SYLVIA LLANES v. CORPUS CHRISTI I.S.D.--Appeal from 94th District Court of Nueces County

NUMBER 13-00-463-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

SYLVIA LLANES , Appellant,

v.

CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT , Appellee.

___________________________________________________________________

On appeal from the 94th District Court

of Nueces County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Rodriguez

Opinion by Justice Rodriguez

Sylvia Llanes brought suit against Corpus Christi Independent School District (CCISD), asserting wrongful termination under the Texas Whistleblower Act (the Act) and breach of contract. See Tex. Gov't Code Ann. 554.001-.010 (Vernon Supp. 2001). CCISD filed a motion for summary judgment, which was granted as to the claim under the Act. The court severed the breach of contract claim from the claim under the Act, making the summary judgment final. Llanes challenges the summary judgment by two issues. We affirm.

Llanes worked for CCISD as a secretary to the associate superintendent for business and support services. She applied for a different position within CCISD, but did not get the job. Llanes complained about the hiring process, believing it to be unfair. Both her supervisor and the superintendent told her that no CCISD policy had been violated. Less than two months later, she was terminated.

Llanes sued for wrongful termination under the Act and for breach of contract. CCISD filed a traditional and no-evidence summary judgment motion, asserting,inter alia, the Act claim failed as a matter of law because Llanes did not report a specific law which was violated, and no evidence existed to show "a violation of law" was reported, as required by the Act. The trial court granted summary judgment on Llanes's cause of action under the Act without specifying the reason for the ruling. The court denied summary judgment on the breach of contract claim, severed it, and ordered it abated until all appeals on the cause of action under the Act became final. This appeal ensued.

When a traditional summary judgment motion is brought under rule 166a(c) of the Texas Rules of Civil Procedure, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See American Tobacco, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ford v. City of State Bank of Palacios, 44 S.W.3d 121, 127 (Tex. App.--Corpus Christi, 2001, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. SeeAmerican Tobacco, 951 S.W.2d at 425; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. See American Tobacco, 951 S.W.2d at 425; Nixon, 690 S.W.2d at 548-49. A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all elements of an affirmative defense. See American Tobacco, 951 S.W.2d at 425;Ford, 44 S.W.3d at 127. Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer an issue or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

When a party moves for summary judgment under Texas Rule of Civil Procedure 166a(i) asserting there is no evidence of one or more of the essential elements of the nonmovant's claims, the movant does not bear the burden of establishing each element of its own claim or defense. See Tex. R. Civ. P 166a (i). Instead, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact in support of the challenged elements, thereby precluding summary judgment. City of Houston, 589 S.W.2d at 678.

If a summary judgment is granted generally, without specification of the reason, it will be upheld if any ground for summary judgment can be sustained. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, pet. denied).

By her first issue, Llanes contends the trial court erred in granting summary judgment as to her claim under the Act.

The Act prohibits a governmental employer from terminating an employee who in good faith reports a violation of the law by the employing governmental entity or another public employee to an appropriate law enforcement authority. Tex. Gov't Code Ann. 554.002(a) (Vernon Supp. 2001); Gold v. City of College Station, 40 S.W.3d 637, 643-44 (Tex. App.--Houston [1st Dist.] 2001, no pet.). This statute is designed to enhance openness in government and compel the government's compliance with the law by protecting those who inform authorities of wrongdoing. See Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex. App.--Austin 1988, writ denied). Hence, we interpret this statute liberally, and in accordance with its remedial purpose. Castaneda v. Texas Dept. of Agric., 831 S.W.2d 501, 501 (Tex. App.--Corpus Christi 1992, writ denied); see Burch v. City of San Antonio, 518 S.W.2d 540, 544 (Tex. 1975).

Llanes maintains she satisfied the first element of a Whistleblower claim as she reported an alleged violation of law to an appropriate authority. According to Llanes, the Act does not require a whistleblower to identify a specific law when making a good-faith report. CCISD counters that, to maintain a cause of action under the Act, there must be some law or policy in place prohibiting the reported conduct.

Section 554.001(1) defines "law" as "a state or federal statute, an ordinance passed by local government body, or a rule adopted under a statute or ordinance." See Tex. Gov't. Code. Ann. 554.001(1) (Vernon Supp. 2001). We have interpreted the phrase "reports a violation of the law" to include any disclosure of information regarding a public servant's employer tending to directly or circumstantially prove the substance of a violation of criminal or civil law, the state or federal constitution, statutes, administrative rules or regulations. See Castaneda, 831 S.W.2d at 503-04. Here, Llanes reported that "the hiring process violated board policy and the law." She believed the process was illegal because top administrators directed the hiring of a specific person, interviews were conducted outside of the hiring process, job requirements were changed to meet a specific person's qualifications, and the hiring committee was composed of administrators who had expressed a preference for a specific person. Llanes did not state that this conduct violated a specific law or policy, and does not direct this Court to any law or policy prohibiting the complained of conduct.

