No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. BILLY D. BURLESON III, JON J. MARK, and CRAIG A.

No. 05-14-01361-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS BILLY D. BURLESON III, JON J. MARK, and CRAIG A. BENNIGHT v. Appellants COLLIN COUNTY COMMUNITY COLLEGE DISTRICT Appellee On Appeal from the 416th District Court of Collin County, Texas The Honorable Chris Oldner, Judge Presiding APPELLANTS BRIEF Chad M. Ruback State Bar No. 90001244 chad@appeal.pro The Ruback Law Firm 8117 Preston Road Suite 300 Dallas, Texas 75225 (214) 522-4243 (214) 522-2191 fax ORAL ARGUMENT REQUESTED ACCEPTED 05-15-01361-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 3/9/2016 7:58:24 AM LISA MATZ CLERK

Appellants IDENTITY OF PARTIES AND COUNSEL Appellee Billy D. Burleson III, Jon J. Mark, and Craig A. Bennight Trial Counsel for Appellants Victoria Neave Mark L. Scott, Jr. 10440 N. Central Expressway Suite 1230 Dallas, Texas 75231 Collin County Community College District Trial/Appellate Counsel for Appellee Charles J. Crawford Ross Wells 1700 Rosebud Boulevard Suite 300 McKinney, Texas 75070 Appellate Counsel for Appellants Chad M. Ruback 8117 Preston Road Suite 300 Dallas, Texas 75225 2

TABLE OF CONTENTS INDEX OF AUTHORITIES........................................... 5 STATEMENT OF THE CASE......................................... 7 ISSUES ON APPEAL................................................ 8 STATEMENT OF FACTS............................................ 9 SUMMARY OF THE ARGUMENT................................... 16 ARGUMENT...................................................... 17 I. ARGUMENT RELATED TO ISSUE 1: The trial court had jurisdiction over the police officers Texas Whistleblower Act suit. Consequently, the trial court committed reversible error in granting the college s plea to the jurisdiction... 17 A. The college failed to establish that as a matter of law there was no adverse personnel action....................... 21 B. The college failed to establish its claim that jurisdiction is lacking as to Officer Mark s claims based on his grievance somehow not constituting a whistleblower grievance. The college also claimed that one of Officer Bennight s claims somehow did not constitute a whistleblower grievance, but the college never sought dismissal for want of jurisdiction on this basis...... 29 C. The college argued that jurisdiction is lacking as to Officer Mark s claims because, after the college denied his grievance, he did not file an appeal through the college s internal procedures. But that is simply not required by Texas law.............. 31 3

INDEX OF AUTHORITIES TEX. GOV T CODE 554.001.......................................... 27 TEX. GOV T CODE 554.002.......................................... 22 TEX. GOV T CODE 554.0035...................................... 18, 20 TEX. GOV T CODE 554.006.......................................... 32 TEX. R. APP. P. 34.6.............................................. 33, 34 TEX. R. CIV. P. 297................................................. 36 Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013).................................. 20, 22 Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)................................. 36 City of Elsa v. Gonzalez, 325 S.W.3d 622 (Tex. 2010)......................... 17, 18, 19, 21, 22 City of Houston v. Levingston, 221 S.W.3d 204 (Tex. App. Houston [1st Dist.] 2006, no pet.)..... 18, 20 First State Bank & Trust Co. v. George, 519 S.W.2d 198 (Tex. Civ. App. Corpus Christi 1974, writ ref d n.r.e.). 34 Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315 (Tex. App. Houston [14th Dist.] 2002, no pet.)........ 20 Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907 (Tex. 2004)..................................... 35 5

Gray v. City of Galveston, No. 14-12-00183-CV, 2013 WL 2237386 (Tex. App. Houston [14th Dist.] 2013, no pet.).................. 26, 27 Landerman v. State Bar of Tex., 247 S.W.3d 426 (Tex. App. Dallas 2008, pet. denied)............... 36 Montgomery County v. Park, 246 S.W.3d 610 (Tex. 2007).................................. 25, 27 Roberts v. Titus County Mem l Hosp., 159 S.W.3d 764 (Tex. App. Texarkana 2005, pet. denied)......... 18, 20 State v. Lueck, 290 S.W.3d 876 (Tex. 2009)............................ 17, 18, 19, 21 Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996)...................................... 36 Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)............................ 17, 19, 20, 22 University of Houston v. Barth, 403 S.W.3d 851 (Tex. 2013).................................. 17, 18 Wichita Falls Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)..................................... 17 6

STATEMENT OF THE CASE Appellants are three police officers (collectively, the police officers or the officers ) employed by Appellee Collin County Community College District. ( the college ) [CR 14, 26-27] The police officers filed a Texas Whistleblower Act suit against the college. [CR 12, 18, 26] The college filed a plea to the jurisdiction, and the trial court granted the plea to the jurisdiction. [CR 26, 258] The police officers filed a request for findings of fact and conclusions of law. [CR 260] The officers also filed a notice of past-due findings of fact and conclusions of law. [CR 264] However, the trial court never made findings of fact and conclusions of law. 7

