IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-1023

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Montgomery=20 County, Texas,

Petitioner,

David = Park,

Respondent

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On Petition for Review from = the

Court of Appeals for the Tenth = District of=20 Texas

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Argued March 20,=20 2007

=20 Chief Justice=20 Jefferson = delivered the=20 opinion of the Court.

=20 The Texas Whistleblower Act prohibits state and local government=20 employers from taking adverse personnel actions against employees who, = in good=20 faith, report violations of law to an appropriate law enforcement = authority.=20 Tex. Gov=92t Code =A7=A7 = 554.001-554.010.[1] We must determine what = qualifies as an=20 =93adverse=94 personnel action, as the Act provides no definition. = See=20 id. =A7 554.001. We hold that for a personnel action to be = adverse within=20 the meaning of the Act, it must be material, and thus likely to deter a=20 reasonable, similarly situated employee from reporting a violation of = the law.=20 See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. = __=20 (2006). Because we conclude that David Park did not suffer an = adverse=20 personnel action, we reverse the court of appeals=92 judgment and render = judgment=20 for Montgomery=20 County.

Background

=20 Respondent David Park, a patrol lieutenant with the Montgomery = County=20 Sheriff=92s Department, also served as the security coordinator for = Montgomery = County convention center events. = While=20 Montgomery=20 County owns the = convention=20 center, many activities there are privately sponsored. As security = coordinator=20 for these private events, Park received event sheets from the convention = center=92s director, Don Carpenter, and arranged the hiring of off-duty = deputies=20 to provide security. Park conducted these activities from his office in = the=20 sheriff=92s department during regular business hours. He received no = additional=20 compensation from either the County or the convention center for = coordinating=20 security for these private events.

=20 In the spring of 2002, during a meeting Park attended with = County=20 Commissioner Ed Rinehart and others, Rinehart allegedly spoke in graphic = sexual=20 terms about Park=92s administrative assistant = and another=20 administrative assistant. Park informed his administrative = assistant of=20 Rinehart=92s remarks, and another meeting attendee informed the = other=20 administrative assistant of the same. The two assistants then relayed = numerous=20 instances of Rinehart=92s alleged sexual harassment that occurred over = the=20 preceding months. Park reported Rinehart=92s remark, as well as the = administrative=20 assistants=92 accounts, to the sheriff. The County then undertook an=20 investigation. In the midst of that investigation, Rinehart allegedly = ordered=20 Carpenter to relieve Park of his security coordination duties. Those = duties were=20 transferred first to the constable=92s office and then rotated on a = monthly basis=20 between the sheriff=92s and constable=92s offices.

=20 On October 30, 2002, Park sued Montgomery County, alleging that the County = violated=20 the Whistleblower Act by reassigning the security coordinator duties in retaliation for Park=92s report of = Rinehart=92s=20 comments. The County filed a plea to the jurisdiction and motion for = summary=20 judgment, raising no evidence claims and asserting that Park=92s = whistleblower=20 claim failed as a matter of law.[2] The trial court granted the = County=92s=20 motion for summary judgment, and Park appealed.

=20 The court of appeals reversed and remanded, holding that = Montgomery = County was not entitled to = summary=20 judgment on any of the theories advanced. __ S.W.3d = __.=20 We granted Montgomery County=92s petition for = review.[3] 50 = Tex. = Sup. Ct. J.=20 218 (Dec. 15, 2006).

Discussion

=20 The Texas Whistleblower Act bars state and local governments from = retaliating against public employees who report violations of law:

(a)=20 A state or local governmental = entity may=20 not suspend or terminate the employment of, or take other adverse = personnel=20 action against, a public employee who in good faith reports a violation = of law=20 by the employing governmental entity or another public employee to an=20 appropriate law enforcement authority.

(b)=20 In this section, a report is made = to an=20 appropriate law enforcement authority if the authority is a part of a = state or=20 local governmental entity or of the federal government that the employee = in good=20 faith believes is authorized to:

&nbs= p; =20 (1) regulate under or enforce the law alleged to be = violated in=20 the report; or

&nbs= p; =20 (2) investigate or prosecute a violation of criminal = law.

