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 2007-11

Stan H. Looper and Cynthia M. Scott v. Houston Community College System, Bruce Leslie, Diana Castillo, and Reynaldo Garay ( 2007 )


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  • Affirmed and Memorandum Opinion filed November 29, 2007

    Affirmed and Memorandum Opinion filed November 29, 2007.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-07-00040-CV

    ____________

     

    STAN H. LOOPER AND CYNTHIA M. SCOTT, Appellants

     

    V.

     

    HOUSTON COMMUNITY COLLEGE SYSTEM, BRUCE LESLIE, DIANA CASTILLO, AND REYNALDO GARAY, Appellees

     

      

     

    On Appeal from the 152nd District Court

    Harris County, Texas

    Trial Court Cause No. 2004-50706

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellants, Stan H. Looper and Cynthia M. Scott, appeal the trial court=s grant of summary judgment on claims of breach of contract, defamation, intentional infliction of emotional distress, negligent hiring, and violations of the Texas Whistleblower Act in favor of appellees, Houston Community College System (AHCCS@), Bruce Leslie, Diana Castillo, and Reynaldo Garay.  We affirm.


    I. BACKGROUND

    HCCS is a two-year public college governed by a nine-member board of trustees.  Bruce Leslie served as chancellor and chief executive officer for HCCS from 2001 to 2006.  HCCS is divided into six colleges, each of which is governed by a president who reports directly to the chancellor.  Scott was employed in student counseling with HCCS from 1999 to 2006.

    In December 2002, Diana Castillo was named the interim president at HCCS=s Southeast College.  Olga Flores was a potential candidate for the Southeast College interim president position as well; however, she was appointed dean of student development at Southeast College.  Thereafter, a conflict arose between Castillo and Flores that escalated to a lawsuit filed by Flores.[1] 


    As the dean of student development, Flores promoted Scott to counseling chair at Southeast College.  Flores later told Scott about a letter, dated March 1, 2003, written by Castillo to Garcia.  According to Scott, the letter indicated that Castillo had conspired with Garcia and other trustees to move Flores into the dean of student services position so that she would not be considered for the position of president of Southeast College.  The same year, Castillo was accused of inappropriately using HCCS funds and resources to aid Herlinda Garcia in her bid for re-election to the HCCS board of trustees.  Castillo was investigated by the Harris County District Attorney=s Office for abuse of official capacity and tampering with a government record.  On May 14, 2004, Scott made a verbal complaint to the Human Resources department at HCCS, complaining that (1) Castillo was inappropriately criticizing Scott=s staff and (2) Castillo=s negative attitude towards Flores and Flores= staff was likely the result of Castillo=s continuing effort to remove Flores.  Scott also told HR about the contents of the Castillo letter because she believed that Castillo had abused her official capacity and continued to do so.  The same month, the Harris County District Attorney=s Office closed its investigation with no criminal charges filed.

    On June 14, 2004, Scott filed her first written grievance alleging that she was the subject of retaliation by Castillo due to her previous May 2004 complaint to Human Resources.  Scott further alleged that her husband, Looper, became a target of retaliation when he was terminated from his position with Project GRAD.  Project GRAD is a non-profit organization that works with HCCS on various academic summer programs.  Scott also complained that Castillo published two libelous letters about Looper and his work with Project GRAD.  On the same day, Scott filed a second grievance requesting Arelief from the retaliatory environment@ created by the Flores-Castillo lawsuit. 

    In June 2004, Flores took a medical leave of absence.  The following month,  Reynaldo Garay was appointed interim assistant dean of student development while Flores was on leave.  Scott expressed her disagreement with Garay=s appointment; Scott believed she should have been appointed into the position because Garay was her subordinate.  On June 28, 2004, Scott filed a third grievance, alleging that Castillo retaliated against her by giving her less prestigious assignments and purposefully undermining her authority.

    On September 15, 2004, Looper and Scott filed suit against HCCS, Leslie, and Castillo for breach of contract, defamation, intentional infliction of emotional distress, tortious interference, and violations under the Texas Whistleblower Act (ATWA@).  The following month, a confrontation erupted between Castillo and Scott wherein Castillo filed a criminal complaint against Scott to the HCCS police.  On November 17, 2004, Scott filed a fourth grievance complaining about Castillo=s continuing retaliation, including the HCCS police report.

