NO. 05-11-00465-CV ACCEPTED 225EFJ016442369 FIFTH COURT OF APPEALS DALLAS, TEXAS 11 August 10 P5:10 Lisa Matz CLERK COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS JAMES MULLINS, v. Appellant, DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee. From the 134 th Judicial District Court Dallas County, Texas REPLY BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED STEVEN E. CLARK STATE BAR NO. 04294800 KENNEDY CLARK & WILLIAMS P.C. 1700 PACIFIC AVE., SUITE 1280 DALLAS, TEXAS 75201 TEL.: 214-979-1122 FAX: 469-484-7618 EMAIL: sclark@kcwfirm.com HANCE W. BURROW, III STATE BAR NO. GOINS UNDERKOFLER CRAWFORD & LANGDON, LLP 4800 RENAISSANCE TOWER 1201 ELM STREET DALLAS, TEXAS 75270 TEL.: 214-969-5454 FAX: 214-969-5902 EMAIL: hanceb@gucl.com
TABLE OF CONTENTS PAGE Table of Contents Index of Authorities ii iii-iv Reply Points 1 A. DISD s Misplaced Reliance on Needham 1 B. Objective Standard: OPR is an Appropriate Law Enforcement Authority 3 C. Subjective Standard: Mullins had a reasonable, good faith belief that OPR was an Appropriate Law Enforcement Authority 5 D. Mullins cited violations of law in his pleadings and evidence 8 Conclusion 11 Certificate of Service 13 Appendix 14 ii
INDEX OF AUTHORITIES CASES PAGE City of Houston v. Levingson, 221 S.W.3d 204 (Tex.App.-Houston [1 st Dist.] 2006, no pet.) 4,8 Department of Human Services v. Okoli, 317 S.W.3d 800, 810-11 (Tex.App.-Houston [1st Dist] 2010, no pet.) 2,3,4 Phelan v. Texas Tech Univ., 2008 WL 190741 (Tex.App.-Amarillo Jan. 23, 2008, pet. den.) 8,11 Tex. Dept. of Corrections.v Herring, 513 S.W.2d 6, 9-10 (Tex. 1974) 11 Texas Dept. of Transportation v. Needham, 82 S.W.3d 314 (Tex. 2002) 1,2 Tex.DOT v. Beckner, 74 S.W.3d 98, 104 (Tex.App.-Waco 2002, no pet.) 11 The Barrington Group. Ltd., Inc. v Classic Cruise Holdings S DE RL, No. 10-10665 *4 (5th Cir. August 3, 2011) (not selected for publication) 7 University of Texas Southwestern Med. Center v. Gentilello, 317 S.W.3d 865, 868 (Tex.App. Dallas 2010, pet. filed) 2,3,5,6 U.S. v. Ho, 31 F.3d 589 (5 th Cir. 2002) 9 STATUTES AND REGULATIONS Asbestos Hazard Emergency Relief Act (AHERA), 15 U.S.C. 2643(b) 9 Clean Air Act, 42 U.S.C. 7412(h), 7414(a) 9 Government Code 557.351(a) 10 OSHA, 29 C.F.R. 1926.58(h) 9 Texas Penal Code 37.10(a)(1) 10 Texas Penal Code 37.10(c)(2)(A) 10 iii
STATUTES AND REGULATIONS (Continued) PAGE Texas Plumbing Law, 1301.452 9,10 iv
NO. 05-11-00465-CV COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS JAMES MULLINS, v. Appellant, DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee. REPLY BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED To The Honorable Justices of the Fifth Court of Appeals: as follows: COMES NOW, James Mullins, Appellant, and submits his Reply Brief on Appeal REPLY POINTS A. DISD s Misplaced Reliance on Needham DISD bases a large part of its defense on Texas Dept. of Transportation v. Needham, 82 S.W.3d 314 (Tex. 2002) citing the case in nine separate sections of its brief. While the Needham decision is cited early and often, subsequent decisions by several courts including this Court have shown that neither the holding nor the application of Needham is as broad as DISD would have you believe. REPLY BRIEF OF APPELLANT 1
In Needham, a TxDOT employee reported to his supervisor a co-worker for driving a TxDOT vehicle while intoxicated. The Supreme Court held as a matter of law that TxDOT is not an appropriate law enforcement authority to which a public employee may report an alleged drunk driving incident. Needham, 82 S.W.3d at 321. In subsequent cases, various public employers interpreted Needham to mean that except in cases relating to traditional law enforcement agencies, intra-agency reports could not be a report to an appropriate law enforcement authority as a matter of law. See e.g., University of Texas Southwestern Med. Center v. Gentilello, 317 S.W.3d 865, 868 (Tex.App. Dallas 2010, pet. filed) ( According to UT Southwestern, unless the employing agency is itself a law enforcement agency, a supervisor can never be an appropriate law enforcement authority as a matter of law. ). In Gentilello, UT Southwestern Medical School urged this broad reading of Needham in opposing a whistleblower claim brought by the Chair of the Division of Burn, Trauma and Critical Care when he was terminated after reporting violations of Medicare and Medicaid Rules. Rejecting the broad interpretation of Needham, the Court said: Instead, we agree with the Houston First Court of appeals that [t]he fact that an employee makes a report of a violation of law to his employer or superior regarding the work being performed by the government entity that employs him does not automatically render the Whistleblower Act inapplicable. Gentilello, 317 S.W.3d at 869, quoting Department of Human Services v. Okoli, 317 S.W.3d 800, 810-11 (Tex.App. Houston [1st Dist] 2010, no pet.). As a result, the Court of Appeals held that the District Court correctly denied UT Southwestern s plea to the REPLY BRIEF OF APPELLANT 2
jurisdiction because a fact issue existed as to whether the plaintiff had a good faith belief that he reported the violations to an appropriate law enforcement authority. Id. at 869-870. B. Objective Standard: OPR is an Appropriate Law Enforcement Authority While DISD argues that [t]here is nothing within the scope of OPR s stated mission that provides OPR the authority to investigate or prosecute an unspecified violation of criminal laws with respect to maintenance issues, 1 there is a strong correlation between the mandated mission of DISD s OPR and the Texas Department of Human Services Office of the Inspector General, which was held to be an appropriate law enforcement authority for Whistleblower Act purposes. Okoli, 317 S.W.3d at 808. Compare the following: DISD OPR s mission is to promote integrity in the Dallas Independent School District by conducting ethics training, internal investigations, and districtwide operational reviews, in order to detect and prevent fraud, waste and abuse plus identifying opportunities for improving efficiency and effectiveness throughout the district. 2 TDHS OIG works to prevent and reduce waste, abuse and fraud within the Texas health and human services system. 3 Two of the three stated purposes of DISD s OPR are [t]o investigate fraudulent or unethical behavior by District employees, make criminal referrals to all appropriate law enforcement agencies, and to recommend changes to the affected District policy (ies) and [t]o conduct case development activities in conjunction with Internal Audit and other Dallas ISD offices, local, state and 1 DISD Brief, page 22. 2 CR, p. 1242 [emphasis added]. This was the District s version of the webpage before the tab for Whistleblower Protections in the left column of the webpage was deleted with its attendant text. See, Gates affidavit (CR, p. 1238-39), utilizing the Wayback Machine to determine prior versions of the webpage that were in effect in September, 2008, when Mullins made his report to OPR. 3 Okoli, 317 S.W.3d at 806n.12 [emphasis added]. REPLY BRIEF OF APPELLANT 3
federal law enforcement agencies as well as other developed sources of information to identify potential areas of fraud, waste and abuse involving the District. 4 TDHS OIG works closely with all health and human services agencies and programs, and coordinates with local, state and federal law enforcement agencies to uphold the highest standards of integrity and accountability. 5 In summary, the Houston Court of Appeals said, [t]he record before us contains evidence that TDHS, or at least a division of TDHS, the OIG, is an appropriate law enforcement authority that is authorized to investigate allegations of fraud and unlawful use of funds associated with the social programs administered by employees of TDHS. Okoli, 317 S.W.3d at 808. Similarly, the DISD s OPR is an appropriate law enforcement authority to investigate allegations of fraud, waste and abuse associated with work done by employees of DISD. In City of Houston v. Levingson, 221 S.W.3d 204 (Tex.App. Houston [1 st Dist.] 2006, no pet.), Houston s Bureau of Animal Regulation and Care ( BARC ) was found to be an appropriate law enforcement authority in a case in which a city veterinarian was terminated after reporting instances of animal abuse at that facility. In this case, Houston argued under Needham, that because of Levingston's education and 40 years of veterinary experience, it is simply not objectively reasonable that he, in good faith, believed that BARC had police or enforcement powers. Id. at 222. The Houston Court of Appeals rejected the argument: We note at the outset that the Act does not apply only to reports of criminal offenses under the Texas Penal Code. Under the Act, an appropriate law enforcement 4 CR, p. 1244 [emphasis added]. 5 Okoli, 317 S.W.3d at 806n.12 [emphasis added]. REPLY BRIEF OF APPELLANT 4
