City of Waco, Texas v. Robert Lopez--Appeal from 87th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00085-CV

City of Waco, Texas,

Appellant

v.

Robert Lopez,

Appellee

From the 87th District Court

Limestone County, Texas

Trial Court No. 26,431-B

DISSENTING Opinion

Lopez sued the City of Waco alleging a violation of the Texas Whistleblower Act. See Tex. Gov t Code Ann. 554.001-554.010 (Vernon 2004). The trial court denied the City s plea to the jurisdiction. The City appeals. We should reverse. Because the majority does not do so, I dissent.

The Whistleblower Act provides, A state or local governmental entity may not suspend or terminate the employment of, or take other 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). In the City s fourth issue, it contends that Lopez s report of a violation of the City s Equal Employment Opportunity ( EEO ) policy to the City s EEO officer did not constitute a report to an appropriate law enforcement authority within the terms of the Act. Lopez argues that the EEO officer was the appropriate law enforcement authority, and if that was not so, that Lopez reasonably believed that it was so. We should sustain the City s fourth issue.

The Whistleblower Act defines appropriate law enforcement authority as:

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). The Texas Supreme Court has held:

[I]n the context of section 554.002(b), 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.

Tex.Dep t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002). The test s second element ensures that, even if the reporting employee honestly believed that the reported act was a violation of law, the reporting employee only receives Whistleblower Act protection if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law. Id. The court applied this same test to the analysis of whether the report was made to an appropriate law enforcement authority. Id. As a matter of law, however, the statutory definition s limiting language regulate under, enforce, investigate, and prosecute does not include an employer s power to internally discipline its own employees for an alleged violation. Id. at 321; accord Clark v. Tex. Home Health, Inc., 971 S.W.2d 435, 438 (Tex. 1998); see City of Beaumont v. Bouillion, 896 S.W.2d 143, 144-46 (Tex. 1995). In Needham, the Supreme Court held that there was no evidence that would support an objective belief that a report for internal discipline by the employer would support a determination that the employee in good faith believed that the employer was an appropriate law enforcement authority. Needham at 320-21. Accordingly, an employee s belief in his or her employer s power to discipline employees does not render the employer an appropriate law enforcement authority. Id.

Lopez points to evidence that he believed that another City employee had violated the EEO policy, that Lopez had received training from the City on filing complaints of such violations with the EEO officer, and that Lopez had filed such a complaint with that officer. Under Needham, Lopez s complaint does not constitute a report to a person or entity that Lopez could in good faith believe to be an appropriate law enforcement authority.[1] Needham, 82 S.W.3d at 320-21. Accordingly, we should sustain the City s fourth issue.

We should, having sustained the City s fourth issue, reverse the trial court s order denying the City s plea to the jurisdiction, and render judgment for the City. See Tex. Dep t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 648 (Tex. 2004).

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed December 14, 2005

[CV06]

[1] I note that Lopez plainly had an opportunity to pursue the claimed EEO violation directly, but chose instead to wait and pursue a claim for retaliation. But we need not decide the City s first issue, whether bringing his claim as a retaliation claim rather than a claim under the Texas Commission on Human Rights Act is proper. See Tex. Lab. Code Ann. 21.001-21.556 (Vernon 1996 & Supp. 2005). The majority opinion notes the conflict among the courts of appeals on this issue. Thus it appears to be an issue ripe for resolution of the conflict by the Texas Supreme Court. See Tex. Gov t Code Ann. 22.001(a)(2) (Vernon 2004).