    In November 2004, Orfelina Garza was appointed president of Southeast College. Castillo was reassigned to an administrative position at another HCCS college and Flores resigned.  On December 7, 2004, Scott filed a fifth grievance complaining that during Castillo=s term as interim president at Southeast College, Scott was improperly passed over twice for the assistant dean of student development position. 

    Southeast College began its selection process for the permanent assistant dean of student development position the following year.  Scott was on the interview screening committee.  On June 8, 2005, Scott informed the screening committee chair that Garay had falsified information on his application for the assistant dean position; namely, that he had previously served as an interim assistant dean. Scott was later removed from the screening committee.[2] On August 2, 2005, Scott filed a sixth grievance complaining that she was improperly removed from the screening committee due to Garay=s false allegations.  Scott also reported to the Harris County District Attorney=s Office that Garay had falsified information on his application.  In November 2005, Garay became the dean of Southeast College.  In January 2006, Scott resigned from HCCS.

    In 2006, Looper and Scott amended their suit and added Garay, Castillo and Leslie as defendants.  Scott asserted (1) claims for TWA violations against HCCS, Castillo, Leslie, and Garay; (2) defamation claims against Castillo, Leslie, and. Garay; (3) intentional infliction of emotional distress claims against Castillo, Leslie, and Garay; and (4) a negligent hiring and retention claim against Leslie.   Looper asserts a (2) breach of contract claim against HCCS, (2) defamation claim against Castillo, and (3) tortious interference claims against Castillo and Leslie. Garay=s first motion for summary judgment was denied.  Subsequently, appellees filed traditional and no-evidence motions for summary judgment.  The trial court granted each motion for summary judgment.

    Appellants raise five issues for review, arguing that the trial court erred in granting appellees= motions for summary judgment because (1) appellants raised genuine issues of fact as to one or more of the essential elements of their breach of contract and tort claims; (2) appellees failed to establish immunity; (3) Scott raised fact issues as to her TWA claim; (4) Scott=s constructive discharge claim meets the requirements of section 554.005 of the TWA; and (5)  the trial court has jurisdiction over Scott=s TWA claims against Garay.

    II. STANDARD OF REVIEW

    We review a grant of summary judgment under a de novo standard.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and where the trial court grants the judgment without specifying the grounds, we affirm the summary judgment if any of the grounds presented are meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872B73 (Tex. 2000).  Here, appellees moved for summary judgment on both traditional and no-evidence grounds. 

    When reviewing a traditional summary judgment, we determine whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact on one or more of the essential elements of the plaintiff=s causes of action or each element of the affirmative defense.  Tex. R. Civ. P. 166a(c); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).   We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant=s favor.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).


    In a no‑evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial.  Tex. R. Civ. P. 166a(i); Green v. Lowe=s Home Ctrs., Inc., 199 S.W.3d 514, 518 (Tex. App.CHouston [1st Dist.] 2006, pet. denied). Such a motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Unlike a movant for a traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense.  A no-evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review.  A no-evidence summary judgment is properly granted if the nonmovant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the nonmovant would have the burden of proof at trial.  Lake Charles Harbor and Terminal Dist. v. Bd. of Trustees of Galveston Wharves, 62 S.W.3d 237, 241 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). We must sustain a no‑evidence summary judgment when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

    III. APPELLANTS= TORT AND BREACH OF CONTRACT CLAIMS

    In their first two issues, appellants claim that the trial court erred in granting appellees= motions for summary judgment on (1) Looper=s breach of contract claim against HCCS, (2) Looper=s defamation claim against Castillo, (3) Scott=s defamation claims against Leslie, Garay, and Castillo, (4) Scott=s intentional infliction of emotional distress claims against Leslie, Garay, and Castillo, and (5) Scott=s negligent hiring and retention claims against Leslie.  Appellants also argue that appellees did not conclusively prove they are entitled to qualified immunity against these claims.

    A. Looper=s Breach of Contract Claim

    To prevail on a claim for breach of contract, the plaintiff must establish (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach.  Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Looper argues that the trial court erred in granting summary judgment on his breach of contract claim because Leslie and Castillo failed to conclusively prove that Looper did not have a contract with HCCS. 

    In February 2004, Looper was hired as an independent contractor by Project GRAD, a nonprofit organization that works with HCCS  on various academic summer programs.   Looper alleges that his independent contractor assignment with Project GRAD ended in May 2004, at which time he entered into an oral contract of employment with Castillo to continue as the project director on the same academic project.   Looper bases his breach of contract claim against HCCS on this alleged oral contract entered into with Castillo.

