Opinion
NO. 01-15-00299-CV
03-22-2016
RONALD WILLIAMS, Appellant v. METROPOLITAN TRANSIT AUTHORITY, Appellee
On Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2015-00325
MEMORANDUM OPINION
After his employment was terminated, Ronald Williams sued his former employer, the Metropolitan Transit Authority of Harris County ("Metro"), claiming a violation of the Texas Whistleblower Act. The Act waives governmental immunity if a governmental entity takes adverse personnel action against a public employee, who in good faith, reports to an appropriate law enforcement authority a violation of law by another public employee. See TEX. GOV'T CODE ANN. §§ 554.002, 554.0035 (Vernon 2012).
Metro filed a plea to the jurisdiction, which the trial court granted. On appeal, Williams identifies two issues, challenging the trial court's order granting the plea.
We reverse and remand.
Procedural Background
Ronald Williams filed suit against Metro on January 6, 2015. He filed his first amended petition on January 16, 2015. In his first amended petition, Williams alleged that he had worked for Metro for nine years as a maintenance worker on the transit system. He indicated that his job duties included maintenance and inspection of "the rails, ties, rail fasteners and switches for safety defects." He also "welded, grinded, and installed cross tires."
Williams claimed that another Metro employee, R. Ratcliff, requested him to be complicit in carrying out criminal acts while on the job. Williams stated that, after he refused to assist in the criminal endeavors, Ratcliff began harassing him at work, threatening him with termination and making demeaning comments.
Williams further alleged that a Metro supervisor, F. Burton, told Williams that "he would get Ratcliff off of his back if Mr. Williams would move a woman he met into Mr. Williams' home." Williams claimed that he "refused and consequently Mr. Burton began to pressure Mr. Williams at work as well."
Williams alleged that Ratcliff continued to harass him by circulating untrue rumors about him and taking disciplinary actions against him. Williams claimed that, after he notified Metro about the retaliatory treatment, Metro employees further retaliated against him by alleging that Williams had assaulted them. Williams claimed that Metro "took a final retaliatory measure against [him]" by firing him.
Williams sued Metro for violating the Whistleblower Act, for defamation, and for intentional infliction of emotional distress. On February 6, 2015, Metro filed a plea to the jurisdiction. In its plea, Metro asserted that "there is no waiver of immunity for intentional torts," such as defamation and intentional infliction of emotional distress.
Metro also averred that its immunity to suit had not been waived under Whistleblower Act because Williams had failed to allege all of the necessary elements of that statutory claim. Metro pointed out that a plaintiff "must actually allege a violation of the Act for there to be a waiver from suit." In this regard, Metro pointed out that Williams "never alleges that he made a report involving a violation of law to an appropriate law enforcement authority," as required to establish a claim under the Whistleblower Act.
On February 24, 2015, Williams filed a response to Metro's plea to the jurisdiction, and he filed his second amended petition. In the petition, Williams abandoned his defamation and intentional infliction of emotional distress claims. With respect to his whistleblower claim, Williams alleged the he had made good faith reports of the law violations to both Metro and the Equal Employment Opportunity Commission [EEOC]. He claimed, "[Williams] in good faith believed the EEOC was authorized to regulate under or enforce the law alleged in the report to the EEOC and [he believed in good faith that] the EEOC could investigate a violation of criminal law."
Relying on his second amended petition, Williams asserted in his response to the plea that, contrary to Metro's claim, he had reported a violation of law to an appropriate law enforcement authority, as required by the Whistleblower Act. Williams averred that he had "fulfilled the requirements [of] §554.002 of the Texas Government Code [the Whistleblower Act] when he in good faith reported [a criminal law violation] to the EEOC[,] believing the EEOC was authorized to regulate or enforce the law alleged in the report and investigate a violation of criminal law."
The trial court conducted a hearing on the plea to the jurisdiction on Friday, February 27, 2015. As it had in its plea, Metro argued that Williams had not alleged sufficient jurisdictional facts to maintain a Whistleblower Act claim because Williams had not alleged that he had reported a violation of law to an appropriate law enforcement authority. Metro pointed out that Williams had alleged that he had made an internal report within Metro regarding the criminal law violation. Metro asserted that Williams's internal report within the agency was not a report of a law violation to an appropriate law enforcement authority because Metro, as an agency, does not have the authority to investigate or prosecute a criminal-law violation. Metro also asserted that Williams had not shown that he had made a report to the EEOC. Metro further asserted that—even if Williams had made a report to the EEOC—that also was not a report of a law violation to an appropriate law enforcement authority because the EEOC has no authority to investigate or to prosecute criminal-law violations.
