David Jones v. City of Port Arthur, Texas ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-14-00442-CV
_________________
DAVID JONES, Appellant
V.
CITY OF PORT ARTHUR, TEXAS, Appellee
________________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-193,143
________________________________________________________________________
MEMORANDUM OPINION
David Jones was employed as an operator of a residential garbage truck with
the City of Port Arthur, Texas (the “City”). After he was terminated and his
administrative appeal to the City denied, Jones sued the City for violation of the
Texas Whistleblower Act. See generally Tex. Gov’t Code Ann. §§ 554.001–.010
(West 2012); Dallas Area Rapid Transit v. Carr, 309 S.W.3d 174, 175 (Tex.
App.—Dallas 2010, pet. denied) (explaining that chapter 554 of the Texas
Government Code is commonly referred to as the “Texas Whistleblower Act”).
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Jones sought damages and attorney’s fees. The City filed a plea to the jurisdiction
and traditional and no-evidence motions for summary judgment. The trial court
granted the City’s plea to the jurisdiction and motions for summary judgment and
dismissed Jones’s claims against the City. On appeal, Jones contends the trial court
erred and abused its discretion by granting the City’s plea to the jurisdiction and
motions for summary judgment because (1) he presented numerous issues of
material fact that should have been resolved by a jury, and (2) he demonstrated that
the City violated the Texas Whistleblower Act. We affirm the trial court’s order
granting the City’s plea to the jurisdiction.
I. Factual Background
According to Jones’s Third Amended Petition, on May 23, 2012, he was
employed with the City as an operator of a residential garbage truck. Jones
believed the truck assigned to him that day, Truck 1713, was “leaking potentially
flammable hydraulic fluid used by the truck’s hydraulic lift system.” Jones
reported the malfunction with Truck 1713 to the senior mechanic in the City’s
Operations Center of the Public Works Department. Jones alleges that after the
senior mechanic indicated it was a small leak, his immediate supervisor instructed
him to perform his garbage collection duties using Truck 1713. When Jones
refused to operate Truck 1713, he was told to report to Anitra Smith, the City’s
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Solid Waste Management Division Superintendent. Jones alleges that he informed
Smith that he did not want to operate Truck 1713 “because of the potential
environmental and safety hazards that the hydraulic leak posed to the public and to
the driver of the truck.” Jones claims that he told Smith he believed the operation
of Truck 1713 was “illegal and that he could be cited by law enforcement” for its
operation. According to Jones, he requested another truck to complete his route, or
alternatively asked to delay his route until Truck 1713’s leak could be repaired.
Jones contends that Smith ordered him to operate the leaking truck that day, and
when he refused to comply, Smith “sent him home from work indefinitely, as an
adverse and disciplinary employment action.”
According to Jones’s pleading, on June 11, 2012, he filed an appeal of his
termination to the City’s Appeals Committee. Jones alleges that a hearing was held
and that at the hearing, he presented his complaints regarding the condition of the
garbage trucks and his belief that he had been terminated in retaliation “for his
good faith reports of multiple violations of law by the City pertaining to
environmental compliance and safety and workplace safety.” On June 28, 2012,
Jones was notified by John Comeaux, the acting City Manager, that the Appeals
Committee recommended Jones’s termination be upheld and that Comeaux had
decided to follow the Committee’s recommendation.
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Jones filed suit against the City on September 12, 2012. After the trial court
granted the City’s plea to the jurisdiction and motions for summary judgment,
Jones filed a motion for new trial, which the trial court denied. Thereafter, Jones
filed a timely notice of appeal.
II. Plea to the Jurisdiction
A trial court lacks subject matter jurisdiction over a suit against a
governmental unit enjoying immunity from suit. City of Houston v. Ranjel, 407
S.W.3d 880, 887 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A party may
challenge a trial court’s subject matter jurisdiction by asserting a plea to the
jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–
26 (Tex. 2004). We review a trial court’s decision on a plea to the jurisdiction de
novo. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010).
A plaintiff has the burden to allege facts demonstrating jurisdiction, and we
construe the plaintiff’s pleadings liberally in the plaintiff’s favor. See Miranda, 133
S.W.3d at 226. When a governmental unit challenges the existence of jurisdictional
facts, and the parties submit evidence relevant to the jurisdictional challenge, we
must consider that evidence when necessary to resolve the jurisdictional issues
raised. Ranjel, 407 S.W.3d at 887. In our determination, we must take as true all
evidence favorable to the nonmovant and indulge every reasonable inference and
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resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the
evidence raises a fact question on jurisdiction, then the trial court cannot grant the
plea, and the issue must be resolved by the factfinder. Id. at 227–28. On the other
hand, if the evidence is undisputed or fails to raise a fact question, the trial court
must rule on the plea as a matter of law. Id. at 228. This standard of review
generally mirrors that of a summary judgment. Id.
The City of Port Arthur is a municipality and thus is a local governmental
entity. See Tex. Loc. Gov’t Code Ann. § 271.151(3)(A) (West 2016); Tooke v. City
of Mexia, 197 S.W.3d 325, 345 (Tex. 2006) (“A local governmental entity is
defined to include a municipality.”). Local governmental entities are immune from
suit unless the legislature expressly waives governmental immunity. Lubbock Cty.
Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297,
300 (Tex. 2014). Immunity from suit deprives the courts of jurisdiction and
therefore completely bars a plaintiff’s claim. Id. Under certain circumstances, the
Texas Whistleblower Act (“the Act”) waives a local governmental entity’s
immunity from suit for claims of retaliatory discharge under the Act. Tex. Gov’t
Code Ann. § 554.0035; State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). The
elements of a whistleblower claim are jurisdictional when necessary to ascertain
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whether a plaintiff has adequately alleged a violation of the Act. Lueck, 290
S.W.3d at 881, 884.
