WHISTLEBLOWERS BEWARE: State of Texas and TxDOT v. Lueck (Tex 2009)

Three ways to skin the whistleblower: 1. summary judgment; 2. special exceptions, and now, for good measure, culling tool no. 3: DISMISSAL ON THE PLEADINGS

OPEN SEASON ON WHISTLE BLOWERS

Regulatory Noncompliance Not Illegal, Supreme Court says (at least not when it comes to defeating whistleblower suits brought by terminated public employees)

Lawsuits by public employees in employment-related disputes, such as wrongful termination or discrimination, are usually responded to with motions for summary judgment or with special exceptions if the pleadings are arguably insufficient or otherwise defective. In its recent decision in State of Texas v. Lueck, the Texas Supreme Court approved a third method: Dismissal on the pleadings. Adding to its nearly spotless record of decisions favorable to governmental defendants, the Court gave its seal of approval to dismissal on the pleadings in a wrongful discharge suit brought under the Texas Whistleblower statute by an employee fired by TxDOT. The Act provides a statutory cause of action for public employees retaliated against for reporting illegal activity at work. Finding lack of jurisdiction -- one of the Court's favorite disposal doctrines -- the Court dismisses the whistleblower's suit outright without remand to the lower court. No opportunity to replead necessary.

It would be futile anyway.

For good measure, and although not necessary to kill the lawsuit at hand, the Court held that two necessary elements were not satisfied by the plaintiff's pleadings in this case, and thus warranted jurisdictional dismissal: (1) the recipient of the plaintiff's report of allegedly illegal activity was not a proper law enforcement authority, and (2) the complaint was not really about illegal acts, but merely “regulatory noncompliance,” as if administrative law weren't really law.

Two birds killed with one opinion. Two defenses to whistleblower claims beefed up and stamped with the court's seal of approval, and a new method to swiftly dispatch whistleblower suits without delving into evidence. Three new precedents handed to the defense bar for the price of one (appeal).

The basic thrust of the High Court's whistleblower jurisprudence matches the Court's commitment to quash tort claims against public entity defendants under the Texas Tort Claims Act: Such suits should not be brought in the first place, much less should the plaintiffs claims be vindicated. Plaintiffs claiming whistleblower protection, after all, create inconvenience to government officials and seek to impose liability on governmental defendants, a favored category of litigants at the High Court.

Such suits should be dismissed if at all possible. The earlier the better.

Indeed, the Supreme Court is seeing to it.

This latest installment in the Court's strings of pro-government and anti-employee rulings not only narrows the scope of the legislated immunity waiver effected by the Whistleblower Act, but also approves the summary disposition of whistleblower claims without even the need for a summary judgment motion to test the strength of the evidence.

Under the newly fashioned precedent, a plea to the jurisdiction will do. And lest the Plaintiff amend the pleadings to meet the Court's tightened standards of what constitutes a qualifying claim entailing protection against and a remedy for adverse employment actions, the Court also blesses denial of any opportunity to replead. The claim could not succeed anyhow, the Court opines. The Court no doubt is right. A favorable verdict and judgment for a whistleblower would surely not withstand Supreme Court review, whatever the rationale that might be offered to effect reversal.

But better still if whistleblowers' rants of retaliation do not go to a potentially sympathetic jury in the first instance. Safer to quash a whistleblower suit at its inception, and to deter others brazen enough to invoke the Act. The latest opinion promises to accomplish as much.

WOULD-BE WHISTLEBLOWERS BEWARE!

The Lueck opinion fits in neatly with the Texas Supreme Court's immunity jurisprudence. Immunity theories are indeed an awesome weapon in the arsenal of the defense. No wonder the Court is so fond of them. If immunity is established, the evidence does not matter. The merits become irrelevant. Pesky plaintiffs can be thrown out of the courthouse without much ado, not to mention the inconvenience of a trial to determine whether the allegations in the pleadings are supported by the facts. Judicial resources can thus be preserved. This has been a principal concern of the Court, an interest the Court has shown a deep commitment to vindicate. Time and again. At the expense of the plaintiff's constitutionally guaranteed right to access to the courts.

