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Affirmed and Memorandum Opinion filed = November 29,=20 2007.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-07-00040-CV

____________

 

STAN H.=20 LOOPER AND CYNTHIA M. SCOTT, = Appellants

 

V.

 

HOUSTON=20 COMMUNITY COLLEGE SYSTEM, BRUCE LESLIE, DIANA CASTILLO, AND = REYNALDO=20 GARAY, = Appellees

 

 

On Appeal from the = 152nd District Court

Harris County, = Texas

Trial Court Cause = No. 2004-50706

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellants,=20 Stan H. Looper and Cynthia M. Scott, appeal the trial = court=3Ds grant of=20 summary judgment on claims of breach of contract, defamation, = intentional=20 infliction of emotional distress, negligent hiring, and violations = of the=20 Texas Whistleblower Act in favor of appellees, Houston Community = College=20 System (AHCCS@), Bruce=20 Leslie, Diana Castillo, and Reynaldo Garay.  We = affirm.=20

I. =20 BACKGROUND

HCCS is a two-year = public=20 college governed by a nine-member board of trustees.  Bruce = Leslie=20 served as chancellor and chief executive officer for HCCS from = 2001 to=20 2006.  HCCS is divided into six colleges, each of which is = governed=20 by a president who reports directly to the chancellor.  Scott = was=20 employed in student counseling with HCCS from 1999 to 2006. =

In December 2002, = Diana=20 Castillo was named the interim president at HCCS=3Ds Southeast = College.  Olga=20 Flores was a potential candidate for the Southeast College interim = president position as well; however, she was appointed dean of = student=20 development at Southeast College.  Thereafter, a conflict = arose=20 between Castillo and Flores that escalated to a lawsuit filed by = Flores.[1] =20

As the dean of = student=20 development, Flores promoted Scott to counseling chair at = Southeast=20 College.  Flores later told Scott about a letter, dated March = 1,=20 2003, written by Castillo to Garcia.  According to Scott, the = letter=20 indicated that Castillo had conspired with Garcia and other = trustees to=20 move Flores into the dean of student services position so that she = would=20 not be considered for the position of president of Southeast=20 College.  The same year, Castillo was accused of = inappropriately=20 using HCCS funds and resources to aid Herlinda Garcia in her bid = for=20 re-election to the HCCS board of trustees.  Castillo was = investigated=20 by the Harris County District Attorney=3Ds Office for abuse of = official=20 capacity and tampering with a government record.  On May 14, = 2004,=20 Scott made a verbal complaint to the Human Resources department at = HCCS,=20 complaining that (1) Castillo was inappropriately criticizing=20 Scott=3Ds staff and (2)=20 Castillo=3Ds negative attitude = towards=20 Flores and Flores=3D staff was likely the = result of=20 Castillo=3Ds continuing effort = to remove=20 Flores.  Scott also told HR about the contents of the = Castillo letter=20 because she believed that Castillo had abused her official = capacity and=20 continued to do so.  The same month, the Harris County = District=20 Attorney=3Ds Office closed its=20 investigation with no criminal charges filed.

On June 14, 2004, = Scott filed=20 her first written grievance alleging that she was the subject of=20 retaliation by Castillo due to her previous May 2004 complaint to = Human=20 Resources.  Scott further alleged that her husband, Looper, = became a=20 target of retaliation when he was terminated from his position = with=20 Project GRAD.  Project GRAD is a non-profit organization that = works=20 with HCCS on various academic summer programs.  Scott also = complained=20 that Castillo published two libelous letters about Looper and his = work=20 with Project GRAD.  On the same day, Scott filed a second = grievance=20 requesting Arelief from the = retaliatory=20 environment@ created by the = Flores-Castillo=20 lawsuit. 

In June 2004, Flores = took a=20 medical leave of absence.  The following month,  = Reynaldo Garay=20 was appointed interim assistant dean of student development while = Flores=20 was on leave.  Scott expressed her disagreement with=20 Garay=3Ds appointment; Scott = believed=20 she should have been appointed into the position because Garay was = her=20 subordinate.  On June 28, 2004, Scott filed a third = grievance,=20 alleging that Castillo retaliated against her by giving her less=20 prestigious assignments and purposefully undermining her=20 authority.

On September 15, = 2004, Looper=20 and Scott filed suit against HCCS, Leslie, and Castillo for breach = of=20 contract, defamation, intentional infliction of emotional = distress,=20 tortious interference, and violations under the Texas = Whistleblower Act=20 (ATWA@).  The = following month, a=20 confrontation erupted between Castillo and Scott wherein Castillo = filed a=20 criminal complaint against Scott to the HCCS police.  On = November 17,=20 2004, Scott filed a fourth grievance complaining about=20 Castillo=3Ds continuing = retaliation,=20 including the HCCS police report.

In November 2004, = Orfelina=20 Garza was appointed president of Southeast College.  Castillo = was=20 reassigned to an administrative position at another HCCS college = and=20 Flores resigned.  On December 7, 2004, Scott filed a fifth = grievance=20 complaining that during Castillo=3Ds term as interim = president at=20 Southeast College, Scott was improperly passed over twice for the=20 assistant dean of student development position. 

