Opinion
NUMBER 13-17-00581-CV
11-29-2018
LETICIA PEREZ, Appellant, v. CAMERON COUNTY AND JUAN A. GONZALEZ, Appellees.
On appeal from the 103rd District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
This case involves a whistleblower claim. By one issue, appellant Leticia Perez asserts that the trial court erred in granting a plea to the jurisdiction and dismissing her claims with prejudice. We reverse and remand.
I. BACKGROUND
In 2014, Perez filed a whistleblower suit against appellee Cameron County. She alleged that she had been fired for reporting illegal activity by the county clerk, Jose G. Rivera. Perez's petition and evidence set out the following.
Perez worked for the County for thirty years. In March of 1994, she began work as an office manager for the Cameron County Clerk's Office ("CCCO"). She advanced through the ranks until she was promoted to chief deputy clerk in 2011.
In 2013, Perez saw a news story about the arrest of the chief administrator for the Hidalgo County Sheriff's office. She understood from the story that the administrator had been arrested for not reporting illegal activity. This concerned Perez because she had witnessed Rivera engage in "potentially illegal activity" with CCCO's vendors. Perez alleged that Rivera exploited his post as county clerk "to award improper and illegal contracts" to CCCO's vendors, which, according to Perez's affidavit, were rife with "kickbacks and contract rigging."
Perez contacted the district attorney to report what she believed to be illegal activity. An investigator at the district attorney's office arranged for her to meet with the FBI. Perez reported Rivera's illegal activity to an FBI agent, provided documentation, and cooperated with the FBI's investigation.
In late 2013 or early 2014, Rivera told Perez that he was running for county judge and asked Perez to support his chosen replacement for the position of county clerk. Perez refused. At approximately the same time, CCCO was audited for the problems which were the subject of Perez's report to the district attorney and the FBI.
According to Perez's petition, on January 3, 2014, Rivera "began a campaign of retaliation" against Perez, which she believed was due to her report of illegal activity and her refusal to support Rivera's chosen successor. She was "harass[ed] and humiliat[ed]" by Rivera in front of other County employees and others running for political office. She was removed from duties involving the contractors and vendors that were the subject of her report. Perez was not allowed to attend meetings involving the reported illegal activity. She was also told that she was not allowed to speak to the district attorney. Rivera began to inquire with the district attorney about any meetings with Perez.
Perez sought advice from Juan A. Gonzalez, an attorney for the County. Perez went to Gonzalez because "he was an attorney that knew the law regarding public employees, knew all the players, and she believed that they were friends." Gonzalez advised Perez to record her conversations with Rivera and told her how to proceed through the County's grievance policy. Gonzalez told Perez "that he would love to nail Rivera to the wall," but that he could not represent her directly because of his role with the County. He referred Perez to another attorney. Gonzalez informed Rivera that Perez was going to record their conversations.
Following Gonzalez's advice, Perez filed a grievance. Local policy required Rivera to hear and decide the grievance himself. Rivera determined that he had done nothing wrong. Rivera then fired Perez. In the letter of termination, Rivera wrote that when he learned Perez was recording their conversations, he lost trust in their "confidential working relationship" and believed that he could no longer "rely on her to be my chief deputy . . . ."
Perez filed a whistleblower claim against the County, alleging that she was wrongfully fired after she reported illegal activity by the county clerk. After the deadline to amend pleadings passed, Perez amended her pleadings to add new claims against Gonzalez for negligence.
The County filed a plea to the jurisdiction advancing two arguments. First, the County argued that Perez had failed to adequately plead all elements of a whistleblower claim, and she had therefore not established a waiver of immunity. Second, the County argued that Perez had not exhausted her administrative remedies because she never filed a second grievance concerning her termination; she had only filed a grievance concerning unfair treatment prior to her termination.
Perez responded that no second grievance was required or even allowed under County policy. As support, she cited the County's "Personnel Policies Manual" which provided, "The grievance procedure provided in the following sections is not available to the employee who has been involuntarily dismissed from employment by the County . . . ."
The County conceded that the grievance procedure stated in its policy was not available to terminated employees such as Perez. However, it contended that Perez was nonetheless required to make some sort of grievance to notify the County of her whistleblower claim. The trial court agreed with the County and dismissed Perez's claims with prejudice. This appeal followed.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Citing the County's policy, Perez first argues that exhaustion of administrative remedies was not required.
The Whistleblower Act provides that, before filing suit, a public employee "must initiate action under the grievance or appeal procedures" of the employing government entity relating to the termination. TEX. GOV'T CODE ANN. § 554.006(a) (West, Westlaw through 2017 1st C.S.). "The employee must invoke the applicable grievance or appeal procedures not later than the 90th day after the date on which the alleged violation" occurred. Id. § 554.006(b).
