appropriate law enforcement
authority was reasonable, we need not address Rodriguez’s report to the OAG’s Criminal Investigation Division. See
TEX.R.APP.P. 47.1 (requiring appeal court to issue an opinion that is as brief as possible, but that addresses every
issue raised and necessary to dispose of the appeal).
6
Dep’t of Human Servs. v. Okoli, 317 S.W.3d 800, 811 (Tex.App.--Houston [1st Dist.] 2010, pet.
filed)(holding that whistleblower produced sufficient evidence of his good faith belief by citing to
an internal policy requiring him to report misconduct to his supervisor and to other individuals
situated higher in the agency’s organizational structure).
Nor are we persuaded by the OAG’s reliance on Needham and Univ. of Tex. at San Antonio
v. Wells, No. 04-10-00615-CV, 2011 WL 446642 (Tex.App.--San Antonio Feb. 9, 2011, no
pet.)(mem. op.) and upon a specific sentence in the OAG’s “Agency Integrity Program” policy.
Needham and Wells hold that an employee does not have a reasonable belief that his or her
employer is an appropriate law enforcement authority if the employer itself does not have the
authority to do anything about reported illegal activities other than to conduct an internal
investigation, to discipline its employees, and to refer reports of illegal activities to other entities.
See Needham, 82 S.W.3d at 321 (holding that Texas Department of Transportation employee who
believed that his superiors would forward his report of driving while intoxicated to another entity
for prosecution did not have a reasonable belief that the department was an appropriate law
enforcement authority); Wells, 2011 WL 446642, at *2 (holding that university employee who was
told that her reports of fraud would have to be investigated by the police, not by the particular
department to which she reported the allegations, did not have a reasonable belief that the
university was an appropriate law enforcement authority).
Rodriguez’s allegations do not involve the mere internal discipline imposed against
Galindo for fraudulently naming a dependent. Rather, Rodriguez alleged that Galindo violated
the criminal law and produced evidence that the Ethics Advisor had the authority to investigate
whether Galindo had violated the law. Contrary to the OAG’s assertion, the OAG’s “Agency
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Integrity Program” policy does not mandate that allegations of criminal violations be reported to
and handled by an outside law enforcement agency. Rather, the policy discusses the range of
penalties an employee who violates the “Agency Integrity Program” might face, which, in the case
of “potential criminal offenses,” includes the possibility of a report to “the appropriate law
enforcement agency.” Having determined that Rodriguez produced evidence that she had a good
faith belief that the OAG’s Ethics Advisor was authorized to investigate criminal laws related to
fraud and that her belief was reasonable in light of her training and experience, we hold that the
trial court did not err in denying the OAG’s plea to the jurisdiction. We affirm the judgment of
the trial court below.
August 22, 2012
ANN CRAWFORD MCCLURE, Chief Justice
Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior)(Sitting by Assignment)
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