At the hearing, Williams argued to the trial court that he had a right to amend his petition and informed the trial court that he would offer documents to support his claim that he had filed a complaint with the EEOC. He also asserted that the Whistleblower Act required only that he subjectively believed that the EEOC had the authority to investigate the law violations and that he had indeed believed that the EEOC had such authority.
At the end of the hearing, the trial court informed the parties, "I'll have a ruling for you-all on Monday for this." The hearing concluded at 10:51 a.m.
The record reflects, however, that the trial court did not wait until Monday to rule on Metro's plea to the jurisdiction. The record shows that the trial court signed an order granting Metro's plea and dismissing Williams's claims on the same day as the hearing on February 27, 2015.
The record further shows that Williams filed his third amended petition and a supplemental response to the plea to the jurisdiction later in the evening of February 27, 2015 at 6:41 p.m. and 7:21 p.m., respectively. Presumably, the third amended petition and supplemental response were filed after the trial court had signed the order granting Metro's plea to the jurisdiction and dismissing Williams's claims.
In his third amended petition, Williams alleged, for the first time, that "[i]n August 2014, [he] reported Mr. Ratcliff and Mr. Burton's criminal acts to Metro police officers Andre Hines and Michael Garcia." Williams supported his petition with his affidavit in which he attested,
Roughly, in August 2014, in good faith also reported the criminal acts of Ratcliff and Mr. Burton to Metro Police Officers: Andre Hines and Michael Garcia. It was my belief that Metro Police, a law enforcement agency, could investigate, enforce, prosecute, or take some action that would protect me against Ratcliff, Burton, and losing my job.
In his supplemental response, Williams requested the trial court to deny the plea because he had reported the law violation to Metro police. He asserted that Metro police was an appropriate law-enforcement agency. He stated that, when he reported the law violation, he had believed, in good faith, that Metro police had the authority to investigate or to prosecute the violation.
Williams now appeals the trial court's order, granting Metro's plea to the jurisdiction.
Discussion
In two issues on appeal, Williams contends that the trial court erred by granting Metro's plea to the jurisdiction. The Whistleblower Act waives immunity from suit to the extent a governmental entity is liable under its provisions. See TEX. GOV'T CODE ANN. § 554.0035. For there to be a waiver from suit, a claimant "must actually allege a violation of the Act." See State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). In this regard, the elements of a whistleblower claim "are jurisdictional and may not be waived." Univ. of Houston v. Barth, 403 S.W.3d 851, 853 (Tex. 2013). Among its elements, the Whistleblower Act requires a claimant to show that he in "good faith" reported a violation of law to an "appropriate law enforcement authority." TEX. GOV'T CODE ANN. § 554.002; see also Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002) (providing that the good-faith inquiry requires both a subjective and objective good-faith belief by the employee).
Williams claims that the granting of Metro's plea was in error because he reported the criminal law violations "to what he believed in good faith was an appropriate law enforcement authority." To support this assertion, Williams relies on his third amended petition and accompanying affidavit in which he testified that he had reported the alleged criminal law violations of his co-workers to the Metro police.
Implicit in Williams's issues is the contention that Williams was entitled to amend his petition and should be permitted to proceed on his third amended petition.
In its brief, Metro acknowledges that Williams filed his third amended petition on Friday, February 27, 2015, the same day the hearing was held and the order granting the plea was signed. Metro points out, however, that the petition was filed in the evening, after the conclusion of the hearing and after the signing of the order.
In its brief, Metro also acknowledges that Williams relies on Texas Department of Parks & Wildlife v. Miranda "for the proposition that the Trial Court should allow him the opportunity to amend his pleading to assert jurisdictional facts." See 133 S.W.3d 217, 226-27 (Tex. 2004) (holding that, if pleadings do not contain sufficient facts to affirmatively demonstrate trial court's jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, plaintiff should be afforded opportunity to amend pleadings).
