Opinion issued March 14, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-16-00026-CV
                            ———————————
                        MICHAEL BARNETT, Appellant
                                         V.
                   CITY OF SOUTHSIDE PLACE, Appellee



                    On Appeal from the 151st District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-69569



                                  OPINION

      Appellant, Michael Barnett, appeals from the trial court’s order granting

appellee, City of Southside Place’s plea to the jurisdiction in his suit brought under

the Texas Whistleblower Act. See TEX. GOV’T CODE ANN. §§ 554.001–.010 (West
2012). In three issues, Barnett contends that the trial court erred in granting the

City’s plea because (1) the evidence raises a fact issue regarding whether (a) he

suffered an adverse employment action and (b) the action was because of his report

of the City’s alleged violation of law, and (2) he should have been permitted an

opportunity to conduct additional discovery. We affirm.

                                     Background

      Barnett worked as a detective for the City from approximately March 2013 to

September 2014. During the time period relevant to this appeal, Stephen McCarty

was the City’s Chief of Police.

      In 2014, Barnett told McCarty that he had learned that the City had

implemented an illegal ticket quota practice with its officers.1 On August 15, 2014,

McCarty prepared a written memorandum to the Texas Rangers, summarizing a list

of his grievances against David Moss, the City Manager, including the alleged ticket

quota requirement. On August 16, 2014, Chief McCarty sent an email to Glenn

Patterson, the City Mayor, attaching his August 15 memorandum. On August 18,

2014, Barnett and McCarty met with Texas Ranger Jeff Owls, at which time they




1
      Section 720.002(b)(1) of the Transportation Code provides that “[a] political
      subdivision or an agency of this state may not require or suggest to a peace officer
      . . . that the peace officer is required or expected to issue a predetermined or
      specified number of any type or combination of types of traffic citations within a
      specified period . . . .” TEX. TRANSP. CODE ANN. § 720.002 (West 2011).

                                           2
reported the City’s alleged ticket quota practice and presented McCarty’s August 15

memorandum to him.

      On August 19, 2014, one day after meeting with Owls, Barnett submitted a

letter of resignation to Moss and McCarty with an effective date of September 3,

2014. On August 20, 2014, the City suspended McCarty pending an investigation

into complaints about McCarty’s conduct. On August 31, 2014, Moss sent an

“Inquiry Memo” to department officers requiring them to answer a number of

questions related to allegations of McCarty’s misconduct. In their answers, two

officers alleged that Barnett had encouraged them to leave the City’s employment

on more than one occasion between August 20 and August 30, 2014.

      In an Inquiry Memo dated September 2, 2014, Moss informed Barnett that he

was conducting an internal investigation into the officers’ allegations regarding

Barnett’s alleged misconduct and directed him to answer the written questions and

provide the documentation requested in the memo. The memo stated that the

allegations, if true, constituted insubordination which would warrant Barnett’s

involuntary separation from the City’s employment. In response, Barnet refused to

answer the questions and informed Moss that he was resigning his position with the

City, effective immediately.

      On September 2, 2014, Moss prepared a Notice of Termination letter stating

that Barnett’s employment with the City was terminated for insubordination based

                                        3
on (1) his refusal to comply with Moss’s instructions related to the City’s internal

investigation into his conduct and (2) his suggestion to two other officers that they

resign their employment with the City. On October 23, 2014, the City submitted a

Texas Commission on Law Enforcement (“TCOLE”) “Separation of Licensee (F-

5)” form reflecting that Barnett had been “dishonorably discharged.”           In an

accompanying letter to TCOLE, the City stated that the F-5 form was intended to

amend a previous F-5 form completed by Barnett, and that Barnett had also

completed F-5 documents for two other officers.

      On November 26, 2014, Barnett filed suit against the City alleging that he had

suffered adverse employment actions in retaliation for reporting a violation of law

by the City to McCarty and the Texas Rangers. On November 9, 2015, the City filed

its plea to the jurisdiction, arguing that the trial court lacked subject matter

jurisdiction over Barnett’s whistleblower claim because (1) the City did not take any

adverse personnel action against him; (2) even if it had, there was no evidence that

the adverse employment action was because of his report of the City’s alleged

violation of law; and (3) even if the City knew of his report before his separation

from employment, it had a legitimate basis to terminate his employment based on

his insubordination. On December 14, 2015, the trial court granted the City’s plea

and dismissed Barnett’s whistleblower claim with prejudice.




                                         4
                                         Discussion

       On appeal, Barnett contends that the trial court erred in granting the City’s

plea because the evidence raises a fact issue regarding whether he was suspended,

terminated, or suffered some other adverse personnel action because he reported a

violation of law by the City. He also argues that the trial court erred in ruling on the

City’s plea without permitting him to conduct additional discovery

    A. Plea to the Jurisdiction

       Governmental immunity from suit defeats a trial court’s subject matter

jurisdiction and is therefore properly asserted in a plea to the jurisdiction. See Tex.

Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).

Absent a waiver of governmental immunity, a governmental entity cannot be sued

and a trial court does not have subject matter jurisdiction over an action against the

entity. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).2 Whether

a trial court has subject matter jurisdiction is a question of law. See Tex. Natural

Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). Pleadings

are construed liberally in favor of the pleader, and all factual allegations are accepted

as true. See Miranda, 133 S.W.3d at 227–28.




2
       It is undisputed that the City of Southside Place is a political subdivision of the State
       and, as such, is entitled to governmental immunity unless it has been waived.

                                               5
       A plea to the jurisdiction can be utilized to challenge whether the plaintiff has

met his burden of alleging jurisdictional facts, but it can also raise a challenge to the

existence of jurisdictional facts. See id. at 226–27. Where a plea to the jurisdiction

challenges the existence of jurisdictional facts, as is the case here, the court considers

the relevant evidence submitted by the parties to resolve the jurisdictional issues. Id.

at 227. If the evidence creates a fact question regarding jurisdiction, the trial court

must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id.

at 227–28. On the other hand, if the evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction

as a matter of law. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629,

635 (Tex. 2012).

   B. Texas Whistleblower Act

       Section 554.002(a) of the Government Code provides that “[a] state or local

governmental entity may not suspend or terminate the employment of, or take other

adverse personnel action against, a public employee who in good faith reports a

violation of law by the employing governmental entity or another public employee

to an appropriate law enforcement authority.” TEX. GOV’T CODE § 554.002(a) (West

2014). The Whistleblower Act further provides that “[a] public employee who

alleges a violation of this chapter may sue the employing state or local governmental

entity for the relief provided by this chapter.” Id. § 554.0035 (West 2014).

                                            6
      The Act contains two jurisdictional requirements before its waiver of

governmental immunity takes effect: the plaintiff must (1) be a public employee and

(2) allege a violation of the Act. See State v. Lueck, 290 S.W.3d 876, 881 (Tex.

2009). To allege a violation of the Act, the plaintiff must allege that an adverse

employment action was taken against him because he in good faith reported a

violation of law by the employer or another public employee to an appropriate law

enforcement authority. TEX. GOV’T CODE § 554.002(a); City of S. Houston v.

Rodriguez, 425 S.W.3d 629, 631 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied). The elements of section 554.002(a) can be considered to determine both

jurisdiction and liability. Lueck, 290 S.W.3d at 883.

   C. Analysis

      In its plea and on appeal, the City does not dispute that Barnett is a public

employee, that he made a good faith report that his employer or another public

employee violated the law, or that he made the report to an appropriate law

enforcement authority.    Rather, the City argues that Barnett failed to present

evidence raising a fact question as to whether (1) he suffered an adverse employment

action and (2) the action was because he reported a violation of law.

      Barnett asserts that he suffered adverse employment actions when the City (1)

terminated his employment; (2) drafted a Notice of Termination letter and placed it

in his file; (3) submitted an F-5 form to TCOLE reflecting that he was dishonorably

                                         7
discharged; and (4) falsely accused him of submitting F-5 forms to TCOLE. In

support of his argument that his employment was terminated, Barnett relies on

Moss’s deposition testimony that he fired Barnett, the Notice of Termination letter,

and the City’s letter to TCOLE regarding the amended F-5 form stating that the City

terminated Barnett’s employment on September 2, 2014. Barnett argues that this

evidence demonstrates that the City intended to, and believed it had, fired him.

      However, Barnett’s assertion that his employment was terminated is belied by

his own sworn testimony that he voluntarily resigned before he received the

termination letter. At his deposition, Barnett testified as follows:

      Q:     And your testimony in this case today is that you resigned?

      A:     Uh-huh.

      Q:     Is that yes?

      A:     Yes.

                                               ....

      Q:     Well—your impression as it may be, we know you voluntarily left?

      A:     Yes, I did.

                                         ....

      Q:     Stress, okay. Tell me about your stress, please, as it relates to
             this lawsuit.

      A:     Obviously, it’s going to cause stress if you get a letter in the mail
             saying that you were terminated after you already resigned.

                                           8
                                      ....

      Q:    Were you terminated from the City or discharged from the City?

      A:    No, sir. I received a letter afterwards saying I was discharged.

      Q:    Okay. Is it your testimony that at that time you had already
            resigned from the City?

      A:    Yes, sir.

      Barnett also testified that, on September 2, 2014, when Moss instructed him

to answer written questions and provide requested documentation as part of the

internal investigation into his alleged misconduct, Barnett told him that he had

already resigned and that he no longer considered himself an employee of the City.

