Stan H. Looper and Cynthia M. Scott v. Houston Community College System, Bruce Leslie, Diana Castillo, and Reynaldo Garay

Affirmed and Memorandum Opinion filed November 29, 2007

Affirmed

and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-07-00040-CV

____________

STAN H. LOOPER AND CYNTHIA M. SCOTT , Appellants

V.

HOUSTON COMMUNITY COLLEGE SYSTEM,

BRUCE LESLIE, DIANA CASTILLO, AND REYNALDO GARAY , Appellees

On Appeal from the 152nd

District Court

Harris County, Texas

Trial Court Cause No. 2004-50706

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

Appellants, Stan H. Looper and Cynthia M. Scott, appeal the

trial court = s grant of summary judgment on claims of breach of

contract, defamation, intentional infliction of emotional distress, negligent

hiring, and violations of the Texas Whistleblower Act in favor of appellees,

Houston Community College System ( A HCCS @ ), Bruce Leslie,

Diana Castillo, and Reynaldo Garay. We affirm.

I.

BACKGROUND

HCCS is

a two-year public college governed by a nine-member board of trustees. Bruce

Leslie served as chancellor and chief executive officer for HCCS from 2001 to

2006. HCCS is divided into six colleges, each of which is governed by a

president who reports directly to the chancellor. Scott was employed in

student counseling with HCCS from 1999 to 2006.

In

December 2002, Diana Castillo was named the interim president at HCCS = s Southeast College. Olga Flores was

a potential candidate for the Southeast College interim president position as

well; however, she was appointed dean of student development at Southeast

College. Thereafter, a conflict arose between Castillo and Flores that

escalated to a lawsuit filed by Flores. [1]

As the

dean of student development, Flores promoted Scott to counseling chair at

Southeast College. Flores later told Scott about a letter, dated March 1,

2003, written by Castillo to Garcia. According to Scott, the letter indicated

that Castillo had conspired with Garcia and other trustees to move Flores into

the dean of student services position so that she would not be considered for

the position of president of Southeast College. The same year, Castillo was

accused of inappropriately using HCCS funds and resources to aid Herlinda

Garcia in her bid for re-election to the HCCS board of trustees. Castillo was

investigated by the Harris County District Attorney = s Office for abuse of official

capacity and tampering with a government record. On May 14, 2004, Scott made a

verbal complaint to the Human Resources department at HCCS, complaining that

(1) Castillo was inappropriately criticizing Scott = s staff and (2) Castillo = s negative attitude towards Flores

and Flores = staff was likely the result of Castillo = s continuing effort to remove

Flores. Scott also told HR about the contents of the Castillo letter because

she believed that Castillo had abused her official capacity and continued to do

so. The same month, the Harris County District Attorney = s Office closed its investigation

with no criminal charges filed.

On June

14, 2004, Scott filed her first written grievance alleging that she was the

subject of retaliation by Castillo due to her previous May 2004 complaint to

Human Resources. Scott further alleged that her husband, Looper, became a

target of retaliation when he was terminated from his position with Project

GRAD. Project GRAD is a non-profit organization that works with HCCS on

various academic summer programs. Scott also complained that Castillo

published two libelous letters about Looper and his work with Project GRAD. On

the same day, Scott filed a second grievance requesting A relief from the retaliatory

environment @ created by the Flores-Castillo lawsuit.

In June

2004, Flores took a medical leave of absence. The following month, Reynaldo

Garay was appointed interim assistant dean of student development while Flores

was on leave. Scott expressed her disagreement with Garay = s appointment; Scott believed she

should have been appointed into the position because Garay was her

subordinate. On June 28, 2004, Scott filed a third grievance, alleging that

Castillo retaliated against her by giving her less prestigious assignments and

purposefully undermining her authority.

On

September 15, 2004, Looper and Scott filed suit against HCCS, Leslie, and

Castillo for breach of contract, defamation, intentional infliction of

emotional distress, tortious interference, and violations under the Texas

Whistleblower Act ( A TWA @ ). The following month, a confrontation erupted between

Castillo and Scott wherein Castillo filed a criminal complaint against Scott to

the HCCS police. On November 17, 2004, Scott filed a fourth grievance complaining

about Castillo = s continuing retaliation, including the HCCS police report.

