Texas SC rejects whistleblower's suit against TCEQ

By Marilyn Tennissen | Nov 25, 2014

The Texas Supreme Court has rejected a whistleblower’s suit against a Texas environmental agency.

Rosaena Resendez was fired from Texas Commission on Environmental Quality after she reported alleged wrongdoing to supervisors and to the office of a state senator.

In a per curiam order release Nov. 21, the Supreme Court dismissed her case, stating that it did not satisfy the requirements under the Texas Whistleblower Act.

The court stated that another recent case, Texas Department of Human Services v Okoli, it reaffirmed that an internal report of wrongdoing does not trigger the act’s protection unless it is made directly to an authority with “outward-looking law-enforcement power.”

An appeals court had held that Resendez’s internal reports were sufficient under the act.

“Because that holding is inconsistent with our precedent expressed in Okoli, and because Resendez’s report to the senator’s office does not satisfy the requirements, we reverse and dismiss this case,” the opinion states.

Case background

Resendez had been working for TCEQ for 34 years when she was assigned to investigate the whereabouts of a vehicle purchased with funds from the Texas Emissions Reduction Plan. TERP is a program that gives incentives to reduce emissions by providing money or rebates to individuals who replace certain high-emission vehicles.

When Resendez learned the owner of the vehicle had been deported to Mexico, she told supervisor Steve Dayton that “individuals who were in the country illegally were receiving TERP funds,” court papers state.

According to Resendez, Dayton indicated he was “aware of the problem, but seemed reluctant to address it.”

The next day she presented the issue to another supervisor, Joe Walton, who allegedly told her “drop it.”

Not long after, Walton wrote Resendez up on a disciplinary report, stating that she was “argumentative” in her conversations with him and with Dayton.

She claims she was written up multiple times in the following months, allegedly for being “disrespectful and unprofessional” in what she says were “false indictments.” According to the court documents, Resendez was ultimately placed on probation.

Near the end of her probation period, Resendez claims she met with David Brymer, a director at TCEQ, and attempted to address the problems she was having with Walton and Dayton, but “Brymer was unreceptive.”

Finally, Resendez went to state Sen. Juan “Chuy” Hinojosa’s office.

She says she was terminated a few days later.

Resendez then sued TCEQ under the Whistleblower Act, which waives a state agency’s sovereign immunity from suit for retaliatory discharge under certain circumstances.

TCEQ filed a plea to the jurisdiction, asserting Resendez’s reports were “merely internal policy recommendations” and not reports to “an appropriate law-enforcement authority.”

The trial court sustained the plea and dismissed the case.

She appealed, and the Court of Appeals for the Third District of Texas reversed.

It held that by reporting the supervisors’ failures to act on fraud occurring within TERP to Brymer, she presented a fact issue on the two disputed elements of the whistleblower claim: whether she had a good-faith belief that Dayton and Walton violated the law and whether Brymer was an appropriate law-enforcement authority.

But the Supreme Court ruled that as it decided recently in Okoli, that internal reports of wrongdoing do not satisfy the requirements of “appropriate law-enforcement authority,” even where agency policy is to forward the reports to the agency’s enforcement arm.

“Under this Court’s interpretation of the Act in Okoli and other cases, a supervisor like Brymer is not an appropriate law-enforcement authority, and neither is Senator Hinojosa,” the justices wrote.

They ruled that Brymer, as the director of TCEQ’s Air Quality Division, may have had authority to regulate activities within that division and may have had the power to enforce internal policy or to discipline Dayton and Walton for noncompliance, but that does not mean that Brymer had the power to enforce the government’s fraud reporting provisions or to pursue criminal charges.

But Resendez argued that TCEQ has a fraud-investigation program and a policy of cooperating with the Travis County District Attorney to investigate fraud in the TERP program, and that “this provides a basis for her good-faith belief that her supervisors were appropriate law enforcement authorities.”

The justices stated that the same argument was made in Okoli, which they rejected.

She also argued that Sen. Hinojosa had the authority to investigate activities of state agencies as a member of the Texas Senate and the Texas Legislative Council.

They wrote that while the Government Code violations Resendez alleges are criminal, “any investigatory power Senator Hinojosa had was legislative, not prosecutorial.”

“Because Resendez cannot establish that her actions satisfy the Act’s requirements, TCEQ remains immune from the suit,” the opinion states. “Accordingly, and without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and dismiss the case.”



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