Tex. Gov=92t = Code =A7 554.002. While = the Act=20 defines a =93personnel action=94 as =93an action that affects a public = employee=92s=20 compensation, promotion, demotion, transfer, work assignment, or = performance=20 evaluation,=94 it does not define =93adverse,=94 id. =A7 554.001(3), and we have not previously had occasion = to=20 address the issue.[4]

=20 Defining =93adverse=94 in this context=97and thus setting the = level of=20 protection provided by the Whistleblower Act=97requires a careful = balancing. By=20 protecting state and local government employees who in good faith report = violations of the law, the Act encourages reporting and thus endeavors = to reduce=20 unlawful conduct by government entities and employees. Requiring too = high a=20 level of adversity would defeat this important purpose. Conversely, = setting the=20 standard too low could, as Montgomery County and amici=20 curiae warn, saddle the public with the cost of defending against = unmeritorious=20 claims=97in terms of litigation expenses and in chilling innocuous = personnel=20 actions that an employee may perceive as subjectively adverse.

=20 The United States Supreme Court recently confronted a similar = issue, when=20 it determined how serious the harm from an allegedly retaliatory action = must be=20 to sustain a claim under the anti-retaliation provision of Title VII of = the=20 Civil Rights Act of 1964, 42 U.S.C. =A7 2000e-3(a). Burlington N. & Santa Fe Ry. Co. v.=20 White, 548 U.S. = __=20 (2006). Noting the importance of =93separat[ing] = significant from=20 trivial harms=94 [5] and of =93avoid[ing] the uncertainties and unfair discrepancies = that can=20 plague a judicial effort to determine a plaintiff=92s unusual subjective = feelings,=94 the Court crafted an objective materiality standard: =93a = plaintiff=20 must show that a reasonable employee would have found the challenged = action=20 materially adverse, which in this context means it might well have = dissuaded a=20 reasonable worker from making or supporting a charge of = discrimination.=94=20 Id. at __=20 (citations and internal quotation marks omitted).

=20 The anti-retaliation provision of Title VII and the Whistleblower = Act=20 serve similar purposes, and we think it is appropriate to require = plaintiffs to=20 show objective, material harm under both. We therefore adopt the = Burlington standard=20 with appropriate modifications. We hold that a personnel action is = adverse=20 within the meaning of the Whistleblower Act if it would be likely to = dissuade a=20 reasonable, similarly situated worker from making a report under the = Act. This=20 objective test strikes an appropriate balance between the need to shield = whistleblowers (and thereby encourage the reporting of governmental = lawbreaking)=20 and the need to protect government employers from baseless suits, and, = in=20 addition, provides lower courts with a judicially manageable standard. = Burlington=92s=20 materiality requirement is calibrated to allow claims of retaliatory = actions=20 =93likely to deter=94 reporting of governmental violations of the law,[6] but to weed out =93petty = slights [and]=20 minor annoyances.=94 Id. Likewise, the =93similarly situated, = reasonable=20 employee=94 element bars trivial claims arising from personnel actions = asserted to=20 be adverse due to a =93plaintiff=92s unusual subjective feelings=94 = while retaining=20 enough flexibility to allow claims arising from the =93particular = circumstances=94=20 of a challenged action. Id. at __ (noting that =93an act = that would=20 be immaterial in some situations is material in others=94 and that, for = example,=20 =93[a] schedule change in an employee=92s work schedule may make little = difference=20 to many workers, but may matter enormously to a young mother with school = age=20 children=94 (citations and internal quotation marks omitted)).[7]

=20 Whether a challenged action is adverse within the meaning of the = Act is=20 generally a question of law, and while the fact finder must decide = disputed=20 issues of predicate fact, there are no such issues here. Thus, having=20 articulated the standard for an adverse personnel action under the Act, = we must=20 now determine whether there is evidence that Park suffered such an = action here.=20 While we take as true all evidence favorable to Park, indulging every = reasonable=20 inference and resolving any doubts in his favor, Provident Life & = Accident Insurance Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003), it = is=20 clear from the record that the changes to Park=92s security coordinator=20 responsibilities do not constitute an adverse personnel decision within = the=20 meaning of the Whistleblower Act.

