Summary
stating that unless administrative remedies are exhausted per the statute, a trial court lacks subject matter jurisdiction over the whistleblower complaint
Summary of this case from Leach v. Texas Tech UniversityOpinion
NO. 4:00-CV-0069-A
July 26, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the amended motion of defendants, Arlington Independent School District ("AISD"), Lynn Hale ("Hale"), Cindy Powell ("Powell"), and Denny Dowd ("Dowd"), for summary judgment. The court, having considered the motion, the response of plaintiff, Mark Wilson, the reply, the summary judgment evidence, the record, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims
On August 30, 1999, plaintiff filed his original petition in the 236th Judicial District Court of Tarrant County, Texas. On January 27, 2000, AISD filed its notice of removal, bringing the action before this court. On May 31, 2000, plaintiff filed his first amended complaint.
On July 31, 2000, defendant AISD filed its answer subject to motion to strike. The answer did not reflect that it was filed on behalf of the individual defendants except for references to them in ¶¶ 30 and 31. The court has determined that defendants should be allowed to amend the answer to reflect that it is filed on behalf of all of them. Plaintiff has not been harmed as a result of the defective answer. If he truly contended that the individuals were in default, he has had nearly one year in which to pursue entry of default and default judgment. He has not done so.
Plaintiff alleges: Plaintiff was hired in August 1981 as an accountant by AISD. In 1993, plaintiff became aware of certain accounting irregularities. He made his concerns known to other individuals and representatives of a political watchdog group. Plaintiff reported to the Texas Education Agency ("TEA") improper practices of which he was aware. As a result of his questioning the improper activities of AISD, defendants set out on a course of action to antagonize and harass plaintiff. Shortly after a watchdog group made an open records request, plaintiff was terminated.
Plaintiff asserts claims for violation of his First Amendment right to free speech and for violation of the Texas Whistleblower Act, TEX. Gov'T CODE ANN. §§ 554.001-.010 (Vernon Supp. 2001). He also seeks a declaratory judgment pursuant to the Texas Declaratory Judgment Act, although the action has been removed and that procedural act does not apply.
For the reasons discussed herein, plaintiff cannot prevail on his substantive claims. The court declines to interpret plaintiff's request for declaratory relief as one brought pursuant to 28 U.S.C. § 2201-02.
II. Grounds of the Motion
Defendants assert three grounds in support of their motion. First, plaintiff's claims are barred by limitations. Second, the individual defendants are entitled to qualified immunity. And third, plaintiff cannot meet his burden of proof on the required elements of his substantive claims.III. Undisputed Facts
The summary judgment evidence establishes the following facts:
In August 1981, plaintiff was hired as an accountant with AISD. He was employed by AISD accounting department for sixteen years until he was terminated on August 29, 1997. On March 3, 1992, and on February 24, 1995, plaintiff received evaluation reports grading his performance as "meets expectations." His overall rating was a three on a scale of one to five.
In 1992, plaintiff became concerned about certain accounting practices of AISD. He spoke with Wayne Hughes ("Hughes"), a community watchdog, about his concerns. On September 20, 1993, plaintiff and Hughes reported a number of their concerns to the TEA. They subsequently met with representatives of TEA to discuss their concerns in more detail and to provide documents to the TEA. Instead of conducting an independent investigation, the TEA contacted AISD to discuss the things plaintiff had reported. Powell, as the district's independent internal auditor, investigated the allegations and prepared a twenty-four-page report discussing her findings. The TEA, by letter dated January 27, 1994, accepted and concurred with Powell's findings and closed its investigation. Plaintiff's report to the TEA ultimately led to the filing by him of a grievance and a lawsuit against AISD for retaliation. That action was filed in the 342nd Judicial District Court of Tarrant County, Texas, in 1995.
There is no summary judgment evidence regarding the outcome of that grievance or lawsuit.
During the 1996-97 school year, Powell was plaintiff's supervisor. Powell noted plaintiff's poor work performance and reported it to Hale. Specifically, Powell noted that plaintiff failed to complete assigned tasks in a timely manner, had poor work quality, failed to adequately research and resolve problems associated with his assigned tasks, failed to implement and maintain recommendations to improve his job performance, and failed to communicate effectively regarding the status of assigned tasks.
In 1997, plaintiff became concerned that business interests of members of the AISD board were interfering with the making of prudent business management decisions. An article in the July 24, 1997, issue of theArlington Morning Mews reported an announcement by a political watchdog group that it was seeking an investigation of the AISD board of trustees by the Tarrant County District Attorney and the Texas Attorney General. Because the group's interests were aligned with his, plaintiff contacted the group's leader, Sylvestor Key ("Key"). On August 19, 1997, plaintiff met with Key to discuss concerns about spending practices by AISD and to give Key documents relating to their discussion. The next day plaintiff made inquiry of an AISD employee about the bidding out of contract work. Plaintiff's supervisor, Powell, and Powell's supervisor were informed about plaintiff's inquiry. On August 21, plaintiff met with Anita Buttram, director of personnel, to discuss what plaintiff perceived as ongoing harassment by Powell. On August 26, Key submitted an open records request to AISD related to business practices of AISD. On August 29, 1997, plaintiff was terminated.