Southeast College = began its=20 selection process for the permanent assistant dean of student = development=20 position the following year.  Scott was on the interview = screening=20 committee.  On June 8, 2005, Scott informed the screening = committee=20 chair that Garay had falsified information on his application for = the=20 assistant dean position; namely, that he had previously served as = an=20 interim assistant dean.  Scott was later removed from the = screening=20 committee.[2]  On=20 August 2, 2005, Scott filed a sixth grievance complaining that she = was=20 improperly removed from the screening committee due to = Garay=3Ds false = allegations. =20 Scott also reported to the Harris County District = Attorney=3Ds Office that Garay = had=20 falsified information on his application.  In November 2005, = Garay=20 became the dean of Southeast College.  In January 2006, Scott = resigned from HCCS.

In 2006, Looper and = Scott=20 amended their suit and added Garay, Castillo and Leslie as=20 defendants.  Scott asserted (1) claims for TWA violations = against=20 HCCS, Castillo, Leslie, and Garay; (2) defamation claims against = Castillo,=20 Leslie, and. Garay; (3) intentional infliction of emotional = distress=20 claims against Castillo, Leslie, and Garay; and (4) a negligent = hiring and=20 retention claim against Leslie.   Looper asserts a (2) = breach of=20 contract claim against HCCS, (2) defamation claim against = Castillo, and=20 (3) tortious interference claims against Castillo and Leslie.=20 Garay=3Ds first motion for = summary=20 judgment was denied.  Subsequently, appellees filed = traditional and=20 no-evidence motions for summary judgment.  The trial court = granted=20 each motion for summary judgment.

Appellants raise five = issues=20 for review, arguing that the trial court erred in granting=20 appellees=3D motions for summary = judgment=20 because (1) appellants raised genuine issues of fact as to one or = more of=20 the essential elements of their breach of contract and tort = claims; (2)=20 appellees failed to establish immunity; (3) Scott raised fact = issues as to=20 her TWA claim; (4) Scott=3Ds constructive = discharge claim=20 meets the requirements of section 554.005 of the TWA; and = (5)  the=20 trial court has jurisdiction over Scott=3Ds TWA claims against=20 Garay.

II.=20 STANDARD OF REVIEW

We review a grant of = summary=20 judgment under a de novo standard.  Valence Operating Co. = v.=20 Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and where the trial = court=20 grants the judgment without specifying the grounds, we affirm the = summary=20 judgment if any of the grounds presented are meritorious.  = FM=20 Props. Operating Co. v. City of Austin, 22 S.W.3d 868, = 872B73 (Tex. 2000).  = Here,=20 appellees moved for summary judgment on both traditional and = no-evidence=20 grounds. 

When reviewing a = traditional=20 summary judgment, we determine whether the summary judgment proof=20 establishes, as a matter of law, that there is no genuine issue of = fact on=20 one or more of the essential elements of the plaintiff=3Ds causes of action or = each=20 element of the affirmative defense.  Tex. R. Civ. P. 166a(c); = American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 = (Tex.=20 1997); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546,=20 548B49 (Tex. 1985); = Gibbs v.=20 General Motors Corp., 450 S.W.2d 827, 828 (Tex. = 1970).   We=20 take as true all evidence favorable to the nonmovant and indulge = every=20 reasonable inference and resolve any doubts in the = nonmovant=3Ds favor.  Joe = v. Two=20 Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).=20

In a = no‑evidence motion for=20 summary judgment, the movant represents that there is no evidence = of one=20 or more essential elements of the claims for which the nonmovant = bears the=20 burden of proof at trial.  Tex. R. Civ. P. 166a(i); = Green=20 v. Lowe=3Ds Home Ctrs.,=20 Inc., 199=20 S.W.3d 514, 518 (Tex. App.CHouston [1st Dist.] = 2006, pet.=20 denied).   Such a=20 motion asserts there is no evidence of one or more essential = elements of=20 claims upon which the opposing party would have the burden of = proof at=20 trial.  Unlike a movant for a traditional summary judgment, a = movant=20 for a no-evidence summary judgment does not bear the burden of=20 establishing a right to judgment by proving each claim or = defense.  A=20 no-evidence summary judgment is essentially a pretrial directed = verdict,=20 to which we apply the same legal sufficiency standard of = review.  A=20 no-evidence summary judgment is properly granted if the nonmovant = fails to=20 produce more than a scintilla of probative evidence raising a = genuine=20 issue of fact as to an essential element of a claim on which the = nonmovant=20 would have the burden of proof at trial.  Lake Charles = Harbor and=20 Terminal Dist. v. Bd. of Trustees of Galveston Wharves, 62 = S.W.3d 237,=20 241 (Tex. App.CHouston=20 [14th Dist.] 2001, pet. denied).   We must sustain a = no‑evidence=20 summary judgment when (1) there is a complete absence of evidence = of a=20 vital fact, (2) the court is barred by rules of law or of evidence = from=20 giving weight to the only evidence offered to prove a vital fact, = (3) the=20 evidence offered to prove a vital fact is no more than a mere = scintilla,=20 or (4) the evidence conclusively establishes the opposite of a = vital=20 fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d = 706,=20 711 (Tex. 1997).  Less than a scintilla of evidence exists = when the=20 evidence is so weak as to do no more than create a mere surmise or = suspicion of a fact.  King Ranch, Inc. v. Chapman, 118 = S.W.3d=20 742, 751 (Tex. 2003).