authority is a governmental entity authorized to regulate under or enforce the law alleged to be violated. Alternatively, an appropriate law enforcement authority is a governmental entity authorized to investigate or prosecute a violation of criminal law. Id. (internal citations omitted) (emphasis added). As shown above, the mission and mandate of DISD s OPR charge it with such investigatory power. Just because the primary purpose of the agency is not related to law enforcement, does not mean that it cannot be a law enforcement agency for whistleblower statute purposes. In this case, while the primary focus of the DISD is education, the Defendant s Office of Professional Responsibility was charged with ferreting out fraud, waste, and abuse within the District, which would include its maintenance department. Similarly, while the primary focus of the University of Texas Southwestern Medical School is the training of health professionals, this Court has held that a report made to the doctor who had the power to investigate Medicare and Medicaid violations could fall within the scope of the Whistleblower Act. University of Texas Southwestern Med. Center v. Gentilello, 317 S.W.3d 865 (Tex. App. Dallas 2010, pet. filed). Based on these cases, OPR was objectively a law enforcement authority. C. Subjective Standard: Mullins had a reasonable, good faith belief that OPR was an Appropriate Law Enforcement Authority While investigation and/or prosecution of DUI offenses is not within the purview of TxDOT, Mullins report to DISD s Office of Professional Responsibility fell within the stated mandate of the agency the investigation of fraud, waste and abuse within the DISD. When asked in his deposition whether he believed in September 2008 that OPR had the ability to enforce city, state or federal law, Mullins said: REPLY BRIEF OF APPELLANT 5
A. [t]he Office of Professional Responsibility had been responsible for the prosecution, I believe, of - - of some credit - - not credit card but debit card abuses that various different district employees had - - engaged in. Q. Uh-huh. A. And they were responsible for seeing those people prosecuted or bringing charges against them. CR, p. 1021. At a bare minimum, this is sufficient evidence to raise a fact issue as to whether Mullins had a reasonable good faith belief that OPR was an appropriate law enforcement authority and, therefore, DISD s plea to the jurisdiction should have been denied. See Gentilello, 317 S.W.3d at 869-70 ( [W]e conclude a fact issue exists on whether Gentilello had a good faith belief that he reported to an appropriate law enforcement authority. Therefore, the trial court properly denied UT Southwestern s plea to the jurisdiction. ). While DISD s attorney tried to dissuade Mullins from his belief regarding OPR s role in prosecuting DISD employees for debit card abuse by asking, [s]o the OPR actually brought the charges, 6 the proper question is not whether OPR actually brought the charges, but whether Mullins had a reasonable belief that OPR was the appropriate law enforcement authority to which his report should be made. Whether or not OPR actually brought the debit card charges, Mullins understood that the agency had been responsible for the bringing of those charges and he acted upon the information available to him. DISD suggests that this type of information would not constitute any evidence that he believed in good faith that OPR was an appropriate law 6 CR, p. 1021. REPLY BRIEF OF APPELLANT 6
enforcement authority 7 Mullins does not suggest that either his understanding regarding the debit card charges or the union referral are admissible for the truth of whether, objectively, OPR is an appropriate law enforcement authority. Mullins does suggest that this is proper evidence to demonstrate the information upon which he acted and, as such, provides a reasonable basis for his belief and sufficient evidence to at least raise a fact issue as to his good faith belief. In a recent federal case regarding specially manufactured goods under the UCC, the question was whether the plaintiff acted in a reasonably commercial manner in completing the manufacture of the goods after the defendant cancelled the order. The district court found in favor or the plaintiff and the defendant appealed arguing that the court had relied on inadmissible hearsay evidence that the plaintiff had incurred contractual obligations to third parties for the manufacture, procurement, or assembly of the goods at issue. The Barrington Group. Ltd., Inc. v Classic Cruise Holdings S DE RL, No. 10-10665 *4 (5th Cir. August 3, 2011) (not selected for publication). 