At the end of 1997, the independent accounting firm doing outside audit work for AISD noted that after plaintiff was terminated the payroll bank reconciliation had been prepared by other accounting staff members with an average completion time of four to five days, whereas it had taken plaintiff eighteen to twenty days to do the same job. The report further noted that in the past years the accounting firm had written management letter comments about plaintiff's individual area of responsibility, particularly regarding unreconciled differences on each month's payroll clearing bank reconciliation without adequate explanation or correcting journal entries. In its follow-up comments one year later, the accounting firm noted that the transition of plaintiff's responsibilities to other accounting staff had been easily handled with improved results and better completion times.
On September 5, 1997, plaintiff completed an employee complaint form, which was received by the district on September 12, 1997. Plaintiff's grievance was denied at level I and level II. On November 11, 1997, he filed a level III grievance to the AISD board of trustees. On December 18, 1997, at a called meeting of the AISD board of trustees, the decision to terminate plaintiff was upheld. On or about February 2, 1998, plaintiff filed his appeal to the Commissioner of Education. On December 2, 1999, the Commissioner of Education issued his decision, concluding that he lacked jurisdiction over plaintiff's claims arising under the Texas Whistleblower Act and free speech claims. The Commissioner ordered that plaintiff's appeal be dismissed for lack of jurisdiction and that all other requested relief be denied.
On August 30, 1999, plaintiff filed an original petition in the 236th Judicial District Court of Tarrant County, Texas. The next day, a virtually identical petition was filed in the 48th Judicial District Court of Tarrant County, Texas. No summonses were issued when either case was filed. Plaintiff did not have the money to pursue service on defendants. The second-filed lawsuit was removed to this court where it was assigned Civil Action No. 4:99-CV-0981-A. That action was dismissed without prejudice on plaintiff's motion. The unopposed motion to dismiss stated that it was being filed "[d] ue to a potential statute of limitations issue." Summonses in the first-filed lawsuit, which is this action, were not issued prior to the notice of removal being filed on January 27, 2000.
IV. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support [s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).
The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597.
V. Limitations
A. Texas Whistleblower Act.
An action under the Texas Whistleblower Act must be brought not later than the ninetieth day after the date on which the alleged violation occurred or was discovered by the employee through reasonable diligence. TEX. GOV'T CODE ANN. § 554.005 (Vernon 1994). A prerequisite to the filing of an action is invocation of the applicable grievance or appeal procedures of the employing entity. TEX. GOV'T CODE ANN. § 554.006 (Vernon Supp. 2001). The employee must invoke the applicable grievance or appeal procedures not later than the ninetieth day after the date on which the alleged violation occurred or was discovered through reasonable diligence. Id. The time used by the employee in acting under the grievance or appeal procedures is excluded from the limitations period described in § 554.005. Id. Finally, § 554.006 provides:
(d) If a final decision is not rendered before the 61st day after the date procedures are initiated under Subsection (a), the employee may elect to:
(1) exhaust the applicable procedures under Subsection (a), in which event the employee must sue not later than the 30th day after the date those procedures are exhausted to retain relief under this chapter; or
(2) terminate procedures under Subsection (a), in which event the employee must sue within the time remaining under Section 554.005 to obtain relief under this chapter.Id., § 554.006(d). If an action is filed before administrative remedies are exhausted or terminated, the court lacks jurisdiction over the lawsuit. City of San Antonio v. Marin, 19 S.W.3d 438, 442 (Tex.App.-San Antonio 2000, no pet.). The purpose of the grievance and appeal procedures is to give the accused employer an opportunity to correct its errors before being subjected to the expense and effort of litigation. Id. at 441. See Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781-82 (Tex.App.-Fort Worth 2001, pet. dism'd w.o.j.).
The parties agree that plaintiff's whistleblower claim arose when he was terminated on August 29, 1997. And, they agree that he timely initiated the grievance procedure by the filing of the complaint received by AISD on September 12, 1997. Defendants contend, however, that plaintiff's appeal procedures were exhausted when the AISD board of trustees denied his appeal on December 18, 1997, and that his time for filing a lawsuit again commenced to run at that point. The court agrees. First, the record does not reflect, and plaintiff cites no authority to support the proposition, that an appeal to the Commissioner of Education is a procedure that must be exhausted pursuant to TEX. GOV'T CODE ANN. § 554.006. Plaintiff's appeal to the Commissioner states that it is filed pursuant to TEXAS EDUCATION CODE § 7.057. A review of that statute reveals that it has no connection with proceedings under § 554.006 of the Government Code. And, indeed, the Commissioner determined that he had no jurisdiction over the appeal. Second, even assuming that the appeal to the Commissioner was appropriate, plaintiff's own argument defeats the jurisdiction of this court, since he admits that he filed this action before the Commissioner of Education issued his ruling. See Marin, 19 S.W.3d at 442 (court has no jurisdiction over action filed before administrative remedies are exhausted).