Although the termination letter might otherwise qualify as an adverse employment

action under a different set of facts, it does not here because there is undisputed

evidence that Barnett had already resigned his employment with the City. 3

      Barnett also argues that the City’s submission of an F-5 form to TCOLE

reflecting that Barnett was dishonorably discharged, and the City’s statement in its

accompanying letter to TCOLE that Barnett had completed his own F-5 form as well

as F-5 forms for two other officers, constitute adverse employment actions which




3
      At his deposition, Barnett also testified that, other than a written reprimand from
      McCarty in January 2014 for accidentally shooting a Taser in the department, no
      employment action had been taken against him as of the date of his resignation.

                                             9
support his whistleblower claim. These complained-of actions occurred nearly two

months after Barnett resigned his employment with the City.

      Citing the Fifth Circuit’s unpublished opinion in Allen v. Radio One of Texas

II, LLC, Barnett argues that “[t]he Supreme Court has long allowed claims for

retaliation by former employees against former employers for post-employment

adverse employment actions.” 515 F. App’x 295, 302 (5th Cir. 2013). In Robinson

v. Shell Oil Co., upon which the Allen court relies, the United States Supreme Court

construed the term “employees,” as used in section 704(a) of Title VII of the Civil

Rights Act of 1964 (42 U.S.C. §2000e, as amended)4—a statute not at issue here—

to include former employees bringing suit for post-employment actions, noting that

such an interpretation was consistent with the broader context of Title VII and the

primary purpose of section 704(a). See 519 U.S. 337, 346, 117 S. Ct. 843, 849

(1997). Barnett urges us to similarly construe the term “employees” under the Texas

Whistleblower Act to apply to former employees for post-employment actions.

      In Montgomery Co. v. Park, the Texas Supreme Court had to determine what

qualifies as an “adverse” personnel action under the Texas Whistleblower Act, as

the Act provides no definition. 246 S.W.3d 610 (Tex. 2007). The Court noted that


4
      Section 704(a) makes it unlawful “for an employer to discriminate against any of
      his employees or applicants for employment” who have either availed themselves
      of Title VII’s protections or assisted others in doing so. See 78 Stat. 257 (42 U.S.C.
      §2000e–3(a), amended).

                                            10
“[w]hile the Act defines a ‘personnel action’ as ‘an action that affects a public

employee’s compensation, promotion, demotion, transfer, work assignment, or

performance evaluation,’ it does not define ‘adverse.’” Id. at 613. Recognizing that

“[t]he anti-retaliation provision of Title VII and the [Texas] Whistleblower Act serve

similar purposes,”5 the Court adopted the “objective materiality standard” articulated

by the United States Supreme Court in Burlington N. & Sante Fe Ry. Co. v. White,

548 U.S. 53, 126 S. Ct. 2405 (2006), with appropriate modifications.6 Id. at 614.

      Here, by contrast, the term “public employee” is defined by the statute. If a

statute defines a term, a court is bound to construe that term by its statutory definition

only. See Tex. DOT v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (disagreeing with

court of appeals’ analysis as to whether TxDOT was “appropriate law enforcement

authority” under Texas Whistleblower Act because court’s analysis ignored limiting

nature of Legislature’s 1995 amendment to Act that defined “appropriate law


5
      We recognize that Texas courts under certain circumstances look to federal
      interpretation of analogous federal statutes for guidance. For example, Chapter 21
      of the Texas Labor Code, which prohibits unlawful employment practices by an
      employer, states that its express purpose is to “provide for the execution of the
      policies of Title VII of the Civil Rights Act of 1964 and its subsequent
      amendments.” TEX. LAB. CODE ANN. § 21.001(1) (West 2006); see also NME
      Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).
6
      The objective materiality standard requires that a plaintiff “show that a reasonable
      employee would have found the challenged action materially adverse, which in this
      context means it might well have dissuaded a reasonable worker from making or
      supporting a charge of discrimination.” Burlington N. & Sante Fe Ry. Co. v. White,
      548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (internal quotations omitted).

                                           11
enforcement authority,” and in doing so, impermissibly expanded statutory

definition); TEX. GOV’T CODE ANN. § 311.011(b) (West 2011) (“Words and phrases

that have acquired a technical or particular meaning, whether by legislative

definition or otherwise, shall be construed accordingly.”). Under the Whistleblower

Act, a “‘public employee’ means an employee . . . who is paid to perform services

for a state or local governmental entity.” Id. § 554.001(4) (emphasis added). Section

554.002(a) prohibits suspension or termination of the employment of, or other

adverse personnel action against, a public employee who in good faith reports a

violation of law by the employing governmental entity. Id. § 554.002(a). Section

554.001(3) defines a “personnel action” as “an action that affects a public

employee’s compensation, promotion, demotion, transfer, work assignment, or

performance evaluation.”     Id. § 554.001(3).    The Act thus prohibits adverse

personnel actions that affect the benefits flowing from an ongoing employment

relationship. See id. § 554.001(3); 554.002(a).