ISSUES ON APPEAL ISSUE 1: The trial court had jurisdiction over the police officers Texas Whistleblower Act suit. Consequently, the trial court committed reversible error in granting the college s plea to the jurisdiction. ISSUE 2: The police officers timely-filed (1) a request for findings of fact and conclusions of law and (2) a notice of past-due findings of fact and conclusions of law. Despite an obligation to do so, the trial court never made findings of fact and conclusions of law. 8

STATEMENT OF FACTS Appellants are three police officers employed by Appellee Collin County Community College District. [CR 14, 26-27, 200] In January of 2014, the officers were investigating the theft of thousands of dollars worth of books from the college bookstore. [CR 14] The officers investigation began to reveal a scheme to defraud the college of more than $1 millions worth of books and college funds. [CR 14, 201] The officers investigation indicated that there was corruption and a cover-up by high-ranking officials at the college. [CR 15] In March of 2014, college officials ordered the officers to stop their investigation. [CR 15, 201] The officers reported to various law enforcement agencies that college employees had committed a number of violations of the law (including coercion of a public servant, public corruption, tampering with evidence, and tampering with a witness) and that there appeared to be corruption among high-ranking college officials. [CR 15, 201, 230-231; Supp. CR 21] A. Officer Bennight In late January of 2014 or in February of 2014, Officer Craig Bennight reported to the college s police chief, Michael Gromatzky, that employees of the college were stealing from the college bookstore (to the tune of more than $1 million). [CR 226-9

227, 230] On March 7, 2014, someone named Ralph Hall 1 and Chief Gromatzky both ordered Officer Bennight to close his investigation of the college bookstore theft. [CR 80, 84, 227; Supp. CR 21, 27] Officer Bennight contends that these orders constitute the crime of coercion of a public servant and the crime of public corruption. [CR 230; Supp. CR 21] Additionally, Mr. Hall and someone named Barbara Jindra 2 ordered witnesses not to speak with police or to share documents with police. [Supp. CR 21] Officer Bennight contends that this order constitutes the crime of tampering with a witness. [CR 231; Supp. CR 21] Additionally, the college s director of security (Ed Leathers) seized inventory from police custody without a signed release from a magistrate. [CR 231; Supp. CR 21] Officer Bennight contends that this seizure constitutes the crime of tampering with or fabricating physical evidence. [CR 231; Supp. CR 21] Officer Bennight reported the crimes to the FBI, the Collin County District Attorney s Office, and the Texas Rangers. [CR 230] After Officer Bennight made 1 Mr. Hall s job title is not included in the record. However, in case the Court is curious, Mr. Hall is/was the college s vice president of administration and chief financial officer. 2 Ms. Jindra s job title is not included in the record. However, in case the Court is curious, Ms. Jindra is/was the college s associate vice president of financial services and reporting. 10

these reports to the law enforcement agencies, 3 he was written up (on March 15, 2014) for failure to complete a vehicle readiness form. [CR 84, 87, 107, 231, 234; Supp. CR 27] On March 29, 2014, Officer Bennight learned that the college sent an email intended for all officers, containing information which was necessary for the officers to perform their job duties, but that the email was not sent to him. [CR 15, 24, 84, 202, 232] Officer Bennight contends retaliation (for reporting the crimes) is the basis for these actions (his having been omitted from the email s distribution list and his having been written up. ) [CR 230-231, Supp. CR 19, 24, 27] On May 2, 2014, Officer Benight filed a whistleblower grievance related to the retaliation. 4 [CR 27, 77-78, 87-88; Supp. CR 19, 27] The college dismissed this grievance on June 3, 2014. [CR 27, 80, 88] The college s retaliation resumed after Officer Bennight s grievance was dismissed. Specifically, on July 4, 2014, the college changed Officer Bennight s schedule so as to require him to work the deep nights shifts, shifts lasting from 6:00 p.m. until 6:00 a.m. [CR 16, 28, 103, 202, 232] Officer Bennight filed a second 3 The record does not reflect the date on which Officer Bennight made his reports to the outside law enforcement agencies. However, the retaliation began [s]oon after Officer Bennight made his reports. [CR 231] 4 The grievance filed by Officer Bennight on May 2, 2014 may have been erroneously dated 1 March 2014. [CR 87] 11

grievance with the college (on July 17, 2014 or July 21, 2014), alleging that requiring him to work the deep nights shifts constituted further retaliation. [CR 28, 93-94, 103] Officer Bennight attached to this second grievance copies of his new schedule showing that he was being required to work the deep nights shifts. [CR 93, 100] The college suggested that there was no evidence that Officer Bennight was ever actually required to work the deep nights shifts and claims that the record reflects only a draft of Officer Bennight s new schedule. [CR 28] That being said, the college did not deny that Officer Bennight was required to work the deep nights shifts, and the college did not offer any evidence to contradict Officer Bennight s allegation and evidence that he was required to work the deep nights shifts. The college denied Officer Bennight s second grievance. [CR 27] B. Detective Burleson In late January of 2014 or in February of 2014, Detective Billy Burleson 5 reported to Chief Gromatzky that employees of the college were stealing from the college bookstore (to the tune of more than $1 million). [CR 226-227, 230] On March 7, 2014, Mr. Hall and Chief Gromatzky both ordered Detective Burleson to close his investigation of the college bookstore theft. [CR 227] Detective Burleson contends that the crimes of coercion of a public servant and the crime of public 5 Detective Burleson is the college police department s only detective. [CR 69] 12