In the City’s plea to the jurisdiction, the City maintained that Jones’s
whistleblower suit was barred by governmental immunity because Jones failed to
meet the required jurisdictional element. The City specifically argued in relevant
part that the trial court lacked jurisdiction over Jones’s whistleblower claim
because: (1) there is no pleading or evidence that Jones filed a report of illegal
activity with an appropriate law-enforcement authority prior to the time the City
decided to terminate Jones; (2) there is no pleading or evidence that any of the
decision-makers had knowledge of Jones’s reports to the United States Department
of Labor’s Occupational Safety and Health Administration (“OSHA”) or to the
Texas Commission on Environmental Quality (“TCEQ”) before Jones was
terminated on June 8, 2012; and (3) there is no causal connection that indicates that
but for Jones’s reports he would not have been terminated under the circumstances.
Both parties submitted evidence relevant to the jurisdictional challenge for the trial
court’s consideration. See Miranda, 133 S.W.3d at 227 & n.6, 231 (explaining that
in the context of a plea to the jurisdiction, it is sufficient that the party previously
filed documentary evidence as an attachment to its plea to the jurisdiction or a
response thereto).
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III. The Texas Whistleblower Act
The Texas Whistleblower Act prohibits governmental entities on the state
and local level from suspending, terminating, or taking adverse personnel actions
against a public employee who, in good faith, reports a violation of law committed
by the employing governmental entity or another public employee to an
appropriate law-enforcement authority. Tex. Gov’t Code Ann. § 554.002(a). The
City’s plea to the jurisdiction did not contest that Jones was a public employee.
However, the City contested the other elements Jones had to plead to qualify for
the Act’s waiver of immunity, including that Jones made a good-faith report of a
violation of law, that he made a good-faith report to an appropriate law-
enforcement authority, and that he suffered retaliation as a result of making a
qualifying report.
A. Good-Faith Report of a Violation of Law
The Whistleblower Act prohibits a state or local governmental entity from
taking adverse personnel action against a public employee who reports in good
faith a “violation of law[.]” Id. 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). The Act does not require that the
employee identify in the report the specific law he asserts was violated, but there
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must be some law prohibiting the complained-of-conduct. Wilson v. Dallas Indep.
Sch. Dist., 376 S.W.3d 319, 323 (Tex. App.—Dallas 2012, no pet.). And, the
employee-plaintiff must identify the specific law he asserts was violated at some
point during the litigation. Id. at 327. “A plaintiff appealing a dismissal of a
Whistleblower claim for want of jurisdiction may not assert on appeal that the
conduct described in the report violates a law not identified in the trial court.” Id.
An employee’s report of a violation of law must be in good faith. Tex. Gov’t
Code Ann. § 554.002. The employee “must have believed he was reporting
conduct that constituted a violation of law and his belief must have been
reasonable based on his training and experience.” Gonzalez, 325 S.W.3d at 626. A
report that a violation of the law might occur in the future is not a good-faith report
of an existing or past violation of the law. See id. at 627; Lueck, 290 S.W.3d at 885
(noting that report of possible future regulatory non-compliance does not equate to
reporting a violation of the law).
B. Appropriate Law-Enforcement Authority
Section 554.002(b) of the Government Code defines when a public
employee has made a report to an “appropriate law[-]enforcement] authority”
under the Whistleblower Act:
[A] report is made to an appropriate law[-]enforcement authority if the
authority is a part of a state or local governmental entity or of the
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federal government that the employee in good faith believes is
authorized to:
(1) regulate under or enforce the law alleged to be violated in
the report; or
(2) investigate or prosecute a violation of criminal law.
Id. § 554.002(b). Under the statutory definition, it is not enough that a
governmental entity has general authority to regulate, enforce, investigate, or
prosecute. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 319 (Tex. 2002).
Rather, the entity must have authority to regulate under or enforce the law alleged
to be violated in the public employee’s report, or to investigate or prosecute a
violation a violation of criminal law. Id. at 320. An entity’s authority to internally
discipline its own employees for an alleged violation is insufficient to make that
entity an appropriate law-enforcement authority. Id. at 320, 321. An entity “must
have outward-looking powers.” McMillen v. Tex. Health & Human Servs.
Comm’n, 485 S.W.3d 427, 429 (Tex. 2016). “[F]or an entity to constitute an
appropriate law-enforcement authority under the 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.” Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398
S.W.3d 680, 686 (Tex. 2013). The power to “urge compliance or purge
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noncompliance” with the law is not included in the Act’s limited definition of law
enforcement powers qualifying an entity as an appropriate law-enforcement
authority. Id. at 684. The Act included “law-enforcement authority” and not “law-
compliance authority[.]” See id. at 685. An entity may itself be subject to
regulation, but not charged with subjecting others to regulation; “being regulated is
not the same as being the regulator.” Id.
Under certain circumstances, however, a Whistleblower Act report may be
made internally. Id. at 686. For example, when an employee works for an entity
with the authority to investigate the citizenry at large for violations of the same
crime reported by the employee an internal report may be internal:
A police department employee could retain the protections of the
Whistleblower Act if she reported that her partner is dealing narcotics
to her supervisor in the narcotics or internal affairs division. In such a
situation, the employee works for an entity with authority to
investigate violations of drug laws committed by the citizenry at large.
Id.
The statute provides that even if the entity is not an appropriate law-
enforcement authority, the public employee may still obtain Whistleblower Act
protection if the employee can show that he in good faith believed that the entity to
which he reported the violation of the law was an appropriate law-enforcement
authority. Needham, 82 S.W.3d at 320. However, it is not enough that an employee
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had a strongly felt or sincerely held belief that he had reported to the appropriate
law-enforcement entity. Gentilello, 398 S.W.3d at 683. The “good-faith”
requirement in the Act has both objective and subjective elements. Id. To be in
“good faith,” an employee must not just believe the entity was an appropriate law-
enforcement authority under the Act, but his belief must be “reasonable in light of
the employee’s training and experience.” Needham, 82 S.W.3d at 321. A plaintiff
can only satisfy the good-faith requirement if he is able to show that a reasonably
prudent public employee in similar circumstances would have believed he had
made the report to an appropriate authority. Id. at 320–21; see also Gentilello, 398
S.W.3d at 683. It is not enough that the employee believed the entity to which he
reported had the power to discipline its own employees or investigate internally the
alleged violation of the law. Gentilello, 398 S.W.3d at 686; Needham, 82 S.W.3d
at 321. Likewise, a belief that the entity could forward the report of the violation of
the law on to another entity for prosecution is not evidence of a good-faith belief.