In

November 2004, Orfelina Garza was appointed president of Southeast College.

Castillo was reassigned to an administrative position at another HCCS college

and Flores resigned. On December 7, 2004, Scott filed a fifth grievance

complaining that during Castillo = s term as interim president at

Southeast College, Scott was improperly passed over twice for the assistant

dean of student development position.

Southeast

College began its selection process for the permanent assistant dean of student

development position the following year. Scott was on the interview screening

committee. On June 8, 2005, Scott informed the screening committee chair that

Garay had falsified information on his application for the assistant dean

position; namely, that he had previously served as an interim assistant dean.

Scott was later removed from the screening committee. [2]

On August 2, 2005, Scott filed a sixth grievance complaining that she was

improperly removed from the screening committee due to Garay = s false allegations. Scott also

reported to the Harris County District Attorney = s Office that Garay had falsified

information on his application. In November 2005, Garay became the dean of

Southeast College. In January 2006, Scott resigned from HCCS.

In 2006,

Looper and Scott amended their suit and added Garay, Castillo and Leslie as

defendants. Scott asserted (1) claims for TWA violations against HCCS,

Castillo, Leslie, and Garay; (2) defamation claims against Castillo, Leslie,

and. Garay; (3) intentional infliction of emotional distress claims against

Castillo, Leslie, and Garay; and (4) a negligent hiring and retention claim

against Leslie. Looper asserts a (2) breach of contract claim against HCCS,

(2) defamation claim against Castillo, and (3) tortious interference claims

against Castillo and Leslie. Garay = s first motion for summary judgment

was denied. Subsequently, appellees filed traditional and no-evidence motions

for summary judgment. The trial court granted each motion for summary

judgment.

Appellants

raise five issues for review, arguing that the trial court erred in granting

appellees = motions for summary judgment because (1) appellants raised genuine

issues of fact as to one or more of the essential elements of their breach of

contract and tort claims; (2) appellees failed to establish immunity; (3) Scott

raised fact issues as to her TWA claim; (4) Scott = s constructive discharge claim meets

the requirements of section 554.005 of the TWA; and (5) the trial court has

jurisdiction over Scott = s TWA claims against Garay.

II. STANDARD OF REVIEW

We

review a grant of summary judgment under a de novo standard. Valence

Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005), and where the

trial court grants the judgment without specifying the grounds, we affirm the

summary judgment if any of the grounds presented are meritorious. FM Props.

Operating Co. v. City of Austin , 22 S.W.3d 868 , 872 B 73 (Tex. 2000). Here, appellees

moved for summary judgment on both traditional and no-evidence grounds.

When

reviewing a traditional summary judgment, we determine whether the summary

judgment proof establishes, as a matter of law, that there is no genuine issue

of fact on one or more of the essential elements of the plaintiff = s causes of action or each element of

the affirmative defense. T ex. R. Civ.

P. 166a(c); American Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 425

(Tex. 1997); Nixon v. Mr. Property Mgmt. Co. , 690 S.W.2d 546 , 548 B 49 (Tex. 1985); Gibbs v. General

Motors Corp ., 450 S.W.2d 827, 828 (Tex. 1970). We take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and

resolve any doubts in the nonmovant = s favor. Joe v. Two Thirty Nine

Joint Venture , 145 S.W.3d 150, 157 (Tex. 2004).

In a no‑evidence

motion for summary judgment, the movant represents that there is no evidence of

one or more essential elements of the claims for which the nonmovant bears the

burden of proof at trial. T ex. R. Civ.

P. 166a(i); Green v. Lowe = s Home Ctrs., Inc. , 199 S.W.3d 514, 518 (Tex. App. C Houston [1st Dist.] 2006, pet. denied).

Such

a motion asserts there is no evidence of one or more essential elements of

claims upon which the opposing party would have the burden of proof at trial.

Unlike a movant for a traditional summary judgment, a movant for a no-evidence

summary judgment does not bear the burden of establishing a right to judgment

by proving each claim or defense. A no-evidence summary judgment is

essentially a pretrial directed verdict, to which we apply the same legal

sufficiency standard of review. A no-evidence summary judgment is properly

granted if the nonmovant fails to produce more than a scintilla of probative

evidence raising a genuine issue of fact as to an essential element of a claim

on which the nonmovant would have the burden of proof at trial. Lake

Charles Harbor and Terminal Dist. v. Bd. of Trustees of Galveston Wharves ,

62 S.W.3d 237, 241 (Tex. App. C Houston [14th Dist.] 2001, pet. denied).

We must sustain a no‑evidence summary judgment when (1) there is a complete

absence of evidence of a vital fact, (2) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence conclusively establishes the opposite of a vital

fact. Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex.

1997). Less than a scintilla of evidence exists when the 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 742, 751 (Tex. 2003).

III.

APPELLANTS = TORT AND BREACH OF CONTRACT CLAIMS

In their

first two issues, appellants claim that the trial court erred in granting

appellees = motions for summary judgment on (1) Looper = s breach of contract claim against

HCCS, (2) Looper = s defamation claim against Castillo, (3) Scott = s defamation claims against Leslie,

Garay, and Castillo, (4) Scott = s intentional infliction of emotional distress claims against

Leslie, Garay, and Castillo, and (5) Scott = s negligent hiring and retention

claims against Leslie. Appellants also argue that appellees did not

conclusively prove they are entitled to qualified immunity against these

claims.

A.

Looper = s Breach of Contract Claim

To

prevail on a claim for breach of contract, the plaintiff must establish (1) the

existence of a valid contract, (2) performance or tendered performance by the

plaintiff, (3) breach of the contract by the defendant, and (4) damages

sustained by the plaintiff as a result of the breach. Renteria v. Trevino ,

79 S.W.3d 240, 242 (Tex. App. C Houston [14th Dist.] 2002, no pet.). Looper argues that the

trial court erred in granting summary judgment on his breach of contract claim

because Leslie and Castillo failed to conclusively prove that Looper did not

have a contract with HCCS.

In

February 2004, Looper was hired as an independent contractor by Project GRAD, a

nonprofit organization that works with HCCS on various academic summer

programs. Looper alleges that his independent contractor assignment with

Project GRAD ended in May 2004, at which time he entered into an oral contract

of employment with Castillo to continue as the project director on the same

academic project. Looper bases his breach of contract claim against HCCS on

this alleged oral contract entered into with Castillo.

A junior

college district is a political subdivision of the state. Hander v. San

Jacinto Junior College , 519 F.2d 273, 279 (5th Cir. 1975). For the acts of

the governmental body to be valid, it must act as a body. Thermo Prods. Co.

v. Chilton Indep. Sch. Dist. , 647 S.W.2d 726, 732 (Tex. App. C Waco 1983, writ ref = d n.r.e.). Don Washington of the

HCCS Human Resources Department testified that individual employees, including

college presidents and deans, do not have the authority to extend offers of

employment to prospective employees; only the Chancellor or his designee has

the authority to communicate an offer of employment. Castillo was the interim

president at Southeast College at the time she allegedly entered into this oral

contract with Looper. Castillo = s alleged oral agreement with Looper is not enforceable

because, as a matter of law, Castillo could not bind HCCS; only the board of

trustees = actions can bind HCCS. See

Mosely v. Houston Community College Sys. , 951 F.Supp. 1279, 1289 (S.D. Tex.

1996) ( A Plaintiff's claims that oral promises

were made regarding the length of her employment or duties cannot bind the

Defendants, since only Board of Trustees = action can bind HCCS. @ ). Thus, any alleged oral promise

that Looper would be director of the Project GRAD program by Castillo cannot

form the basis of a contract binding HCCS. See id .

Viewing

the record in the light most favorable to Looper, we find that he failed to

raise a genuine issue of material fact that he had a valid contract with HCCS.

Furthermore, Looper failed to produce more than a scintilla of evidence

demonstrating he had an enforceable contract with HCCS. Because

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 in favor of

HCCS on Looper = s breach of contract claim.

B.

Appellants = Tort Claims

Appellants

further assert various tort claims against appellees and argue that appellees

are not entitled to immunity. As for HCCS, it is entitled to sovereign

immunity from tort liability except in claims arising from an injury caused by

an employee = s use of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.051 (Vernon 2005). Because

appellants do not assert any tort claims involving motor vehicles, HCCS is

immune from appellants = tort claims. See id .

The

remaining individual appellees argue that they are immune under the doctrine of

official immunity. Official immunity is an affirmative defense that protects

government employees, in their individual capacities, from liability related to

(1) the performance of discretionary duties, (2) within the scope of the

employee = s authority, (3) if the employee acts

in good faith. City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex.

1994); Govant v. Houston Community College Sys. , 72 S.W.3d 69, 74 (Tex.

App. C Houston [14th Dist.] 2002, no pet.).

Ministerial acts, as opposed to discretionary acts, are those where the law

prescribes and defines the duties to be performed with such precision and

certainty as to leave nothing to the exercise of discretion or judgment. Downing

v. Brown , 935 S.W.2d 112, 114 (Tex. 1996). If, however, an action involves

personal deliberation, decision, and judgment, it is discretionary. Id .

To meet the second element, within the scope of the employee = s authority, the official = s act must be one wherein the

employee is discharging the duties generally assigned to him or her. Chambers ,

883 S.W.2d at 658 . In determining the last element of good faith, we apply an

objective standard and must determine whether a reasonably prudent official,

under the same or similar circumstances, could have believed that his conduct

was justified based on the information he possessed when the conduct occurred.

Id . at 656; see also Joe , 145 S.W.3d at 164 . The standard of

good faith as an element of common‑law official immunity is not a test of

carelessness or negligence, or a measure of an official = s motivation. Id .

Additionally, this test of good faith does not inquire into A what a reasonable person would have

done, @ but into A what a reasonable person could have

believed. @ Ballantyne v. Champion Builders, Inc. , 144 S.W.3d 417, 426 (Tex.

2004). It does not require the official to show that all reasonably prudent

officials would have made the same decision; rather, the official must show

only that a reasonable person, possessing the same information he had at the

time, could have believed his conduct was lawful. Chambers , 883 S.W.2d

at 656 ; Bowles v. Yeganeh , 84 S.W.3d 252, 254 (Tex. App. C Dallas 2002, no pet.).

Because

official immunity is an affirmative defense, the burden is upon the movant to

establish each element of the defense. Grinnell , 951 S.W.2d at 425 . If

the movant establishes the defense, then the nonmovant must come forward with

summary judgment evidence to the contrary. City of Houston v. Clear Creek

Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979). We consider whether each

individual appellee has met his or her burden.

Bruce

Leslie

Scott

alleges that Leslie (1) defamed her before the board of trustees, (2)

intentionally inflicted emotional distress by approving the hiring of Garay and

A stonewalling @ Scott = s transfer request, and (3) was

negligent in hiring and retaining Castillo. Appellants do not argue that

Leslie was acting outside the scope of his authority. Therefore, we review the

record to determine whether Leslie established as a matter of law that he was

performing discretionary duties in good faith.

Leslie

states in his affidavit that, as chancellor, he is called upon to make judgment

calls based on information provided to him. Any action taken by Leslie was

discretionary in that no policy or procedure dictated the process or outcome of

his involvement in making these judgment calls. Rather, his actions were the

exercise of his discretion and judgment. [3]

Furthermore, Leslie = s sworn affidavit indicates that he was not involved in any

decision to remove Scott from the screening committee, and he was not aware of

Looper = s applications for employment in 2003

and 2004.

Additionally,

Leslie states that any decisions he made allegedly affecting Scott or Looper

were made in good faith in his capacity as chancellor of HCCS. Leslie states

that he made decisions regarding Project GRAD and Castillo = s assignment based on information

provided to him by senior administrators. When Leslie received Scott = s email communication regarding Garay = s application for dean, he referred

the matter to the Southeast campus administration according to his usual

practice. With regard to the statements made to the board of trustees, Leslie

informed the board of trustees about pending litigation, which his job

description requires. As to Scott = s transfer request, there is no

evidence that Leslie was involved in handling her request in any manner.

Leslie = s affidavit shows that a reasonably

prudent person under the same or similar circumstances could have taken the

same action.

To raise

a fact issue on the issue of good faith, Scott is required to prove that no

reasonable person in Leslie = s position could have thought the facts were such that they

justified his acts. See Chambers , 883 S.W.2d at 657 . In attempting to

controvert Leslie = s showing of good faith, Scott produced an evaluation written

by Leslie of Castillo = s performance as interim president. Leslie = s evaluation shows that, contrary to

Scott = s assertion, Leslie supervised

Castillo and reprimanded her for inappropriate acts regarding a member of the

board of trustees. Viewing the summary judgment record in the light most

favorable to Scott, we find that Leslie established official immunity from

Scott = s tort claims. Furthermore,

appellees failed to present more than a scintilla of evidence showing that

Leslie = s acts were not discretionary and

that he did not act in good faith. Accordingly, the trial court did not err in

granting summary judgment in favor of Leslie on appellees = tort claims.

Reynaldo

Garay

Scott

alleged that Garay defamed her and intentionally inflicted emotional distress

by writing a memorandum to one of Scott = s supervisors and an email to

Flores. While Garay = s application for dean was pending before the screening

committee, Scott, a member of the committee, confronted Garay about rumors she

had heard regarding her leadership and department. Garay reported that Scott

told him she was A going to find it difficult to support [Garay] unless [Garay]

supported her. @ Because of this conflict between Garay and a member of the screening

committee, Garay reported the confrontation to the chair of the committee,

Irene Porcarello. Scott admitted that she had previously signed a petition to

have Garay removed as chair of the counseling department, and that she felt she

had a right to talk to Garay about her belief that he was spreading rumors

about her. However, Scott denied that she talked with Garay about the dean

position or that she told him she would have difficulty supporting him.

Scott

also complains of an email Garay sent to Flores in response to Scott = s accusation that he falsified his

application for dean. In the email, Garay reported that he was encountering

problems similar to those Flores encountered with A a group of counseling staff. @ Garay also expressed his concern

that Scott was on the screening committee for the purpose of blocking

consideration of himself for the dean position. Garay defended his decision to

list his experience as interim dean on his application, and told Flores that

Scott was removed from the screening committee because of her previous

confrontation with him. Garay listed several events that he described as A behind-your-back tactics @ designed by Scott to prevent him

from being offered the dean position.

In his

sworn affidavit, Garay indicates that his statements in response to Scott = s allegations were in the scope of

his authority, were discretionary, and were made in good faith. Garay = s job description indicates that he

was to supervise student counseling services and evaluate personnel in the

student services and community development department. As such, in supervising

and evaluating Scott, Garay was acting in the scope of his employment with

HCCS. Further, Garay states that no policy or procedure directed his actions

to the degree that they became ministerial. Ministerial actions require

obedience to orders or the performance of a duty as to which the actor has no

choice. Downing , 935 S.W.2d at 114 . Garay = s choice of words in his memorandum

and email communication involved personal deliberation, and was not directed by

policy.

Garay

further established as a matter of law that his actions were taken in good

faith. When Garay wrote the memorandum and the email, he had reason to believe

that his interests had been unlawfully invaded by another person, and he was

entitled to respond in an appropriate manner. See Chambers , 883 S.W.2d

at 656 .

Nothing in the record reflects that Garay = s statements were

defamatory or so extreme and outrageous as to evidence an intent to inflict

emotional distress. Scott alleges that A Garay = s actions were

intentionally made to harm, > clobber, = and punish

[Scott] for her whistleblower report. @ However, Scott

has not shown that a reasonable person in similar circumstances would have

believed his actions were unlawful. As to each of the statements alleged by

Scott, Garay presented sufficient summary judgment proof that a reasonable

person in his position could have believed he was entitled, even obligated, to

make such statements. Viewing

the record in the light most favorable to Scott, we find that Garay established

official immunity from Scott = s tort claims. Furthermore, appellees failed to produce more

than a scintilla of evidence demonstrating that Garay = s acts were not discretionary, not

within the scope of his authority, or not made in good faith. Thus, the trial

court did not err in granting summary judgment in favor of Garay on Scott = s tort claims.

Diana

Castillo

In this

appeal, Scott alleges Castillo defamed her by publishing an incident report

made to the HCCS police. The incident report was the result of a verbal

argument between Scott and Castillo. The confrontation was initiated by Scott

when she accused Castillo of undermining her relationship with Garza, the new

Southeast College president. Castillo felt threatened by Scott = s confrontation and felt she needed

to file a criminal report. Scott contends that Castillo A outrageously published a malicious

and frivolous @ police report to Scott = s supervisors and HCCS associates.