      Moreover, the Supreme Court’s analysis in Robinson lends further support to

our conclusion that “public employee” under the Whistleblower Act does not apply

to former employees.      There, the Court noted that Title VII’s definition of

“employee” as “an individual employed by an employer” lacks any temporal

qualifier. See 519 U.S. 337, 342, 117 S. Ct. 843, 846 (1997). The Robinson Court

opined:

                                         12
             The argument that the term “employed,” as used in § 701(f), is
             commonly used to mean “[p]erforming work under an employer-
             employee relationship,” begs the question by implicitly reading
             the word “employed” to mean “is employed.” But the word
             “employed” is not so limited in its possible meanings, and could
             just as easily be read to mean “was employed.”

Id. at 342, 117 S. Ct. 847 (emphasis in original). In contrast, the Whistleblower Act

defines “public employee” as “an employee . . . who is paid to perform services for

a state or local governmental entity,” and therefore narrows the definition of the

term. TEX. GOV’T CODE § 554.001(4) (emphasis added).

      We conclude that Barnett has failed to raise a fact issue regarding whether he

was suspended, terminated, or suffered some other adverse personnel action because

he reported a violation of law. Garcia, 372 S.W.3d at 635.7 We overrule Barnett’s

first and second issues.

      In his third issue, Barnett contends that the trial court erred in granting the

City’s plea because he should have been permitted an opportunity to conduct

additional limited discovery.

      On October 30, 2015, Barnett filed a motion for continuance of the February

1, 2016 trial setting and docket control deadlines to allow him time to depose

McCarty who was away on active military engagement and would not be available




7
      Because Barnett failed to present evidence raising a fact question with regard to
      whether he suffered an adverse employment action, we need not consider his
      argument that the City’s actions were “because” of his report to the Texas Rangers.
                                          13
before March 2016. The City filed its plea to the jurisdiction on November 9, 2015,

and set it for hearing on December 12, 2015. On November 23, 2015, the trial court

signed an order resetting the trial date to the two-week period starting February 15,

2016, and extending the discovery period for one month. The order further stated

that all other deadlines remained in place and that the trial court would conduct a

hearing on the City’s plea at its original setting of December 14, 2015. The court

subsequently granted Barnett’s motion to compel the depositions of several City

employees but ordered that the depositions not occur until after the court had ruled

on the City’s plea.

      As a prerequisite to presenting a complaint for appellate review, the record

must show the complaint was made to the trial court by a timely request, objection,

or motion, and that the trial court (1) ruled on the request, objection, or motion, either

expressly or implicitly, or (2) refused to rule, and the complaining party objected to

that refusal. TEX. R. APP. P. 33.1(a). Here, Barnett did not object to the trial court’s

order on his motion for continuance, the hearing date for the City’s plea to the

jurisdiction, or the trial court’s order on his motion to compel. Having failed to do

so, Barnett has not preserved his complaint for our review. TEX. R. APP. P. 33.1;

McKinney Ave. Props. No. 2, Ltd. v. Branch Bank & Trust Co., No. 05-14-00206-

CV, 2015 WL 3549877, at *5 (Tex. App.—Dallas June 5, 2015, no pet.) (mem. op.)

(concluding that where record did not show that trial court ruled, or refused to rule,

                                           14
on plaintiff’s motion to continue summary judgment hearing to allow party to

conduct additional discovery, or that plaintiff objected to refusal, plaintiff failed to

preserve issue for appellate review); Alderson v. Alderson, 352 S.W.3d 875, 879

(Tex. App.—Dallas 2011, pet. denied) (finding party failed to preserve error where

he could not point to anywhere in record showing he objected to or obtained ruling

on trial court’s alleged denial of discovery); see also Miranda, 133 S.W.3d at 229

(“[T]he scheduling of a hearing of a plea to the jurisdiction is left to the discretion

of the trial court, which is in the best position to evaluate the appropriate time frame

for hearing a plea in any particular case.”). Accordingly, we overrule Barnett’s third

issue.

                                      Conclusion

         We affirm the trial court’s order granting the City’s plea to the jurisdiction

and dismissing Barnett’s claims under the Texas Whistleblower Act for want of

jurisdiction.




                                                Russell Lloyd
                                                Justice



                                           15
Panel consists of Justices Keyes, Higley, and Lloyd.

Justice Keyes, dissenting.




                                        16