Needham, 82 S.W.3d at 321; Office of the Att’y Gen. v. Weatherspoon, 472 S.W.3d
280, 282 (Tex. 2015). Furthermore, that an entity has a division within it charged
with investigating and prosecuting crimes, does not transform the entire entity into
an appropriate law-enforcement entity. Weatherspoon, 472 S.W.3d at 283. Rather,
the plaintiff-employee must show that he reported directly to a division or
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department within the entity that has the appropriate law-enforcement authority
contemplated by the Act. See Tex. Dep’t of Human Servs. v. Okoli, 440 S.W.3d
611, 614 (Tex. 2014).
In Okoli, the plaintiff was an employee of the Texas Department of Human
Services (“TDHS”). Id. at 612. He was fired after reporting misconduct within the
TDHS to his supervisors. Id. at 613. The plaintiff filed suit under the
Whistleblower Act. Id. TDHS argued that the trial court lacked jurisdiction
because the plaintiff failed to make a good-faith report of a violation of law to an
appropriate law-enforcement authority. Id. The Court considered whether the
plaintiff’s report was made to an appropriate law-enforcement authority when he
reported the violation to his supervisors, who in turn were required to forward the
complaint to the Office of Inspector General (“OIG”), a division within TDHS that
had outward-looking law-enforcement authority. Id. at 612-13, 614. The Supreme
Court rejected this argument and reiterated that generally “reports up the chain of
command are insufficient to trigger the Act’s protections.” Id. at 614. The Court
explained that when a public employee has knowledge that “the report will have to
be forwarded elsewhere for regulation, enforcement, investigation, or prosecution,
then the employee is not reporting ‘to an appropriate law[-]enforcement
authority.’” Id. at 615 (quoting Tex. Gov’t Code Ann. § 554.002). The Court
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further explained that “[t]he fact that the OIG is an internal division of TDHS does
not change the analysis.” Id. at 616. For the OIG to have received the plaintiff’s
report, someone had to forward the reports to the OIG. Id. at 615.
C. Adverse Employment Action Caused by Making Report
Even if a plaintiff establishes that he made a good-faith report of a violation
of law to an appropriate law-enforcement authority, he must still show that he
suffered retaliation as a result of his making the report. City of Fort Worth v.
Zimlich, 29 S.W.3d 62, 67 (Tex. 2000); see Tex. Dep’t of Human Servs. v. Hinds,
904 S.W.2d 629, 633 (Tex. 1995) (“[A] public employee can recover under the
Whistleblower Act only if he proves that he was suspended, terminated or
discriminated against ‘because’ . . . he reported a violation of the law in good faith
to an appropriate law enforcement authority”). To establish causation in a
Whistleblower Act case, a public employee must demonstrate that after he reported
a violation of law in good faith to an appropriate law-enforcement authority, the
employee suffered discriminatory conduct by his employer that would not have
occurred when it did if the employee had not made the report. Zimlich, 29 S.W.3d
at 67; City of Houston v. Levingston, 221 S.W.3d 204, 226 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (op. on reh’g). That is, a plaintiff “must establish a ‘but
for’ causal nexus between his report of the illegal activity and the employer’s
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prohibited conduct.” Levingston, 221 S.W.3d at 226; see Hurley v. Tarrant Cty.,
232 S.W.3d 781, 786 (Tex. App.—Fort Worth 2007, no pet.) (explaining that
“[t]his causation standard has been described as a ‘but for’ causal nexus
requirement”). However, the plaintiff need not show that the Whistleblower report
was the sole reason for the adverse personnel action. Hinds, 904 S.W.2d at 634.
A plaintiff can establish a causal link between the adverse employment
action and the report of a violation of law through circumstantial evidence,
including evidence that the employer (1) had knowledge of the report of a violation
of law, (2) expressed a negative attitude toward the employee’s report, (3) failed to
adhere to established policies regarding employment decisions, (4) subjected the
employee to discriminatory treatment in comparison to similarly situated
employees, and (5) stated a false reason for the adverse employment decision.
Zimlich, 29 S.W.3d at 69; Levingston, 221 S.W.3d at 226. The plaintiff must show
that the person who took the adverse employment action—the decision-maker—
knew of the employee’s report of illegal conduct. Harris Cty. v. Vernagallo, 181
S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also
Kirkland v. City of Austin, No. 03-10-00130-CV, 2012 WL 1149288, at *2 (Tex.
App.—Austin Apr. 5, 2012, no pet.) (mem. op) (stating that a plaintiff must show
“at a minimum . . . that the person who took the adverse employment action knew
14
of the employee’s report of illegal conduct”) (internal quotations omitted)). A trial
court’s decision to grant a plea to the jurisdiction in a Whistleblower case can be
based upon insufficient evidence of causation. See Canutillo Indep. Sch. Dist. v.
Farran, 409 S.W.3d 653, 656 (Tex. 2013).
D. Application of the Law to Jones’s Reports
Jones contends that he made reports of three different violations of the law,
including that the City was operating garbage trucks on the public streets in an
unsafe condition; (2) that a City official committed perjury; and (3) that the City
had committed “Water Code/Environmental Violations[.]” Jones argues that he
reported these violations of the law to various appropriate law-enforcement
authorities, including: (1) the City Manager; (2) the Director of Public Works; (3)
various members of the City Council; (4) the Superintendent of the City’s Solid
Waste Division; (5) the City’s Appeals Committee; (6) OSHA; and (7) the TCEQ.
We analyze each of Jones’s reports below to determine if any of his reports qualify
him for protection under the Whistleblower Act.
1. Report to the City Manager-John Comeaux
On appeal, Jones argues that John Comeaux, as the City Manager, is an
appropriate law-enforcement authority under the Act and that he reported a
violation of the law to him. However, Jones’s pleadings contain no allegations that
15
he made any reports to the City Manager. There is a letter in the record dated May
23, 2012 and addressed to the “Human Resource Dept.” and to the “acting City
Manager[.]” On appeal, Jones argues that this letter amounts to a report of a
violation of the law to the City Manager. However, Jones does not cite us to any
portion of his petition where he properly alleged this letter as a qualifying report
under the Act, and we find none. In fact, Jones’s petition does not reference the
May 23, 2012 letter at all.
