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Barnett v. City of Southside Place

Court of Appeals of Texas, First District

March 14, 2017

MICHAEL BARNETT, Appellant
v.
CITY OF SOUTHSIDE PLACE, Appellee

         On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2014-69569

          Panel consists of Justices Keyes, Higley, and Lloyd.

          OPINION

          Russell Lloyd Justice

         Appellant, Michael Barnett, appeals from the trial court's order granting appellee, City of Southside Place's plea to the jurisdiction in his suit brought under the Texas Whistleblower Act. See Tex. Gov't Code Ann. §§ 554.001-.010 (West 2012). In three issues, Barnett contends that the trial court erred in granting the City's plea because (1) the evidence raises a fact issue regarding whether (a) he suffered an adverse employment action and (b) the action was because of his report of the City's alleged violation of law, and (2) he should have been permitted an opportunity to conduct additional discovery. We affirm.

         Background

         Barnett worked as a detective for the City from approximately March 2013 to September 2014. During the time period relevant to this appeal, Stephen McCarty was the City's Chief of Police.

         In 2014, Barnett told McCarty that he had learned that the City had implemented an illegal ticket quota practice with its officers.[1] On August 15, 2014, McCarty prepared a written memorandum to the Texas Rangers, summarizing a list of his grievances against David Moss, the City Manager, including the alleged ticket quota requirement. On August 16, 2014, Chief McCarty sent an email to Glenn Patterson, the City Mayor, attaching his August 15 memorandum. On August 18, 2014, Barnett and McCarty met with Texas Ranger Jeff Owls, at which time they reported the City's alleged ticket quota practice and presented McCarty's August 15 memorandum to him.

         On August 19, 2014, one day after meeting with Owls, Barnett submitted a letter of resignation to Moss and McCarty with an effective date of September 3, 2014. On August 20, 2014, the City suspended McCarty pending an investigation into complaints about McCarty's conduct. On August 31, 2014, Moss sent an "Inquiry Memo" to department officers requiring them to answer a number of questions related to allegations of McCarty's misconduct. In their answers, two officers alleged that Barnett had encouraged them to leave the City's employment on more than one occasion between August 20 and August 30, 2014.

         In an Inquiry Memo dated September 2, 2014, Moss informed Barnett that he was conducting an internal investigation into the officers' allegations regarding Barnett's alleged misconduct and directed him to answer the written questions and provide the documentation requested in the memo. The memo stated that the allegations, if true, constituted insubordination which would warrant Barnett's involuntary separation from the City's employment. In response, Barnet refused to answer the questions and informed Moss that he was resigning his position with the City, effective immediately.

         On September 2, 2014, Moss prepared a Notice of Termination letter stating that Barnett's employment with the City was terminated for insubordination based on (1) his refusal to comply with Moss's instructions related to the City's internal investigation into his conduct and (2) his suggestion to two other officers that they resign their employment with the City. On October 23, 2014, the City submitted a Texas Commission on Law Enforcement ("TCOLE") "Separation of Licensee (F-5)" form reflecting that Barnett had been "dishonorably discharged." In an accompanying letter to TCOLE, the City stated that the F-5 form was intended to amend a previous F-5 form completed by Barnett, and that Barnett had also completed F-5 documents for two other officers.

         On November 26, 2014, Barnett filed suit against the City alleging that he had suffered adverse employment actions in retaliation for reporting a violation of law by the City to McCarty and the Texas Rangers. On November 9, 2015, the City filed its plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction over Barnett's whistleblower claim because (1) the City did not take any adverse personnel action against him; (2) even if it had, there was no evidence that the adverse employment action was because of his report of the City's alleged violation of law; and (3) even if the City knew of his report before his separation from employment, it had a legitimate basis to terminate his employment based on his insubordination. On December 14, 2015, the trial court granted the City's plea and dismissed Barnett's whistleblower claim with prejudice.

         Discussion

         On appeal, Barnett contends that the trial court erred in granting the City's plea because the evidence raises a fact issue regarding whether he was suspended, terminated, or suffered some other adverse personnel action because he reported a violation of law by the City. He also argues that the trial court erred in ruling on the City's plea without permitting him to conduct additional discovery

         A. Plea to the Jurisdiction

         Governmental immunity from suit defeats a trial court's subject matter jurisdiction and is therefore properly asserted in a plea to the jurisdiction. See Tex. Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Absent a waiver of governmental immunity, a governmental entity cannot be sued and a trial court does not have subject matter jurisdiction over an action against the entity. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).[2] Whether a trial court has subject matter jurisdiction is a question of law. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Pleadings are construed liberally in favor of the pleader, and all factual allegations are accepted as true. See Miranda, 133 S.W.3d at 227-28.

         A plea to the jurisdiction can be utilized to challenge whether the plaintiff has met his burden of alleging jurisdictional facts, but it can also raise a challenge to the existence of jurisdictional facts. See id. at 226-27. Where a plea to the jurisdiction challenges the existence of jurisdictional facts, as is the case here, the court considers the relevant evidence submitted by the parties to resolve the jurisdictional issues. Id. at 227. If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id. at 227-28. On the other hand, if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).

         B. Texas Whistleblower Act

         Section 554.002(a) of the Government Code provides that "[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 § 554.002(a) (West 2014). The Whistleblower Act further provides that "[a] public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter." Id. § 554.0035 (West 2014).

         The Act contains two jurisdictional requirements before its waiver of governmental immunity takes effect: the plaintiff must (1) be a public employee and (2) allege a violation of the Act. See State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). To allege a violation of the Act, the plaintiff must allege that an adverse employment action was taken against him because he in good faith reported a violation of law by the employer or another public employee to an appropriate law enforcement authority. Tex. Gov't Code § 554.002(a); City of S. Houston v. Rodriguez, 425 S.W.3d 629, 631 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). The elements of section 554.002(a) can be considered to determine both jurisdiction and liability. Lueck, 290 S.W.3d at 883.

         C. Analysis

         In its plea and on appeal, the City does not dispute that Barnett is a public employee, that he made a good faith report that his employer or another public employee violated the law, or that he made the report to an appropriate law enforcement authority. Rather, the City argues that Barnett failed to present evidence raising a fact question as to whether (1) he suffered an adverse employment action and (2) the action was because he reported a violation of law.

         Barnett asserts that he suffered adverse employment actions when the City (1) terminated his employment; (2) drafted a Notice of Termination letter and placed it in his file; (3) submitted an F-5 form to TCOLE reflecting that he was dishonorably discharged; and (4) falsely accused him of submitting F-5 forms to TCOLE. In support of his argument that his employment was terminated, Barnett relies on Moss's deposition testimony that he fired Barnett, the Notice of Termination letter, and the City's letter to TCOLE regarding the amended F-5 form stating that the City terminated Barnett's employment on September 2, 2014. Barnett argues that this evidence demonstrates that the City intended to, and believed it had, fired him.

         However, Barnett's assertion that his employment was terminated is belied by his own sworn testimony that he voluntarily resigned before he received the termination letter. At his deposition, Barnett testified as follows:

Q: And your testimony in this case today is that you resigned?
A: Uh-huh.
Q: Is that yes?
A: Yes.
. . . .
Q: Well-your impression as it may be, we know you voluntarily left?
A: Yes, I did.
. . . .
Q: Stress, okay. Tell me about your stress, please, as it relates to this lawsuit.
A: Obviously, it's going to cause stress if you get a letter in the mail saying that you were terminated after ...

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