corruption had occurred. [CR 230] On the same day (March 7, 2014), Detective Burleson reported the crimes to outside law enforcement authorities. [CR 70, 72, 228] On March 18, 2014, the college changed Detective Burleson s schedule from the 10:00 a.m. to 6:00 p.m. shift to the 2:00 p.m. to 10:00 p.m. shift. [CR 62, 229] On March 18, 2014, the college removed Detective Burleson from a program, known as flex time, which had allowed him flexibility with his schedule. [CR 16, 60, 62, 69, 202, 229; see also CR 34] Detective Burleson contends that these actions constitute retaliation. [CR 229] On March 26, 2014, Detective Burleson filed a whistleblower grievance related to the retaliation. [CR 28, 59, 68-69, 230] The college denied this grievance. [CR 74, 230] C. Officer Mark Officer Jon Mark was ordered to lock an intoxicated person in a closet for four hours. [CR 107, 114, 233] On April 10, 2014, Officer Mark sent an email reporting to Chief Gromatzky (and to others, such as college president Dr. Israel) that (1) that Officer Mark had been ordered to lock an intoxicated person in a closet for four hours and (2) that this constituted the crime of official oppression. [CR 107, 114, 232-233] On April 16, 2014, Officer Mark was written up for having sent the email 13

(although he was not given a copy of the write up until May 15, 2014). [CR 107, 110, 114, 234] The write up given to Officer Mark expressly stated that Any future violation of the same or similar nature will result in disciplinary action up to and including termination. [CR 107, 111, 234] Also, on May 15, 2014, Officer Mark was told that he would be assigned to the deep nights shifts, shifts lasting from 6:00 p.m. until 6:00 a.m. [CR 107, 202, 234] Officer Mark contends that these actions constitute retaliation. [CR 232] On May 16, 2014, Officer Mark filed a whistleblower grievance with the college related to the retaliation. [CR 28, 106-108, 114, 234] Officer Mark s grievance was denied by the college. [CR 28, 117, 234] D. The Litigation The police officers filed a Texas Whistleblower Act suit against the college. [CR 12, 18, 26] The college filed a plea to the jurisdiction. [CR 26] The officers filed an unopposed motion for leave to file an amended petition, and the trial court signed an order granting such leave. [CR 252, 256, 259] On April 16, 2015, the trial court conducted a hearing on the college s plea to the jurisdiction. [CR 240; RR 1, 4] On August 10, 2015, the trial court signed an order granting the college s plea to the jurisdiction. [CR 258] On September 8, 2015, 14

the officers filed a motion for new trial. [CR 262] On November 6, 2015, the officers filed their notice of appeal. [CR 267] Curiously, on December 15, 2015 more than four months after the trial court signed its order granting the college s plea to the jurisdiction and more than one month after the officers filed their notice of appeal the college filed an addendum to its plea to the jurisdiction and attached evidence that the college acknowledges is not otherwise in the record. [Supp. CR 4] On August 28, 2015, the officers filed a request for findings of fact and conclusions of law. [CR 260] On September 24, 2015, the police officers filed a notice of past-due findings of fact and conclusions of law. [CR 264] However, the trial court never made findings of fact and conclusions of law. 15

SUMMARY OF THE ARGUMENT The trial court had jurisdiction over the police officers Texas Whistleblower Act suit. Specifically, (1) the college failed to establish that as a matter of law there was no adverse personnel action; (2) the college failed to establish its claim that jurisdiction is lacking as to Officer Mark s claims based on his grievance somehow not constituting a whistleblower grievance ; (3) while the college claimed that one of Officer Bennight s claims somehow did not constitute a whistleblower grievance, the college never sought dismissal for want of jurisdiction on this basis; and (4) while the college argued that jurisdiction is lacking as to Officer Mark s claims because, after the college denied his grievance, he did not file an appeal through the college s internal procedures, that was simply not required by Texas law. Consequently, the trial court committed reversible error in granting the college s plea to the jurisdiction. The police officers timely-filed (1) a request for findings of fact and conclusions of law and (2) a notice of past-due findings of fact and conclusions of law. Despite an obligation to do so, the trial court never made findings of fact and conclusions of law. 16