8 The Fifth Circuit affirmed holding that statements were admitted to show information acted upon. Just as information available to The Barrington Group was proper evidence to show that it acted in a commercially reasonable manner, the information available to Mullins showed that he acted with a reasonable good faith belief that OPR was an appropriate law enforcement authority. 7 Appellee s Brief, page 24. This statement in DISD s brief related to the fact that Mullins had been referred to OPR by his union. The record citation in Appellant s original brief regarding this fact was made in error. At the hearing on the Third Plea, DISD s counsel cited an email exchange between Mullins and his union, Alliance AFT, in which Alliance recommended to him to contact OPR. Appellant will seek leave to supplement the record to attach this document. 8 A copy of the Fifth Circuit slip opinion is attached in the appendix. REPLY BRIEF OF APPELLANT 7
DISD also attacks Mullins good faith belief because he sought information about OPR and its investigatory role or authority. Appellee s Brief, page 24. To make this argument is to ignore the requirement that the Whistleblower Act should be liberally construed. City of Houston v. Levingston, 221 S.W.3d 204, 218 (Tex.App.-Houston [1 st Dist.] 2006, no pet.). Rather than drawing DISD s conclusion that Mullins lacked a good faith belief that OPR was an appropriate law enforcement authority, one can also draw the conclusion that he was seeking confirmation that he was, finally, reporting to the correct agency. DISD s arguments seem to suggest that Mullins was well versed in the intricacies of reporting fraud, waste and abuse and that he was out to dot the i s and cross the t s of a Whistleblower action. In fact, however, Mullins is a plumber who saw DISD violating numerous duties and who wanted to get these actions addressed. He acted reasonably; he acted in good faith; and he should not have been terminated for doing so. D. Mullins cited violations of law in his pleadings and evidence Despite acknowledging that a whistleblower plaintiff need not identify a specific law nor actually prove a violation, Phelan v. Texas Tech Univ., 2008 WL 190741 (Tex.App.-Amarillo, Jan. 23, 2008, pet. den.), DISD throughout its brief repeatedly cites to Mullins failure to either plead or cite evidence to an actual violation of law. In 6 of his affidavit, Mullins indicated that his supervisor, Jerry Bynum, routinely assigned work in asbestos hazard areas to employees not qualified to work in those areas. 9 9 Supp. Clerk s Record (SCR), p. 11. This evidence also undercuts DISD s assertion in its brief that Mullins report was limited to outside contractors working in these asbestos hazard areas. REPLY BRIEF OF APPELLANT 8
In 8 of his affidavit, Mullins states he made a report to TDSHS regarding workers being required to work in asbestos hazard areas with required protective equipment. 10 TDSHS is the licensing entity for asbestos certified workers and responsible for enforcement of the Asbestos Hazard Emergency Relief Act (AHERA) requiring workers to use protective equipment when exposed to friable asbestos. 11 In his September 4 th email to OPR investigator Santowski, Mullins reported an incident at Spence Middle School where he reported it as an asbestos hazard area, then was removed and Frank Rough, a non-certified maintenance employee, was assigned to complete the project. 12 His September 6 th email to Santowski in 9 reported the improper assignment of craftpersons into asbestos areas without protective equipment or training. 