B. Constitutional Claims.
Whether claims brought pursuant to 42 U.S.C. § 1983 are timely is determined by the general statute of limitations governing personal injuries in the forum state. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001), petition for cert. filed, 70 U.S.L.W. 3036 (U.S. June 5, 2001) (No. 00-1811). In Texas the applicable statute of limitations is two years from the date the plaintiff knew or should have known of the injury made the basis of the action.Id. Further, a plaintiff must not only file suit, but must use due diligence in procuring service of process in order to toll limitations. Saenz v. Keller Indus, of Texas, Inc., 951 F.2d 665, 667 (5th Cir. 1992). Here, although defendants admit that plaintiff timely filed this lawsuit, they urge that he did not make any attempt to serve them in a timely manner. Indeed, plaintiff testified that, at the time he filed suit, he did not request service of process and made no attempt personally to pursue the matter. Plaintiff's attorney admits that he did not request issuance of process until the end of January 2000.
Although plaintiff's counsel says that he initiated work in the latter part of October 1999 to locate each of the defendants, that does not explain the total lack of activity from the filing of the actions until that time. Certainly AISD and Powell could have been served in August.
Plaintiff urges that service was timely because limitations on his § 1983 claim was tolled by the administrative appeals of his whistleblower claim. Texas tolling applies only to instances in which the pendency of legal proceedings prevents a plaintiff from pursuing legal remedies. Gartrell v. Gaylor, 866 F. Supp. 325, 329 (S.D. Tex. 1994), aff'd, 66 F.3d 322 (5th Cir. 1995). Equitable tolling does not extend to the exhaustion of administrative remedies.Id. Hence, plaintiff's retaliation claim is barred by limitations.
VI. Substance of Plaintiff's Claims
The court is satisfied that plaintiff's claims are barred by limitations, but, nevertheless, includes a discussion of the merits of plaintiff's claims for completeness.
A. First Amendment Retaliation Claim
Plaintiff sues under 42 U.S.C. § 1983 alleging that defendants retaliated against him for the exercise of his First Amendment free speech rights. He says that he was fired because he chose to speak to watchdog groups about improprieties he observed at AISD. In order to prevail, plaintiff must show that his speech involved a matter of public concern, that his interest in commenting on matters of public concern was greater than defendants' interest in promoting efficiency of the public services they perform, and that plaintiff's speech motivated defendants' decision to fire him. Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir. 2001); Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990).
Defendants contend that plaintiff cannot show that his termination was motivated by the exercise of his right to free speech. See Curtis v. Univ. of Houston, 940 F. Supp. 1070, 1074 (S.D. Tex. 1996), aff'd, 127 F.3d 35 (5th Cir. 1997). In response to defendants' summary judgment evidence, plaintiff offers little more than speculation as to the reason for his termination. Plaintiff contends that he was an exemplary employee for sixteen years. The summary judgment evidence reflects, however, that plaintiff only met expectations, a "three" ranking on a scale of one to five in reviews performed in 1992 and 1995. He offers no evidence that defendants actually took his speech into account in making the decision to terminate him. Neither Powell nor Dowd had the authority to terminate plaintiff. Hale, who made the decision, says that she relied solely on reports of plaintiff's poor performance in making her decision. Plaintiff can only speculate that such was not the case, relying on a newspaper article containing hearsay statements. He does not offer proof of unconstitutional motive. Tompkins v. Vickers, 26 F.3d 603, 608-09 (5th Cir. 1994). Timing alone does not create an inference that his termination was retaliatory. Beattie v. Madison County Sch. Dist., 2001 WL 687164, *6 n. 18 (5th Cir. July 5, 2001).
It certainly would have been easy enough to depose Hale and ask if plaintiff was the person she referred to in her newspaper interview.
B. Whistleblower Claim
To prevail on his whistleblower claim, plaintiff must show that he in good faith reported a violation of law, that his report was to appropriate law enforcement authority, and that he was terminated as a result of making the report. Serna, 244 F.3d at 482;Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). Plaintiff acknowledges that he must show that but for his report to the TEA, he would not have been terminated when he was. Texas Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). But he offers no evidence to support such a contention. Plaintiff made his report to the TEA in 1993. He was not terminated until August 29, 1997. There is no evidence that but for the report in 1993 plaintiff would not have been terminated in 1997.
VII. ORDER
For the reasons discussed herein,The court ORDERS that defendants' amended motion for summary judgment be, and is hereby, granted; that plaintiff take nothing on his claims against defendants; and that such claims be, and are hereby, dismissed with prejudice.