ARGUMENT I. ARGUMENT RELATED TO ISSUE 1: The trial court had jurisdiction over the police officers Texas Whistleblower Act suit. Consequently, the trial court committed reversible error in granting the college s plea to the jurisdiction. A trial court s ruling on a plea to the jurisdiction is reviewed de novo. See University of Houston v. Barth, 403 S.W.3d 851, 854 (Tex. 2013); City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). Due to the principle of sovereign immunity, Texas courts only have subject matter jurisdiction over a suit against the State of Texas pursuant to the terms of various statutes. See Wichita Falls Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Due to the closely-related principle of governmental immunity, Texas courts only have subject matter jurisdiction over a suit against a governmental subdivision of the State which would include the college pursuant to the terms of these same statutes. See Wichita Falls Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). A plea to the jurisdiction is the appropriate vehicle by which a governmental entity questions whether there is any such statute applicable to the case or, instead, whether the trial court lacks subject matter jurisdiction. See State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009); Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Wichita Falls Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). One 17

statute which waives sovereign/governmental immunity is the Texas Whistleblower Act, this waiver of immunity being located in section 554.0035 of the Texas Government Code. 6 TEX. GOV T CODE 554.0035; see University of Houston v. Barth, 403 S.W.3d 851, 854 (Tex. 2013); State v. Lueck, 290 S.W.3d 876, 878 (Tex. 2009); In determining whether the section 554.0035 waiver of immunity is applicable, a court may look at (1) the plaintiff s pleadings and (2) any evidence before the court. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Notably, the college s plea to the jurisdiction did not assert that the officers pleadings were insufficient. [CR 26-35, 199, 202] For two reasons, this is not surprising. First, under section 554.0035, there is an extremely low bar for a plaintiff to satisfy the pleading requirement. Specifically, as the Texas Supreme Court has repeatedly indicated, the requirement is satisfied if a public employee plaintiff merely alleges a claim against a defendant that would constitute a violation. See City of 6 This provision, like all other provisions of the Act, should be liberally construed to effect [the Act s] purpose, which is to enhance openness in government and to compel the government s compliance with law by protecting those who inform authorities of wrongdoing. City of Houston v. Levingston, 221 S.W.3d 204, 218 (Tex. App. Houston [1st Dist.] 2006, no pet.); see Roberts v. Titus County Mem l Hosp., 159 S.W.3d 764, 769 (Tex. App. Texarkana 2005, pet. denied). 18

Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009). Moreover, in a Texas Whistleblower Act case, the Supreme Court held: When considering the pleadings, we construe them liberally in favor of the plaintiffs. City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). Second, even if a plaintiff fails to satisfy this simple requirement, that cannot justify the granting of a plea to the jurisdiction. To the contrary, unless the pleadings include a statement which would affirmatively negate the existence of jurisdiction, the trial court must allow the plaintiff an opportunity to cure any shortcomings in the jurisdictional statements in his pleadings. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004) ( If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.... If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. ). The college s plea to the jurisdiction does not claim that the officers pleadings include a statement that would affirmatively negate the existence of jurisdiction, and a plain reading of the officers pleadings shows no such statement. 19

As for the evidence before the court, the issue is whether the defendant would (potentially) have liability under the Act. See TEX. GOV T CODE 554.0035. 7 Notably, when parties submit evidence at plea to the jurisdiction stage, review of the evidence generally mirrors the summary judgment standard. Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656 (Tex. 2013); see Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Like with a motion for summary judgment, the burden is on the party filing the plea to the jurisdiction. See Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 321 (Tex. App. Houston [14th Dist.] 2002, no pet.). 8 7 This provision, like all other provisions of the Act, should be liberally construed to effect [the Act s] purpose, which is to enhance openness in government and to compel the government s compliance with law by protecting those who inform authorities of wrongdoing. City of Houston v. Levingston, 221 S.W.3d 204, 218 (Tex. App. Houston [1st Dist.] 2006, no pet.); see Roberts v. Titus County Mem l Hosp., 159 S.W.3d 764, 769 (Tex. App. Texarkana 2005, pet. denied). 8 At the hearing on the college s plea to the jurisdiction, the college acknowledged that it has the burden with regard to its plea to the jurisdiction. [RR 16-17] Specifically, the trial court judge asked the college s attorney: So you agree the whistleblower statute does place the burden on you to produce evidence sufficient to negate one of the elements? The college s attorney responded: I believe that s true... with regard to the plea to the jurisdiction. [RR 16-17] 20

Also, like with a motion for summary judgment, the plaintiff is not required to prove anything. See State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). 9 Finally, like with a motion for summary judgment, when considering a plea to the jurisdiction, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant s favor. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004); see City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). A. The college failed to establish that as a matter of law there was no adverse personnel action. To determine whether the section 554.0035 waiver of immunity is applicable, courts look to section 554.002(a) of the Act. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); State v. Lueck, 290 S.W.3d 876, 882 (Tex. 2009). Section 554.002(a) provides that the defendant may not take any adverse personnel action against an employee who in good faith reports a violation of law by the 9 The Texas Supreme Court has emphasized that a trial court s role in the plea to the jurisdiction phase of the case does not involve a significant inquiry into the substance of the claims made by the plaintiff. State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). 21

