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A Former state university employee brought action for retaliatory discharge under the Whistleblower Act

Gertrud Moreno challenges the plea to the jurisdiction and summary judgment granted in favor of Texas A & M University–Kingsville (TAMUK) on Moreno’s claim for retaliatory discharge under the Texas Whistleblowers Act.  By two issues, Moreno argues that the trial court erred in granting TAMUK’s: (1) motion for summary judgment because Moreno provided sufficient evidence to support all elements of her whistleblower claim; and (2) plea to the jurisdiction because her pleadings affirmatively demonstrated subject-matter jurisdiction.  Moreno v. Texas A & M Univ.-Kingsville, 339 S.W.3d 902 (Tex. App.–Corpus Christi 2011, pet. filed)

Moreno was employed by TAMUK as its Assistant Vice–President for Finance and Administration and Comptroller. Her supervisor was Thomas Saban, TAMUK’s Vice–President of Finance and Administration. In December 2007, Saban asked Moreno to provide him information on the out-of-state tuition waiver available to certain TAMUK employees. Moreno researched the waiver and provided Saban the information from her research. In mid-December 2007, Saban applied for the tuition waiver for his daughter, who was to attend TAMUK in the spring semester of 2008, and paid tuition for his daughter at the Texas-resident rate.

Later in December 2007 and January 2008, Moreno received inquiries from various TAMUK officials regarding Saban’s eligibility for the waiver. The waiver applied only to teachers and professors who were employed at least one-half time with higher education institutions.  Moreno believed that the waiver was available only to faculty members, but ultimately, Moreno and the various officials who were questioning Saban’s eligibility were uncertain whether, as Vice–President of Finance and Administration, Saban fell within that categorization. Nonetheless, Saban was eventually re-classified as a faculty member.

At a conference in early February 2008, Moreno asked officials with the Texas Higher Education Coordinating Board (THECB) if they could clarify what would qualify an employee for the waiver. In response to her question, THECB officials informed Moreno that the work-load of the employee applying for the waiver must be fifty-percent teaching. Based on the THECB’s interpretation, Saban did not qualify for the tuition waiver. Id.

When Moreno returned to work after the conference, she conveyed this information to Saban. Saban became angry because he believed the matter had been resolved months before. He shook his finger in Moreno’s face and asked why she was continuing to involve herself with this matter instead of focusing on her other work. Moreno left Saban’s office. Saban later went to Moreno’s office and apologized for his conduct. Moreno then informed Saban that she would be reporting the tuition issue to Rumaldo Juarez, the President of TAMUK, which she did later that day. Juarez and other TAMUK officials concluded that Saban was not eligible for the waiver, and Saban was required to pay the tuition that had been waived under his earlier application.

On February 29, 2008, Saban, along with representatives from TAMUK human resources, called Moreno to a conference room where she was given the choice of voluntarily resigning or being terminated. Moreno refused to resign, and Saban terminated her employment. Moreno was not given a reason for her termination. Moreno appealed her termination through TAMUK’s grievance process, alleging that her termination was in retaliation for reporting the tuition-waiver issue. She then filed suit and lost.

On appeal, the court found that Moreno produced evidence creating a fact issues as to each element of her whistleblower claim, thus, the trial court erred in granting TAMUK’s plea to the jurisdiction and motion for summary judgment. Consequently, the court of appeals sustained both of Moreno’s issues.  Subsequently, the court reversed the judgment of the trial court granting TAMUK’s plea to the jurisdiction and motion for summary judgment and dismissing Moreno’s whistleblower claim and remanded the case for further proceedings.


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