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Nieto v. Permian Basin Community Centers for MHMR

Court of Appeals of Texas, Eleventh District

January 30, 2014

BLANCA NIETO, Appellant
v.
PERMIAN BASIN COMMUNITY CENTERS FOR MHMR, Appellee

On Appeal from the 358th District Court Ector County, Texas Trial Court Cause No. D-129810.

Panel consists of: Wright, C.J., Bailey, J., and McCall. [3]

MEMORANDUM OPINION

JIM R. WRIGHT CHIEF JUSTICE

In this interlocutory appeal, Blanca Nieto appeals the trial court's grant of the Permian Basin Community Centers for MHMR's plea to the jurisdiction. We affirm.

The Permian Basin Community Centers for MHMR (PBCC) is a governmental entity that provides mental health and mental retardation services for Ector, Midland, Brewster, Culberson, Hudspeth, Jeff Davis, Pecos, and Presidio Counties. Nieto began working for PBCC's Odessa clinic in May 2007 as an intake/screening coordinator. In February 2010, Nieto sent an e-mail to Larry Carroll, PBCC's executive director, and reported that she had observed several incidents of fraud. Specifically, Nieto told Carroll that she and another employee had been instructed to backdate the date of service for a consumer so that the consumer would qualify for a rehabilitation bed through MHMR; that the director of the Odessa clinic told caseworkers to have consumers sign treatment plans ahead of time, sometimes three at a time, in the event that the caseworker could not meet with the consumer to update paperwork; that a case manager had reported that she had met with consumers on dates and at times when either she or the consumer would not have been able to meet; and that her team leader, and immediate supervisor, had instructed caseworkers to report that they had met with consumers longer than they had actually met so that they would not have to meet with consumers as often in order to meet quota. Carroll forwarded Nieto's e-mail to Julie Mayes, PBCC's compliance officer.

Mayes conducted a fraud investigation and, as part of her investigation, audited two caseworkers. Mayes confirmed that a case manager had reported that she had met with consumers on dates and at times when neither she nor the consumer would have been able to meet. As a result of the investigation, Mayes directed PBCC personnel to reimburse Medicaid for one of the charges. However, Mayes determined that there was no evidence of fraud. Instead, she concluded that the errors were the result of incompetence. Both caseworkers were told the importance of accurately reporting times and dates on their time sheets as well as on their service reports.

During the investigation, Nieto felt like her supervisors and coworkers were retaliating against her by assigning her a specific time for lunch when other employees were allowed to take lunch at their discretion; by not providing an employee to cover for her during lunch so that she was in effect not able to take a lunch; by ignoring her and treating her in a hostile manner; by requiring her to take every intake phone call, including calling her out of the restroom to take a call; by subjecting her to a higher level of scrutiny than other employees; by questioning her actions even though they were consistent with previous practice; and by attempting to intimidate her. Nieto reported the retaliation to Carroll and Mayes. Carroll encouraged her to file a complaint in accordance with PBCC's Employee Complaint Policy #5.24 and also told her not to resign. Whether she filed a complaint under #5.24 is disputed.

Nieto did not feel that she could take the retaliation any longer and submitted a letter of resignation on March 30, 2010. In that letter, she gave two weeks' notice. Her last day was scheduled for April 16; however, because Nieto continued to feel ostracized, criticized, and humiliated, she quit on April 12. Nieto retained counsel and sent PBCC a letter in which she requested a grievance hearing and in which she notified PBCC that she intended to file suit against PBCC for its violation of the Texas Whistleblower Act under Chapter 554 of the Texas Government Code.[1] PBCC did not have a post-employment grievance policy and did not conduct the requested hearing.

Nieto filed suit against PBCC under the Texas Whistleblower Act. She alleged that she was constructively discharged due to retaliation after she reported the fraud. PBCC filed a plea to the jurisdiction in which it claimed that Nieto had failed to plead the minimum jurisdictional elements for a claim under the Whistleblower Act and that, thus, the trial court lacked subject-matter jurisdiction. The trial court sustained the plea and dismissed Nieto's petition.

Nieto presents four issues on appeal. In her first issue, Nieto argues that the trial court erred when it sustained PBCC's plea to the jurisdiction because her pre-suit request for a grievance hearing was sufficient to give PBCC notice of her claim when PBCC did not have a post-employment grievance policy. In Issues Two, Three, and Four, Nieto asserts that the trial court erred when it sustained PBCC's plea to the jurisdiction because she alleged sufficient facts to show that she was constructively discharged, that she had a reasonable belief that the conduct she reported was fraud, and that she had a reasonable belief that she reported the violation to an appropriate law enforcement authority.

We review a trial court's ruling on a plea to the jurisdiction de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In reviewing a plea to the jurisdiction, we are not required to look solely at the pleadings but may consider evidence relevant to the jurisdictional issue. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We construe the pleadings liberally in favor of the plaintiff and take as true all evidence favorable to the plaintiff. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226– 28 (Tex. 2004).

The State is afforded sovereign immunity both as to suit and as to liability unless the legislature expressly waives it. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction in lawsuits against the State unless the State has consented to the suit. Miranda, 133 S.W.3d at 224. On the other hand, sovereign immunity from liability is not jurisdictional but, rather, is an affirmative defense. Id. Although often used interchangeably, sovereign immunity should not be confused with governmental immunity; they represent distinct concepts. Tex. Tech Univ. Health Sci. Ctr. v. Buford, 334 S.W.3d 334, 336 (Tex. App.—Eastland 2010, no pet.). Sovereign immunity is a term applied to the State and to divisions of state government, including boards, hospitals, and universities. Id. Governmental immunity is the correct term to apply to situations involving immunity for political subdivisions such as counties, cities, and school districts. Id. PBCC is a political subdivision.

A plea to the jurisdiction is the proper vehicle for a governmental entity, such as PBCC, to assert immunity. Miranda, 133 S.W.3d at 225–26. The burden is on the plaintiff to establish that immunity has been waived. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The legislature has waived immunity for lawsuits in which a public employee sufficiently alleges that a governmental entity has violated the Texas Whistleblower Act. Tex. Gov't Code Ann. § 554.0035 (West 2012); Lueck, 290 S.W.3d at 881.

We will first address whether Nieto has sufficiently alleged that she reported a violation to an appropriate law enforcement authority under the Act. Section ...


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