defendant or the defendant s employee to a law enforcement authority. TEX. GOV T CODE 554.002(a). The college s plea to the jurisdiction does not appear to dispute that the officers made good-faith reports of a violation of the law by the college or the college s employees to a law enforcement authority. [CR 201] Rather, the college s plea to the jurisdiction challenges whether there has been an adverse personnel action. [CR 31-34] Under the summary judgment standard applicable here, the college failed to establish that as a matter of law there was no adverse personnel action. 10 1. Officer Bennight The college acknowledges that Officer Bennight filed a grievance on May 2, 2014. [CR 27] The college acknowledges that Officer Bennight filed a second grievance (on July 21, 2014) alleging that, after the time that he filed his first grievance, the college retaliated on July 4, 2014 by changing his schedule so as to require him to work the deep nights shifts, shifts lasting from 6:00 p.m. until 6:00 10 The Texas Supreme Court has held that, when parties submit evidence at plea to the jurisdiction stage, review of the evidence generally mirrors the summary judgment standard. Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656 (Tex. 2013); see Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004); see City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). 22

a.m. [CR 16, 28, 33, 202] The college suggests that Officer Bennight cannot establish that he suffered an adverse personnel action because there was no evidence that Officer Bennight was ever actually required to work the deep nights shifts. [CR 28, 33] The college relies upon an affidavit it filed which states that the document which indicates that Officer Bennight would be required to work the deep nights shifts was apparently one of several drafts. [CR 28, 33, 38] (emphasis supplied) The statement that the schedule at issue was apparently a draft constitutes no evidence. The word apparently indicates that the affiant was merely guessing that the schedule at issue was merely a draft. Officer Bennight expressly objected to this sentence as being conclusory and speculative. [CR 200] Although the affidavit included boilerplate language that the affiant has personal knowledge of the facts stated in the affidavit, [CR 37] her statement in the affidavit that the schedule at issue was apparently one of several drafts affirmatively shows that she did not have personal knowledge of whether the document was, in fact, a draft. The affiant also stated that no schedule changes have been communicated. [CR 38-39] But this statement is directly contradicted by the fact that Officer Bennight filed a copy of the schedule at issue with his July 2014 grievance. The fact that Officer Bennight filed a copy of the schedule at issue with 23

his July 2014 grievance [CR 103] constitutes some evidence that the schedule at issue was, in fact, communicated to him. There is no allegation and certainly no evidence that the schedule that Officer Bennight filed with his July 2014 grievance was a forgery. The affiant also stated that no schedule changes... have been finalized... for the 2014-2015 academic year. [CR 38-39] The affiant made this statement in the present tense, at the time that she signed the affidavit on September 24, 2014. [CR 39] This is simply not the same thing as if the affiant had stated that no schedule changes had been finalized at the time that Officer Bennight filed his grievance on July 21, 2014. This Court can take judicial notice that the 2014-2015 academic year had already begun before the affiant signed the affidavit on September 24, 2014. Yet, the affiant states that, as of September 24, 2014, schedule changes had still not been finalized. The college suggests that Officer Bennight s schedule change could not constitute an adverse personnel action at the time that Officer Bennight filed his July 21, 2014 grievance because the affiant stated that no schedule changes... have been finalized... for the 2014-2015 academic year as of the date of the September 24, 2014 affidavit. If the schedule change was not finalized for the 2014-2015 academic year by September 24, 2014 as the affiant states when should Officer 24

Bennight have filed his grievance about the schedule change? Undoubtedly, based on Officer Bennight having learned of the schedule change on July 4, 2014, if he waited until the college deemed the schedule change final sometime after September 24, 2014 the college would have claimed that Officer Bennight waited too long to file the grievance. Moreover, even if the college characterized the schedule change for the 2014-2015 academic year as not yet being final as of September 24, 2014 several weeks after the 2014-2015 academic year began Officer Bennight s assignment to the deep nights shifts for even a few weeks would constitute an adverse personnel action. Notably, the affiant did not deny that, after Officer Bennight filed his first grievance, the college changed his schedule to require him to work the deep nights shifts. In fact, the college offered no evidence whatsoever to controvert Officer Bennight s claim which he supported by the schedule provided to him on July 4, 2014 that the college changed his schedule to require him to work the deep nights shifts. This is particularly noteworthy in light of the fact that the Supreme Court has held that, when considering a plea to the jurisdiction, courts should indulge every reasonable inference in favor of the plaintiff. See Montgomery County v. Park, 246 S.W.3d 610, 615 (Tex. 2007). 25

2. Officer Mark The college claims that written reprimands, such as the one which it issued to Officer Mark, can not constitute adverse personnel actions as a matter of law. [CR 33] In support of this bold pronouncement, the college s plea to the jurisdiction relies upon a number Title VII discrimination cases. [CR 32] Tellingly, the college did not cite a single case construing the Texas Whistleblower Act which supports the college s claim that a written reprimand cannot as a matter of law ever constitute an adverse personnel action. This is significant because the standard for an adverse personnel action in a Title VII discrimination case is not identical to the standard for an adverse personnel action in a Texas Whistleblower Act retaliation case. See Gray v. City of Galveston, No. 14-12-00183-CV, 2013 WL 2237386, at *7 (Tex. App. Houston [14th Dist.] 2013, no pet.). Notably, the Fourteenth Court noted that our prior holdings about reprimands in discrimination cases are not controlling for determining adverse personnel action in a retaliation case. Id. (emphasis in original). Moreover, the plain language of the Texas Whistleblower Act controverts the college s position that, as a matter of law, a written reprimand cannot constitute an adverse personnel action under the Act. Specifically, the Act defines the term [p]ersonnel action as including an action that affects a public employee s... 26