Under this "simple administrative exhaustion procedure," City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008), filing a grievance pursuant to the employer's grievance policy is normally a jurisdictional prerequisite. See TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2017 1st C.S.); Leyva v. Crystal City, 357 S.W.3d 93, 99 (Tex. App.—San Antonio 2011, no pet.).
But what occurs when the employer's grievance policy expressly states that it does not apply to terminated employees? Does the terminated employee still need to file a grievance or give some form of notice of her claim? We think she does not.
Many courts have held that when the government has no grievance procedure or a grievance procedure that does not clearly apply to terminated employees, the employee does not have to file a grievance or notice. See Leyva v. Crystal City, 357 S.W.3d 93, 102 (Tex. App.—San Antonio 2011, no pet.) (unclear grievance procedure); City of Colorado City v. Ponko, 216 S.W.3d 924, 928 (Tex. App.—Eastland 2007, no pet.) (no procedure); Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 320-21 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (sub. op.) (unclear procedure); see also Caldwell Cty. Sheriff's Office v. Crider, No. 03-02-00321-CV, 2003 WL 21354690, at *2 (Tex. App.—Austin June 12, 2003, pet. denied) (mem. op.) (unclear procedure) (citing Curbo v. State, Office of the Governor, 998 S.W.2d 337, 341 (Tex. App.—Austin 1999, no pet.) (unclear procedure)). This result is dictated by the statute's plain text. The language of the statute speaks of "the grievance procedure" and requires only that "the applicable grievance or appeal procedure be invoked." Ponko, 216 S.W.3d at 927-28 (emphasis added) (internal quotations omitted). "Such language implies that a grievance procedure is in place." Id. at 928. A terminated employee should not be obligated to follow a grievance procedure which does not exist or, as is the case here, a grievance procedure which does not apply to terminated employees.
"We look to the plain meaning of the words in a statute as an expression of legislative intent." Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015).
Our rules of interpretation also favor the conclusion that no grievance was required. "The Whistleblower Act is a broad remedial measure intended to encourage disclosure of governmental malfeasance and corruption." City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008). Because the Whistleblower Act is remedial in nature, it should be construed liberally in favor of jurisdiction. Leyva, 357 S.W.3d at 99; Rivera, 93 S.W.3d at 319; see City of Fort Worth v. Shilling, 266 S.W.3d 97, 102 (Tex. App.—Fort Worth 2008, pet. denied); see also Tex. Youth Comm'n-Evins Reg'l Juvenile Ctr. v. Garza, No. 13-08-00527-CV, 2009 WL 1238582, at *5 (Tex. App.—Corpus Christi May 7, 2009, no pet.) (mem. op.).
The County relies on Ward v. Lamar University, in which it was held that when the local government has no grievance procedure, the terminated employee must nonetheless give some form of reasonable notice of her claim to the government. 484 S.W.3d 440, 447 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (sub. op.). The Ward court held that an "employee is not relieved of the requirement to initiate a grievance or appeal by the lack of a formal procedure." Id. The County urges us to adopt this requirement and hold that, in the absence of an applicable grievance procedure, "reasonable notice" is nonetheless required. See id. We decline to do so.
The statute makes no mention of "reasonable notice" in the absence of a grievance procedure; the statute speaks only of satisfying the employer's grievance procedure. See Ponko, 216 S.W.3d at 928 ("Any notice requirement in Section 554.006 is a reference to the applicable grievance process and not general notice of a whistleblower claim."). Requiring "reasonable notice" in this fashion would create a jurisdictional prerequisite which does not appear in the statute. See id. If the Legislature had meant to generally require fair notice in the absence of a grievance procedure, it could have easily said so, but it did not. See Am. Cas. Co. of Reading, Pa. v. Martin, 97 S.W.3d 679, 684 (Tex. App.—Dallas 2003, no pet.) (reasoning that if the Legislature had intended to impose a general notice requirement, it could have expressly done so); see also Gilbert v. El Paso Cty. Hosp. Dist., 38 S.W.3d 85, 89 (Tex. 2001) (reasoning that if the Legislature intended to fashion a limited notice requirement, it "could easily have done" so in plain language).
Instead, pursuant to the statute, the proper focus of our inquiry is the employer's grievance policy. The County's grievance policy expressly excludes terminated employees such as Perez. Perez was not required to exhaust administrative remedies that were not available to her, and therefore exhaustion of remedies could not serve as a basis to grant the County's plea to the jurisdiction.