III. =20 APPELLANTS=3D TORT AND BREACH OF = CONTRACT=20 CLAIMS

In their first two = issues,=20 appellants claim that the trial court erred in granting=20 appellees=3D motions for summary = judgment=20 on (1) Looper=3Ds breach of contract = claim=20 against HCCS, (2) Looper=3Ds defamation claim = against=20 Castillo, (3) Scott=3Ds defamation claims = against=20 Leslie, Garay, and Castillo, (4) Scott=3Ds intentional = infliction of=20 emotional distress claims against Leslie, Garay, and Castillo, and = (5)=20 Scott=3Ds negligent hiring = and=20 retention claims against Leslie.  Appellants also argue that=20 appellees did not conclusively prove they are entitled to = qualified=20 immunity against these claims.

A. =20 Looper=3Ds Breach of Contract=20 Claim

To prevail on a claim = for=20 breach of contract, the plaintiff must establish (1) the existence = of a=20 valid contract, (2) performance or tendered performance by the = plaintiff,=20 (3) breach of the contract by the defendant, and (4) damages = sustained by=20 the plaintiff as a result of the breach.  Renteria v. = Trevino,=20 79 S.W.3d 240, 242 (Tex. App.CHouston [14th Dist.] = 2002, no=20 pet.).  Looper argues that the trial court erred in granting = summary=20 judgment on his breach of contract claim because Leslie and = Castillo=20 failed to conclusively prove that Looper did not have a contract = with=20 HCCS. 

In February 2004, = Looper was=20 hired as an independent contractor by Project GRAD, a nonprofit=20 organization that works with HCCS  on various academic summer = programs.   Looper alleges that his independent = contractor=20 assignment with Project GRAD ended in May 2004, at which time he = entered=20 into an oral contract of employment with Castillo to continue as = the=20 project director on the same academic project.   Looper = bases=20 his breach of contract claim against HCCS on this alleged oral = contract=20 entered into with Castillo.

A junior college = district is a=20 political subdivision of the state.  Hander v. San Jacinto = Junior=20 College, 519 F.2d 273, 279 (5th Cir. 1975).  For the acts = of the=20 governmental body to be valid, it must act as a body.  = Thermo=20 Prods. Co. v. Chilton Indep. Sch. Dist., 647 S.W.2d 726, 732 = (Tex.=20 App.CWaco 1983, writ = ref=3Dd n.r.e.).  Don = Washington=20 of the HCCS Human Resources Department testified that individual=20 employees, including college presidents and deans, do not have the = authority to extend offers of employment to prospective employees; = only=20 the Chancellor or his designee has the authority to communicate an = offer=20 of employment.  Castillo was the interim president at = Southeast=20 College at the time she allegedly entered into this oral contract = with=20 Looper. Castillo=3Ds alleged oral = agreement with=20 Looper is not enforceable because, as a matter of law, Castillo = could not=20 bind HCCS; only the board of trustees=3D actions can bind=20 HCCS.   See Mosely v. Houston Community College = Sys., 951=20 F.Supp. 1279, 1289 (S.D. Tex. 1996) (APlaintiff's claims = that oral=20 promises were made regarding the length of her employment or = duties cannot=20 bind the Defendants, since only Board of Trustees=3D action can bind=20 HCCS.@).  Thus, any = alleged oral=20 promise that Looper would be director of the Project GRAD program = by=20 Castillo cannot form the basis of a contract binding HCCS. See=20 id. 

Viewing the record in = the light=20 most favorable to Looper, we find that he failed to raise a = genuine issue=20 of material fact that he had a valid contract with HCCS. =20 Furthermore, Looper failed to produce more than a scintilla of = evidence=20 demonstrating he had an enforceable contract with HCCS.=20             = Because=20 HCCS established as a matter of law that Looper had no enforceable = contract with it, the trial court did not err in granting summary = judgment=20 in favor of HCCS on Looper=3Ds breach of contract=20 claim.

B. =20 Appellants=3D Tort = Claims

Appellants further = assert=20 various tort claims against appellees and argue that appellees are = not=20 entitled to immunity.  As for HCCS, it is entitled to = sovereign=20 immunity from tort liability except in claims arising from an = injury=20 caused by an employee=3Ds use of a = motor-driven=20 vehicle.  See Tex.=20 Civ. Prac. & Rem. Code Ann. ' 101.051 (Vernon = 2005). =20 Because appellants do not assert any tort claims involving motor = vehicles,=20 HCCS is immune from appellants=3D tort claims.  = See=20 id. 