performance evaluation. TEX. GOV T CODE 554.001(3). A written reprimand would almost certainly impact an employee s performance evaluation. At the very least, there would be a fact question as to whether a written reprimand to an officer would impact that officer s performance evaluation. Tellingly, the college offers no evidence whatsoever that a written reprimand would not impact an officer s performance evaluation. Moreover, under the Texas Whistleblower Act, the standard for whether something constitutes an adverse personnel action is whether it is likely to deter a reasonable, similarly situated employee from reporting a violation of the law. Montgomery County v. Park, 246 S.W.3d 610, 612 (Tex. 2007). And, a reprimand could, considering all of the circumstances of the case, be likely to deter a reasonable, similarly situated employee from reporting a violation of the law. Gray, 2013 WL 2237386, at *7. Even the trial court judge candidly acknowledged that what would a reasonable employee how would they view this particular action, then it almost necessarily involves a fact issue. [RR 25] Consequently, there is at least a fact issue as to whether Officer Mark s reprimand constitutes an adverse personnel action. 27

3. Detective Burleson The college removed Detective Burleson from a program, known as flex time, which had allowed him flexibility with his schedule. [CR 16, 60, 62, 69, 202; see also CR 34] The college does not deny this. Instead unsupported by any legal authority or even legal argument the college simply asserts that these actions are not adverse personnel actions. [CR 34] However, the college asserting that removal from a flex time program is not an adverse personnel action is a far cry from the college establishing this as a matter of law. The college also alleges that any alleged adverse personnel action taken against Detective Burleson was taken on February 19, 2014 and, consequently, could not have been as a result of Detective Burleson s reporting violations of the law to a law enforcement authority because he did not report any alleged violations of the law to an appropriate law enforcement authority until March 7. [CR 34] However, the college is mistaken in claiming that any alleged adverse personnel action taken against Detective Burleson was taken on February 19, 2014. To the contrary, it was not until March 18, 2014 that the college removed Detective Burleson from the flex time program and changed his schedule (from the 10:00 a.m. to 6:00 p.m. shift to the 2:00 p.m. to 10:00 p.m. shift). [CR 62, 71] March 18th is, of course, eleven days 28

after Detective Burleson made his March 7th report of violations of the law to law enforcement authorities. [CR 70, 72] B. The college failed to establish its claim that jurisdiction is lacking as to Officer Mark s claims based on his grievance somehow not constituting a whistleblower grievance. The college also claimed that one of Officer Bennight s claims somehow did not constitute a whistleblower grievance, but the college never sought dismissal for want of jurisdiction on this basis. 1. Officer Mark The college s plea to the jurisdiction claims that jurisdiction is lacking as to Officer Mark s claims because his grievance somehow did not constitute a whistleblower grievance. [CR 31; see also CR 29 and CR 29 n.1] The college s plea to the jurisdiction offers no explanation whatsoever for its conclusory claim that the grievance filed by Officer Mark does not constitute an whistleblower grievance. Nor does the college s plea to the jurisdiction cite to any case law in support of this conclusory claim. Nor does the college s plea to the jurisdiction cite to any provision in the Act in support of this conclusory claim. The college acknowledges that Officer Mark did file a grievance, but claims without explanation that this grievance does not constitute a whistleblower grievance. [CR 29 n.1] In light of the fact that the college s own hearing officer 29

treated Officer Mark s grievance as a whistleblower grievance, 11 it is especially curious that the college would in its plea to the jurisdiction without explanation claim that the grievance somehow did not constitute a whistleblower grievance. Under the summary judgment standard applicable here, the college failed to establish that as a matter of law Officer Mark s grievance did not constitute a whistleblower grievance. 2. Officer Bennight The college s plea to the jurisdiction conclusorily claims in a footnote without explanation, citation to case law, or citation to any section of the Act that the May 2nd grievance filed by Officer Bennight (the first of two grievances filed by Officer Bennight) does not constitute a whistleblower grievance. [CR 29 n.1; see also CR 27-28] However, unlike with Officer Mark, the college s plea to the jurisdiction does not assert that jurisdiction is lacking as to Officer Bennight based on this grievance not constituting a whistleblower grievance. Even if the college s plea to the jurisdiction had made such an assertion, it would fail because, under the summary judgment standard applicable here, the college failed to establish that as a matter of law the grievance did not constitute 11 The college s hearing officer s findings go through each element of a Texas Whistleblower Act claim and detail whether or not the hearing officer concluded that these elements were satisfied by Officer Mark. [CR 115-116] 30