In that regard, this case presents a much more compelling scenario than Ward v. Lamar University, 484 S.W.3d 440, 446-47 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In Ward, the court relied on the fact that there was no grievance policy. See id. Here, by contrast, the grievance policy expressly says it does not apply to terminated employees.
Perez's first issue is sustained.
III. SUFFICIENCY OF THE PLEADINGS
By what we deem to be her second issue, Perez argues that the trial court could not have granted the plea to the jurisdiction based on her failure to adequately plead a whistleblower cause of action. She contends that she adequately pleaded all elements of her claim, including the two aspects most hotly contested by the County in the trial court: that she made (1) a good faith report of (2) a violation of law.
A. Standard of Review
We review the disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015). It is the plaintiff's initial burden to affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the pleadings unless the defendant presents evidence to negate their existence. Tex. Dep't of Pub. Safety v. Sparks, 347 S.W.3d 834, 837 (Tex. App.—Corpus Christi 2011, no pet.). After the government defendant "asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Thus, while a plaintiff has the initial burden to plead the elements of her cause of action and allege the basic facts that make up her claim, a plaintiff will only be required to submit evidence if the defendant presents evidence negating one of those basic facts. City of El Paso v. Collins, 483 S.W.3d 742, 756 (Tex. App.—El Paso 2016, no pet.) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012)); see HS Tejas, Ltd. v. City of Houston, 462 S.W.3d 552, 556 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Sparks, 347 S.W.3d at 837. In our review, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor. Suarez, 465 S.W.3d at 633.
B. Applicable Law
A governmental entity's sovereign immunity is waived for violations of the Whistleblower Act. TEX. GOV'T CODE ANN. § 554.0035 (West, Westlaw through 2017 1st C.S.). To establish a violation, a plaintiff must prove the following elements: (1) she was a public employee; (2) she made a good faith report of a violation of law by her employing governmental entity or another public employee; (3) to an appropriate law-enforcement authority; and (4) she suffered retaliation as a result. Id. § 554.002(a) (West, Westlaw through 2017 1st C.S.); City of Donna v. Ramirez, 548 S.W.3d 26, 37 (Tex. App.—Corpus Christi 2017, pet. denied).
As defined in the Whistleblower Act, a "law" includes state and federal statutes. TEX. GOV'T CODE ANN. § 554.001(1) (West, Westlaw through 2017 1st C.S.). We have interpreted this statute to cover "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." Ramirez, 548 S.W.3d at 37 (quoting Scott v. Godwin, 147 S.W.3d 609, 622 (Tex. App.—Corpus Christi 2004, no pet.)). The Whistleblower Act does not require the employee to "identify a specific law when making a report," and the employee need not "establish an actual violation of law." Id. However, there must be "some law prohibiting the complained-of conduct to give rise to a whistleblower claim." Id.
Whether a report of a violation of law was made in good faith is determined using both an objective and subjective standard. Id. "Good faith" means that (1) the employee subjectively believed that the conduct reported was a violation of law and (2) the employee's belief was objectively reasonable in light of the employee's training and experience. City of Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010) (per curiam).
C. Application
The County does not dispute that Perez was a public employee who suffered an adverse personnel action, or that Perez's report was directed to the appropriate law-enforcement authority. See Ramirez, 548 S.W.3d at 37. Rather, the County's defense rests upon its contention that Perez failed to sufficiently allege that she made a good faith report of a violation of law. See id. The County compares Perez's allegations to those found conclusory and insufficient in other cases. For instance, in City of Elsa v. Gonzalez, the court held that conclusory pleadings which broadly describe reports of "illegal acts" and "violations of the laws, ordinances, and other rules" do not provide sufficient jurisdictional facts to determine if the trial court had jurisdiction. 325 S.W.3d at 625.
We do not find Perez's allegations similar to the generic allegations rejected in Gonzalez. See id. In her petition, Perez claimed that she observed Rivera engaging in potentially illegal activity by awarding "improper and illegal contracts" to CCCO's vendors. She elaborated in her affidavit that she reported in good faith that Rivera exploited his post as county clerk to engage in "kickbacks and contract rigging." She alleged that she reported these purported acts of bribery, in good faith, to both the district attorney and the FBI. Perez reported her concerns to the FBI, which suggests that Perez subjectively believed that the conduct reported was a violation of law. See Gonzalez, 325 S.W.3d at 626; see also United States v. Rodgers, 466 U.S. 475, 479 (1984) (interpreting 18 U.S.C.A. § 1001(a) as creating the offense of lying to the FBI). She alleged that her actions led to an audit concerning the vendors that were the subject of her report, which suggests that her belief was objectively reasonable. See Gonzalez, 325 S.W.3d at 626. The County did not produce proof to controvert these allegations, so we take them as true at this stage of the proceeding. See Suarez, 465 S.W.3d at 633; Sparks, 347 S.W.3d at 837.