Llanes contends there is no requirement that an actual violation of law occurred. Instead, she maintains that she is protected under the Act so long as she held a good-faith belief that a violation of law occurred.

In Casteneda v. Texas Dept. Of Agriculture, 831 S.W.2d 501, 504 (Tex. App.-Corpus Christi 1992, writ denied), we considered whether an employee had a good faith belief that a legal violation occurred. Id. We noted that in Lastor v. City of Hearne, 810 S.W.2d 742, 744 (Tex. App.-Waco 1991, writ denied), the court of appeals held that an "employee could seek relief despite the fact that an investigation revealed that technically no legal violation occurred." Casteneda, 831 S.W.2d at 504 (citing Lastor, 810 S.W.2d at 744). Thus, when an employee believes and reports in good faith that a violation has occurred, but is wrong about the legal effects of the facts, he is nevertheless protected by the Act. Id.

In Casteneda, an additional argument was made that the employee failed to report a violation of law. Id. at 505. The court noted that elements of several offenses and civil claims were alleged, and then gave examples of laws that were potentially violated. Id. Thus, in Casteneda, we implicitly recognized that the conduct reported by the employee must implicate some law for the employee to be protected under the Act.

Llanes also notes that an employee need not identify a specific law when making a report, citing, among other cases, Ruiz v. City of San Antonio, 966 S.W.2d 128, 130-31 (Tex. App.-Austin 1998, no pet.), and City of Brenham v. Honerkamp, 950 S.W.2d 760, 763 (Tex. App.-Austin 1997, writ denied). In Ruiz, the appellant alleged that he reported theft, stealing, and criminal conspiracy, and that all of the conduct he reported violated the Texas Penal Code. Ruiz, 966 S.W.2d at 130-31. The court held that it was immaterial that the appellant did not specify particular provisions of the penal code, so long as the appellant "clearly alleged the reported conduct violated a criminal statute." Id. at 131. In Honerkamp, the court of appeals explained that "[a] person seeking to impose liability under the Act need not prove that a violation of law actually occurred." Honerkamp, 950 S.W.2d at 763.

Though an employee need not identify a specific law when making a report, and need not establish an actual violation of law, there must be some law prohibiting the complained of conduct to give rise to a Whistleblower claim. 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. Llanes's first issue is overruled.

By her second issue, Llanes claims she, in fact, identified a law she believed was violated. In her response to the motion for summary judgment, Llanes identified a school board policy which she believed was violated. Attached to Llanes's response to the motion for summary judgment is a one page document labeled "Employment Objectives: Equal Opportunity Employment." This is apparently the school board policy Llanes complains was violated. The document provides, in part:

Equal employment opportunity can only be fully achieved through continuing affirmative action efforts in every department, program, division, and building in the school district.

Affirmative action is defined as the overall conceptual philosophy of the District regarding the hiring, promotion, and recruitment of personnel, the purpose of which is to ensure fair employment practices. The District recognizes its legal, moral, and social obligation to provide equal employment opportunities to all segments of the community. Affirmative action shall be taken to ensure compliance with this policy.

A rule constitutes a law for purposes of the Act if it is adopted under a statute or ordinance. See Tex. Gov't. Code. Ann. 554.001(1) (Vernon Supp. 2001). Llanes contends this policy was enacted pursuant to the Texas Education Code. See Tex. Educ. Code Ann. 11.163 (Vernon 1996). Without deciding whether this policy constitutes a rule under a statute or ordinance, we conclude the policy does not purport to prohibit any of the complaints raised by Llanes. She did not allege any type of class discrimination. Instead, she complained that the hiring process was unfair because administrators directed the hiring of a specific person, interviews were conducted outside of the hiring process, job requirements were changed to meet a specific person's qualifications, and the hiring committee was composed of administrators who had expressed a preference for a specific person. None of these complaints could be construed as implicating the board policy.

CCISD was entitled to summary judgment on the Whistleblower claim because there is no evidence that she reported an alleged violation of law. Furthermore, CCISD was entitled to summary judgment because it established, as a matter of law, that Llanes did not report an alleged violation of law. Accordingly, the trial court did not err in granting summary judgment on Llanes's claim under the Texas Whistleblower Act. The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Dissenting Opinion by Justice Ya ez.

Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 20th day of December, 2001.