The remaining = individual=20 appellees argue that they are immune under the doctrine of = official=20 immunity.  Official immunity is an affirmative defense that = protects=20 government employees, in their individual capacities, from = liability=20 related to (1) the performance of discretionary duties, (2) within = the=20 scope of the employee=3Ds authority, (3) if = the=20 employee acts in good faith.  City of Lancaster v. = Chambers,=20 883 S.W.2d 650, 653 (Tex. 1994); Govant v. Houston Community = College=20 Sys., 72 S.W.3d 69, 74 (Tex. App.CHouston [14th Dist.] = 2002, no=20 pet.).  Ministerial acts, as opposed to discretionary acts, = are those=20 where the law prescribes and defines the duties to be performed = with such=20 precision and certainty as to leave nothing to the exercise of = discretion=20 or judgment.  Downing v. Brown, 935 S.W.2d 112, 114 = (Tex.=20 1996).  If, however, an action involves personal = deliberation,=20 decision, and judgment, it is discretionary.  = Id. =20 To meet the second element, within the scope of the=20 employee=3Ds authority, the=20 official=3Ds act must be one = wherein the=20 employee is discharging the duties generally assigned to him or = her. =20 Chambers, 883 S.W.2d at 658.  In determining the last = element=20 of good faith, we apply an objective standard and must determine = whether a=20 reasonably prudent official, under the same or similar = circumstances,=20 could have believed that his conduct was justified based on the=20 information he possessed when the conduct occurred.  = Id. at=20 656; see also Joe, 145 S.W.3d at 164.  The standard of = good=20 faith as an element of common‑law official immunity is not a = test of=20 carelessness or negligence, or a measure of an = official=3Ds motivation.  = Id.=20 Additionally, this test of good faith does not inquire into = Awhat a reasonable = person would=20 have done,@ but into = Awhat a reasonable = person could=20 have believed.@  Ballantyne = v.=20 Champion Builders, Inc., 144 S.W.3d 417, 426 (Tex. = 2004).  It=20 does not require the official to show that all reasonably prudent=20 officials would have made the same decision; rather, the official = must=20 show only that a reasonable person, possessing the same = information he had=20 at the time, could have believed his conduct was lawful. =20 Chambers, 883 S.W.2d at 656; Bowles v. Yeganeh, 84 = S.W.3d=20 252, 254 (Tex. App.CDallas 2002, no=20 pet.).

Because official = immunity is an=20 affirmative defense, the burden is upon the movant to establish = each=20 element of the defense.  Grinnell, 951 S.W.2d at = 425.  If=20 the movant establishes the defense, then the nonmovant must come = forward=20 with summary judgment evidence to the contrary.  City of = Houston=20 v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. = 1979).  We=20 consider whether each individual appellee has met his or her=20 burden.

Bruce=20 Leslie

Scott alleges that = Leslie (1)=20 defamed her before the board of trustees, (2) intentionally = inflicted=20 emotional distress by approving the hiring of Garay and = Astonewalling@ Scott=3Ds transfer request, = and (3) was=20 negligent in hiring and retaining Castillo.  Appellants do = not argue=20 that Leslie was acting outside the scope of his authority. =20 Therefore, we review the record to determine whether Leslie = established as=20 a matter of law that he was performing discretionary duties in = good=20 faith. 

Leslie states in his = affidavit=20 that, as chancellor, he is called upon to make judgment calls = based on=20 information provided to him.  Any action taken by Leslie was=20 discretionary in that no policy or procedure dictated the process = or=20 outcome of his involvement in making these judgment calls.  = Rather,=20 his actions were the exercise of his discretion and judgment.[3]  =20 Furthermore, Leslie=3Ds sworn affidavit = indicates=20 that he was not involved in any decision to remove Scott from the=20 screening committee, and he was not aware of Looper=3Ds applications for = employment=20 in 2003 and 2004. 

Additionally, Leslie = states=20 that any decisions he made allegedly affecting Scott or Looper = were made=20 in good faith in his capacity as chancellor of HCCS.  Leslie = states=20 that he made decisions regarding Project GRAD and = Castillo=3Ds assignment based on = information provided to him by senior administrators.  When = Leslie=20 received Scott=3Ds email communication = regarding=20 Garay=3Ds application for = dean, he=20 referred the matter to the Southeast campus administration = according to=20 his usual practice.  With regard to the statements made to = the board=20 of trustees, Leslie informed the board of trustees about pending=20 litigation, which his job description requires.  As to=20 Scott=3Ds transfer request, = there is no=20 evidence that Leslie was involved in handling her request in any=20 manner.  Leslie=3Ds affidavit shows = that a=20 reasonably prudent person under the same or similar circumstances = could=20 have taken the same action.