Jones had a reasonable opportunity to amend his pleadings in response to the
City’s plea and in fact previously amended his pleadings twice in response to the
City’s jurisdictional challenge. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639
(Tex. 2004) (explaining that if a plaintiff has been provided a reasonable
opportunity to amend his pleadings after a governmental entity files its plea to the
jurisdiction, and the plaintiff’s amended pleading still does not allege facts that
would constitute a waiver of immunity, then the proper remedy is dismissal).
Despite these amendments, Jones has not pleaded facts to establish he made a
qualifying report to the City Manager.
Even if Jones had properly alleged this report in his pleadings, we would not
be able to find that the report satisfies the requirements of the Act. In the letter,
Jones first complains about adverse employment actions he has suffered as a result
16
of posts he made on the Internet criticizing Ross Blackketter, the Director of Public
Works for the City, for creating racial tension and oppression within the
department. Second, he complains about the City’s inconsistent stance on policies.
Third, he complains that Smith’s action in sending him home was “an attempt to
retaliate because [he] ‘blew the whistle’ on poor vehicle policy and made people
aware about discrimination on the part of [Blackketter].” 1
Jones argues his letter to the City Manager essentially reported a violation of
section 547.004(a)(1) of the Texas Transportation Code when he complained that
his supervisor asked him to operate a truck that was leaking hydraulic fluids, and
when he refused, the City sent him home and allowed someone else to drive the
truck. Section 547.004(a)(1) provides that “[a] person commits an offense that is a
misdemeanor if the person operates or moves or, as an owner, knowingly permits
another to operate or move, a vehicle that . . . is unsafe so as to endanger a
person[.]” Tex. Transp. Code Ann. § 547.004(a)(1) (West 2011). A necessary
element of finding a person or entity has violated this statute is that the person
actually operates the vehicle. See id. If the person or entity is the owner of the
1
To the extent that Jones alleges the City took adverse personnel actions
against him in retaliation for his reports of discrimination, we note that as a matter
of law, retaliation claims by public employees based on reports of discrimination
are not actionable under the Texas Whistleblower Act. See City of Waco v. Lopez,
259 S.W.3d 147, 155-56 (Tex. 2008); see also Tex. Lab. Code Ann. §§ 21.001,
21.055 (West 2015).
17
vehicle, then it is also a necessary element that the person or entity have
knowledge of the unsafe nature of the vehicle. See id.
Jones’s May 23, 2012 letter does not assert that the City knowingly allowed
an employee to operate an unsafe vehicle. Rather, in the letter, Jones specifically
informed the City Manager that the City’s mechanic inspected the truck and found
it was safe to operate. Jones informed the City Manager that when he refused to
operate the truck, another City employee took the truck out, but ultimately had to
return the truck because the leak became worse. Jones, however, does not assert
that the leak had progressed to the point that the truck was in an unsafe condition
before the employee returned the truck to the garage. Jones does not report that the
truck was unsafe or actually operated in an unsafe condition. Jones does not report
that the truck posed an environmental or safety risk. Rather, he states very plainly
that he refused to drive the truck because he did not want to get “blamed for taking
a truck out knowing it is broken.” He is very clearly complaining about
inconsistent policies regarding truck use and maintenance. We conclude that
Jones’s report to the City Manager did not describe conduct that would violate
section 547.004(a)(1) of the Texas Transportation Code.
Jones may have believed that his letter to the City Manager constituted a
report of a violation of law; however, his belief had to have been reasonable based
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on his training and experience. See Univ. of Houston v. Barth, 403 S.W.3d 851,
856-57 (Tex. 2013). Jones testified that he graduated from high school and
obtained two associates degrees, one in management development and the other in
process technology. He served in the United States Marine Corps and was assigned
to a supply unit. Jones worked for the Texas Department of Criminal Justice
(“TDCJ”), but was terminated from that position based on an allegation that he
retaliated against an inmate. In response to his termination, Jones filed a
discrimination claim against TDCJ, but the claim was dismissed for failing to “hit
all the parameters of race[.]” Jones testified that he has never worked as a
mechanic on vehicles and has had no training as a mechanic. Jones does not
dispute that the senior mechanic told him the truck was safe to operate that day.
We conclude that Jones has failed to present evidence that it was reasonable, in
light of his training and experience and the circumstances presented, for him to
believe that the conduct he reported to the City Manager—that the City allowed a
driver to drive a vehicle the mechanic inspected and deemed safe—was a violation
of the law. At most, Jones’s letter reflects his dissatisfaction with the City’s
policies and inconsistent application thereof. As such, the letter cannot form the
basis for a report of a violation of law. See Tex. Gov’t Code Ann. §§ 554.001(1),
554.002(a).
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2. Report to the Director of Public Works-Ross Blackketter
Next, Jones contends that Blackketter, as the Director of Public Works for
the City, was an appropriate law-enforcement authority under the Act. Again,
however, our review indicates that Jones’s pleadings contain no allegations that he
made any reports to Blackketter. Even after amending his pleadings twice to
address the City’s jurisdictional challenges, Jones has not pleaded facts to establish
he made a qualifying report to Blackketter.
Even if Jones had properly pleaded facts to support this contention, the only
reports that Jones argues on appeal that he made to Blackketter were not reports he
actually made to Blackketter, but rather reports Jones made to other City
employees that Jones assumes were ultimately forwarded to Blackketter. There is
no evidence that Smith told Blackketter that Jones had reported that his truck was
unsafe to drive or that there were possible environmental issues with Truck 1713.
In fact, Smith testified that she did not tell Blackketter that Jones had reported
these issues because, according to Smith, Jones had not reported these issues to
her. And, in Blackketter’s affidavit, he stated that he was not aware of Jones
making any report of any violation of law by the City or its employees prior to his
decision to initiate termination proceedings on May 23, 2012. Therefore, we
conclude there is no evidence in the record that Jones made a report to Blackketter
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as contemplated by the Act. See Tex. Gov’t Code Ann. § 554.002(b). See also
Okoli, 440 S.W.3d at 614–15.