The court's opinion was authored by Justice Paul Green. Not a single member of the Court dissented. On an earlier occasion, it was the Chief himself who took the lead in weakening whistleblower protections. Jefferson authored the opinion in which the Court gave the nod of approval for petty retaliation by government managers in holding that the punishment complained of in that case fell short of discharge or demotion and did not rise to the level of an actionable adverse employment action under the Whistleblower Act. Montgomery County v. Park, 246 S.46 S.W.3d 610 (Tex. 2007). In that case, the Chief set the tone. Lueck marks a further step to erode the Whistleblower Act, and the notion that it affords a viable remedy, and thus undermines its purpose.

EXCERPTS FROM THE TEXAS SUPREME COURT'S ANTI-WHISTLEBLOWER OPINION IN STATE V. LUECK (TEX. 2009):

Under the Texas Whistleblower Act, sovereign immunity is waived when a public employee alleges a violation of Chapter 554 of the Government Code. TEX. GOV’T CODE § 554.0035. A violation under Chapter 554 occurs when a governmental entity retaliates against a public employee for making a good-faith report of a violation of law to an appropriate law enforcement authority. Id. § 554.002(a). George Lueck was fired from the Texas Department of Transportation (TxDOT) after he sent an e-mail to the director of the Transportation Planning and Programming Division, reporting what he believed to be violations of state and federal law. Lueck then sued the State of Texas and TxDOT under the Whistleblower Act, alleging that he “was fired because of his good faith reports of TxDOT’s violation of state and federal law.”

We hold that, because Lueck’s e-mail report only warned of regulatory non-compliance, not a violation of law, and because an agency supervisor is not an appropriate law enforcement authority to whom a report should be made, Lueck’s allegation affirmatively negates the court’s subject-matter jurisdiction over the cause. The State’s sovereign immunity is not waived, and thus, we reverse the court of appeals’ judgment and dismiss the case for lack of subject-matter jurisdiction.

* * *

TxDOT points to uncontroverted allegations within Lueck’s pleadings, claiming that they affirmatively negate jurisdiction because the e-mail sent to Randall did not report a violation of law to an appropriate law enforcement authority. As for the report element, Lueck’s pleadings affirmatively negate the existence of a reported violation. Lueck’s fifth amended petition states that Lueck “believed and reported in good faith that if the Department did not pursue an immediate and positive resolution to Cooper’s October 29, demand[,] the Department would violate federal and state law by failing to remedy non-compliance with the federal and state reporting requirements.” This allegation merely recites Lueck’s prediction of possible regulatory noncompliance. Such a regulatory non-compliance of this kind does not equate to a violation of law under which a law enforcement authority regulates or enforces within the meaning of the Whistleblower Act. See TEX. GOV’T. CODE § 554.002(b). Further, Lueck attached the e-mail report to his pleadings, and the only discernable violation in the report itself states that TxDOT’s current system for reporting traffic data “is not capable of handling this data and will, therefore, never be in compliance.” This references the violation reported in the 1995 Federal Highway Administration report, which is only intended to call TxDOT’s attention to a previous, publicly-known instance of regulatory non-compliance. At most, this reference to a previous violation of a federal standard expresses disagreement with remedial measures taken by TxDOT after it was already knowingly out of compliance. An internal policy recommendation of this kind is not a report of a violation of law that the Whistleblower Act was designed to protect. Even if this e-mail did report a violation of law, Lueck’s supervisor, Mr. Randall, is not an appropriate law enforcement authority to whom such a report should be made.

* * *

[A]s a matter of law, Lueck’s pleadings affirmatively demonstrate that he did not allege a violation under the Whistleblower Act.3 For these reasons, we reverse the court of appeals’ judgment and dismiss the cause for lack of subject-matter jurisdiction.

CASE STYLE AND DETAILS & LINKS: State of Texas and TxDoT v. Lueck, No. 06-1034 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed)(allegation of regulatory noncompliance insufficient, report not to proper law-enforcement agency)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK;
from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06) motion to dismiss denied
The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction.
Justice Green delivered the opinion of the Court. [pdf 16 pgs.]
View Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)

Accident victims' hazardous road to the Texas Supreme Court

Another premises liability (road hazard) case with predictable outcome; even more predictable since a governmental entity would have had to pay for injuries. That's a no-no for the Supremos. Since the Legislature waived sovereign immunity by enacting the Texas Tort Claims Act, the legislation must be construed to prevent an outcome that could actually make government liable for personal injury damages caused to innocent citizens. To their credit, three dissented, including the Chief.

Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)

FROM JUSTICE O'NEILL'S DISSENT:

It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.

I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.

Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.

In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.

The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.

The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.

I disagree.

Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).

A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.

In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.

The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.

The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.

Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).

But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.

Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009

[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).

In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.

OTHER RECENT TTCA DECISIONS FROM THE TEXAS SUPREME COURT:

City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)

UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act, TTCA, premises liability, dangerous condition, ostrich defense, know-nothing defense)

City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, children's drowning deaths, flooded roads)

June 1, 2007 - Texas Cities Have Their Day In Court

Following its precedent-setting decisions in Tooke and Reata a year earlier, Supreme Court of Texas decides numerous sovereign immunity appeals involving cities.

June 1, 2007 - Texas Supreme Court hands down eleven opinions, including six cases with cities as parties; grants three petitions for review. None of the justices concurred or dissented.

High Court denies 36 petitions for review and 11 petitions for mandamus relief.

This week's opinion authors are Chief Justice Jefferson, Justice Brister, Justice Johnson, and Justice Medina. Seven opinion were issued per curiam, including one granting mandamus relief.

June 1, 2007 Signed and Per Curiam Opinions Issued by the Texas Supreme Court

Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation, hospital lien)

First Commerce Bank v. Palmer, No. 05-0686 (Tex. Jun. 1, 2007)(Medina)(guarantee agreement, lack or failure of consideration defense)

State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction)

In Re Southwestern Bell Telephone Co., L.P. , No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)(agency primary jurisdiction)

Hubicki v. Festina, a Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, defective service)

City of Arlington v. Matthews, No. 06-0251 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)

City of Pasadena v. Kinsel Industries, No. 06-0353 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)

City of Elsa v. M.A.L., No. 06-0516 (Tex. Jun. 1, 2007)(per curiam)

Tellez v. City of Socorro, No. 05-0629 (Tex. Jun. 1, 2007)(per curiam)(zoning)

Dallas Fire Fighters Association v. City of Dallas,No. 04-0821 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)

Abilene Housing Authority v. Gene Duke Builders, No. 05-0631 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)

Petions Denied (Cases involving cities and other local governments only)

No. 03‑0954 CITY OF DALLAS v. FIRST TRADE UNION SAVINGS BANK, FSB; from Dallas County; 5th district (05‑02‑00953‑CV, 133 SW3d 680, 07‑25‑03)

No. 04‑0797 CITY OF TEXARKANA v. CITIES OF NEW BOSTON, HOOKS, DEKALB, WAKE VILLAGE, MAUD, AVERY, AND ANNONA; from Bowie County; 6th district (06‑04‑00023‑CV, 141 SW3d 778, 07‑23‑04) 2 petitions

No. 04‑1115 SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. CITY OF SAN ANTONIO, ACTING BY AND THROUGH SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑03‑00835‑CV, ___ SW3d ___, 11‑03‑04)motion to strike dismissed as moot

No. 06‑0161 HARRIS COUNTY v. OCTAVISH FREEMAN; from Harris County; 1st district (01‑04‑00148‑CV, 183 SW3d 885, 01‑12‑06)

No. 06‑0481 THE CITY OF SAN ANTONIO v. EL DORADO AMUSEMENT COMPANY, INC.; from Bexar County; 4th district (04‑04‑00638‑CV, 195 SW3d 238, 02‑15‑06)2 petitions

No. 07‑0029 AUSTIN INDEPENDENT SCHOOL DISTRICT v. CHRISTINA BELL LOWERY; from Travis County; 3rd district (03‑06‑00169‑CV, 212 SW3d 827, 11‑30‑06)

No. 07‑0182 CITY OF MCALLEN v. MANUEL TRIGO, JR., ET AL.; from Hidalgo County; 13th district (13‑04‑00344‑CV, ___ SW3d ___, 06‑02‑04)