13 The sending of workers into asbestos areas without protective equipment violates both OSHA 14 and the Clean Air Act. 15 Mullins also identified provisions of the Texas Plumbing Law, including section 1301.452, where grounds for disciplinary action include (2) willfully, negligently, or arbitrarily violating a municipal rule or ordinance that regulates sanitation, drainage, or 10 Id. 11 15 U.S.C. 2643(b). Section 2643 requires the EPA to promulgate regulations that proscribe procedures for determining whether asbestos is present in school buildings under the authority of a local educational agency, and the implementation of response actions in school buildings, to include standards for protection of workers and building occupants. 12 CR, p. 1026. 13 CR, p. 1030-31. 14 29 C.F.R. 1926.58(h). 15 42 U.S.C. 7412(h), 7414(a). The EPA adopted the work practice standards under 112(h) and 114(a). See, 42 U.S.C. 7413(c)(1), and the implementing regulation, 40 C.F.R. 61.145, 61.150. Section 113(c)(1) of 7413 imposes criminal penalties on any person who knowingly violates any requirement or prohibition of section 7412 of this title. In U.S. v. Ho, 31 F.3d 589 (5 th Cir. 2002), the defendant was convicted under the Clean Air Act for failure to comply with the asbestos work practice standards. REPLY BRIEF OF APPELLANT 9
plumbing. 16 Reference was also made to section 1301. 501 on back flow prevention devices, and section 1301.508 which imposes a criminal penalty under the Texas Plumbing Law for employment of persons not holding required licenses, endorsements, or registrations. 17 While DISD asserts that it is not covered as a political subdivision, Mullins contacted both Lisa Hill, Director of Enforcement of the Texas State Plumbing Examiners, and Lonnie Erwin, City of Dallas Plumbing Inspector, who indicated otherwise. 18 Mullins also reported he was asked to falsify training records, which constitutes the tampering of a government record in violation of Texas Penal Code 37.10(a)(1), and is a 3 rd degree felony if it is a public school record. 19 Plaintiff s Second Amended Petition in 9 listed Mullins good faith reports of violations of law that were made to local, state and federal agencies and to OPR. 20 Mullins email of 9/4/08 to George Santowski of OPR listed these same violations of law. 21 These were also specified in Mullins answers to DISD interrogatories. 22 Additionally, Mullins answer to interrogatory no. 2 identified TAC regulations and Dallas City Code provisions relating to backflow devices. 23 16 SCR, p. 75 17 SCR, pp. 77, 80. 18 SCR, pp. 135, 138-39. 19 Texas Penal Code 37.10(c)(2)(A). This is also a potential violation of Government Code 557.351(a), a misdemeanor for the willful alteration of public information. 2020 CR, p. 1006. 21 CR, p. 1011-12. 22 CR, p. 1035-36. 23 CR, p. 1034. REPLY BRIEF OF APPELLANT 10
Under Phelan, the fact that Mullins pleadings and evidence did not identify the specific law violated is of no moment, as both the pleadings and evidence submitted to the trial court provided a factual description and references to actual violations of law. 24 CONCLUSION For all of the foregoing reasons (and those urged in Appellant s Brief), the trial court erred in granting DISD s Third Plea to the Jurisdiction as to Mullins whistleblower claim based on his September 4, 2008 report to OPR. The granting of the Plea should be reversed and remanded for further proceedings in the trial court. 24 DISD cannot complain about the adequacy of Mullins pleadings absent a ruling on special exceptions pointing out the defective allegations. See, Tex. Dept. of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974); Tex. DOT v. Beckner, 74 S.W.3d 98, 104 (Tex.App.-Waco 2002, no pet.). REPLY BRIEF OF APPELLANT 11
Respectfully submitted, STEVEN E. CLARK State Bar No. 04294800 ZAC DUFFY State Bar No. 24059697 KENNEDY CLARK & WILLIAMS P.C. 1700 Pacific Avenue, Suite 1280 Dallas, TX 75201 Phone: 214-979-1122 Fax: 469-484-7618 Email: sclark@kcwfirm.com --and-- HANCE W. BURROW III State Bar No. 03468500 GOINS UNDERKOFLER CRAWFORD & LANGDON, LLP 4800 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Phone: 214-979-5454 Fax: 214-969-5902 Email: hanceb@gucl.com ATTORNEYS FOR APPELLANT JAMES MULLINS REPLY BRIEF OF APPELLANT 12
CERTIFICATE OF SERVICE I hereby certify that an electronic copy of Reply Brief of Appellant has been served on Appellee s counsel, Carlos G. Lopez, on this 10 th day of August, 2011. Steven E. Clark REPLY BRIEF OF APPELLANT 13
APPENDIX The Barrington Group. Ltd., Inc. v Classic Cruise Holdings S DE RL, No. 10-10665 *4 (5th Cir. August 3, 2011) (not selected for publication) REPLY BRIEF OF APPELLANT 14