IN THE SUPREME COURT OF TEXAS
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NO . 12-0601
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CANUTILLO INDEPENDENT SCHOOL DISTRICT, PETITIONER,
v.
YUSUF ELIAS FARRAN, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
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PER CURIAM
Yusuf Farran was employed as Executive Director of Facilities and Transportation with the
Canutillo Independent School District. After he was fired, he sued the District for violation of the
Texas Whistleblower Act, TEX . GOV ’T CODE § 554.002, and for breach of contract. Because we
agree with the District that the trial court properly granted its plea to the jurisdiction, we affirm in
part and reverse in part the judgment of the court of appeals and dismiss the case.
According to Farran’s evidence presented in opposition to the plea to the jurisdiction, he
observed employee theft and falsification of time cards. He also observed that a contractor, Henry’s
Cesspool Services, was overpaid, did not dispose of grease-trap waste as specified in its contract,
and violated state law regulating the use of government funds and city regulations governing waste
disposal. Farran reported these improprieties to the District superintendent, assistant superintendent,
internal auditor, and school board. Some school board trustees were displeased with the reports, and
one trustee told Farran that if he valued his job he should refrain from making accusations regarding
the grease trap. Even after this threat, Farran continued to complain to the superintendent about the
grease-trap issues.
In March 2009, after Farran’s internal complaints to the District, the superintendent
questioned Farran about personal phone calls he had made to another man. Farran thought the other
man was having an inappropriate relationship with Farran’s wife. The calls were of a threatening
nature and were made by Farran and another District employee. Recordings of the calls had been
sent to the police, but Farran denied making the calls on school equipment or during work hours.
Farran was suspended. In May, the board voted to give Farran notice of termination for one or more
of eight specified grounds, subject to a due process hearing. Farran requested a hearing. In July,
Farran contacted the FBI regarding the conduct of Henry’s Cesspool Services. The District became
aware of this report. The due process hearing occurred in August. The hearing officer determined
that good cause existed for termination and recommended that the board’s initial termination
decision be sustained. In September, the board accepted the hearing officer’s recommendation, and
Farran was fired.
The trial court granted the District’s plea to the jurisdiction. The court of appeals held that
the trial court erred in granting the plea as it related to Farran’s whistleblower claim that he was fired
for reporting financial improprieties that violated of the Texas Education Code and Texas
Constitution. The court of appeals agreed with the trial court that Farran’s other claims should be
dismissed. ___ S.W.3d ___.
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The District argues to us that Farran’s complaints to the school board, superintendents, and
internal auditor were not good-faith complaints of a violation of law to a “law enforcement
authority” under the Whistleblower Act. We agree. There is no evidence that these officials had
authority to enforce the allegedly violated laws outside of the institution itself, against third parties
generally. See Univ. of Houston v. Barth, ___ S.W.3d ___, ___ (Tex. 2013); Tex. A & M
Univ.–Kingsville v. Moreno, 399 S.W.3d 128, 130 (Tex. 2013); Univ. of Tex. Sw. Med. Ctr. v.
Gentilello, 398 S.W.3d 680, 686 (Tex. 2013).
Farran only offered evidence that these school district officials were responsible for internal
compliance with the laws. For example, he asserted that he reported to the superintendents because
he believed those officials had authority to “ensure the District did not pay for services that were not
actually provided, and to ensure compliance with the laws.” He believed the laws he cited
“authorized the District to regulate its use of public funds and to enforce all laws by causing the
cessation of violations of laws committed by the District and its employees.” He asserted that he
believed the District “has a duty to self regulate and self enforce the laws he alleged were violated,
and for this reason, he reported the violations to Defendant’s School Board, Superintendents, and
Auditor in the good faith belief the Defendant was authorized to regulate under or enforce the laws,
and authorized to investigate a violation of the laws.” He attached the District’s written policies
stating that the internal auditor duties included “[a]ssisting in the investigation of any suspected
fraudulent activities within the District.”
This evidence does not support an objective, good-faith belief that the school district officials
to whom Farran complained had authority “to enforce, investigate, or prosecute violations of law
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against third parties outside of the entity itself” or had “authority to promulgate regulations
governing the conduct of such third parties.” Gentilello, 398 S.W.3d at 686. “Authority of the entity
to enforce legal requirements or regulate conduct within the entity itself is insufficient to confer law-
enforcement authority status” under the Whistleblower Act. Id. Thus, the plea to the jurisdiction
was well-taken, because “lodging an internal complaint to an authority whom one understands to be
only charged with internal compliance, even including investigating and punishing noncompliance,
is jurisdictionally insufficient under the Whistleblower Act.” Id. at 687.