3. Report to City Council Member-Kerry Thomas
Jones also contends that members of the City Council generally are
appropriate law-enforcement authorities. In his brief, Jones argues that he made
reports to multiple members of the City Council. However, in his petition and in
his appellate brief, Jones only identifies one council member to whom he claims he
made a qualifying report—Kerry Thomas. In his Third Amended Petition, Jones
alleged that on May 16, 2012, he reported to Thomas that Blackketter had
knowingly lied to the City Council during an official meeting about the existence
of “official City preventative maintenance records” that showed the City’s Solid
Waste Department had been adequately maintaining its garbage trucks. Jones
alleged various violations of the Penal Code and stated that it is within the City’s
authority through the City’s Police Department to investigate these violations.
Jones did not allege that Thomas directly had the authority to regulate under,
enforce, investigate, or prosecute a violation of the Penal Code. See Needham, 82
S.W.3d at 320. That the City has a division within it, the Police Department,
charged with investigating and prosecuting crimes, does not transform the entire
City as a governmental entity into an appropriate law-enforcement entity. See
21
Weatherspoon, 472 S.W.3d at 283. Rather, to satisfy the requirements of the Act,
Jones had to show that he reported the alleged violation of law directly to the
City’s Police Department. See Okoli, 440 S.W.3d at 614. Here, there is no evidence
in the record that Jones ever reported a violation of the Penal Code to the City’s
Police Department.
Even if a member of the City Council were considered an appropriate law-
enforcement authority, Jones has failed to show that he, in good faith, reported a
violation of the law. Jones alleged that his report to Thomas about Blackketter was
essentially a report of a violation of law under sections 37.01(2), 37.02(a)(2),
37.09(a)–(d), and 37.10 of the Texas Penal Code. Section 37.02(a)(2) of the Texas
Penal Code provides that a person commits the offense of perjury if, with intent to
deceive and with knowledge of the statement’s meaning, the person makes a false
unsworn declaration under the Unsworn Declaration provision of the Texas Civil
Practices and Remedies Code. Tex. Penal Code Ann. § 37.02(a)(2) (West 2011).
The unsworn declaration covered in section 37.02 is statutorily defined as a written
declaration that is subscribed by the person making the declaration as true under
penalty of perjury. Tex. Civ. Prac. & Rem. Code Ann. § 132.001(c) (West Supp.
2016). The conduct described in Jones’s report to Thomas, as alleged in his
pleading and reflected in the evidence, does not support a violation of section
22
37.02(a)(2). Furthermore, there are no pleadings or any evidence to support that
Jones believed in good faith that he reported a violation of this law.
Section 37.09 of the Texas Penal Code describes the offense of “Tampering
With or Fabricating Physical Evidence[.]” Tex. Penal Code Ann. § 37.09 (West
Supp. 2016). It provides that a person commits an offense under this section if,
knowing that an investigation or official proceeding is pending or in progress, the
person “alters, destroys, or conceals any record, document, or thing with intent to
impair its verity, legibility, or availability as evidence in the investigation or
official proceeding” or “makes, presents, or uses any record, document, or thing
with knowledge of its falsity and with intent to affect the course or outcome of the
investigation or official proceeding.” Id. § 37.09(a). Subsection (d) of section
37.09 provides that a person also commits an offense under this section if
“knowing that an offense has been committed,” he “alters, destroys, or conceals
any record, document, or thing with intent to impair its verity, legibility, or
availability as evidence in any subsequent investigation of or official proceeding
related to the offense[.]” Id. § 37.09(d)(1). Section 37.10 describes the offense of
“Tampering With Governmental Record[.]” Id. § 37.10. It provides that a person
commits an offense under this section if he:
(1) knowingly makes a false entry in, or false alteration of, a
governmental record;
23
(2) makes, presents, or uses any record, document, or thing with
knowledge of its falsity and with intent that it be taken as a genuine
governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the
verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank
governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of
its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank
governmental record form with knowledge that it was obtained
unlawfully.
Id. Section 37.01(2) defines “[g]overnmental record[,]” in relevant part, as
including “anything belonging to, received by, or kept by government for
information, including a court record[.]” Id. § 37.01(2)(A).
Jones does not allege any facts and there is no evidence in the record to
show that at the time he spoke to Thomas, Jones, in good faith, believed that
someone was currently, or had in the past, tampered with, altered, concealed, or
otherwise fabricated evidence or government records. Jones appears to concede
this point in his brief. Jones argues on appeal that “[t]he issue and concern for the
City Mechanic and [Jones were] that maintenance records (which clearly qualify as
‘government records’ within the meaning of § 37.01(2)(A) of the Penal Code)
24
might be fabricated after the fact to support [Blackketter’s] false statements.”
(emphasis added). Jones further argues that “if there was a concern that
maintenance records might be fabricated, § 37.09(a)--(d) would apply.” (emphasis
added). He then argues that had Thomas directed the Police Department to
investigate Jones’s report, then “a potential plan to fabricate City documents”
would have been discovered. (emphasis added). Even if Jones believed that
Blackketter might violate laws in the future, belief in the possibility of a future
violation is not evidence that he made a good-faith report of an existing or past
violation of law. See Gonzalez, 325 S.W.3d at 627; Lueck, 290 S.W.3d at 885.
4. Report to the Solid Waste Department’s Superintendent-Anitra Smith
In his Third Amended Petition, Jones alleged that on May 23, 2012, he
reported to the senior mechanic that Truck 1713, which was assigned to him, was
“leaking potentially flammable hydraulic fluid used by the truck’s hydraulic lift
system.” The senior mechanic informed Jones that the leak was small, and Jones’s
immediate supervisor ordered Jones to perform his garbage collection route using
Truck 1713. When Jones refused to operate Truck 1713, he was instructed to report
to Smith. Jones alleged he reported to Smith on May 23, 2012 and informed her
that he did not want to operate Truck 1713 “because of the potential environmental
and safety hazards that the hydraulic leak posed to the public and to the driver of
25
the truck.” Jones alleged that he told Smith that he believed the operation of Truck
1713 “was illegal and that he could be cited by law enforcement for operating the
truck.” Jones alleged that Smith had the power and authority to prevent the
operation of defective residential garbage trucks by the City’s employees and was
responsible for implementing the City’s program of garbage collection with the use
of properly maintained vehicles and equipment and properly trained staff.
