Llanes v. Corpus Christi Independent School District

YÁÑEZ, Justice,

dissenting.

The majority holds that the trial court properly granted summary judgment on Llanes’s Whistleblower claim because CCISD established, as a matter of law, that Llanes did not report an alleged violation of law.1 It further holds that although *644an employee need not establish an actual violation of law, “there must be some law prohibiting the complained-of conduct” to establish such a claim. The majority also holds that the conduct of which Llanes complains is not implicated in the district’s equal employment policy. Because I would hold that CCISD failed to establish as a matter of law that Llanes did not report a violation of law, I respectfully dissent.

The Whistleblower Act (“the Act”) prohibits a governmental employer from suspending or terminating a public employee who in good faith reports a violation of law. Tex.Gov’tCode Ann. § 554.002(a) (Vernon Supp.2001). The Act defines “law” as: “(A) a state or federal statute; (B) an ordinance of a local governmental entity; or (C) a rule adopted under a statute or ordinance.” Id. § 554.001(1). This Court has interpreted the phrase “reports a violation of law” to include “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.” Castaneda v. Texas Dep’t of Agric., 831 S.W.2d 501, 503-04 (Tex.App.—Corpus Christi 1992, writ denied).

In Castaneda, we held that the Whistle-blower Act should be construed liberally in accordance with its remedial purposes of enhancing openness in government and protecting governmental employees who report wrongdoing. Id. at 503. In Castaneda, the plaintiff, a former employee of the agriculture department, complained of the promotion of employees based on political involvement, the use of State funds to mail “Mexican American Democrat junk mail,” and the use of State funds to carry out an affair between a supervisor and another employee. Id. at 502-03. This Court held that the Act “protects an employee who believes and reports in good faith that a violation has occurred, but is wrong about the legal effect of the facts, and is later discharged.” Id. at 504. This Court also held in Castaneda that the defendant failed to establish the plaintiff did not report a violation of law, noting that “elements of several offenses and civil claims were alleged.” Id. at 505. In the present case, the majority concludes that by noting in Castaneda that the plaintiffs allegations included elements of several offenses and claims, this Court “implicitly recognized that the conduct reported by the employee must implicate some law for the employee to be protected under the Act.” (emphasis added). Thus, the majority holds that to recover under the Act, “an employee must have a good-faith belief that a law, which in fact exists, was violated.” (emphasis added).

The majority’s view adopts the position urged by CCISD that to recover, a plaintiff must have “a good-faith belief that a law, which does exist, was violated.” (emphasis in original). In support of its position, CCISD cites the Act, Davis v. Ector County, 40 F.3d 777, 778 (5th Cir.1994); Ruiz v. City of San Antonio, 966 S.W.2d 128 (Tex.App.—Austin 1998, no pet.); Castaneda, 831 S.W.2d at 503; City of Houston v. Leach, 819 S.W.2d 185, 187 (Tex.App.—Houston [14th Dist.] 1991, no writ); and Travis County v. Colunga, 753 S.W.2d 716, 718 (Tex.App.—Austin 1988, writ denied). I have examined the cases cited by CCISD and do not find that they support the view that an employee’s good-faith belief must be in “a law which, in fact, exists.” Although the statute’s protection is limited to employees who in good faith report a “violation of law,” as defined by the statute, the interpretation embraced by the majority is, in my view, at odds with a liberal construction of the Act and our holding in Castaneda that the Act *645protects an employee who in good faith reports a violation, but turns out to be wrong about the legal effect of the facts. See Castaneda, 831 S.W.2d at 504.

“Good faith” means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the employee’s training and experience. Harris County Precinct Four Constable Dep’t v. Grabowski 922 S.W.2d 954, 955 (Tex.1996) (citing Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex.1996)). Although Llanes testified by deposition that she could not identify any law that had been broken, she testified that she was aware of CCISD’s “equal opportunity” policy and felt that she was not given an equal opportunity. Llanes also testified that she believes policies are laws because the policies “refer back to equal opportunity, which ... is a procedure you should go by or else you have broken the law.” She further stated she believed that the district’s failure to follow its equal opportunity procedures would subject it to “grievances or lawsuits.”

In Grabowski, the supreme court held that summary judgment was proper on the plaintiffs Whistleblower claim because he did not report a violation of law in good faith. Grabowski 922 S.W.2d at 955. Grabowski, a deputy for a county constable, was terminated after he complained that the constable had violated the department’s policies, practices, and ethics manual in the investigation of an accident. Id. The court of appeals held Grabowski was protected under the Act because he had a good faith belief he was reporting a violation of law. Id. The supreme court reversed, holding that in light of Grabowski’s experience as a peace officer, his belief that the constable violated the law was not reasonable. Id. at 956. Although the court noted that Grabowski presented no evidence of a law he believed was violated “other than his department’s internal policies,” the court’s analysis and holding relies on Grabowski’s failure to meet the good faith requirement because his belief was not reasonable in light of his experience and training. Id.

I would adopt the approach embraced by the supreme court in Grabowski and analyze Llanes’s claims in light of whether, in light of her experience and training, she reasonably believed she was reporting a violation of law. In her response to CCISD’s motion for summary judgment, Llanes attached her affidavit, in which she states that she has no formal training in the law and no experience or training in employment or school law. Llanes was employed by CCISD for fourteen years, most recently as a secretary to the associate superintendent. Llanes holds an associate degree in public administration from Del Mar College. She states in her affidavit that she believes the hiring practices engaged in by CCISD were illegal because they violated board policy and the law. Llanes further states: “I believe that violating board policy results in legal violations. In my employment with the District, it was repeatedly emphasized that board policies and procedures needed to be followed, or else, legal challenges could follow.” I would hold that in light of Llanes’s experience and training, her belief that she reported a violation of law was reasonable.

Indulging all reasonable inferences in Llanes’s favor, I would hold that CCISD failed to establish, as a matter of law, that Llanes did not report a violation of law. I would sustain Llanes’s first issue.

By her second issue, Llanes contends that the board’s equal employment policy is a “law” for purposes of the Act because the policy was enacted pursuant to the Texas Education Code. The majority notes that a rule constitutes a law for purposes *646of the Act if it is adopted under a statute or ordinance. See Tex.Gov’tCode Ann. § 554.001(1) (Vernon Supp.2001). The majority concludes it is unnecessary to determine whether the board’s policy constitutes a rule adopted pursuant to a statute because “the policy does not purport to prohibit any of the complaints raised by Llanes.” The majority reasons that because Llanes does not complain of discrimination, but complains only that the hiring practices were unfair and deviated from the district’s procedures, her complaints are not implicated by the equal employment policy. Although I agree it is unnecessary to decide whether the board policy is a rule pursuant to a statute for purposes of the Act, I conclude that Llanes’s complaints of unfair and irregular hiring procedures are sufficiently related to the goals and objectives stated in the equal employment policy that her complaints are implicated in the policy.

Indulging all reasonable inferences in Llanes’s favor, as we must, I would hold that CCISD failed to establish it is entitled to summary judgment. Accordingly, I would reverse the judgment of the trial court and remand for further proceedings.

. The majority opinion also states that CCISD sought, and established its entitlement to, a "no evidence” summary judgment pursuant to rule 166a(i). See Tex.R.Civ.P. 166a(i). However, CCISD's motion makes no reference to a "no-evidence” motion or rule 166a(i). It urges that Llanes cannot prove an essential element of her Whistleblower cause of action and attaches excerpts of Llanes's deposition testimony as summary judgment evidence. Accordingly, I would characterize CCISD’s motion as urging a "traditional" summary judgment.