## IN THE SUPREME COURT O F TEX AS

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### C A N U T IL L O 

### I N D E P E N D E N T 

### S C H O O L 

### D IS T R IC T 

### , P E T IT IO N E R 

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### Y U S U F 

### E L IA S 

### F A R R A N 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E E I G H T H D I S T R I C T O F T E X A S

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P ER CURIAM Yusuf Fa rra n was employ ed as Ex ecutive Direc tor of Fa cilities and Transpor tation with the Canutillo Independe nt School District. After he was fired, he sued the District for violation of the Tex as W h i s t l eblower Act, T E X . G O V ’ T C O D E § 554.002, and for brea ch of contra ct. Be cause we ag ree with the District that the trial cour t properly g rante d its plea to the j urisdiction, we a ffirm in part a nd reve rse in par

t the judgme nt of the cour t of appe als and dismiss the case

. Acc ording to Fa

rra n’s evidenc e prese nted i n opposition to the plea to the jurisdiction, he observe d employee theft and falsification of time car ds. He also observe d that a contra ctor, Henr y ’s Cesspool Service s, was overpaid, did not dispose of gre ase- trap waste as specifie d in its co n t ra ct, and violated state law regulating the use of g overnme nt funds and city regulations g overning waste disposal. Fa

rra n repor ted these improprieties to the District superin te n d e nt, a ssistant superintende nt, internal auditor, and school board. Some school board trustees wer e displeased with the repor ts, andone trustee told Fa rra n that if he valued his job he should ref rain from making acc usations reg arding the g rea se trap. Even afte r this threat, Fa rra n continued to complain to the superintende nt about the g rea se-tra p issues. In Marc h 2 009, afte r Fa rra n’s internal complaints to the District, the superintende nt questioned Fa

rra n about persona l phone calls he had made to another man. Fa rra n thought the other

man was having an inappropriate relationship with Fa rra n’s wife. The calls were of a threatening nature and we re made by Fa rra n and another Dist rict employ ee. Recording s of t he calls had been sent to the pol ice, but Fa

rra n denied making the calls on school equipment or duringwork hours. Fa rra n was suspended. In May , the board voted to g ive Fa rra n notice of termination for one or more of eig ht specifie d grounds, subject to a due proce ss hear ing. Fa rra n reque sted a hear ing. In J uly , Fa rra n contac ted the FB I reg arding the conduct of Henr y ’s Cesspool Service s. The District beca me

awa re of this repor

t. The due proce ss hear ing occur red in August. The hearing office r deter mined that g ood ca use exis ted for termination and rec ommended that the board’ s initial termination decision be sustained. In September, the board acc epted the hearing office r’s rec ommendation, and Fa rra n was fir ed. The trial court g rante d the District’s plea to the jurisdiction. The court of appea ls held that the trial court err ed in g ranting the plea as it related to Fa rra n’s whistleblower claim that he was fired fo r re p o rt ing financ ial improprieties that violated of the Texas Education Code and Texas Constit ution. The court of a ppeals a g ree d with the trial court that F arr an’s other claims should be dismiss ed. ___ S.W.3d ___.

2The District argues to us that Fa rra n’s complaints to the school board, superintende nts, and internal aud i tor wer e not g ood-fa ith complaints of a violation of law to a “law enfor ceme nt authority” under the Whis tlebl o wer Act. We agree . There is no evidenc e that these officia ls had authority to enfor ce the alleg edly violated laws outside of the institution itself, ag ainst third parties g ener ally

. See Univ. of Houston v. Barth ,

__ _ S

. W

. 3 d ___, ___ (Tex. 2013); Tex. A & M Univ.–Kingsville v. Moreno , 399 S.W .3d 128, 1 30 (Tex. 2013); Univ. of Tex. Sw. Med. Ctr. v. Gentilello , 398 S.W .3d 680, 686 (Tex. 2013). Fa rra n only offe red evidenc e that these school district officia ls wer e responsible for internal compliance with the laws. For example, he asser ted that he repor

ted to the superintende nts beca use he believed those officia ls had authority to “ensur e the District did not pay for service s that wer e not actually provided, and to ensure compliance with the laws.” He believed the laws he ci t ed “author ized the District to regul at e i t s u s e of public funds and to enfor ce all laws by causing the

cessation of vi ol at i o n s o f l aw s committed by the District and its employe es .” He asserted that he believed the District “has a duty to self regulate and self enforce the laws he alleg ed wer e violated, and for this rea son, he reported the violations t o De fenda nt’s School Boa

rd, S uperintende nts, and Auditor in the g ood faith belief the Def endant was authorized to regulate under or enfor ce the laws, and authorized to investigate a violation of the laws.” He attache d th e Di s t ri ct ’s written policies stating t h at the internal auditor duties included “[a]ssi sting in the investigation of any suspected fra udulent activities withi n the District .” This evidenc e does not support an objective, g ood-fa ith belief tha t the school district officia ls to whom Fa

rra n complained had authority “to enfor ce, investigate, or prosecu t e violations of law 3ag ainst third parties outside of the entity itself” or had “author ity to pro m u l gat e regula tions g overning the conduct of such third parties.” Gentilello , 398 S.W .3d at 686. “Authority of the entity to enfor ce leg al require ments or regulate conduct within the entity itself is insufficient to confe r lawenfor ceme nt authority status” under the W histleblower Ac t. Id. Thus, the pl ea to the j urisdiction

was well-take n, beca

use “lodg ing an internal complaint to an authority whom one understands to be only char g ed with internal compliance , even including investigating and punishing noncompliance , is jurisdictionally

insufficient unde r the Whistleblower Ac t.” Id. at 687. By cross-a

ppeal, Fa rra n makes two arguments not subsumed in the discussion above. First, he arg ues that the court of appea ls err ed in concluding that his repor t to the FB I was a repor

t to a law enfor ceme nt authority that was actionable under t he W histleblower Act. We ag ree with the court of appea ls that this claim fails beca use of a timing problem: there was leg ally insufficient evidenc e that the re port to the FB Icause d Fa rra n’s termination. To establish a Whis tleblower Ac t cl ai m , the plaintiff must show that his repor t to a law enfor ceme nt authority cause d him to suffe r the complained- of adver se personne l action. City of Fort W orth v. Zimlich , 29 S.W .3d 62, 67 (Tex. 2000). “To show causation, a public employee must demonstrate that after

he or she repor

ted a violation of the la

w in g ood faith to an a

ppropriate law enfor ceme nt authority , the employ ee suffe red discrim i n at ory conduct by his or her employ er that

wou l d n ot have occur

red when it did if the employ ee had not repor ted the illega l conduct.” Id. (empha sis added)

. As noted above, and acc ording to Fa rra n, he had alre ady been told, months prior to h i s re port to the FB I , to ref rain from making complaints about the g rea se-tra p contra ctor if he valued his job. He continued to complain, he was suspended, and the board g ave notice of its intent 4to terminate him—all prior to the FB I repor t. To preva il on a theory that the FB I repor t cause d his terminat ion, Fa

rra n would have to show that, but for that repor t, the school district would have chang ed its mind and reta ined him. There is leg ally insufficient evidenc e from which a rea sonable

an d fa i r- m i nded finder of fac t could make such a finding

. See Tex. Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 228 (Tex. 2004) (holding t hat when parties submi t evidenc e at plea to t h e jurisdiction stag e, revie w of the evidenc e g ener ally mirrors the summary judgme nt s t an d ar d ); Goodye ar Tire & Rubber Co. v. Maye s , 236 S.W .3d 754, 755 (Tex. 2007) (“An ap pellate court revie wi n g a s u m m ary judgme nt must consider whether rea sonable and fair- minded jurors could differ in their conclusions in light of all the evidenc e prese nted.”)