    A junior college district is a political subdivision of the state.  Hander v. San Jacinto Junior College, 519 F.2d 273, 279 (5th Cir. 1975).  For the acts of the governmental body to be valid, it must act as a body.  Thermo Prods. Co. v. Chilton Indep. Sch. Dist., 647 S.W.2d 726, 732 (Tex. App.CWaco 1983, writ ref=d n.r.e.).  Don Washington of the HCCS Human Resources Department testified that individual employees, including college presidents and deans, do not have the authority to extend offers of employment to prospective employees; only the Chancellor or his designee has the authority to communicate an offer of employment.  Castillo was the interim president at Southeast College at the time she allegedly entered into this oral contract with Looper. Castillo=s alleged oral agreement with Looper is not enforceable because, as a matter of law, Castillo could not bind HCCS; only the board of trustees= actions can bind HCCS.   See Mosely v. Houston Community College Sys., 951 F. Supp. 1279, 1289 (S.D. Tex. 1996) (APlaintiff's claims that oral promises were made regarding the length of her employment or duties cannot bind the Defendants, since only Board of Trustees= action can bind HCCS.@).  Thus, any alleged oral promise that Looper would be director of the Project GRAD program by Castillo cannot form the basis of a contract binding HCCS. See id. 

    Viewing the record in the light most favorable to Looper, we find that he failed to raise a genuine issue of material fact that he had a valid contract with HCCS. Furthermore, Looper failed to produce more than a scintilla of evidence demonstrating he had an enforceable contract with HCCS.             Because HCCS established as a matter of law that Looper had no enforceable contract with it, the trial court did not err in granting summary judgment in favor of HCCS on Looper=s breach of contract claim.

    B. Appellants= Tort Claims

    Appellants further assert various tort claims against appellees and argue that appellees are not entitled to immunity.  As for HCCS, it is entitled to sovereign immunity from tort liability except in claims arising from an injury caused by an employee=s use of a motor-driven vehicle.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.051 (Vernon 2005).  Because appellants do not assert any tort claims involving motor vehicles, HCCS is immune from appellants= tort claims.  See id. 


    The remaining individual appellees argue that they are immune under the doctrine of official immunity.  Official immunity is an affirmative defense that protects government employees, in their individual capacities, from liability related to (1) the performance of discretionary duties, (2) within the scope of the employee=s authority, (3) if the employee acts in good faith.  City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Govant v. Houston Community College Sys., 72 S.W.3d 69, 74 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Ministerial acts, as opposed to discretionary acts, are those where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.  Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996).  If, however, an action involves personal deliberation, decision, and judgment, it is discretionary.  Id. To meet the second element, within the scope of the employee=s authority, the official=s act must be one wherein the employee is discharging the duties generally assigned to him or her.  Chambers, 883 S.W.2d at 658.  In determining the last element of good faith, we apply an objective standard and must determine whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. Id. at 656; see also Joe, 145 S.W.3d at 164.  The standard of good faith as an element of common‑law official immunity is not a test of carelessness or negligence, or a measure of an official=s motivation.  Id. Additionally, this test of good faith does not inquire into Awhat a reasonable person would have done,@ but into Awhat a reasonable person could have believed.@  Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 426 (Tex. 2004).  It does not require the official to show that all reasonably prudent officials would have made the same decision; rather, the official must show only that a reasonable person, possessing the same information he had at the time, could have believed his conduct was lawful.  Chambers, 883 S.W.2d at 656; Bowles v. Yeganeh, 84 S.W.3d 252, 254 (Tex. App.CDallas 2002, no pet.).

    Because official immunity is an affirmative defense, the burden is upon the movant to establish each element of the defense.  Grinnell, 951 S.W.2d at 425.  If the movant establishes the defense, then the nonmovant must come forward with summary judgment evidence to the contrary.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  We consider whether each individual appellee has met his or her burden.

    Bruce Leslie

    Scott alleges that Leslie (1) defamed her before the board of trustees, (2) intentionally inflicted emotional distress by approving the hiring of Garay and Astonewalling@ Scott=s transfer request, and (3) was negligent in hiring and retaining Castillo.  Appellants do not argue that Leslie was acting outside the scope of his authority.  Therefore, we review the record to determine whether Leslie established as a matter of law that he was performing discretionary duties in good faith. 