On appeal, Jones contends that the primary violation of law that he reported
was the operation of Truck 1713 on the public streets while in an unsafe condition
in violation of section 547.004(a)(1) of the Texas Transportation Code. As noted
above, section 547.004(a)(1) provides that “[a] person commits an offense that is a
misdemeanor if the person operates or moves or, as an owner, knowingly permits
another to operate or move, a vehicle that . . . is unsafe so as to endanger a
person[.] Tex. Transp. Code Ann. § 547.004(a)(1). As with Jones’s report to the
City Manager, Jones’s report to Smith did not include a report that an actual
violation of the Transportation Code was occurring or had occurred in the past.
Rather, he reported his concern that operating the truck on the road would be a
violation of the law. Jones’s concern regarding the potential of a future violation of
law is not evidence that he made a good-faith report of an existing or past violation
of law. See Gonzalez, 325 S.W.3d at 627; Lueck, 290 S.W.3d at 885.
26
Jones may have believed that his report to Smith concerned a violation of
law; however, his belief had to have been reasonable based on his training and
experience. See Barth, 403 S.W.3d at 856-57. Jones testified that he had never
been stopped or cited for problems with the condition of the City’s garbage trucks.
He cites to no evidence of his past experiences that would support his subjective
belief that he had reported a violation of law to Smith. In his deposition, Jones
expressed concerns over things that could have happened had he taken the truck
out that day. It is also undisputed that Jones’s truck was inspected that day and
determined to be safe to operate. We conclude that Jones has failed to present
evidence that it was reasonable, in light of his training and experience and the
circumstances presented, for him to believe that the conduct he reported to Smith
was a violation of the law. At most, Jones reported his refusal to drive Truck 1713
for fear that he would violate an unspecified law.
Additionally, Jones has not shown that he in good faith believed Smith was
an appropriate law-enforcement authority under the Act. On appeal, he claims that
Smith was not just his “supervisor,” but as a “department head” within the City,
Smith was a City official and, as such, was an appropriate law-enforcement
authority. He contends that a genuine issue of material fact exists as to whether it
was reasonable for him to believe that Smith was an appropriate authority to
27
enforce “whether Port Arthur allowed the operation of residential garbage trucks
with leaking hydraulic systems over the streets of Port Arthur[.]”
Even if we accept as true Jones’s assertion that Smith had authority to
enforce certain laws within her department, the type of internal authority to require
or prohibit one’s own employees from driving trucks in violation of a law is
insufficient to make Smith an appropriate law-enforcement authority. See
Needham, 82 S.W.3d. at 320, 321. The authority described by Jones is not the type
of “outward-looking powers” the Act requires. See McMillen v. Tex. Health &
Human Servs. Comm’n, 485 S.W.3d 427, 429 (Tex. 2016).
Moreover, Jones’s testimony suggests that when he reported to Smith, it was
not reasonable for him to believe that Smith was an appropriate law-enforcement
authority to address the violation of law he contends he made. Jones testified that
when employees reported problems with the trucks to Smith, she informed the
employees that she could not do anything about it and directed them to speak to
Blackketter. Jones has not alleged or presented any evidence to raise a fact issue as
to whether Smith had the authority to enforce, investigate, or prosecute violations
of the Texas Transportation Code against third parties outside the City’s
government structure. See Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d
680, 686 (Tex. 2013).
28
Jones further argues that he reported unspecified “Water Code” violations
and “Environmental Violations” to Smith. In his Third Amended Petition, Jones
does not associate any specific Texas Water Code violation with his report to
Smith, and he never alleges that Smith had the appropriate authority under the Act
to address a violation of the Water Code. Jones alleges generally that sections
26.0136 and 26.121 of the Water Code give the City the authority to “manage and
enforce the implementation of water quality management functions and the
protection of its watershed against activities that may cause the discharge of
pollutants into its water supply or its watershed.”
Section 26.011 of the Water Code provides that unless specifically stated
otherwise, the Texas Natural Resource Conservation Commission (“TNRCC”)
shall administer the provisions of chapter 26 and control the water quality of the
State and establish the level of water quality to be maintained. Tex. Water Code
Ann. § 26.011 (West 2008). While the Water Code defines “Commission” as the
TNRCC, the TNRCC changed its name as part of the agency’s 2001 sunset review
to the TCEQ. See Tex. Water Code Ann. § 7.001(1); Act of May 28, 2001, 77th
Leg., R.S., ch. 965, § 18.01, 2001 Tex. Gen. Laws 1985; see FPL Farming Ltd. v.
Envtl. Processing Sys., L.C., 351 S.W.3d 306, 308 n.2 (Tex. 2011). Section
26.0136(a) of the Code sets forth the enforcement authority for violations of
29
provisions within chapter 26 of the Code, which governs “Water Quality
Control[.]” See id. §26.0136(a). It provides that the Commission is the State
agency with primary responsibility for implementation of water quality
management functions, including enforcement actions within the State. Id. §§
26.001, 26.0136(a). Subpart (b) of this statute provides in relevant part that this
section is not intended “to enlarge, diminish, or supersede the water quality
powers, including enforcement authority, authorized by law for . . . local
governments.” Id. § 26.0136(b). Section 26.121 governs discharges of waste and
pollutants into or adjacent to water in the State. See generally id. § 26.121. We
note that sections 26.121 and 26.027 of the Code provide that there are
circumstances in which the Commission may issue permits and amendments to
permits for the discharge of waste or pollutants into or adjacent to water in the
State. Id. §§ 26.027, 26.121.
Even if we were to assume that Jones reported a violation of the Texas
Water Code when he made a report to Smith, Jones has failed to show that Smith
was an appropriate law-enforcement authority under the Whistleblower Act.