Metro nonetheless asserts that Williams has waived the right to amend his petition because he did not file a motion for new trial when he filed his third amended petition. To support its waiver argument, Metro avers,
[Williams] did not go back to the Trial Court to present his new allegation that he satisfied one element of a whistle blower claim by reporting to a law enforcement agency. Specifically, [Williams] did not file a motion for new trial seeking the Trial Court to reconsider its ruling given the amendment found in the Third Amended Petition.
Under the circumstances presented here, we do not agree that Williams needed to file a motion for new trial to be afforded the opportunity to amend his petition. "Texas Courts have signaled a preference for allowing a plaintiff an opportunity to amend before dismissing a suit in response to a plea to the jurisdiction." Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 347 (Tex. App.—Eastland 2008, no pet.). A plaintiff generally deserves a reasonable opportunity to amend defective pleadings unless the pleadings demonstrate incurable defects or negate the existence of jurisdiction. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007).
We are mindful, however, that, while the general rule expresses a preference for allowing an amendment, a plaintiff may waive this opportunity through inaction. Cassidy v. TeamHealth, Inc., No. 01-08-00324-CV, 2009 WL 2231217, at *7 (Tex. App.—Houston [1st Dist.] July 23, 2009, pet. denied) (mem. op.) (determining that plaintiffs had several opportunities both before and after summary judgment was granted to amend pleadings or request opportunity to amend, and no indication trial court denied such opportunity); Tara Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 578 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding plaintiff forfeited opportunity to amend petition through inaction after trial court granted plea to jurisdiction); Haddix, 253 S.W.3d at 347 (finding waiver of opportunity to amend when plaintiff took no action to amend petition before or after trial court signed dismissal order and never indicated how pleading deficiencies could be addressed in amended pleading).
Here, it cannot be said that Williams took no action to amend his petition to include proper jurisdictional allegations. Instead, the record shows that Williams did act.
When Williams's claims were dismissed on February 27, 2015, the suit had been pending less than two months. Although the new allegations regarding Williams's report to Metro police were not mentioned at the hearing, Metro acknowledges in its brief that "[Williams's] trial counsel argued to the Trial Court [at the hearing] that [Williams had] a right to amend [his petition] to attempt to cure pleading defects if jurisdictional facts are not alleged." In addition, Williams filed the third amended petition later on the same day as the hearing, which was a Friday. It is unclear whether Williams knew that the trial court had also signed the order granting the plea that day. The record from the hearing indicates that the trial court had informed the parties, at the end of the hearing, that it would "have a ruling for you-all on Monday for this." When he filed his amended petition on Friday evening, Williams may have believed that the trial court had not yet ruled on the plea to the jurisdiction. Furthermore, although he did not file a motion for new trial, Williams did file a supplemental response to the plea along with his third amended petition. The supplemental response argued against the plea based on the third amended petition.
Lastly, though we do not determine whether or not the pleading sufficiently alleges a Whistleblower claim, we note that the allegations in the third amended petition that Williams reported the criminal law violations to Metro police presents an arguable ground that he reported the law violations to an appropriate law enforcement authority. Cf. Univ. of Tex. at San Antonio v. Wells, No. 04-10-00615-CV, 2011 WL 446642 (Tex. App.—San Antonio Feb. 9, 2011, no pet.) (mem. op.) (holding, in whistleblower case, that university employee who was told that her reports of fraud would have to be investigated by police, not by the particular department to which she reported allegations, did not have a reasonable belief that the university was appropriate law enforcement authority). And, not only did Williams amend his petition, he also filed an affidavit, stating, under oath, that he had reported the criminal law violations to the police.
In short, Williams actively sought to amend his petition in an effort to include appropriate jurisdictional allegations. He should be given the opportunity to prosecute his case under that amendment. See Miranda, 133 S.W.3d 217, 226-27 (stating that plaintiff should be given opportunity to amend petition to defeat jurisdictional challenge under right circumstances). Though we make no determination as to any future jurisdictional challenges or as to the merits of the case, we hold that Williams should be permitted to return to the trial court for further proceedings based on his third amended petition, given the unique procedural history of this case.
To avoid the necessity of appeal, we note that a more prudent and efficient course of conduct would have been for Williams to have filed a motion for leave to amend the petition in the trial court or to have filed a post-judgment motion. --------
We sustain Williams's issues to the extent discussed above.
Conclusion
We reverse the trial court's judgment and remand to the trial court for further proceedings.
Laura Carter Higley
Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley.