Ysleta Independent School District v. Marcelino Franco

IN THE SUPREME COURT OF TEXAS

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NO . 13-0072

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YSLETA INDEPENDENT SCHOOL DISTRICT, PETITIONER,

v.

MARCELINO FRANCO, RESPONDENT

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS

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PER CURIAM

This Whistleblower Act case raises a familiar issue: whether a report of alleged violations

of law is jurisdictionally insufficient if made to someone charged only with internal compliance.

TEX . GOV ’T CODE § 554.001 et seq. A few months ago, in University of Texas Southwestern

Medical Center v. Gentilello, we held that such reports cannot support an objective, good-faith belief

that the reported-to official is an “appropriate law-enforcement authority” under the Act. 398

S.W.3d 680, 686 (Tex. 2013). Even more recently, in Canutillo Independent School District v.

Farran, we held that complaints to a school board, superintendents, and internal auditor were not

good-faith complaints where the officials had no authority to enforce the allegedly violated laws

outside the institution itself. 409 S.W.3d 653, 655 (Tex. 2013) (per curiam).

This case poses the same issue: whether a report to personnel whose only power is to oversee

compliance within the entity itself is enough to confer “law-enforcement authority” status. The

courts below answered yes, and erred in doing so (though in fairness, we had not yet decided

Gentilello and Farran). We reverse, grant the plea to the jurisdiction, and dismiss the case.

* * *

Marcelino Franco was a principal at the Robert F. Kennedy Pre-K Academy in the Ysleta

Independent School District (ISD). He sent a memorandum to his immediate supervisor, the chief

academic officer, Gloria Polanco-McNealy, reporting various “asbestos hazards” in the school and

raising several “Administrative Issues”—among them:

staff members [are] suffering from recent cancers, liver ailments, respiratory ailments

and several advise [him] that ‘they just feel sick’. Absenteeism is high. One teacher

has traveled to the Mayo Institute and remains ‘sick’ but undiagnosed.

Franco feared that he and the teachers, staff, and students were at risk of “contracting a

cancer, other related illness(es) or just being chronically ‘sick’.” Franco asserted that the current

working conditions breached his employment contract with the ISD and also the “2472 Code of

Ethics and Standard Practices for Texas Educators.” Franco requested a transfer to another school

within the district. He included a “confidential communiqué” disclaiming any threatening or

provocative motives, and he promised that the ISD could “rely on [his] complete trust, loyalty and

professional discretion and ethics.”

Ms. Polanco-McNealy responded that the ISD’s facilities department was unaware of any

asbestos at the school. She also told Franco that she would investigate his accusations of asbestos

and mold and the allegedly related illnesses.

In response, Franco directed Ms. Polanco-McNealy to the ISD’s Asbestos Management Plan,

which the district uses to assess asbestos-containing materials located in its buildings. He also

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attached a work order showing that floor tiles in the building had been replaced. Franco noted that

the following comment appears on the work order: “Have school direct this request to Risk

Management-Asbestos Abatement attn: Grant Curtis.” Franco highlighted this comment to

controvert Ms. Polanco-McNealy’s claim that the facilities department was unaware of any asbestos

in the school. At the end of his memorandum, Franco again requested a transfer to another school.

Eventually, the ISD indefinitely suspended Franco, and he filed this whistleblower claim.

It is unclear from the record what communications the parties had after Franco’s second

memorandum. Franco testified, however, that he reported the asbestos hazards to several school

officials—including the superintendent and trustees of the district. Franco claimed that the ISD

violated the Asbestos Hazard Emergency Response Act, 15 U.S.C. § 2641 et seq., by failing to

respond to his asbestos reports. But Franco submitted no evidence showing that the ISD enforces

the Asbestos Act beyond overseeing its own internal compliance. And he admitted that he did not

report the allegations to anyone other than school officials. He claimed that doing so was

unnecessary because the school district is a government entity, and a government entity is a law-

enforcement authority under the Whistleblower Act.

The trial court agreed and denied the ISD’s plea to the jurisdiction. The court of appeals

affirmed, holding that “Franco produced sufficient evidence of his good faith belief that the [ISD’s]

superintendent and trustees were authorized to regulate under or enforce the Asbestos Act.” 394

S.W.3d 728, 732. The court of appeals added that Franco’s evidence raised a fact issue about

whether his belief was objectively reasonable in light of his training and experience. Id. at 733. We

disagree.

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Our recent cases hold that a report to someone charged only with internal compliance is

jurisdictionally insufficient under the Whistleblower Act. Gentilello, 398 S.W.3d at 686; Farran,

409 S.W.3d at 655. As Farran made clear in the school context, reporting to school officials not

charged with enforcing laws outside the district falls short of what the Act requires.

In that factually similar case, Farran was executive director of transportation and facilities

at Canutillo Independent School District when he reported various alleged violations of law to the

school board and other school officials. Id. at 654. Like Franco, Farran submitted no evidence of

the school district’s authority to enforce laws beyond the institution itself. Id. at 655. We concluded

that “[a]uthority of the entity to enforce legal requirements or regulate conduct within the entity itself

is insufficient to confer law-enforcement authority status.” Id. (quoting Gentilello, 398 S.W.3d at

686). Thus, Farran could not establish that the school district was an appropriate law-enforcement

authority. Id. Consequently, Farran could not show “an objective, good-faith belief that the school

district officials to whom Farran complained had authority ‘to enforce, investigate, or prosecute

violations of law against third parties outside of the entity itself’ or had ‘authority to promulgate

regulations governing the conduct of such third parties.’” Id. (quoting Gentilello, 398 S.W.3d at

686).

Similarly, on the record before us, Franco has failed to show an objective, good-faith belief

that the ISD qualifies as an “appropriate law-enforcement authority” under the Act. Therefore, the

courts below erred in denying the ISD’s plea to the jurisdiction.

Accordingly, we grant the petition for review and, without hearing oral argument, reverse the

court of appeals’ judgment and dismiss the case. See TEX . R. APP . P. 59.1.

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OPINION DELIVERED: December 13, 2013

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