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Menchaca v. Harris County5/30/2002
Appellant Ramon Menchaca appeals the dismissal of his whistleblower and retaliation claims following the trial court's grant of summary judgment in favor of appellee Harris County. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Ramon Menchaca worked part-time as a fire/arson investigator for the Harris County Fire Marshal's Office for nine years. In August of 1998, he testified in deposition as a fact witness in a lawsuit brought by a former co-worker of Menchaca's against Harris County, the Harris County Fire Marshal's Office, the fire marshal, and the assistant fire marshal. Menchaca contends that his deposition testimony corroborated the co-worker's testimony that the fire marshal and others engaged in illegal and improper activities. In February of 1999, Menchaca began sending anonymous letters to various county officials and personnel alleging that the Fire Marshal's Office was engaging in the following improper activities: falsifying reports; hiring unqualified, unlicensed, or uncredentialed personnel to conduct fire and arson investigations and inspections; and misusing Harris County resources for personal benefit. Menchaca contends that his identity was revealed to some of the recipients, and was eventually discovered by the fire marshal.
On April 20, 1999, the Harris County Commissioner's Court approved the replacement of all part-time fire/arson investigator classifications with full-time classifications. On April 21, Menchaca was told that his part-time position was being "abolished" and that he could apply for one of the full-time positions. Menchaca, who was also a full-time employee of the City of Houston Fire Department, submitted an application, but was not hired. On April 28, he asked the fire marshal why he was not hired, and was told that City of Houston fire fighters "don't fit" because of the rotating shift work.
Menchaca filed suit on July 22, 1999, alleging the following: (1) a whistleblower claim under Texas Government Code Chapter 554, which prohibits a state agency or local government from retaliating against a public employee for reporting violations of law; (2) a claim under Texas Labor Code section 52.051, which prohibits an employer from discharging, disciplining, or penalizing an employee for the employee's compliance with a valid subpoena; and (3) a "failure to hire" claim under Texas Labor Code section 21.051, which prohibits discriminatory employment practices. The trial court granted Harris County a partial summary judgment on all of Menchaca's claims except the failure to hire claim, which Menchaca later nonsuited. The trial court's final order of dismissal was signed on January 31, 2001. This appeal followed.
DISCUSSION AND HOLDINGS
Menchaca presents two issues for review. In the first, he contends that the trial court erred in granting Harris County summary judgment because there was sufficient evidence to support his whistleblower claim. In the second, he contends that there was sufficient evidence to support his allegations that he was fired in retaliation for (1) making good faith reports of violations of law as required to support his whistleblower claim, and (2) for responding to a valid subpoena in the former co-worker's lawsuit. However, because we find that the trial court properly dismissed Menchaca's whistleblower claim as untimely filed, we need not reach the sufficiency of the evidence to support the elements of that claim. Further, because Menchaca presented no evidence that he testified in compliance with a valid subpoena, we find no error in the trial court's dismissal of the Labor Code section 52.051 claim.
Standard of Review
Harris County's motion f
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