First,

Castillo = s actions were discretionary, not

ministerial. No policy or procedure directed Castillo to report or not to

report such incidents to the police. Castillo = s act of reporting the incident was

one in which she used her judgment and discretion. See Downing , 935

S.W.2d at 114 . Second, Castillo = s action in reporting the

confrontation with Scott was within the scope of her authority. During the

time of these events, Castillo was the interim president of Southeast College.

As interim president, she was the top administrator and the ultimate

decision-maker at the college level regarding employment offers, terminations,

budgetary matters, operations, human relations, procurement, and risk

management. Because Scott was under Castillo = s supervision at the time of these

events, Castillo was acting within the scope of her employment when she

reported Scott = s actions to the HCCS police. See Chambers , 883 S.W.2d at

658 (holding that an official acts within the scope of her authority if she is

discharging the duties generally assigned to her).

Lastly,

the record reflects that Castillo made the police report in good faith.

According to her affidavit, Castillo filed the report because she felt

physically threatened by Scott. A reasonable person in Castillo = s position could have believed that

it was necessary to report Scott = s actions to the campus police. See

McCartney , 50 S.W.3d at 611. Other than alleging that Castillo filed the

claim in A bad faith, @ Scott presented no summary judgment evidence to show that a

reasonably prudent person in similar circumstances would have believed Castillo = s actions were unlawful. Id .

Scott = s unsubstantiated belief that the

report was made in bad faith is less than a scintilla of evidence because it is

so weak as to do no more than create a mere surmise or suspicion of fact. See

Chapman , 188 S.W.3d at 751.

Appellees

further allege that Castillo defamed Looper and intentionally inflicted

emotional distress upon Scott by writing a memorandum pertaining to Looper and

his work with Project GRAD. In this memorandum, Castillo specifically requests

that Looper stop performing any work on behalf of HCCS because he was not

authorized to do so. Castillo told Looper that he did not have a signed

agreement with either Project GRAD or HCCS. Castillo stated that she had been

contacted by representatives of Project GRAD informing her of Looper = s continuing to act as a

representative of HCCS; she reminded Looper that he was not an HCCS

representative. Castillo requested, for the third time, that he stop

contacting Project GRAD.

Castillo

presented competent evidence that her acts were discretionary; the statements

made in the memorandum and the decision to communicate the information with

Looper were not controlled by HCCS policy or procedure. Castillo presented

evidence that she was responsible for the successful execution of Project GRAD

and, therefore, was acting within the scope of her authority. Further, nothing

in the record reflects that the memorandum was so extreme and outrageous as to

evidence an intent to inflict emotional distress. Castillo = s memorandum to Looper was not the

result of bad faith. A reasonable person in Castillo = s circumstances could have believed

that it was necessary to confirm in writing her requests that Looper stop

representing himself as an employee of HCCS or Project GRAD. Viewing the

summary judgment record in the light most favorable to Scott, we find that

Castillo established official immunity from Scott = s tort claims. [4]

See McCartney , 50 S.W.3d at 611. Furthermore, appellees failed to produce

more than a scintilla of evidence demonstrating that Castillo = s acts were not discretionary, not

within the scope of her authority, or not made in good faith.

Having

shown as a matter of law that Leslie, Garay, and Castillo performed

discretionary duties in good faith and within the scope of their authority,

they were each entitled to official immunity on appellants = tort claims. Therefore, the trial

court did not err in granting summary judgment. Appellants = first and second issues are

overruled.

IV. SCOTT = S TWA CLAIMS

In

appellants = third, fourth and fifth issues, they argue that the trial court erred in

granting summary judgment against Scott = s TWA claims. Scott filed TWA claims

against HCCS, Leslie, and Garay, arguing that she suffered retaliation for (1)

disclosing to HCCS the contents of the Castillo letter demonstrating that

Castillo was abusing her official capacity and (2) reporting to the Harris

County District Attorney = s Office that Garay falsified information on his job application.