a whistleblower grievance. Interestingly, the college s own electronic complaint system states that the basis of the May 2nd grievance is Whistle Blower. [CR 78, 87] 12 C. The college argued that jurisdiction is lacking as to Officer Mark s claims because, after the college denied his grievance, he did not file an appeal through the college s internal procedures. But that is simply not required by Texas law. The college s plea to the jurisdiction claims that jurisdiction is lacking as to Officer Mark s claims because, after the college denied his grievance, he did not file an appeal through the college s internal procedures. [CR 29-31] The college is mistaken. Section 554.006(a) of the Act provides: A public employee must initiate action under the grievance or appeal procedures of the employing state or local 12 The college s plea to the jurisdiction also states that Officer Bennight s May 2nd grievance was denied as untimely. [CR 27] However, the college s plea to the jurisdiction does not claim that the May 2nd grievance actually was, in fact, untimely. Nor does the college s plea to the jurisdiction offer any explanation, citation to case law, or citation to any section of the act as to the timeliness of the May 2nd grievance. Nor does the college s plea to the jurisdiction assert that jurisdiction is lacking as to Officer Bennight based on the timeliness of this grievance. Moreover, in the college s letter dismissing as untimely the May 2nd grievance, the college indicated that the dismissal was based on an internal requirement that all complaints must be brought within 15 days of the date of the incident. [CR 80] However, the college s own policies for whistleblower grievances actually provide a 90-day window for filing such a grievance. [CR 54] ( The employee must invoke the College District s grievance procedure not later than the 90th day after the date on which the alleged suspension, termination, or other adverse, employment action occurred or was discovered by the employee through reasonable diligence. ) 31

governmental agency relating to... adverse personnel action before suing under this chapter. TEX. GOV T CODE 554.006(a) (emphasis supplied). The plain language of section 554.006(a) provides that the employee must initiate action under the grievance or appeal procedures. If the legislature had intended to require the employee to initiate action under the grievance procedures and the appeal procedures, the legislature could have used the word and rather than the word or. By use of the word or, the statute plainly provides that its requirements are satisfied when the employee has initiated an action under the grievance procedures but not the appeal procedures. 13 The college did not cite and the officers cannot locate any case in which a Texas court (trial court or appellate court) has ever dismissed a Texas Whistleblower Act case for want of jurisdiction when the grievance procedure was initiated but an internal appeal was not initiated. 13 The use of the word or in the statute makes perfect sense in light of the fact that some governmental entities may not have formal grievance procedures, but instead may permit informal complaints to a supervisor which, if denied, are to be followed by formal internal appeal procedures. For those governmental entities, because there are no available grievance procedures, the statute s language would require the employee to initiate formal appeal procedures. 32

D. The evidence which the college filed more than four months after the trial court signed its order granting the college s plea to the jurisdiction (and more than one month after the officers filed their notice of appeal) should not be considered by this Court in determining whether the college satisfied its burden. On April 16, 2015, the trial court conducted a hearing on the college s plea to the jurisdiction. [CR 240; RR 1, 4] On August 10, 2015, the trial court signed an order granting the college s plea to the jurisdiction. [CR 258] On September 8, 2015, the officers filed a motion for new trial. [CR 262] On November 6, 2015, the officers filed their notice of appeal. [CR 267] Curiously, on December 15, 2015 more than four months after the trial court signed its order granting the college s plea to the jurisdiction and more than one month after the officers filed their notice of appeal the college filed an addendum to its plea to the jurisdiction and attached evidence that the college acknowledges is not otherwise in the record. [Supp. CR 4] The college (1) claims that this evidence had been tendered at the April 16, 2015 hearing on the college s plea to the jurisdiction and (2) suggests that the evidence was somehow lost and, consequently, could not be included in the reporter s record. [Supp. CR 4] Texas Rule of Appellate Procedure 34.6(e) provides a procedure to be followed when there is something missing from the reporter s record including an exhibit. TEX. R. APP. P. 34.6(e). Specifically, the rule provides that the reporter s record may be corrected by agreement of the parties or by 33

submitting the matter to the trial court judge for resolution. TEX. R. APP. P. 34.6(e)(1, 2). The record does not indicate (1) that there was an agreement of the parties as to the lost evidence or (2) that the issue of the lost evidence was submitted to the trial court judge for resolution. Rather, the college merely filed with the trial court clerk what the college alleges are true and correct copies of the lost evidence. [Supp. CR 4] However, an appellate court cannot consider evidence tendered to the trial court but lost unless the party relying upon that evidence has complied with Rule 34.6. See First State Bank & Trust Co. v. George, 519 S.W.2d 198, 208-209 (Tex. Civ. App. Corpus Christi 1974, writ ref d n.r.e.) (applying predecessor to Rule 34.6) ( A Court of Civil appeals cannot consider a correction to the statement of facts after it has been filed in the appellate court unless and until the same has been agreed to by the parties or approved by the trial court judge. ). The evidence which the college filed more than four months after the trial court signed its order granting the college s plea to the jurisdiction (and more than one month after the officers filed their notice of appeal) should not be considered by this Court in determining whether the college satisfied its burden. 34