Perez argues that her allegations correspond with multiple statutes which forbid acts of bribery. For one, she refers to Texas's "Abuse of Official Capacity" statute, under which a public servant commits an offense if, with intent to obtain a benefit, he intentionally or knowingly misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment. TEX. PENAL CODE ANN. § 39.02(a)(2) (West, Westlaw through 2017 1st C.S.). For another, Perez refers to federal "Bribery of Public Officials" laws, under which a public official commits an offense if he corruptly receives or accepts anything of value in return for being influenced in the performance of any official act. 18 U.S.C.A. § 201(b)(2)(A) (West, Westlaw through P.L. 115-231).
Considering both of these statutes, and resolving all doubts in Perez's favor, see Suarez, 465 S.W.3d at 633, we conclude that Perez sufficiently alleged a good faith report of a violation of the law. See Ward, 484 S.W.3d at 444 & 449 (finding a supportable whistleblower claim where appellant reported "corruption" and "suspicious financial transactions within certain departments" of a university); see also Morales v. Hidalgo Cty. Irrigation Dist. No. 6, No. 13-13-00265-CV, 2015 WL 1284664, at *5 (Tex. App.—Corpus Christi Mar. 19, 2015, no pet.) (mem. op.) (finding good faith report of violation of law where appellant reported that a public employee "leveraged his position on the board to the advantage of his own and his partners['] financial interests"). The County does not challenge any other element of Perez's whistleblower cause of action. Perez therefore carried her burden to establish a waiver of the County's immunity. See TEX. GOV'T CODE ANN. § 554.0035; Whitley, 104 S.W.3d at 542.
We sustain Perez's second issue.
IV. CLAIMS AGAINST GONZALEZ
By what we deem to be her third issue, Perez argues that the trial court accidentally swept up and dismissed her claims against Gonzalez as part of its ruling on the County's plea to the jurisdiction. This requires us to interpret the trial court's order.
Gonzalez responds that Perez's claims were not properly before the trial court because she did not plead any claim against him until after the deadline for amending pleadings passed. Gonzalez asserts that Perez was required to request leave for the belated amendment to her pleadings, and because she did not do so, Perez's claims against him should not be considered. We disagree.
When pleading amendments are untimely, leave of court is presumed when the record is silent as to any basis to conclude that the amended petition was not considered by the trial court and there is no showing of surprise or prejudice. Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988); see Gatesco Q.M., Ltd. v. City of Houston, 333 S.W.3d 338, 343 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (applying this rule in the context of a plea to the jurisdiction); see also City of Beaumont v. Fowler, No. 09-11-00068-CV, 2011 WL 3556931, at *2 (Tex. App.—Beaumont Aug. 11, 2011, no pet.) (mem. op.) (same). Because the record is silent of any basis to conclude that the trial court did not consider Perez's belated pleading, and because Gonzalez has not shown surprise or prejudice, we presume that the trial court granted Perez leave to late-file her claims against Gonzalez, and that the trial court considered Perez's most recent pleadings when it ruled on the plea to the jurisdiction. See Goswami, 751 S.W.2d at 490. The most recent pleading contained Perez's negligence claim against Gonzalez.
We construe the judgment as a whole to harmonize and give effect to the entire judgment. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). If the judgment is unambiguous, the reviewing court must adhere to the literal language used. Id. If the judgment is ambiguous, however, the judgment is interpreted by reviewing both the judgment as a whole and the record. Id. Whether a judgment is ambiguous is a question of law. Id. at 901-02.
The trial court's order provided that the County's plea to the jurisdiction was granted and that Perez's claims against the County were dismissed with prejudice. The order then provided, "all requested relief not be granted herein is hereby expressly DENIED."
Pursuant to controlling precedent, this unambiguous language does not finally dispose of Perez's claims against Gonzalez. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex. 2001). Rather, to finally dispose of Perez's claims against Gonzalez, the order would have to either (1) expressly dispose of Perez's claims against Gonzalez in particular, or (2) include a clear and unequivocal finality phrase such as "this judgment finally disposes of all parties and all claims." See In re Elizondo, 544 S.W.3d 824, 826 (Tex. 2018) (per curiam) (orig. proceeding). The order did neither. Accordingly, the trial court's order did not dispose of Perez's claims against Gonzalez.
We overrule Perez's third issue.
V. CONCLUSION
We reverse the trial court's grant of the County's plea to the jurisdiction and remand to the trial court for further proceedings.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 29th day of November, 2018.