Kelly Ellis v. Lubbock County Hospital District D/B/A University Medical Center

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-13-00368-CV

KELLY ELLIS, APPELLANT

V.

LUBBOCK COUNTY HOSPITAL DISTRICT
D/B/A UNIVERSITY MEDICAL CENTER, APPELLEE

On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2013-505,529, Honorable Ruben Gonzales Reyes, Presiding

November 19, 2014

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Kelly Ellis sued appellee Lubbock County Hospital District d/b/a

University Medical Center (the hospital) under the Texas Whistleblower Act 1 and Health

and Safety Code section 161.134.2 The trial court sustained the hospital’s plea to the

jurisdiction and dismissed Ellis’s entire case.3 We will affirm the order of the trial court.

1
TEX. GOV’T CODE ANN. §§ 554.001-.010 (West 2012).
2
TEX. HEALTH & SAFETY CODE ANN. § 161.134 (West 2010).
 Background

In September 2012, the hospital hired Ellis as a certified surgical technologist.

She holds an associate’s degree as a surgical technologist, a bachelor’s degree in

biology, and a master’s degree in environmental science. As a student she enrolled in

“law classes” and as an instructor has taught surgical technology, ethics, and legal

aspects of surgical technology.

According to her pleadings and her deposition testimony,4 while in new-employee

orientation Ellis was assigned to observe a surgical procedure. During the procedure,

the surgeon removed tissue from the patient. In an act of horseplay, he tossed it to a

surgical tech who tossed the tissue or a second mass of tissue back to the surgeon.

The tissue was not sterile and touched the anesthetized patient, contaminating her.

Ellis feared this would lead to a surgical site infection in the patient.

Ellis believed the conduct she witnessed constituted criminal assault. She also

believed it amounted to “negligence,” “malpractice,” “maybe [a] battery,” and an ethical

breach. Although not mentioned in her deposition, Ellis states in her petition the events

she witnessed in the operating room violated “various rules and regulations relating to

_________________________

3
The parties do not contend otherwise, and we have previously found, the
hospital is a governmental entity entitled to assert governmental immunity from suit.
See Tex. Tech Univ. Health Scis. Ctr. v. Villagran, 369 S.W.3d 523, 525 (Tex. App.—
Amarillo 2012, pet. denied); see also Tex. Spec. Dist. Local Laws Code Ann., Chapter
1053 (Lubbock County Hospital District of Lubbock County, Texas).
4
Because jurisdictional facts were challenged and evidence was presented both
for and against the hospital’s plea to the jurisdiction, we take as true the evidence
favorable to Ellis, indulging every reasonable inference and resolving any doubts in her
favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

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both the treatment of surgical patients and the behavior of surgical staff in the operating

room.”

Ellis immediately reported her observation to the team coordinator who

responded, “[I]t happens all the time. We just look the other way.” The following day in

a group orientation Ellis reported the events to a person Ellis believed was the “head of

education.” This person did not ask for elaboration so Ellis reported to another person

“in education.” This person advised Ellis the next time she observed unprofessional

behavior in the hospital she should encourage the participants to act in a more

professional manner. Ellis next reported the occurrence to a person whom she

described as “second in charge.” He was outraged at the conduct she reported and

stated, “I’ll take care of it.” Several days later Ellis reported the occurrence to the

hospital compliance hotline.5 Ellis was subsequently called to the office of a hospital

official of unspecified authority, and she also reported the events she witnessed to this

person. Following this meeting, Ellis was “essentially black-balled” by the hospital. She

was not allowed to participate in surgeries and was fired a few weeks after making the

report.

5
In her deposition, Ellis referred to the hotline as a means of reporting to “the
compliance people. They’re out of your department. So they’re more unbiased, I
believe.” Elsewhere in the deposition she referred to the hotline as the hospital’s
compliance hotline and added she did not know whether it connected with hospital
employees or an “outside entity.” In her brief, Ellis refers to the hotline as the hospital’s
“anonymous compliance hotline” and indicates it was “within her chain of command.”

3
 Ellis filed suit alleging violations of the Whistleblower Act and Health and Safety

Code section 161.134.6 The hospital answered and filed a plea to the jurisdiction. Both

the hospital’s plea and Ellis’s response were supported with attached summary

judgment-type evidence. Among the proof offered by both sides was Ellis’s deposition.

During her deposition, the following colloquy occurred:

Q. [Counsel for U.M.C.] Do you think that the hospital, the
supervisors, compliance department, the people in your
department would have the authority to go arrest this doctor?
A. [Ellis] Well, no.
Q. Do you think they’d have authority to file a criminal case
against him in the courts in the State of Texas?
A. They could contact the authorities. I don’t know how—
Q. You could contact the authorities, too, couldn't you?
A. Well, in the hospital, you go through chain of command and

they take care of it.

Analysis

Through a single issue Ellis argues the trial court erred by sustaining the

hospital’s plea to the jurisdiction because she “reported a violation of the rules/law

adopted by [the hospital], a local governmental entity; and . . . Ellis reported the violation

to a person she reasonably believed to be able to regulate under or enforce the law

which was violated.”

6
On appeal, Ellis does not challenge the trial court’s dismissal of her section
161.134 complaint. See Ctr. for Health Care Servs. v. Quintanilla, 121 S.W.3d 733
(Tex. 2003) (per curiam) (finding Legislature did not waive sovereign immunity from suit
by enacting section 161.134); Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 148-49
(Tex. 2003) (per curiam) (same).

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 “Sovereign immunity and its counterpart, governmental immunity, exist to protect

the State and its political subdivisions from lawsuits and liability for money damages.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Hospital

districts have governmental immunity. Harris County Hosp. Dist. v. Tomball Reg’l

Hosp., 283 S.W.3d 838, 842 (Tex. 2009). “[Governmental] immunity from suit defeats a

trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the

jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.

2004).

“When a plea to the jurisdiction challenges the existence of facts alleged by the

pleader to establish the trial court's subject-matter jurisdiction, the trial court must

consider relevant evidence submitted by the parties.” Miranda, 133 S.W.3d at 227

(citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). This standard

generally mirrors that of a traditional summary judgment. Id. at 228; TEX. R. CIV. P.

166a(c). Thus, the trial court may consider affidavits and other summary judgment-type

evidence. FKM P’ship v. Board of Regents of Univ. of Houston Sys., 255 S.W.3d 619,

628 (Tex. 2008). The court takes as true evidence favorable to the nonmovant and

indulges every reasonable inference and resolves any doubts in the nonmovant’s favor.

City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

The Whistleblower Act provides, “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 ANN. § 554.002(a) (West 2012).

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 Under the act, governmental immunity is expressly waived when a public

employee alleges a violation of Chapter 554 of the Texas Government Code. TEX.

GOV’T CODE ANN. § 554.0035 (West 2012). Whether a claimant’s whistleblower

complaint comes within the Whistleblower Act’s waiver of governmental immunity is

properly addressed through a plea to the jurisdiction. Ortiz v. Plano Indep. Sch. Dist.,

No. 02-13-00160-CV, 2014 Tex. App. LEXIS 7, at *2 (Tex. App.—Fort Worth Jan. 2,

2014, pet. denied) (mem. op.) (citing Canutillo ISD v. Farran, 409 S.W.3d 653, 655-57

(Tex. 2013)).

“Law” as used in the act means a state or federal statute, an ordinance of a local

governmental entity, or “a rule adopted under a statute or ordinance.” TEX. GOV’T CODE

ANN. § 554.001(1) (West 2012).

Rules Violations

Ellis argues the conduct in the operating room she witnessed and reported

violated rules7 which were adopted by the Hospital District under a statute and which

7
The rules Ellis refers to are contained in an excerpt of the hospital’s employee
handbook, included in the record. But Ellis never identified which of these rules she
claims were violated. The report of a Whistleblower Act claimant need not identify the
statute, ordinance, or rule she believes was violated. Wilson v. Dallas Independent
School Dist., 376 S.W.3d 319, 327 (Tex. App.—Dallas 2012, no pet.) (citing Mullins v.
Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188 (Tex. App.—Dallas 2012, pet. denied));
Tex. Dep't of Criminal Justice v. McElyea, 239 S.W.3d 842, 850 (Tex. App.—Austin
2007, pet. denied). However, during the litigation the claimant must make that
identification. Wilson, 376 S.W.3d at 327. The specific law the claimant alleges was
violated is critical to the trial court’s determination whether the report was made to an
appropriate law enforcement authority. Mullins, 357 S.W.3d at 188 (citing Tex. Dep’t. of
Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002)). “A plaintiff appealing a
dismissal of a Whistleblower claim for want of jurisdiction may not assert on appeal that

6
were therefore a “law” for purposes of the Whistleblower Act. The parties agree that,

under the Texas Special District Local Laws Code, the Hospital District’s board of

managers is empowered to adopt rules for the operation of the hospital. TEX. SPEC.

DIST. LOCAL LAWS CODE ANN. §§ 1053.001, 1053.105 (West Pamph. 2014).

As the supreme court recently explained, an agency’s internal policies are

ordinarily not “law” for purposes of the Whistleblower Act. Univ. of Houston v. Barth,

403 S.W.3d 851, 854-55 (Tex. 2013) (per curiam). It further noted, however, that rules

enacted by a university’s board of regents under the university’s enabling statute “are of

the same force as would be a like enactment of the Legislature.” Id. at 855 (quoting

Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805, 808 (Tex. 1932)). Here, there is no

evidence that the Hospital District’s Board of Managers, acting pursuant to its grant of

authority under section 1053.105, ever adopted any provision of the handbook as a rule

or rules for the operation of the hospital. On the record before us, we find the excerpts

from the hospital’s employee handbook to which Ellis points are not law under the

Whistleblower Act.

Reporting to a Law Enforcement Authority

A report is made to an appropriate law enforcement authority if the authority is

part of a state or local governmental entity or of the federal government that the

employee in good faith believes is authorized to regulate or enforce the law allegedly

_________________________
the conduct described in the report violates a law not identified in the trial court.”
Wilson, 376 S.W.3d at 327 (citing TEX. R. APP. P. 33.1(a)). The laws Ellis identified in
the trial court were assault, battery, negligence, and malpractice. She also mentioned
unspecified violations of unidentified ethical standards.

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violated in the report or investigate or prosecute a criminal law violation. TEX. GOV'T

CODE ANN. § 554.002(b) (West 2012)

“Good faith” means the employee believed the governmental entity was

authorized to regulate under or enforce the law alleged to be violated in the report, or

investigate or prosecute a violation of criminal law and “the employee’s belief was

reasonable in light of the employee’s training and experience.” Univ. of Tex. Sw. Med.

Ctr. v. Gentilello, 398 S.W.3d 680, 683 (Tex. 2013). While the first element is

subjective, the second element is objective; that is, the reporting employee comes

within the act’s protection only if a reasonably prudent employee in similar

circumstances would have believed the governmental entity to which she reported a

violation of law was an appropriate law-enforcement authority. Tex. Dep’t of Human

Servs. v. Okoli, No. 10-0567, 2014 Tex. LEXIS 685, at *7 (Tex. Aug. 22, 2014) (citing

Texas Department of Transportation v. Needham, 82 S.W.3d 314, 320-21 (Tex. 2002)).

“[P]urely internal reports untethered to the Act’s undeniable focus on law

enforcement—those who either make the law or pursue those who break the law—fall

short.” Gentilello, 398 S.W.3d at 682. Drawing from its prior decisions, the court in

Gentilello explained:

[F]or an entity to constitute an appropriate law-enforcement authority
under the [Whistleblower] Act, it must have authority to enforce,
investigate, or prosecute violations of law against third parties outside of
the entity itself, or it must have authority to promulgate regulations
governing the conduct of such third parties. Authority of the entity to
enforce legal requirements or regulate conduct within the entity itself is
insufficient to confer law-enforcement authority status. Indeed, holding
otherwise would transform every governmental entity that is subject to any
regulation or that conducts internal investigations or imposes internal
discipline into law-enforcement authorities under the Act.

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Gentilello, 398 S.W.3d at 686. See also Farran, 409 S.W.3d at 655 (quoting 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”); Ysleta Indep. Sch. Dist. v. Franco, 417 S.W.3d 443, 445

(Tex. 2013) (per curiam) (“a report to someone charged only with internal compliance is

jurisdictionally insufficient under the Whistleblower Act”).

For the present discussion, Barth is instructive. There, a university professor

reported violations of the Texas Penal Code, university internal administrative policy,

and civil statutes by his college’s dean to the university’s general counsel, chief financial

officer, internal auditor, and associate provost. Barth, 403 S.W.3d at 853. Finding

Barth did not report violations to a law enforcement authority, the court explained “none

of the four people that Barth reported to regarding alleged violations of the Penal

Code . . . could have investigated or prosecuted criminal law violations against third

parties outside the University.” Id. at 857. Barth’s reports were held insufficient

notwithstanding his argument that by reporting the violations in the manner noted he

complied with the university’s internal administrative policy. Id. at 857-58.

In the present matter, for the trial court to have jurisdiction, Ellis must have

objectively in good faith believed she was reporting violations of the law to an entity

authorized to enforce, investigate, or prosecute similar violations against third parties

outside of the hospital and not merely an entity capable of internally disciplining

employees for an alleged violation. See Barth, 403 S.W.3d at 857. None of those to

whom Ellis reported the alleged wrongful conduct could have investigated or prosecuted

her complaints outside of the hospital. Ellis was aware of this limitation, acknowledging

9
“in the hospital, you go through chain of command and they take care of it.” On this

record, we must conclude Ellis did not report the alleged violation she witnessed to an

appropriate law enforcement authority nor could she in good faith have believed that

she had.

For the reasons discussed, governmental immunity is not waived, as Ellis does

not present a claim within the protections of the Whistleblower Act.

Conclusion

We overrule Ellis’s issue and affirm the order of the trial court.

James T. Campbell
Justice

10