Opinion
Civil Action No: SA-03-CA-964-XR
February 13, 2004
ORDER
On this day, the Court considered Defendants' Motion to Dismiss or, in the alternative, Motion for Summary Judgment (docket no. 8), and the various responses filed thereafter by each party. Plaintiff brings suit complaining of her discharge from employment at the University of Texas at San Antonio (UTSA). Plaintiff alleges that her discharge violated the narrow exception to the at-will doctrine created by Sabine Pilot. She further alleges that she engaged in protected free speech on a matter of public concern by reporting financial or accounting abuse at a public university, and thus alleges a claim for retaliation in violation of the First Amendment under 42 U.S.C. § 1983. As discussed below, the Court DENIES, in part, and GRANTS, in part Defendants' Motion. Defendants' Motion to Strike (docket no. 18) is DISMISSED as moot.
Factual Background
Plaintiff brings suit complaining of her discharge from employment as the Athletic Ticket Manager at UTSA. Plaintiff began her employment at UTSA as a secretary/clerk in 1987. She subsequently received various promotions, changes in job titles, and changes in job responsibilities.
Plaintiff alleges in her petition, and in her response to the Defendants' motion, that from September 2000 through November 2001, she reported to her supervisors and auditors that "certain State and Federal guidelines and laws were not being followed and that the [Athletic] Department must stop those practices with respect to a Procurement Card issued to plaintiff in her name. . . ." Evidently, UTSA provided certain employees a Procurement Card (also known as a ProCard). This credit card, subject to University guidelines, allows certain UTSA employees to make purchases without the necessity of a purchase order. Plaintiff alleges that other unnamed coaches and employees were using the ProCard issued to her, and failed to provide her with the necessary documentation to comply with the University's ProCard guidelines. Plaintiff alleges that she complained to her supervisors about these practices, but they allegedly ignored her complaints and refused to intervene or instruct these other employees and/or coaches to cease using the ProCard or otherwise timely provide Plaintiff with supporting documentation regarding any purchases made with the card.
On or about July 16, 2002, Plaintiff was notified that the Athletic Department was being reorganized, and as a result she would be discharged effective October 31, 2002. Plaintiff alleges that she engaged in protected free speech by reporting financial or accounting abuse at a public university, and seeks relief under 42 U.S.C. § 1983. In addition, she claims that her discharge falls within the exception to the employment at-will doctrine expressed by the Texas Supreme Court in Sabine Pilot.
Analysis
A. Sabine Pilot Claim
In Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985), the Texas Supreme Court held that "public policy, as expressed in the laws of this state and the United States which carry criminal penalties, requires a very narrow exception to the employment-at-will doctrine announced in East Line R.R.R. Co. v. Scott. That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act. We further hold that in the trial of such a case it is the plaintiff's burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act." Id. at 735. There are two necessary elements to a Sabine Pilot claim. First, an employee must be asked to perform an illegal act that carries criminal penalties. Secondly, the employee must refuse to perform the illegal act. Garza v. Doctors on Wilcrest, P.A., 976 S.W.2d 899, 901 (Tex.App.-Houston [14th Dist] 1998, pet. denied).
Defendants seek dismissal of Plaintiff's Sabine Pilot claim arguing that this Court lacks subject matter jurisdiction over this claim, and that the doctrine of sovereign immunity bars any such claim against UTSA and the claims brought against the individual defendants in their official capacities. Further, Defendants argue that Plaintiff cannot maintain a Sabine Pilot claim because she fails to allege that she was asked to perform an illegal act that carries criminal penalties. Finally, supervisors Hickey and Street and the human resources vice president Ettipio seek dismissal of the Sabine Pilot claim brought against them in their individual capacities arguing that they were not the Plaintiff's employer, and accordingly a Sabine Pilot claim may not be asserted against them.
Inasmuch as the Plaintiff does not allege that she was asked to perform an illegal act that carries criminal penalties, the Court agrees that dismissal is proper as to Plaintiff's Sabine Pilot claim, and the Court dismisses this claim asserted against all the Defendants. Robertson v. Neal, 2001 WL 1516741 (N.D. Tex. 2001)("The Sabine Pilot exception is clearly not applicable here because Burke was never directed to perform an illegal act.").