    Leslie states in his affidavit that, as chancellor, he is called upon to make judgment calls based on information provided to him.  Any action taken by Leslie was discretionary in that no policy or procedure dictated the process or outcome of his involvement in making these judgment calls.  Rather, his actions were the exercise of his discretion and judgment.[3] Furthermore, Leslie=s sworn affidavit indicates that he was not involved in any decision to remove Scott from the screening committee, and he was not aware of Looper=s applications for employment in 2003 and 2004. 

    Additionally, Leslie states that any decisions he made allegedly affecting Scott or Looper were made in good faith in his capacity as chancellor of HCCS.  Leslie states that he made decisions regarding Project GRAD and Castillo=s assignment based on information provided to him by senior administrators.  When Leslie received Scott=s email communication regarding Garay=s application for dean, he referred the matter to the Southeast campus administration according to his usual practice.  With regard to the statements made to the board of trustees, Leslie informed the board of trustees about pending litigation, which his job description requires.  As to Scott=s transfer request, there is no evidence that Leslie was involved in handling her request in any manner. Leslie=s affidavit shows that a reasonably prudent person under the same or similar circumstances could have taken the same action.

    To raise a fact issue on the issue of good faith, Scott is required to prove that no reasonable person in Leslie=s position could have thought the facts were such that they justified his acts.  See Chambers, 883 S.W.2d at 657.  In attempting to controvert Leslie=s showing of good faith, Scott produced an evaluation written by Leslie of Castillo=s performance as interim president.  Leslie=s evaluation shows that, contrary to Scott=s assertion, Leslie supervised Castillo and reprimanded her for inappropriate acts regarding a member of the board of trustees.  Viewing the summary judgment record in the light most favorable to Scott, we find that  Leslie established official immunity from Scott=s tort claims.  Furthermore, appellees failed to present more than a scintilla of evidence showing that Leslie=s acts were not discretionary and that he did not act in good faith.  Accordingly, the trial court did not err in granting summary judgment in favor of Leslie on appellees= tort claims.

    Reynaldo Garay

    Scott alleged that Garay defamed her and intentionally inflicted emotional distress by writing a memorandum to one of Scott=s supervisors and an email to Flores.  While Garay=s application for dean was pending before the screening committee, Scott, a member of the committee, confronted Garay about rumors she had heard regarding her leadership and department.  Garay reported that Scott told him she was Agoing to find it difficult to support [Garay] unless [Garay] supported her.@  Because of this conflict between Garay and a member of the screening committee, Garay reported the confrontation to the chair of the committee, Irene Porcarello.  Scott admitted that she had previously signed a petition to have Garay removed as chair of the counseling department, and that she felt she had a right to talk to Garay about her belief that he was spreading rumors about her.  However, Scott denied that she talked with Garay about the dean position or that she told him she would have difficulty supporting him.

    Scott also complains of an email Garay sent to Flores in response to Scott=s accusation that he falsified his application for dean.  In the email, Garay reported that he was encountering problems similar to those Flores encountered with Aa group of counseling staff.@  Garay also expressed his concern that Scott was on the screening committee for the purpose of blocking consideration of himself for the dean position.  Garay defended his decision to list his experience as interim dean on his application, and told Flores that Scott was removed from the screening committee because of her previous confrontation with him.  Garay listed several events that he described as Abehind-your-back tactics@ designed by Scott to prevent him from being offered the dean position. 

    In his sworn affidavit, Garay indicates that his statements in response to Scott=s allegations were in the scope of his authority, were discretionary, and were made in good faith.  Garay=s job description indicates that he was to supervise student counseling services and evaluate personnel in the student services and community development department.  As such, in supervising and evaluating Scott, Garay was acting in the scope of his employment with HCCS.  Further, Garay states that no policy or procedure directed his actions to the degree that they became ministerial.  Ministerial actions require obedience to orders or the performance of a duty as to which the actor has no choice.  Downing, 935 S.W.2d at 114.  Garay=s choice of words in his memorandum and email communication involved personal deliberation, and was not directed by policy. 

    Garay further established as a matter of law that his actions were taken in good faith.  When Garay wrote the memorandum and the email, he had reason to believe that his interests had been unlawfully invaded by another person, and he was entitled to respond in an appropriate manner.  See Chambers, 883 S.W.2d at 656.