By cross-appeal, Farran makes two arguments not subsumed in the discussion above. First,
he argues that the court of appeals erred in concluding that his report to the FBI was a report to a law
enforcement authority that was actionable under the Whistleblower Act. We agree with the court
of appeals that this claim fails because of a timing problem: there was legally insufficient evidence
that the report to the FBI caused Farran’s termination.
To establish a Whistleblower Act claim, the plaintiff must show that his report to a law
enforcement authority caused him to suffer the complained-of adverse personnel action. City of Fort
Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). “To show causation, a public employee must
demonstrate that after he or she reported a violation of the law in good faith to an appropriate law
enforcement authority, the employee suffered discriminatory conduct by his or her employer that
would not have occurred when it did if the employee had not reported the illegal conduct.” Id.
(emphasis added). As noted above, and according to Farran, he had already been told, months prior
to his report to the FBI, to refrain from making complaints about the grease-trap contractor if he
valued his job. He continued to complain, he was suspended, and the board gave notice of its intent
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to terminate him—all prior to the FBI report. To prevail on a theory that the FBI report caused his
termination, Farran would have to show that, but for that report, the school district would have
changed its mind and retained him. There is legally insufficient evidence from which a reasonable
and fair-minded finder of fact could make such a finding. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (holding that when parties submit evidence at plea to
the jurisdiction stage, review of the evidence generally mirrors the summary judgment standard);
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (“An appellate court
reviewing a summary judgment must consider whether reasonable and fair-minded jurors could
differ in their conclusions in light of all the evidence presented.”). On this record, Farran’s own
evidence showed that from the initiation of termination proceedings, prior to the FBI report, the
District never wavered in its view that Farran should be terminated. According to Farran’s own
petition, the superintendent, months prior to the FBI report, had “sought to identify false and
pretextual reasons to terminate Plaintiff’s employment.” Farran argued in his briefing to the trial
court that “[t]he minor acts for which he was placed on suspension and the subsequent addition of
unrelated grounds for the proposed termination”—all occurring before he contacted the FBI—“are
evidence the District intended to discharge Mr. Farran based on pretext from the date [the
superintendent] suspended him.” Farran was given the opportunity persuade the District to change
its mind at a hearing, but the effort failed. The hearing officer found good cause for his termination
and the board proceeded to fire him. Farran himself claimed that at the due process hearing he was
unable to present evidence on his whistleblower claims, although the hearing officer addressed the
grease-trap issues and concluded that they were unrelated to the board’s initial termination decision.
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Regardless, the record is devoid of evidence that the board would have been persuaded to change
its mind but for the report to the FBI, that the report had any influence on the hearing officer’s
recommendation that the initial termination decision be sustained, or that the report otherwise played
a role in the board’s preliminary or final termination decisions.
Farran also argues that the court of appeals erred in concluding that his breach of contract
claim failed because he did not first pursue this claim with the Commissioner of Education. We
agree with the court of appeals on this issue. Farran’s contract claim was based on an employment
contract provision stating that he could only be terminated for cause. School district employees like
Farran, alleging a breach of an employment contract where facts are in dispute, generally must
exhaust administrative remedies by bringing an appeal to the Commissioner. See TEX . EDUC. CODE
§ 7.057(a)(2)(B) (providing for appeal to the Commissioner of claims of alleged violations of “a
provision of a written employment contract between the school district and a school district
employee”); see also Ollie v. Plano Indep. Sch. Dist., 383 S.W.3d 783, 792 (Tex. App.—Dallas
2012, pet. denied); Larsen v. Santa Fe Indep. Sch. Dist., 296 S.W.3d 118, 128 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied); Ysleta Indep. Sch. Dist. v. Griego, 170 S.W.3d 792, 795 (Tex.
App.—El Paso 2005, pet. denied (citing Mission Indep. Sch. Dist. v. Diserens, 188 S.W.2d 568, 570
(Tex. 1945))); Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363, 367 (Tex. App.—San Antonio
2004, no pet.); Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 688 (Tex. App.—Tyler 1996,
no writ). Farran argues that his contract claim did not require exhaustion because it was based on
a Whistleblower Act violation. To be sure, the Whistleblower Act has its own statutory remedies
and procedures that do not require exhaustion with the Commissioner under the Education Code, but
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as explained above, Farran has no cognizable Whistleblower Act claim. To the extent he sought
relief under a separate common-law breach of contract cause of action, he failed to exhaust
administrative remedies.
In sum, the trial court properly granted the plea to the jurisdiction. Accordingly, we grant
the petition for review and, without hearing oral argument, affirm in part and reverse in part the court
of appeals’ judgment and dismiss the case. See TEX . R. APP . P. 59.1.
OPINION DELIVERED: August 30, 2013
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