=20 It is conceivable that, in some instances, the ability to assign = extra=20 jobs could be of such importance to a law enforcement officer that the = loss of=20 this authority may be materially adverse, but = the=20 Burlington standard must be = applied to=20 the circumstances presented. See Burlington,=20 548 U.S. at __ (=93An act that = would be=20 immaterial in some situations is material in = others.=94 (citations and internal quotation marks omitted)). = Park does=20 not argue that the loss of his security coordination responsibilities = affected=20 his prestige, opportunity for advancement in the department, or the = difficulty=20 of his work conditions.[8] Further, the challenged action = neither=20 reduced Park=92s pay for his core job duties nor generally precluded him = from=20 obtaining outside employment. Because the effects of a challenged action = must be=20 considered as a whole and in light of all the circumstances, though, the = presence or absence of any one of these factors is not dispositive, and Park does argue that as security=20 coordinator he had the ability to assign himself extra jobs at the = convention=20 center events, and thus that the bimonthly transfer of those duties = adversely=20 affected his compensation. There is, however, no evidence that losing = the first=20 choice of extra jobs at the convention center actually reduced Park=92s=20 earnings.

=20 Park received no extra salary as security coordinator, and he has = not=20 shown that the position allowed him to work more extra jobs than he = would have=20 without it. Had extra jobs been scarce, the = ability to=20 control one source of them might have been the difference between = getting extra=20 work and not. Here, however, even after losing the first choice of = convention=20 center jobs, Park assumed that he would be able to find outside work if = he=20 wished. There is, then, no evidence that the ability to assign himself=20 convention center jobs actually increased Park=92s access to extra work = and, thus,=20 indirectly, his compensation.[9] Finally, we note that the loss = of Park's=20 coordinating duties stands in stark contrast to the reassignment from = forklift=20 operator to track laborer and unpaid thirty-seven day suspension, albeit = with=20 subsequent back pay awarded through internal grievance procedures, = suffered by=20 the complaining worker in Burlington. Burlington, 548 U.S. = at __.=20 Therefore, applying the objective standard we announce today, we = conclude that=20 Park=92s loss of the first choice of convention center jobs would not, = as a matter=20 of law, be likely to deter a similarly situated, reasonable employee = from=20 reporting a violation of the law, and was thus not materially = adverse.

III

Conclusion

=20 Because we hold that Montgomery County did not violate the = Whistleblower=20 Act as a matter of law, the County is entitled to judgment. See State = Farm=20 Fire & Cas. = Co. v. S.S., 858 S.W.2d = 374, 380=20 (Tex.=20 1983). We reverse the court of appeals' judgment and = render=20 judgment for Montgomery County. Tex. R. App. = P. 60.2(c).

=20 =20 =20 =20 =20 =20 =20 =20 =20 =20 =20

=20 ______________________________

=20 Wallace B. Jefferson

=20 Chief Justice

OPINION=20 DELIVERED: November 30, 2007

^[1]=20 Instead of creating a general whistleblower law, the Legislature enacted = several=20 employee-specific whistleblower statutes. See, = e.g.,=20 Tex. Agric. = Code =A7 125.013(b) (protecting agricultural = laborers=20 from retaliation for reporting violations under the Agricultural Hazard=20 Communication Act); Tex. Gov=92t = Code =A7 554.002(a) (protecting public = employees who=20 report government violations of the law from retaliation); = Tex.=20 Health & Safety Code =A7=20 242.133(b) (protecting nursing home workers who report the abuse of home = residents); see also Ed Rachal=20 Found. v. D=92Unger, 207=20 S.W.3d 330, 331 (Tex. 2006) (noting = the=20 Legislature=92s decision not to enact a single, comprehensive = whistleblower=20 statute); Austin v. HealthTrust, Inc.=96The Hosp. Co., 967 S.W.2d = 400, 402=20 (Tex. 1998)=20 (detailing the various whistleblower statutes). We refer to the = particular=20 whistleblower statute which protects public employees from government=20 retaliation as =93the Whistleblower Act=94 or =93the Act.=94 Tex. Gov=92t = Code =A7=A7 = 554.001-554.010.