    Nothing in the record reflects that Garay=s statements were defamatory or so extreme and outrageous as to evidence an intent to inflict emotional distress.  Scott alleges that AGaray=s actions were intentionally made to harm, >clobber,= and punish [Scott] for her whistleblower report.@  However, Scott has not shown that a reasonable person in similar circumstances would have believed his actions were unlawful.  As to each of the statements alleged by Scott, Garay presented sufficient summary judgment proof that a reasonable person in his position could have believed he was entitled, even obligated, to make such statements.  Viewing the record in the light most favorable to Scott, we find that Garay established official immunity from Scott=s tort claims.  Furthermore, appellees failed to produce more than a scintilla of evidence demonstrating that Garay=s acts were not discretionary, not within the scope of his authority, or not made in good faith.  Thus, the trial court did not err in granting summary judgment in favor of Garay on Scott=s tort claims.

    Diana Castillo

    In this appeal, Scott alleges Castillo defamed her by publishing an incident report made to the HCCS police.  The incident report was the result of a verbal argument between Scott and Castillo.  The confrontation was initiated by Scott when she accused Castillo of undermining her relationship with Garza, the new Southeast College president.  Castillo felt threatened by Scott=s confrontation and felt she needed to file a criminal report.  Scott contends that Castillo Aoutrageously published a malicious and frivolous@ police report to Scott=s supervisors and HCCS associates. 

    First, Castillo=s actions were discretionary, not ministerial.  No policy or procedure directed Castillo to report or not to report such incidents to the police.  Castillo=s act of reporting the incident was one in which she used her judgment and discretion.  See Downing, 935 S.W.2d at 114.  Second, Castillo=s action in reporting the confrontation with Scott was within the scope of her authority.  During the time of these events, Castillo was the interim president of Southeast College. As interim president, she was the top administrator and the ultimate decision-maker at the college level regarding employment offers, terminations, budgetary matters, operations, human relations, procurement, and risk management.  Because Scott was under Castillo=s supervision at the time of these events, Castillo was acting within the scope of her employment when she reported Scott=s actions to the HCCS police. See Chambers, 883 S.W.2d at 658 (holding that an official acts within the scope of her authority if she is discharging the duties generally assigned to her).

    Lastly, the record reflects that Castillo made the police report in good faith. According to her affidavit, Castillo filed the report because she felt physically threatened by Scott.  A reasonable person in Castillo=s position could have believed that it was necessary to report Scott=s actions to the campus police.  See McCartney, 50 S.W.3d at 611. Other than alleging that Castillo filed the claim in Abad faith,@ Scott presented no summary judgment evidence to show that a reasonably prudent person in similar circumstances would have believed Castillo=s actions were unlawful.  Id. Scott=s unsubstantiated  belief that the report was made in bad faith is less than a scintilla of evidence because it is so weak as to do no more than create a mere surmise or suspicion of fact.  See Chapman, 188 S.W.3d at 751.

    Appellees further allege that Castillo defamed Looper and intentionally inflicted emotional distress upon Scott by writing a memorandum pertaining to Looper and his work with Project GRAD.  In this memorandum, Castillo specifically requests that Looper stop performing any work on behalf of HCCS because he was not authorized to do so.  Castillo told Looper that he did not have a signed agreement with either Project GRAD or HCCS.  Castillo stated that she had been contacted by representatives of Project GRAD informing her of Looper=s continuing to act as a representative of HCCS; she reminded Looper that he was not an HCCS representative.  Castillo requested, for the third time, that he stop contacting Project GRAD.

    Castillo presented competent evidence that her acts were discretionary; the statements made in the memorandum and the decision to communicate the information with Looper were not controlled by HCCS policy or procedure.  Castillo presented evidence that she was responsible for the successful execution of Project GRAD and, therefore, was acting within the scope of her authority.  Further, nothing in the record reflects that the memorandum was so extreme and outrageous as to evidence an intent to inflict emotional distress.  Castillo=s memorandum to Looper was not the result of bad faith.  A reasonable person in Castillo=s circumstances could have believed that it was necessary to confirm in writing her requests that Looper stop representing himself as an employee of HCCS or Project GRAD.  Viewing the summary judgment record in the light most favorable to Scott, we find that Castillo established official immunity from Scott=s tort claims.[4] See McCartney, 50 S.W.3d at 611.  Furthermore, appellees failed to produce more than a scintilla of evidence demonstrating that Castillo=s acts were not discretionary, not within the scope of her authority, or not made in good faith.