To establish a Whistleblower claim, Scott must produce competent summary

judgement evidence that: (1) she was a public employee; (2) she made a report;

(3) in good faith; (4) of a violation of law; (5) to an appropriate law

enforcement authority; and (6) she suffered an adverse employment action

because of making the report. Texas Dept. Of Human Services of the State of

Texas v. Hinds , 904 S.W.2d 629 , 632 B 33 (Tex. 1995). Appellees = summary judgment motions contest

whether Scott = s report was made to an appropriate law enforcement authority and whether

the report was made in good faith.

Under

the Act, an appropriate law enforcement authority is a governmental entity

authorized to A regulate under or enforce the law alleged to be violated. @ Tex.

Gov = t Code Ann. ' 554.002(b)(1) (Vernon 2004); Texas

Depart. Of Transp. v. Needham , 82 S.W.3d 314, 320 (Tex. 2002).

Alternatively, an appropriate law enforcement authority is a governmental

entity authorized to A investigate or prosecute a violation of criminal law. @ Tex.

Gov = t Code Ann. ' 554.002(b)(1); Needham , 82

S.W.3d at 319 . It is not enough that a governmental entity has general

authority to regulate, to enforce, to investigate, or to prosecute. Needham ,

82 S.W.3d at 319 . Rather, the governmental entity must be authorized either to

(1) regulate under or to enforce A the law alleged to be violated @ or (2) investigate or to prosecute A a violation of criminal law. @ Id . at 320. The particular

law the public employee reported is critical to the determination. Id .

Thus, we must determine whether HCCS had the authority to regulate under, to

enforce, to investigate, or to prosecute the reported violations of abuse of

official capacity and tampering with a government record under the Texas Penal

Code. Id .

After

analyzing the reported violation of law, abuse of official capacity and

tampering with a government document, we conclude that HCCS was not an

appropriate law enforcement authority. HCCS has no authority to regulate under

or enforce these Texas criminal offenses. Nor does it have the authority to

investigate or prosecute these criminal laws. See Tex. Gov = t Code Ann. ' 554.002(b)(2). Accordingly, we hold

that, as a matter of law, HCCS is not an appropriate law enforcement authority

under section 554.002(b)(2) for a public employee to report another employee = s violation of Texas = s criminal offenses of abuse of

official capacity and tampering with a government document.

However,

our conclusion that HCCS is not a governmental entity authorized to regulate

under, enforce, investigate, or prosecute Texas = s criminal offenses of abuse of

official capacity and tampering with a government document does not end our

inquiry. Scott may still obtain TWA protection if she in good faith believed

that HCCS was an appropriate law enforcement authority as the statute defines

the term. See Tex. Gov = t Code Ann. ' 554.002(b). A Good faith @ means that (1) the employee believed

the governmental entity was authorized to (a) regulate under or enforce the

law alleged to be violated in the report, or (b) investigate or prosecute a

violation of criminal law and (2) the employee = s belief was reasonable in light of

the employee = s training and experience. Wichita County v. Hart , 917 S.W.2d

779, 784 (Tex. 1996); Needham , 82 S.W.3d at 321 . Accordingly, we must determine

if, under the Hart test, there is any evidence to support the conclusion

that Scott had a good faith belief that she reported the alleged acts of abuse

of official capacity and tampering with a government document to the

appropriate law enforcement authority. Needham , 82 S.W.2d at 321.

Scott is

an educated woman who testified she knew that the Human Resources generalist

did not have authority to prosecute a crime. Additionally, Scott was well

aware that the Harris County District Attorney = s Office was conducting a criminal

investigation against Castillo for abuse of official capacity, the very act

that Scott reported to HCCS. It is not reasonable for a prudent person in

similar circumstances to believe HCCS = s Human Resources department could

investigate or enforce criminal allegations of abuse of official capacity and

tampering with a government document. There is insufficient evidence to

support the contention that Scott had a good faith belief that HCCS was an

appropriate law enforcement authority under the TWA to report Castillo = s alleged criminal acts of abuse of

official capacity and tampering with a government document.

Next, Scott

alleges that she suffered retaliation and was constructively discharged for

reporting to the Harris County District Attorney = s Office that Garay falsified

information on his job application. In its summary judgment motion, appellees

argue (1) the trial court lacked jurisdiction to hear this particular claim

because appellee failed to timely initiate HCCS = s grievance procedure within 90 days;

(2) Scott did not make this report in good faith; and (3) Scott did not suffer

any adverse personnel action for making such report.