^[2]=20 In its motion for summary judgment, the County also asserted that = Park=92s claim=20 failed because: (1) it was barred due to governmental immunity; (2) = there was no=20 evidence that the alleged violation was committed by a public employee = or=20 employing governmental entity; and (3) there was no evidence that Park = reported=20 a violation of law to an appropriate law enforcement official. Because = the=20 Whistleblower Act contains a specific waiver of immunity, Park=92s claim = is not=20 barred. Tex. Gov=92t=20 Code =A7 = 554.0035. In=20 light of our holding that Park did not suffer an adverse personnel = action within=20 the meaning of the Act, we do not reach Montgomery County=92s remaining = issues.

^[3]=20 The Texas Municipal League and Texas City Attorneys Association, the = Texas=20 Association of School Boards Legal Assistance Fund, and Zachry Construction Corporation and H.B. Zachry Company submitted amicus curiae = briefs.

^[4]=20 The Legislature substituted the phrase =93take other adverse personnel = action=94 for=20 =93discriminate=94 as part of a 1995 amendment to the Act. Act of May = 25, 1995, 74th=20 Leg., R.S., ch. 721, =A7 2, 1995 Tex. Gen. = Laws 3812.

^[5]=20 As the Court notes, =93[a]n employee=92s decision to report = discriminatory behavior=20 cannot immunize that employee from those petty slights or minor = annoyances that=20 often take place at work and that all employees experience.=94 = Id. at=20 __. The same is true of a government employee=92s decision to = report a=20 violation of law under the Whistleblower Act.

^[6]=20 We note that the challenged personnel action need not have likely = dissuaded a=20 reasonable employee from making the report at issue in a particular = case, but=20 rather any report covered by the Whistleblower Act. To interpret the = standard=20 otherwise would lead to the odd result that the more serious the = violation=20 alleged in the report (and thus the greater the impetus to report), the = more=20 severe the retaliatory action an employer could engage in without giving = rise to=20 a claim under the Act. See Burlington, 548=20 U.S. at __; see also id. = at __ (Alito, J.,=20 concurring)(arguing that affording complaining employees a degree of = protection=20 inverse to the severity of the underlying discrimination would be=20 "perverse").

^[7]=20 For this reason, we have added =93similarly situated=94 to the language = used in=20 Burlington to emphasize that = while an=20 employee=92s subjective feelings are not considered, the objective = circumstances=20 of his or her case must be taken into account.

^[8]=20 The summary judgment evidence included the following colloquy regarding = the=20 benefits of the security coordinator position from Park=92s deposition: =

[Montgomery County=92s Attorney]: Let me ask = you one=20 more time to make sure I understand. The only benefit that you consider = yourself=20 =96 extra benefit you consider yourself to have had from being the = coordinator of=20 security was the right to take first pick of security jobs at the = convention=20 center?

[Park]: That would be accurate, = yes.

^[9]=20 Because we hold that Park has not demonstrated a loss of income as a = result of=20 the removal of his security coordinator duties, we do not reach the = question of=20 whether Park=92s earnings as a security officer for third parties = constitute=20 compensation within the meaning of the Whistleblower Act. Similarly, = although=20 Park also alleges that losing the first choice of convention center jobs = adversely affected his work assignment, we do not address whether, for = the=20 purposes of the Act, work assignment can include outside employment =97 = assuming=20 without deciding that it can, the loss is nonetheless not materially = adverse.=20 Although Park may no longer be able to guarantee himself extra jobs that = he=20 personally finds particularly desirable, purely subjective adversity = does not=20 satisfy the Burlington standard, and there is no evidence that = Park has=20 lost access to objectively equivalent extra=20 work.