To raise a fact issue = on the=20 issue of good faith, Scott is required to prove that no reasonable = person=20 in Leslie=3Ds position could have = thought=20 the facts were such that they justified his acts.  See=20 Chambers, 883 S.W.2d at 657.  In attempting to controvert = Leslie=3Ds showing of good = faith, Scott=20 produced an evaluation written by Leslie of Castillo=3Ds performance as = interim=20 president.  Leslie=3Ds evaluation shows = that,=20 contrary to Scott=3Ds assertion, Leslie = supervised=20 Castillo and reprimanded her for inappropriate acts regarding a = member of=20 the board of trustees.  Viewing the summary judgment record = in the=20 light most favorable to Scott, we find that  Leslie = established=20 official immunity from Scott=3Ds tort claims. =20 Furthermore, appellees failed to present more than a scintilla of = evidence=20 showing that  Leslie=3Ds acts were not = discretionary=20 and that he did not act in good faith.  Accordingly, the = trial court=20 did not err in granting summary judgment in favor of Leslie on=20 appellees=3D tort = claims.

Reynaldo=20 Garay

Scott alleged that = Garay=20 defamed her and intentionally inflicted emotional distress by = writing a=20 memorandum to one of Scott=3Ds supervisors and an = email to=20 Flores.  While Garay=3Ds application for = dean was=20 pending before the screening committee, Scott, a member of the = committee,=20 confronted Garay about rumors she had heard regarding her = leadership and=20 department.  Garay reported that Scott told him she was = Agoing to find it = difficult to=20 support [Garay] unless [Garay] supported her.@  Because of = this conflict=20 between Garay and a member of the screening committee, Garay = reported the=20 confrontation to the chair of the committee, Irene = Porcarello.  Scott=20 admitted that she had previously signed a petition to have Garay = removed=20 as chair of the counseling department, and that she felt she had a = right=20 to talk to Garay about her belief that he was spreading rumors = about=20 her.  However, Scott denied that she talked with Garay about = the dean=20 position or that she told him she would have difficulty supporting = him.

Scott also complains = of an=20 email Garay sent to Flores in response to Scott=3Ds accusation that he = falsified=20 his application for dean.  In the email, Garay reported that = he was=20 encountering problems similar to those Flores encountered with=20 Aa group of counseling = staff.@  Garay also = expressed his=20 concern that Scott was on the screening committee for the purpose = of=20 blocking consideration of himself for the dean position.  = Garay=20 defended his decision to list his experience as interim dean on = his=20 application, and told Flores that Scott was removed from the = screening=20 committee because of her previous confrontation with him.  = Garay=20 listed several events that he described as Abehind-your-back=20 tactics@ designed by Scott to = prevent=20 him from being offered the dean position. 

In his sworn = affidavit, Garay=20 indicates that his statements in response to Scott=3Ds allegations were in = the scope=20 of his authority, were discretionary, and were made in good = faith. =20 Garay=3Ds job description = indicates=20 that he was to supervise student counseling services and evaluate=20 personnel in the student services and community development=20 department.  As such, in supervising and evaluating Scott, = Garay was=20 acting in the scope of his employment with HCCS.  Further, = Garay=20 states that no policy or procedure directed his actions to the = degree that=20 they became ministerial.  Ministerial actions require = obedience to=20 orders or the performance of a duty as to which the actor has no=20 choice.  Downing, 935 S.W.2d at 114.  = Garay=3Ds choice of words in = his=20 memorandum and email communication involved personal deliberation, = and was=20 not directed by policy. 

Garay further = established as a=20 matter of law that his actions were taken in good faith.  = When Garay=20 wrote the memorandum and the email, he had reason to believe that = his=20 interests had been unlawfully invaded by another person, and he = was=20 entitled to respond in an appropriate manner.  See = Chambers,=20 883 S.W.2d at 656.

Nothing in=20 the record reflects that Garay=3Ds=20 statements were defamatory or so extreme and outrageous as to = evidence an=20 intent to inflict emotional distress.  Scott alleges that=20 AGaray=3Ds actions=20 were intentionally made to harm, >clobber,=3D = and=20 punish [Scott] for her whistleblower report.@ =20 However, Scott has not shown that a reasonable person in similar=20 circumstances would have believed his actions were unlawful.  = As to=20 each of the statements alleged by Scott, Garay presented = sufficient=20 summary judgment proof that a reasonable person in his position = could have=20 believed he was entitled, even obligated, to make such = statements. =20 Viewing = the record=20 in the light most favorable to Scott, we find that Garay = established=20 official immunity from Scott=3Ds tort claims. =20 Furthermore, appellees failed to produce more than a scintilla of = evidence=20 demonstrating that Garay=3Ds acts were not = discretionary,=20 not within the scope of his authority, or not made in good = faith. =20 Thus, the=20 trial court did not err in granting summary judgment in favor of = Garay on=20 Scott=3Ds tort=20 claims.

Diana=20 Castillo

In this appeal, Scott = alleges=20 Castillo defamed her by publishing an incident report made to the = HCCS=20 police.  The incident report was the result of a verbal = argument=20 between Scott and Castillo.  The confrontation was initiated = by Scott=20 when she accused Castillo of undermining her relationship with = Garza, the=20 new Southeast College president.  Castillo felt threatened by = Scott=3Ds confrontation and = felt she=20 needed to file a criminal report.  Scott contends that = Castillo=20 Aoutrageously = published a=20 malicious and frivolous@ police report to=20 Scott=3Ds supervisors and = HCCS=20 associates. 