    Having shown as a matter of law that Leslie, Garay, and Castillo performed discretionary duties in good faith and within the scope of their authority, they were each entitled to official immunity on appellants= tort claims.  Therefore, the trial court did not err in granting summary judgment.  Appellants= first and second issues are overruled.

    IV. SCOTT=S TWA CLAIMS

    In appellants= third, fourth and fifth issues, they argue that the trial court erred in granting summary judgment against Scott=s TWA claims.  Scott filed TWA claims against HCCS, Leslie, and Garay, arguing that she suffered retaliation for (1) disclosing to HCCS the contents of the Castillo letter demonstrating that Castillo was abusing her official capacity and (2) reporting to the Harris County District Attorney=s Office that Garay falsified information on his job application. To establish a Whistleblower claim, Scott must produce competent summary judgement evidence that: (1) she was a public employee; (2) she made a report; (3) in good faith; (4) of a violation of law; (5) to an appropriate law enforcement authority; and (6) she suffered an adverse employment action because of making the report.  Texas Dept. Of Human Services of the State of Texas v. Hinds, 904 S.W.2d 629, 632B33 (Tex. 1995).  Appellees= summary judgment motions contest whether Scott=s report was made to an appropriate law enforcement authority and whether the report was made in good faith.

    Under the Act, an appropriate law enforcement authority is a governmental entity authorized to Aregulate under or enforce the law alleged to be violated.@  Tex. Gov=t Code Ann. ' 554.002(b)(1) (Vernon 2004); Texas Depart. Of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002). Alternatively, an appropriate law enforcement authority is a governmental entity authorized to Ainvestigate or prosecute a violation of criminal law.@  Tex. Gov=t Code Ann. ' 554.002(b)(1); Needham, 82 S.W.3d at 319.  It is not enough that a governmental entity has general authority to regulate, to enforce, to investigate, or to prosecute.  Needham, 82 S.W.3d at 319.  Rather, the governmental entity must be authorized either to (1) regulate under or to enforce Athe law alleged to be violated@ or (2) investigate or to prosecute Aa violation of criminal law.@  Id. at 320.  The particular law the public employee reported is critical to the determination.  Id. Thus, we must determine whether HCCS had the authority to regulate under, to enforce, to investigate, or to prosecute the reported violations of abuse of official capacity and tampering with a government record under the Texas Penal Code.  Id.

       After analyzing the reported violation of law, abuse of official capacity and tampering with a government document, we conclude that HCCS was not an appropriate law enforcement authority.  HCCS has no authority to regulate under or enforce these Texas criminal offenses.  Nor does it have the authority to investigate or prosecute these criminal laws.  See Tex. Gov=t Code Ann. ' 554.002(b)(2).  Accordingly, we hold that, as a matter of law, HCCS is not an appropriate law enforcement authority under section 554.002(b)(2) for a public employee to report another employee=s violation of Texas=s criminal offenses of abuse of official capacity and tampering with a government document. 


    However, our conclusion that HCCS is not a governmental entity authorized to regulate under, enforce, investigate, or prosecute Texas=s criminal offenses of abuse of official capacity and tampering with a government document does not end our inquiry.  Scott may still obtain TWA protection if she in good faith believed that HCCS was an appropriate law enforcement authority as the statute defines the term.  See Tex. Gov=t Code Ann. ' 554.002(b).  AGood faith@ means that (1) the employee believed the governmental  entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law and (2) the employee=s belief was reasonable in light of the employee=s training and experience.  Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996); Needham, 82 S.W.3d at 321.  Accordingly, we must determine if, under the Hart test, there is any evidence to support the conclusion that Scott had a good faith belief that she reported the alleged acts of abuse of official capacity and tampering with a government document to the appropriate law enforcement authority.  Needham, 82 S.W.2d at 321.

    Scott is an educated woman who testified she knew that the Human Resources generalist did not have authority to prosecute a crime.  Additionally, Scott was well aware that the Harris County District Attorney=s Office was conducting a criminal investigation against Castillo for abuse of official capacity, the very act that Scott reported to HCCS.  It is not reasonable for a prudent person in similar circumstances to believe HCCS=s Human Resources department could investigate or enforce criminal allegations of abuse of official capacity and tampering with a government document.  There is insufficient evidence to support the contention that Scott had a good faith belief that HCCS was an appropriate law enforcement authority under the TWA to report Castillo=s alleged criminal acts of abuse of official capacity and tampering with a government document.