. On this reco rd , Fa rra n’s own evidenc e showed that from the ini t i at i o n o f termination proce eding s, prior to the FB I repor t, the District never wave red in its view that Fa rra n should be term inated. Acc ording to Fa rra n’s own petition, t h e s up er i n t endent, months prior to the FB I repor t, had “sought to identify false and prete x tual rea sons to termi n ate Plaintiff’s employ ment.” Fa

rra n argued in his briefing to the trial court that “[t] he minor ac ts for which he was place d on suspension and the subsequent addition of unrelated g rounds for the proposed termination”—a ll occur ring befor e he contac ted the FB I —“ar e evidenc e the District intended to discharg e Mr. Fa rra n based on prete x t from the date [t he superintende nt] suspended him.” Fa rra n was g iven the opportunity persua de the District to chang e its mind at a hear ing, but the eff ort failed. The hear ing office r found g ood cause for his termination and the board proce eded to fire him. Fa rra n himself claimed that at the due proce ss hear ing he was unable to prese nt evidenc e on his whistleblower claims, although the hearing office r addre ssed the g rea se-tra p issues and conclude d that they wer e unrelated to the board’ s initial termination decision. 5Reg ardle ss, the record is devoid of evidenc e that the board would have been p er s u aded to chang e

its mind but for the repor t to the FB I , that the repor t had any inf

luence on the hear ing office r’s

rec ommendation that the initial termination decision be sustained, or that the repor t otherwise play ed a role in the board’ s preliminary or final ter

mination decisions. Fa rra n also argues t hat t he court of appeals erred in co n cl u d i n g that his brea ch of contra ct claim failed beca

use h e d i d not first pursue this claim with the Commi ssioner of Education. We ag ree with the court of appea ls on this issue. Fa rra n’s contra ct claim was based on an employ ment contra ct provision stating that he could only be terminated for cause . School district employ ees like Fa rran , al l egi ng a brea ch of an employ ment contra ct wher e fac ts are in dispute, g ener ally must exhaust administrative reme dies by bring ing an appea l to the Commi ssioner. See T E X . E D U C . C O D E § 7.057(a) (2)( B) (providing for appea l to the Commi ssioner of claims of alleg ed violations of “a provision of a written employ ment contra ct betwee n t he school district and a school district employ ee” ); s ee a l

so Ollie v. Plano Indep. Sch. Dist. , 383 S.W .3d 783, 792 (Tex. App.—Dallas 2012, pet. denied) ; Larsen v. Santa Fe Indep. Sch. Dist. , 296 S.W .3d 118, 128 (Tex. App.—Houston [14t h Dist. ] 2 0 0 9 , p et

. denied) ; Y sleta Indep. Sch. Dist. v. Griego , 170 S.W .3d 792, 795 (Tex. App.—El Paso 2005, pet. denied (citing Mission Indep. Sch. Dist. v. Diserens , 188 S.W .2d 568, 570 (Tex. 1945))) ; Gutierrez v. Laredo Indep. Sch. Dist. , 139 S.W .3d 363, 367 (Tex. App.—San Antonio 2004, no pet.); W

ashington v. Tyler Indep. Sch. Dist. , 932 S.W .2d 686, 688 (Tex. App.—Tyler 1996, no writ). F arr an argues that his contra ct claim did not require exhaustion beca use i t was base d on a Whistl eblower

Act violation. To be sure, the W histleblower Act has i ts own statutory reme dies and proce dures that do not require exhaustion with the Commi ssioner under the Education Code, but 6as explained above, Fa rra n has no cog nizable Whis tleblower Act claim. To the extent he sou gh t relief under a separ ate common-law brea ch of contra ct cause of action, he failed to exhaust administrative re medies. In sum, the t rial court proper ly g rante d the pl ea to the j urisdiction. Ac co rdi ng ly , we gr ant the petition for revie w and, without hear ing oral argument, aff irm in part and reve rse in part the court of appe als’ judg ment and dismiss the case. SeeT E X . R. A P P . P. 59.1.

OP INION DELIVERED: August 30, 2013

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