First, = Castillo=3Ds actions were = discretionary,=20 not ministerial.  No policy or procedure directed Castillo to = report=20 or not to report such incidents to the police.  = Castillo=3Ds act of reporting = the incident=20 was one in which she used her judgment and discretion.  = See=20 Downing, 935 S.W.2d at 114.  Second, Castillo=3Ds action in reporting = the=20 confrontation with Scott was within the scope of her = authority. =20 During the time of these events, Castillo was the interim = president of=20 Southeast College.  As interim president, she was the top=20 administrator and the ultimate decision-maker at the college level = regarding employment offers, terminations, budgetary matters, = operations,=20 human relations, procurement, and risk management.  Because = Scott was=20 under Castillo=3Ds supervision at the = time of=20 these events, Castillo was acting within the scope of her = employment when=20 she reported Scott=3Ds actions to the HCCS = police.=20 See Chambers, 883 S.W.2d at 658 (holding that an = official=20 acts within the scope of her authority if she is discharging the = duties=20 generally assigned to her).

Lastly, the record = reflects=20 that Castillo made the police report in good faith.  = According to her=20 affidavit, Castillo filed the report because she felt physically=20 threatened by Scott.  A reasonable person in = Castillo=3Ds position could have = believed=20 that it was necessary to report Scott=3Ds actions to the = campus=20 police.  See McCartney, 50 S.W.3d at 611. Other than = alleging=20 that Castillo filed the claim in Abad = faith,@ Scott presented no = summary=20 judgment evidence to show that a reasonably prudent person in = similar=20 circumstances would have believed Castillo=3Ds actions were = unlawful.=20  Id.   Scott=3Ds = unsubstantiated  belief=20 that the report was made in bad faith is less than a scintilla of = evidence=20 because it is so weak as to do no more than create a mere surmise = or=20 suspicion of fact.  See Chapman, 188 S.W.3d at = 751.

Appellees further = allege that=20 Castillo defamed Looper and intentionally inflicted emotional = distress=20 upon Scott by writing a memorandum pertaining to Looper and his = work with=20 Project GRAD.  In this memorandum, Castillo specifically = requests=20 that Looper stop performing any work on behalf of HCCS because he = was not=20 authorized to do so.  Castillo told Looper that he did not = have a=20 signed agreement with either Project GRAD or HCCS.  Castillo = stated=20 that she had been contacted by representatives of Project GRAD = informing=20 her of Looper=3Ds continuing to act = as a =20 representative of HCCS; she reminded Looper that he was not an = HCCS=20 representative.  Castillo requested, for the third time, that = he stop=20 contacting Project GRAD.

Castillo presented = competent=20 evidence that her acts were discretionary; the statements made in = the=20 memorandum and the decision to communicate the information with = Looper=20 were not controlled by HCCS policy or procedure.  Castillo = presented=20 evidence that she was responsible for the successful execution of = Project=20 GRAD and, therefore, was acting within the scope of her = authority. =20 Further, nothing in the record reflects that the memorandum was so = extreme=20 and outrageous as to evidence an intent to inflict emotional=20 distress.  Castillo=3Ds memorandum to = Looper was not=20 the result of bad faith.  A reasonable person in = Castillo=3Ds circumstances could = have=20 believed that it was necessary to confirm in writing her requests = that=20 Looper stop representing himself as an employee of HCCS or Project = GRAD.  Viewing the summary judgment record in the light most=20 favorable to Scott, we find that Castillo established official = immunity=20 from Scott=3Ds tort claims.[4] =20 See McCartney, 50 S.W.3d at 611.  Furthermore, = appellees=20 failed to produce more than a scintilla of evidence demonstrating = that=20 Castillo=3Ds acts were not = discretionary,=20 not within the scope of her authority, or not made in good=20 faith.

Having shown as a = matter of law=20 that Leslie, Garay, and Castillo performed discretionary duties in = good=20 faith and within the scope of their authority, they were each = entitled to=20 official immunity on appellants=3D tort claims.  = Therefore,=20 the trial court did not err in granting summary judgment. =20 Appellants=3D first and second = issues are=20 overruled.

IV.=20 SCOTT=3DS TWA = CLAIMS

In = appellants=3D third, fourth and = fifth=20 issues, they argue that the trial court erred in granting summary = judgment=20 against Scott=3Ds TWA claims.  = Scott filed=20 TWA claims against HCCS, Leslie, and Garay, arguing that she = suffered=20 retaliation for (1) disclosing to HCCS the contents of the = Castillo letter=20 demonstrating that Castillo was abusing her official capacity and = (2)=20 reporting to the Harris County District Attorney=3Ds Office that Garay = falsified=20 information on his job application. To establish a Whistleblower = claim,=20 Scott must produce competent summary judgement evidence that: (1) = she was=20 a public employee; (2) she made a report; (3) in good faith; (4) = of a=20 violation of law; (5) to an appropriate law enforcement authority; = and (6)=20 she suffered an adverse employment action because of making the=20 report.  Texas Dept. Of Human Services of the State of = Texas v.=20 Hinds, 904 S.W.2d 629, 632B33 (Tex. 1995).  = Appellees=3D summary judgment = motions=20 contest whether Scott=3Ds report was made to = an=20 appropriate law enforcement authority and whether the report was = made in=20 good faith.