The TWA

requires that an employee initiate a grievance using the employer = s grievance procedure within 90 days

of the violation. If the employee fails to file such a grievance, then her

claims are jurisdictionally barred. See Tex. Gov = t Code Ann. ' 311.034 (Vernon 2005); Univ. of

Houston v. Barth , 178 S.W.3d 157, 163 (Tex. App. C Houston [1st Dist.] 2005, no pet.).

The record contains no evidence that Scott initiated a grievance using HCCS = s grievance procedure with respect to

her constructive discharge claim. Texas courts have uniformly held that when

an employer maintains a specific grievance procedure, the employee must utilize

the procedure. See Montgomery County Hosp. v. Smith , 181 S.W.3d 844,

853 (Tex. App. C Beaumont 2005, no pet.). The record clearly demonstrates that Scott was

aware of HCCS = s grievance procedure and knew how to file a grievance because she had

previously filed several grievances through the same process. Instead of

filing a grievance, as she did in the past for each incident of alleged

retaliation, Scott simply resigned without more. As a result, the trial court

did not have jurisdiction over Scott = s TWA claim regarding her alleged

constructive discharge.

Furthermore,

it is well settled among Texas courts that the TWA does not create a cause a action

against individual employees of a governmental entity, such as Leslie and

Garay. See Austin v. HealthTrust, Inc.-The Hospital Co. , 967 S.W.2d 400

(Tex. 1998) (declined to recognize a A private whistleblower @ cause of action); Alejandro v.

Robstown Indep. Sch. Dist ., 131 S.W.3d 663 , 668 B 69 (Tex. App. C Corpus Christi 2004, no pet.) (upheld

the district court = s grant of a directed verdict on the plaintiff = s claims against the individual

defendants because there was no privated right of action against the officials

in their individual capacities). Therefore, the trial court did not abuse its

discretion in granting summary judgment in favor of Leslie and Garay on Scott = s TWA claims. We overrule appellants = third, fourth and fifth issues.

The judgment of the trial court is affirmed. [5]

/s/ Adele

Hedges

Chief

Justice

Judgment rendered and Memorandum

Opinion filed November 29, 2007.

Panel consists of Chief Justice

Hedges, Justice Frost, and Senior Justice Hudson.* (Hudson, J. concurring in

the result only).

* Senior Justice J. Harvey Hudson

sitting by assignment.

[1] See Castillo v. Flores , No. 01-05-00760-CV,

2006 WL 4888609 (Tex. App. C Houston [1st

Dist.] Mar. 2, 2006, no pet.) (mem. op.). In this lawsuit, Flores alleged,

among other things, that Castillo had defamed her, harassed her, and retaliated

against her to halt Flores = candidacy for

the interim president position at Southeast College.

[2] The parties dispute the reason for Scott = s removal. Scott alleges she was removed from the

committee because she revealed that Garay had falsified information on his

application while appellees contend that she was removed for improperly

confronting Garay about his candidacy.

[3] Scott asserts that because she filed a claim under

the TWA, the actions of each appellee are ministerial rather than

discretionary. However, it is well settled under Texas law that individuals,

as opposed to government entities, are not covered by the TWA. See Austin

v. HealthTrust, Inc.- The Hospital Co. , 967 S.W.2d 400 (declined to

recognize a A private whistleblower @ cause of action); Alejandro v. Robstown Indep. Sch. Dist ., 131

S.W.3d 663 , 66 B 69 (Tex. App. C Corpus

Christi 2004, no pet.) (upheld the district court = s grant of a directed verdict on the plaintiff = s claims against the individual defendants because

there was no private right of action against the officials in their individual

capacities). Therefore, the TWA does not categorize Leslie = s, Castillo = s,

or Garay = s duties as either ministerial or discretionary.

[4] Castillo also argues that she established the

complete defense of truth regarding Scott = s

defamation claim arising from the incident report. However, since we have held

that Castillo established the affirmative defense of official immunity, we do

not reach this argument.

[5] Appellees filed a cross-point objecting to the trial

court = s refusal to sustain their objections to appellants = summary judgment evidence. Because we have affirmed

the trial court = s judgment, we need not address appellees = cross-point.