II. ARGUMENT RELATED TO ISSUE 2: The police officers timely-filed (1) a request for findings of fact and conclusions of law and (2) a notice of past-due findings of fact and conclusions of law. Despite an obligation to do so, the trial court never made findings of fact and conclusions of law. When a trial court conducts a hearing at which the trial court considers evidence and then grants a plea to the jurisdiction, it is appropriate for the trial court to sign findings of fact and conclusions of law if timely requested. See Gene Duke Builders, Inc. v. Abilene Housing Auth., 138 S.W.3d 907, 907-08 (Tex. 2004). This is true even if there is no formal offer of evidence at the hearing on the plea to the jurisdiction as long as the trial court considered evidence (such as a deposition, affidavits, and exhibits ) in its decision to grant the plea to the jurisdiction. Id. In this case, at the hearing on the college s plea to the jurisdiction, the college offered evidence which the college acknowledged had not be previously filed, and the trial court judge stated at the hearing that he was admitting that evidence. [RR 18] Moreover, the trial court judge expressly acknowledged that he did consider evidence. [CR 258] ( after reviewing the pleadings, the evidence and considering the arguments of counsel ) Because, pursuant to the Supreme Court s holding in the Gene Duke Builders case, findings of fact and conclusions of law would be appropriate in this case. Consequently, the trial court should have signed findings of fact and conclusions of 35

law after the officers timely requested them (and then subsequently timely-filed a notice of past-due findings of fact and conclusions of law). See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989) ( the trial court s duty to file findings and conclusions is mandatory ); Landerman v. State Bar of Tex., 247 S.W.3d 426, 430 (Tex. App. Dallas 2008, pet. denied) ( When properly requested, the trial court has a mandatory duty to file findings of fact. ); see also TEX. R. CIV. P. 297 ( The court shall file its findings of fact and conclusions of law. ). Moreover, a trial court s failure to make findings of fact and conclusions of law is generally presumed harmful. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). PRAYER The officers respectfully pray that this Court (1) reverse the trial court s order granting the college s plea to the jurisdiction and (2) remand to the trial court for trial. The officers also pray for their costs and for all other relief to which they may be entitled. 36

Respectfully submitted, /s/ Chad M. Ruback Chad M. Ruback State Bar No. 90001244 chad@appeal.pro The Ruback Law Firm 8117 Preston Road Suite 300 Dallas, Texas 75225 (214) 522-4243 (214) 522-2191 fax CERTIFICATE OF COMPLIANCE I certify that, according to my word processor s word-count function, in the sections of this brief covered by TRAP 9.4(i)(1), there are 6,502 words. CERTIFICATE OF SERVICE /s/ Chad M. Ruback Chad M. Ruback I hereby certify that, on March 9, 2016, I served a copy of this Appellants Brief to the following counsel for Appellee Collin County Community College District: Charles J. Crawford Abernathy, Roeder, Boyd & Joplin, P.C. 1700 Rosebud Boulevard Suite 300 McKinney, Texas 75069 /s/ Chad M. Ruback Chad M. Ruback 37

CAUSE NO. 416-04944-2014 Filed: 8/5/2015 5:11:18 PM Andrea S. Thompson District Clerk Collin County, Texas By Angela Henderson Deputy Envelope ID: 6376129 BILLY D. BURLESON III, JOHN J. MARK, AND CRAIG A. BENNIGHT, v. Plaintiffs, COLLIN COUNTY COMMUNITY COLLEGE DISTRICT Defendant. IN THE DISTRICT COURT 416th JUDICIAL DISTRICT COLLIN COUNTY, TEXAS ORDER GRANTING DEFENDANT'S PLEA TO THE JURISDICTION On this day, the Court considered Defendant's Plea to the Jurisdiction, Plaintiffs' response thereto, Defendant's Supplemental Reply to Plaintiffs' Response, Plaintiffs' First Amended Petition, and after reviewing the pleadings, the evidence and considering the arguments of counsel, the Court finds that the Motion should be GRANTED. IT IS THEREFORE ORDERED that Defendant's Plea to the Jurisdiction is GRANTED. 8/10/2015 SIGNED on --------------------, 2015. HONORABLE CHRIS OLDNER PRESIDING JUDGE ORDER DENYING DEFENDANT'S PLEA TO THE JURISDICTION 675180 SOLO PAGE 258

554.001. Definitions, TX GOVT 554.001 Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government Chapter 554. Protection for Reporting Violations of Law (Refs & Annos) V.T.C.A., Government Code 554.001 554.001. Definitions Currentness In this chapter: (1) Law means: (A) a state or federal statute; (B) an ordinance of a local governmental entity; or (C) a rule adopted under a statute or ordinance. (2) Local governmental entity means a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority. (3) Personnel action means an action that affects a public employee's compensation, promotion, demotion, transfer, work assignment, or performance evaluation. (4) Public employee means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity. (5) State governmental entity means: 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

554.001. Definitions, TX GOVT 554.001 (A) a board, commission, department, office, or other agency in the executive branch of state government, created under the constitution or a statute of the state, including an institution of higher education, as defined by Section 61.003, Education Code; (B) the legislature or a legislative agency; or (C) the Texas Supreme Court, the Texas Court of Criminal Appeals, a court of appeals, a state judicial agency, or the State Bar of Texas. Credits Added by Acts 1993, 73rd Leg., ch. 268, 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 721, 1, eff. June 15, 1995. V. T. C. A., Government Code 554.001, TX GOVT 554.001 Current through the end of the 2015 Regular Session of the 84th Legislature End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works. 2016 Thomson Reuters. No claim to original U.S. Government Works. 2