Under the Act, an = appropriate=20 law enforcement authority is a governmental entity authorized to=20 Aregulate under or = enforce the=20 law alleged to be violated.@  Tex. Gov=3Dt=20 Code Ann.=20 ' 554.002(b)(1) = (Vernon 2004);=20 Texas Depart. Of Transp. v. Needham, 82 S.W.3d 314, 320 = (Tex.=20 2002).  Alternatively, an appropriate law enforcement = authority is a=20 governmental entity authorized to Ainvestigate or = prosecute a=20 violation of criminal law.@  Tex. Gov=3Dt=20 Code Ann.=20 ' 554.002(b)(1); = Needham,=20 82 S.W.3d at 319.  It is not enough that a governmental = entity has=20 general authority to regulate, to enforce, to investigate, or to=20 prosecute.  Needham, 82 S.W.3d at 319.  Rather, = the=20 governmental entity must be authorized either to (1) regulate = under or to=20 enforce Athe law alleged to be = violated@ or (2) investigate = or to=20 prosecute Aa violation of = criminal=20 law.@  Id. at = 320. =20 The particular law the public employee reported is critical to the = determination.  Id.  Thus, we must determine = whether HCCS=20 had the authority to regulate under, to enforce, to investigate, = or to=20 prosecute the reported violations of abuse of official capacity = and=20 tampering with a government record under the Texas Penal = Code. =20 Id.

   After = analyzing=20 the reported violation of law, abuse of official capacity and = tampering=20 with a government document, we conclude that HCCS was not an = appropriate=20 law enforcement authority.  HCCS has no authority to regulate = under=20 or enforce these Texas criminal offenses.  Nor does it have = the=20 authority to investigate or prosecute these criminal laws. =20 See Tex.=20 Gov=3Dt=20 Code Ann.=20 ' 554.002(b)(2).=20  Accordingly, we hold that, as a matter of law, HCCS is not = an=20 appropriate law enforcement authority under section 554.002(b)(2) = for a=20 public employee to report another employee=3Ds violation of=20 Texas=3Ds criminal offenses = of abuse of=20 official capacity and tampering with a government document. =20

However, our = conclusion that=20 HCCS is not a governmental entity authorized to regulate under, = enforce,=20 investigate, or prosecute Texas=3Ds criminal offenses = of abuse of=20 official capacity and tampering with a government document does = not end=20 our inquiry.  Scott may still obtain TWA protection if she in = good=20 faith believed that HCCS was an appropriate law enforcement = authority as=20 the statute defines the term.  See Tex. Gov=3Dt=20 Code Ann.=20 ' 554.002(b).  = AGood = faith@ means that (1) the = employee=20 believed the governmental  entity was authorized to (a) = regulate=20 under or enforce the law alleged to be violated in the report, or = (b)=20 investigate or prosecute a violation of criminal law and (2) the=20 employee=3Ds belief was = reasonable in=20 light of the employee=3Ds training and=20 experience.  Wichita County v. Hart, 917 S.W.2d 779, = 784 (Tex.=20 1996); Needham, 82 S.W.3d at 321.  Accordingly, we = must=20 determine if, under the Hart test, there is any evidence to = support=20 the conclusion that Scott had a good faith belief that she = reported the=20 alleged acts of abuse of official capacity and tampering with a = government=20 document to the appropriate law enforcement authority. =20 Needham, 82 S.W.2d at 321.

Scott is an educated = woman who=20 testified she knew that the Human Resources generalist did not = have=20 authority to prosecute a crime.  Additionally, Scott was well = aware=20 that the Harris County District Attorney=3Ds Office was = conducting a=20 criminal investigation against Castillo for abuse of official = capacity,=20 the very act that Scott reported to HCCS.  It is not = reasonable for a=20 prudent person in similar circumstances to believe = HCCS=3Ds Human Resources = department=20 could investigate or enforce criminal allegations of abuse of = official=20 capacity and tampering with a government document.  There is=20 insufficient evidence to support the contention that Scott had a = good=20 faith belief that HCCS was an appropriate law enforcement = authority under=20 the TWA to report Castillo=3Ds alleged criminal = acts of=20 abuse of official capacity and tampering with a government = document.=20

Next, Scott alleges = that she=20 suffered retaliation and was constructively discharged for = reporting to=20 the Harris County District Attorney=3Ds Office that Garay = falsified=20 information on his job application.  In its summary judgment = motion,=20 appellees argue (1) the trial court lacked jurisdiction to hear = this=20 particular claim because appellee failed to timely initiate=20 HCCS=3Ds grievance procedure = within 90=20 days; (2) Scott did not make this report in good faith; and (3) = Scott did=20 not suffer any adverse personnel action for making such=20 report.