    Next, Scott alleges that she suffered retaliation and was constructively discharged for reporting to the Harris County District Attorney=s Office that Garay falsified information on his job application.  In its summary judgment motion, appellees argue (1) the trial court lacked jurisdiction to hear this particular claim because appellee failed to timely initiate HCCS=s grievance procedure within 90 days; (2) Scott did not make this report in good faith; and (3) Scott did not suffer any adverse personnel action for making such report.

    The TWA requires that an employee initiate a grievance using the employer=s grievance procedure within 90 days of the violation.  If the employee fails to file such a grievance, then her claims are jurisdictionally barred.  See Tex. Gov=t Code Ann. ' 311.034 (Vernon 2005);  Univ. of Houston v. Barth, 178 S.W.3d 157, 163 (Tex. App.CHouston [1st Dist.] 2005, no pet.). The record contains no evidence that Scott initiated a grievance using HCCS=s grievance procedure with respect to her constructive discharge claim.  Texas courts have uniformly held that when an employer maintains a specific grievance procedure, the employee must utilize the procedure.  See Montgomery County Hosp. v. Smith, 181 S.W.3d 844, 853 (Tex. App.CBeaumont 2005, no pet.).  The record clearly demonstrates that Scott was aware of HCCS=s grievance procedure and knew how to file a grievance because she had previously filed several grievances through the same process.  Instead of filing a grievance, as she did in the past for each incident of alleged retaliation, Scott simply resigned without more.  As a result, the trial court did not have jurisdiction over Scott=s TWA claim regarding her alleged constructive discharge.         

    Furthermore, it is well settled among Texas courts that the TWA does not create a cause a action against individual employees of a governmental entity, such as Leslie and Garay.  See Austin v. HealthTrust, Inc.-The Hospital Co., 967 S.W.2d 400 (Tex. 1998) (declined to recognize a Aprivate whistleblower@ cause of action); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 668B69 (Tex. App.CCorpus Christi 2004, no pet.) (upheld the district court=s grant of a directed verdict on the plaintiff=s claims against the individual defendants because there was no privated right of action against the officials in their individual capacities).  Therefore, the trial court did not abuse its discretion in granting summary judgment in favor of Leslie and Garay on Scott=s TWA claims.  We overrule appellants= third, fourth and fifth issues. The judgment of the trial court is affirmed.[5]

     

    /s/        Adele Hedges

    Chief Justice

    Judgment rendered and Memorandum Opinion filed November 29, 2007.

    Panel consists of Chief Justice Hedges, Justice Frost, and Senior Justice Hudson.* (Hudson, J. concurring in the result only).

    * Senior Justice J. Harvey Hudson sitting by assignment.


    [1]  See Castillo v. Flores, No. 01-05-00760-CV, 2006 WL 4888609 (Tex. App.CHouston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.).  In this lawsuit, Flores alleged, among other things, that Castillo had defamed her, harassed her, and retaliated against her to halt Flores= candidacy for the interim president position at Southeast College.

    [2]  The parties dispute the reason for Scott=s removal. Scott alleges she was removed from the committee because she revealed that Garay had falsified information on his application while appellees contend that she was removed for improperly confronting Garay about his candidacy.

    [3]  Scott asserts that because she filed a claim under the TWA, the actions of each appellee are ministerial rather than discretionary.  However, it is well settled under Texas law that individuals, as opposed to government entities, are not covered by the TWA.  See Austin v. HealthTrust, Inc.- The Hospital Co., 967 S.W.2d 400 (declined to recognize a Aprivate whistleblower@ cause of action); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 66B69 (Tex. App.CCorpus Christi 2004, no pet.) (upheld the district court=s grant of a directed verdict on the plaintiff=s claims against the individual defendants because there was no private right of action against the officials in their individual capacities).  Therefore, the TWA does not categorize Leslie=s, Castillo=s, or Garay=s duties as either ministerial or discretionary.

    [4]  Castillo also argues that she established the complete defense of truth regarding Scott=s defamation claim arising from the incident report.  However, since we have held that Castillo established the affirmative defense of official immunity, we do not reach this argument. 

    [5]  Appellees filed a cross-point objecting to the trial court=s refusal to sustain their objections to appellants= summary judgment evidence.  Because we have affirmed the trial court=s judgment, we need not address appellees= cross-point.