Because the Court dismisses Plaintiff's Sabine Pilot claim for the reasons stated above, the Court does not address Defendants' argument that a Sabine Pilot claim cannot be maintained against a defendant in her individual capacity.
In addition, dismissal of the Sabine Pilot claim against UTSA and the individual defendants in their official capacities is proper because the Sabine Pilot exception to the doctrine of employment at will does not supercede the State's right to assert sovereign immunity. Univ. of Tex. Medical Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist] 1999, pet. dism'd w.o.j.); Cleveland v. City of Elmendorf, 2003 WL 1571724, *1 (W.D. Tex. Mar 10, 2003). Plaintiff's argument that Defendants' removal of this case from state court to this Court waives any assertion of sovereign immunity is misplaced. In Lapides v. Board of Regents of the Univ. System of Ga, 535 U.S. 613 (2002), the plaintiff asserted state law claims against a state in state court. The state had already waived its immunity with respect to such claims at the state level by statute. Nevertheless, the state removed the action to federal court and raised Eleventh Amendment immunity. The Supreme Court determined that because the state had already waived its sovereign immunity with regard to those claims at the state level, it could not remove the case to federal court and assert Eleventh Amendment immunity. See Lapides, 535 U.S. at 617. The Supreme Court limited its analysis of waiver to only those claims "to which the State has explicitly waived immunity from state-court proceedings." Id. In this case, the State of Texas did not waive any right to assert sovereign immunity with regard to any Sabine Pilot claim pending in the state courts. Accordingly, the State did not waive any right to assert sovereign immunity in this court.
B. First Amendment Retaliation Claim
Plaintiff alleges that she engaged in protected free speech by reporting financial or accounting abuse at a public university. "A First Amendment retaliation claim requires showing: the employee suffered an adverse employment action; her speech involved a matter of public concern; her interest in commenting on such matters outweighs the defendant's interest in promoting efficiency; and the speech motivated the adverse employment action." Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567 (5th Cir. 2003).
Defendants argue that Plaintiff's speech was not a matter of public concern, but instead Plaintiff was speaking and motivated by her own employment status, i.e. attempting to avoid the consequences of negative financial audits that demonstrated repeated failures to comply with University policies. Whether Plaintiff spoke on a matter of public concern is a legal question. Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole court record." Id. citing Connick v. Myers, 461 U.S. 138 (1983). "When a public employee speaks not as a citizen, . . but instead as an employee upon matters only of personal interest, the employee's speech falls outside the parameters of speech involving matters of public concern." Kennedy, 224 F.3d at 366 citing Connick v. Myers, 461 U.S. 138 (1983) (emphasis in original). The "existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern." Kennedy, 224 F.3d at 366. Thus, "in cases involving mixed speech, [a court] is bound to consider the Connick factors of content, context and form, and determine whether the speech is public or private based on these factors." Id.
After reviewing a number of mixed speech cases, the Fifth Circuit in Kennedy discerned the following principles:
First, the content of the speech may relate to the public concern if it does not involve solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the manager's status as an arm of the government . . . If releasing the speech to the public would inform the populace of more than the fact of an employee's employment grievance, the content of the speech may be public in nature. . . . Second, speech need not be made to the public, . . but it may relate to the public concern if it is made against the backdrop of public debate. . . . And third, the speech cannot be made in furtherance of a personal employer-employee dispute if it is to relate to the public concern.Id. at 372. Applying the above to the facts in this case, the Court is of the opinion that Plaintiff spoke on a matter of public concern. First, the content of the speech did not involve solely personal matters. Plaintiff alleged that other coaches and University employees were making unknown purchases and/or circumventing purchasing policies. These actions, if true, may have violated various laws. The second and third Kennedy principles are a closer call. Although Plaintiff did not publish to third parties her concerns, she did inform various auditors of the alleged wrongdoing. Further, the speech at issue here need not be made to the public at large in order to be speech. See Kennedy, 224 F.3d at 372.