The TWA requires that = an=20 employee initiate a grievance using the employer=3Ds grievance procedure = within 90=20 days of the violation.  If the employee fails to file such a=20 grievance, then her claims are jurisdictionally barred.  = See=20 Tex. = Gov=3Dt=20 Code Ann.=20 ' 311.034 (Vernon = 2005); =20 Univ. of Houston v. Barth, 178 S.W.3d 157, 163 (Tex.=20 App.CHouston [1st Dist.] = 2005, no=20 pet.).  The record contains no evidence that Scott initiated = a=20 grievance using HCCS=3Ds grievance procedure = with=20 respect to her constructive discharge claim.  Texas courts = have=20 uniformly held that when an employer maintains a specific = grievance=20 procedure, the employee must utilize the procedure.  See=20 Montgomery County Hosp. v. Smith, 181 S.W.3d 844, 853 (Tex.=20 App.CBeaumont 2005, no = pet.). =20 The record clearly demonstrates that Scott was aware of = HCCS=3Ds grievance procedure = and knew=20 how to file a grievance because she had previously filed several=20 grievances through the same process.  Instead of filing a = grievance,=20 as she did in the past for each incident of alleged retaliation, = Scott=20 simply resigned without more.  As a result, the trial court = did not=20 have jurisdiction over Scott=3Ds TWA claim regarding = her=20 alleged constructive discharge.=20         

Furthermore, it is = well settled=20 among Texas courts that the TWA does not create a cause a action = against=20 individual employees of a governmental entity, such as Leslie and=20 Garay.  See Austin v. HealthTrust, Inc.-The Hospital = Co., 967=20 S.W.2d 400 (Tex. 1998) (declined to recognize a Aprivate=20 whistleblower@ cause of action); = Alejandro=20 v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 668B69 (Tex. = App.CCorpus Christi 2004, = no pet.)=20 (upheld the district court=3Ds grant of a directed = verdict=20 on the plaintiff=3Ds claims against the = individual=20 defendants because there was no privated right of action against = the=20 officials in their individual capacities).  Therefore, the = trial=20 court did not abuse its discretion in granting summary judgment in = favor=20 of Leslie and Garay on Scott=3Ds TWA claims.  = We overrule=20 appellants=3D third, fourth and = fifth=20 issues.   The judgment of the trial court is affirmed.[5]

 

/s/       =20 Adele Hedges

Chief = Justice

Judgment rendered and = Memorandum Opinion filed November 29, 2007.

Panel consists of = Chief Justice=20 Hedges, Justice Frost, and Senior Justice Hudson.* (Hudson, J. = concurring=20 in the result only).

* Senior Justice J. = Harvey=20 Hudson sitting by assignment.


[1]  See Castillo v. Flores, = No.=20 01-05-00760-CV, 2006 WL 4888609 (Tex. App.CHouston [1st Dist.] Mar. 2, 2006, no = pet.) (mem.=20 op.).  In this lawsuit, Flores alleged, among other things, = that=20 Castillo had defamed her, harassed her, and retaliated against her = to halt=20 Flores=3D candidacy for the interim president = position at=20 Southeast College.

[2]  The parties dispute the reason = for=20 Scott=3Ds removal. Scott alleges she was removed = from the=20 committee because she revealed that Garay had falsified = information on his=20 application while appellees contend that she was removed for = improperly=20 confronting Garay about his candidacy.

[3]  Scott asserts that because she = filed a=20 claim under the TWA, the actions of each appellee are ministerial = rather=20 than discretionary.  However, it is well settled under Texas = law that=20 individuals, as opposed to government entities, are not covered by = the=20 TWA.  See Austin v. HealthTrust, Inc.- The Hospital = Co., 967=20 S.W.2d 400 (declined to recognize a Aprivate whistleblower@ cause of action); Alejandro v. = Robstown Indep.=20 Sch. Dist., 131 S.W.3d 663, 66B69 (Tex. App.CCorpus Christi 2004, no pet.) (upheld = the district=20 court=3Ds grant of a directed verdict on the=20 plaintiff=3Ds claims against the individual = defendants because=20 there was no private right of action against the officials in = their=20 individual capacities).  Therefore, the TWA does not = categorize=20 Leslie=3Ds, Castillo=3Ds, or Garay=3Ds duties as either ministerial or=20 discretionary.

[4]  Castillo also argues that she = established=20 the complete defense of truth regarding Scott=3Ds defamation claim arising from the = incident=20 report.  However, since we have held that Castillo = established the=20 affirmative defense of official immunity, we do not reach this=20 argument. 

[5]  Appellees filed a cross-point = objecting to=20 the trial court=3Ds refusal to sustain their objections to = appellants=3D summary judgment evidence.  = Because we have=20 affirmed the trial court=3Ds judgment, we need not address=20 appellees=3D=20 cross-point.

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