Section 26.0136(b) of the Texas Water Code does not give local governments the
authority to enforce violations of chapter 26. See id. § 26.0136(b). Rather, it
provides that the provisions of chapter 26 do not diminish authority that may be
30
granted to local authorities by other laws. See id. Jones has not alleged any
provisions of the Texas Water Code expressly giving local governments the
authority to enforce the provisions of chapter 26. We conclude that Jones has failed
to show that Smith was an appropriate law-enforcement authority under the Act.
See Gentilello, 398 S.W.3d at 687 (“A supervisor looking into and addressing
possible noncompliance in-house bears little resemblance to a law-enforcement
official formally investigating or prosecuting that noncompliance on behalf of the
public, or a regulatory authority charged with promulgating or enforcing
regulations applicable to third parties generally.”). We further conclude that Jones
has not presented any evidence that it was reasonable in light of his training and
experience in the department to conclude that Smith had authority outside the
department to enforce Water Code provisions generally. See id. at 689. For all of
these reasons, Jones cannot rely upon his report to Smith to form the basis of his
Whistleblower claim.
5. Report to the City’s Appeals Committee
In his Third Amended Petition, Jones alleges that under the City’s grievance
procedure, on June 28, 2012, he spoke at the appeal hearing of his termination.
Jones alleges that during the hearing, he reported to the Appeals Committee “the
dangers of leaking hydraulic fluid from its garbage trucks” and that he informed
31
the Appeals Committee that he had reported safety violations to OSHA. Jones
informed the Appeals Committee that “he believed that he had been terminated in
retaliation for his good-faith reports of multiple violations of law by the City
pertaining to environmental compliance and safety and workplace safety.” Jones
alleges that the Appeals Committee retaliated against him for this report by
recommending that Jones’s termination be upheld. He further claims that the City
Manager retaliated against him by accepting the Appeals Committee’s
recommendation.
To the extent that Jones is claiming on appeal to this Court that he made a
qualifying Whistleblower report to the Appeals Committee, we conclude that Jones
has failed to allege or otherwise show that the Appeals Committee was an
appropriate law-enforcement authority to report any violations of the law regarding
the garbage trucks. The very nature of the Appeals Committee suggests its
authority is restricted solely to compliance-type issues within the City. Jones has
presented no evidence to show that the Appeals Committee had any law-
enforcement authority over anyone other than the City’s own employees.
Moreover, even had Jones presented evidence that he subjectively believed the
Appeals Committee was an appropriate law-enforcement authority, we conclude
32
that he has failed to allege or present any evidence to show that this belief was
objectively reasonable in light of his training and experience.
6. Report to OSHA and the TCEQ
In his Third Amended Petition, Jones alleges that sometime before June 8,
2012, he reported the unsafe working conditions at the City’s Solid Waste
Department to OSHA. He also alleges that sometime before June 8, 2012, he filed
a complaint with the TCEQ accusing the City of violating title 30, section
330.103(a) of the Texas Administrative Code by failing to collect municipal solid
waste containing putrescibles at least once a week.2 See generally 30 Tex. Admin.
Code § 330.103(a) (Westlaw current through 41 Tex. Reg. No. 8226, dated Oct.
14, 2016) (Tex. Comm’n. Envtl. Quality) (“Municipal solid waste (MSW)
containing putrescibles shall be collected a minimum of once weekly to prevent
propagation and attraction of vectors and the creation of public health nuisances.”).
The complaints that Jones filed with OSHA or the TCEQ are not in the appellate
record. However, in his sworn answers to interrogatories, Jones states that he filed
his report to the TCEQ sometime between May 24, 2012, and June 8, 2012. In the
same answers, he states that he made a report to OSHA on May 24, 2012.
2
Jones alleged that he reported that the City violated “30 TAC §300.103(a)
pertaining to [the City’s] failure to collect municipal solid waste containing
putrescibles, a minimum of once per week.” Inasmuch as this is an apparent
typographical error, we refer to the correct statutory provision herein.
33
Therefore, both reports were made after Smith decided to send Jones home
indefinitely and initiate termination proceedings on May 23, 2012.
Even if Jones could show that either his report to OSHA or his report to the
TCEQ was a good-faith report of a violation of law to an appropriate law-
enforcement authority, Jones is still required to show that his making the report
caused him to suffer retaliation. See Zimlich, 29 S.W.3d at 67. The City contends
that Jones cannot show causation regarding his OSHA and TCEQ reports because
the evidence shows that the relevant decision-makers had no knowledge of these
reports prior to making their respective decisions to terminate Jones.
Jones argues that there is a genuine issue of material fact regarding the date
he was terminated. He contends that the notice of termination from the City is
inherently contradictory on this point because it was signed and approved on June
7, 2012, but the notice states that the termination is effective dating back to May
23, 2012. He argues that “[a]t best, the evidence shows that [Jones] was not
terminated before June 8, 2012, when he was given [the notice].”
However, it is undisputed that the City made a decision to take adverse
personnel action against Jones on May 23, 2012, when Smith sent Jones home
indefinitely for his refusal to drive Truck 1713. In Jones’s Third Amended Petition,
he alleges that Smith “sent him home from work indefinitely, as an adverse and
34
disciplinary employment action.” It is also undisputed that later the same day,
Smith and Blackketter signed a notice of termination concerning Jones’s
employment with the City. By June 7, 2012, all of the required decision-makers
had approved the decision to terminate Jones and had signed the notice of
termination. The termination notice is signed by Smith, Blackketter, Comeaux, and
Albert Thigpen, the Director of Personnel. Jones received his notice of termination
on June 8, 2012.
Jones had the burden to present some evidence that at least one of these
decision-makers knew about his reports to OSHA or the TCEQ when he or she
took adverse personnel action against him. There is no evidence in the record to
show affirmatively that any of the decision-makers were aware of these complaints
before they made the decision to terminate Jones. In fact, the evidence in the
record supports that the decision-makers were not aware of these complaints. Jones
testified that he never informed Smith or Blackketter that he had filed complaints
with TCEQ or OSHA. Jones testified that he did not send copies of his TCEQ
complaint to the City and could not recall if he had sent the City a copy of his
OSHA complaint. When asked whether he ever told anyone at the City that he was
speaking to TCEQ, Jones responded, “I’m not sure.” The only evidence of Jones
informing anyone with the City that he had filed a complaint with either OSHA or
35
TCEQ comes from his argument before the Appeals Committee. While the full
transcript of this hearing is not in the record, the parties both acknowledge that
Jones informed the Committee that he had filed a report with OSHA.