With regard to the third Kennedy principle, Defendants argue that the speech was merely made in furtherance of a personal employment dispute dealing with Plaintiff's job responsibilities, evaluation, and later challenge regarding being selected for discharge pursuant to an alleged departmental reorganization. Although Plaintiff made a number of her reports of wrongdoing in response to questions of her competence and performance, Plaintiff alleges that as early as September 2000, she told her supervisors that University procedures were not being followed. Plaintiff's complaints made in 2000 would not be in furtherance of any employer-employee dispute. If the allegations of corruption or financial mismanagement are true, such allegations are matters of public concern. See Lukan v. North Forest I.S.D., 183 F.3d 342 (5th Cir. 1999), cert. denied, 529 U.S. 1019 (2000) (Plaintiff, an employee of the school district's business office discovered various financial improprieties. The parties did not dispute that the speech involved was a matter of public concern.); see also Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2003)("Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials . . . concerns matter of public import."). Given that no discovery has been undertaken by the parties to date, the Court is hesitant to dismiss Plaintiff's claim at this juncture because of this fact dispute.
C. Qualified Immunity
Because a fact issue exists regarding whether certain defendants violated Plaintiff's First Amendment right to free speech under current law, the Court next turns to Defendants' argument that Ettipio, Hickey and Street, who have been sued in their individual capacities, are entitled to qualified immunity.
The standard for a public employee's entitlement to qualified immunity has been set forth by the Fifth Circuit in Branton v. City of Dallas, 272 F.3d 730 (5th Cir. 2003).
A court required to rule upon the qualified immunity issue must consider this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [public employee's] conduct violated a constitutional right? This must be the initial inquiry. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. The Supreme Court has emphasized that the right the official is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.Id. at 744 (citations omitted). As discussed above, Plaintiff has set forth that her supervisor's conduct violated a constitutional right. A reasonably objective public official, situated in Athletic
Director Lynn Hickey's position, would have known that recommending the Plaintiff's termination, which would result in the de facto termination of Plaintiff, after Plaintiff reported to her various accounting irregularities, would violate a clearly established constitutional right. With regard to the other factor necessary to establish a cause of action under § 1983 for an employee's First Amendment claim of retaliation, namely whether the Plaintiff's interest in commenting on such matters outweighs the defendant's interest in promoting efficiency; and whether the speech motivated the adverse employment action. The Plaintiff established that there was no immediate urgency in reorganizing the department. Indeed, the alleged reorganization had been postponed for various months while the department was awaiting new administrators. For the same reason, the Plaintiff has established that the speech may have motivated the adverse employment action. Therefore, Lynn Hickey is not entitled to summary judgment on her claim of qualified immunity.
However, as to Plaintiff's claims against vice president of human resources Ettipio and Scott Street, Plaintiff has not demonstrated that these two individuals engaged in any conduct that allegedly violated any of Plaintiff's constitutional rights. Street merely carried out Hickey's request to inventory the petty cash account after Plaintiff was informed of her discharge. Ettipio, who was not even hired by UTSA until the Summer of 2002, merely carried out her personnel duties. Accordingly, the Court GRANTS Ettipio and Street's motion and DISMISSES Plaintiff's section 1983 claims against them in their individual capacities based on the doctrine of qualified immunity.
Conclusion
The Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss (docket no. 8). The Court GRANTS the motion to dismiss with regard to Plaintiff's Sabine Pilot claim. The Court DENIES Defendants' motion with regard to Plaintiff's Section 1983 First Amendment retaliation claim, however, the Court GRANTS the motion to dismiss with respect to Ettipio and Street with regard to Plaintiff's section 1983 individual claims against them because such claims are barred by qualified immunity.
Attached to Plaintiff's Memorandum in Opposition to Defendants' Motion, Plaintiff submitted the affidavit of Herbert Que McMaster, Jr. Mr. McMaster, a former employee in the UTSA Athletic Department, opined that he was retaliated against for engaging in "whistleblowing." Mr. McMaster detailed other alleged wrongdoings, not relevant to the facts in this case. Defendants filed a motion to strike that affidavit, in whole or in part. The Court did not rely upon this affidavit in reaching its decision. Accordingly, Defendants' Motion to Strike (docket no. 18) is DISMISSED as moot.
SIGNED.