In Smith’s affidavit, she states that prior to making her decision to terminate
Jones, she was not aware that Jones had made any report of a violation of law to
either the TCEQ or to OSHA. In Blackketter’s affidavit, he likewise states that he
had no knowledge of Jones’s complaints to the TCEQ or to OSHA prior to making
his decision to support the termination of Jones. Comeaux, in his sworn affidavit,
states that prior to his decision to approve the notice of termination, he had no
knowledge of Jones’s complaints to the TCEQ or to OSHA. He further states that
he had no knowledge of these complaints prior to his decision to follow the
recommendation of the Appeals Committee in upholding Jones’s termination. The
record does not contain an affidavit from Thigpen, but there is no evidence in the
record that Thigpen was aware of Jones’s complaints prior to his decision to
approve the notice of termination. While there is evidence that Thigpen was the
chairperson on the Appeals Committee, his position appeared to be that of a non-
voting member. Jones received his notice of termination on June 8, 2012. As such,
that Jones mentioned his OSHA complaint during his hearing before the Appeals
36
Committee is not informative of Thigpen’s knowledge prior to making a decision
related to Jones’s termination.
In Canutillo Independent School District v. Farran, the employee of a
school district reported violations of law regarding the use of government funds
and waste disposal regulations to the school district’s superintendent, assistant
superintendent, internal auditor, and the school board. 409 S.W.3d at 654. In
March 2009, after the employee had complained about the violations of the law,
the employee was suspended for making threatening calls to a man whom he
believed was having an inappropriate relationship with the employee’s wife. Id. at
654-55. In May, the board voted to give the employee notice of termination. Id. at
655. In July, the employee contacted the FBI regarding the conduct he had
previously complained about. Id. The school district became aware of the
employee’s report to the FBI. Id. In August, the board held a due process hearing
on the employee’s termination. Id. The hearing officer determined good cause
existed for the employee’s termination and recommended that the board’s initial
termination decision be sustained. Id. In September, the board accepted the hearing
officer’s recommendation, and the employee was terminated. Id.
In concluding that the employee failed to show causation under the
Whistleblower Act, the Texas Supreme Court noted that the employee was
37
suspended and had been given notice of the board’s intent to terminate him before
the employee made the report to the FBI. Id. at 656. The Court explained that for
the employee to prevail on a claim that the FBI report caused his termination, the
employee would have to show that but for the report, the school district would
have changed its mind and retained him. Id. The Court concluded that there was
legally insufficient evidence from which a reasonable and fair-minded factfinder
could make such a finding. Id. According to the Court, the employee’s “evidence
showed that from the initiation of [the] termination proceedings, prior to the FBI
report, the District never wavered in its view that [the employee] should be
terminated.” Id. The Court found no evidence in the record that the school board
would have been persuaded to change its mind but for the FBI report, that the FBI
report had any influence on the hearing officer’s recommendation that the initial
termination decision be sustained, or that the report in any way played a role in the
board’s initial or final termination decision. Id. The Court affirmed the trial court’s
judgment granting the plea to the jurisdiction. Id. at 657.
Here, there is no evidence in the record that the City wavered in its view that
Jones should be terminated. The evidence showed that prior to Jones’s reports to
OSHA and the TCEQ, Jones’s supervisors had decided to terminate his
employment with the City. There is no evidence that at any point in time relevant
38
to Jones’s termination, any of the decision-makers learned or had knowledge of
Jones’s reports to the TCEQ or OSHA prior to making their decisions. In fact, the
evidence in the record shows conclusively that the decision-makers had no prior
knowledge of Jones’s reports, so he could not have been terminated because of
those reports. See Vernagallo, 181 S.W.3d at 25; Kirkland, 2012 WL 1149288, at
*2. Moreover, there is no evidence that anyone, including the Appeals Committee,
would have changed their decision but for the OSHA and TCEQ reports. We
conclude that Jones has failed to establish that he suffered retaliation as a result of
making a report to either OSHA or the TCEQ. See Farran, 409 S.W.3d at 656; see
also Barth, 403 S.W.3d at 857 (concluding that a Whistleblower report to the
university police was not a report to an appropriate law-enforcement authority
when the employee did not make the report of the violation of the law until after
the alleged retaliatory acts occurred); Tex. Dep’t of Aging & Disability Servs. v.
Loya, 491 S.W.3d 920, 927 (Tex. App.—El Paso 2016, no pet.) (concluding that
the trial court erred in refusing to dismiss retaliation claim under the Texas
Commission on Human Rights Act when employee’s protected activity could not
have caused the adverse employment decision because employee did not engage in
protected activity until after she received notice of her termination); Esparza v.
Univ. of Tex. at El Paso, 471 S.W.3d 903, 914 (Tex. App.—El Paso 2015, no pet.)
39
(holding that employer’s alleged retaliatory acts that occurred before plaintiff filed
EEOC charge could not have been caused by the EEOC filing).
IV. Conclusion
Jones failed to establish an objective, good-faith belief that he reported an
alleged violation of the law to appropriate law-enforcement authorities that caused
him to suffer an adverse personnel action under the Act.3 Accordingly, we
conclude that the trial court did not err in determining it lacked jurisdiction over
Jones’s Whistleblower action and in dismissing the cause. We overrule Jones’s two
issues and affirm the trial court’s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on May 22, 2015
Opinion Delivered November 17, 2016
Before McKeithen, C.J., Kreger and Horton, JJ.
3
Because our determination as to the trial court’s ruling on the City’s plea to
the jurisdiction is dispositive, we need not address any issues concerning the trial
court’s ruling on the City’s motion for summary judgment. See Tex. R. App. P.
47.1.
40