*2 KOEHLER, Before LARSEN MeCOLLUM, JJ.
OPINION
KOEHLER, Justice. is primary question recog- the courts of this state should whether of ac- private nize a “whistleblower” Burgess Appel- (Burgess), Russell tion. B. lant, alleging brought against Appellees, suit him wrongfully terminated had employment and discriminated complained learned of and him because he among conspiracy some of the em- about a El Treat- ployees to defraud the Paso Cancer Center, the Cen- theft some of specially excepted property. Appellees ter’s any Burgess’ pleadings for failure to state amend, Upon his refusal to cause of action. prejudice. court his suit with dismissed error, complains single point In a determining erred that the action for an there is no cause of employ- wrongfully terminated from who acts of discrimination ment and suffers other acts of the criminal as a result employees. affirm. We other FACTS
RELEVANT
shortly
petition
Burgess alleged in his
employed in
he was
March
after
by El Paso
Engineering Technician
Senior
(Center), he
Treatment Center
Cancer
conspiracy
learned
among
grounds
some
cial
had failed
(the
employees,
Lyons
Mel
Cen-
causes of action.
administrator),
Lewis, Danny
ter’s then
Pat
STANDARD OF REVIEW
Rojas,
Arp,
being
and Joe
the latter
*3
Special
may
supervisor
Burgess, Lewis,
Rojas,
exceptions
be used
to
to
and
question the sufficiency
plaintiffs
in law of a
by
property.
defraud the Center
theft of its
Lile,
536,
petition. Lara v.
828 S.W.2d
541
employees
He claimed that these
would re-
1992,
(Tex.App. Corpus Christi
writ de
good parts
move
from radiation machines
—
nied);
v.
Centennial Ins. Co.
Commercial
replace
parts.
and
them with defective used
Companies,
479,
Union Ins.
803 S.W.2d
483
Lewis,
He
alleged
Arp,
Rojas
also
that
and
1991,
(Tex.App.
Dist.]
no
[14th
a
— Houston
operating
separate
were
business on Cen-
writ). A trial court
has broad discretion
Burgess,
ter time.
believing
the activi-
special
ruling
exceptions.
Gutierrez v.
conspirators
ties of
proba-
a
“would have
Inc.,
Perry Enterprises,
Karl
874 S.W.2d
by
ble
public,
com-
103,
1994, writ).
(Tex.App.
105
Paso
no
— El
promising the effectiveness of the cancer
review,
ruling
On
the trial court’s
will be
CENTER,”
treatment at the
to
claimed
have
only upon
showing of
reversed
a
abuse of
alleged conspiracy
revealed the
to the con-
McFadden,
discretion.
Fuentes
v.
825
spirators,
managers
and to the directors and
772,
1992,
(Tex.App.
S.W.2d
778
Paso
— El
of the Center.
writ);
Control,
Quality
Davis v.
Pest
641
324,
(Tex.App.
S.W.2d
328
Beginning
September
[14th
1990 and continu-
— Houston
1982,
n.r.e.).
writ
ing
Dist.]
ref 'd
The test to be
involuntary
until
his
termination Octo-
applied
1991,
determining
for
a trial
whether
repeated
ber
Burgess
attempts
made
has abused its discretion
is whether
advise
managerial
and warn directors and
any guiding
court acted without
reference
employees of the Center of what he had
words,
principles,
rules and
or in other
acted
ignored, Burgess
observed. At first
was
arbitrary
and unreasonable manner.
subsequently
subjected
harassed and
to os-
Inc.,
Aquamarine
v.
Operators,
Downer
701
tracism,
jokes,
practical
poor
and
evaluations
238,
(Tex.1985),
denied,
241-42
cert.
S.W.2d
Lewis,
Arp,
at
Rojas.
the hands of
and
After
1159,
2279,
476 U.S.
106
CAUSE OF ACTION act, illegal and where an form an primarily so that an retaliatory has terminated been dis contends to, paying contributing acts, employer can avoid discriminatory charge on the facts from, actionable, although pension fund. benefits alleged, should be Admittedly, neither these pres not S.W.2d at candidly recognizes that Texas does Burgess, it his apply ently of action such al recognize causes that, situation argues that the fact petition. hope He leged in his based contention *4 the gov criteria set forth in protecting statutes his meets the “whistleblower” case report employees, for in Doggett ernmental termination of Winters. concurrence Justice proba a ing theft that “would have internal upon public” the is or
ble adverse effect
concurring
lengthy
opinion
In his
policy.
against public
should be
defining
the
of
“the ele
purpose
written for
employees
action for
who
ments of a cause of
in
longA
established rule
Texas
that
exposing from
employer retaliation for
may
suffer
employment for an indefinite term
be
workplace that have a
within activities in the
at will
without cause. Win
terminated
and
public,”
Co.,
upon the
Publishing
probable adverse effect
v.
ters
Houston Chronicle
(Tex.1990). Winters,
argument
Doggett
persuasive
a
gives
795
723
In
the
Justice
which,
just
a
of action
as
Supreme
summary judg
for
such new cause
Court affirmed a
“carefully
failing
says,
he
must
crafted.” Win
employee
an at-will
for
be
ters,
725,
Dog-
since no court ... has refused to recognize a cause action under circum STANDARD OF REVIEW compelling alleged stances as as those in this The trial court this dismissed ease after case_[where effectiveness of cancer- t]he granting special exceptions defendant’s fighting equipment radiation is a life or death plaintiffs replead petition. failure to his In [,] matter ... we should do so now. We can ” situation, accept pled we as true all facts envision problems some real connected with plaintiffs pleadings determine whether proposed such a cause of action and metic make out City a cause of action. Hubler v. ulously Doggett.5 outlined Justice Not Christi, Corpus only will the of action require careful Civ.App.—Corpus Christi ref'd crafting drafting give also careful em n.r.e.). ployers adequate of what notice can and do, job legislature cannot better left to the CAUSE OF ACTION Although sympathize than to the courts. whistleblowing The cause of action we, Burgess’ plight, with as an intermediate private carefully work environment out court, precedent are bound and are not lined in Doggett’s Justice Winters concur *5 authorized to a new create cause action. rence, years opinion four old. now To occasions, As recently on two stated case, prima make plaintiff out a facie the changes in the common law should'be left to principal must show that the motivation for Legislature Supreme the Texas and our employer employee’s retaliation was the re Gutierrez, 107; Court. 874 S.W.2d at Ama port, public, either internal or of activities dor, 134; see v. Baylor S.W.2d at Hicks within workplace prob the that would have a Center, University Medical public. able Win denied). (Tex.App.—Dallas ters, employee S.W.2d at 732. must today, Under the law it exists (1) the trial two-prong showing good make a faith: its did not abuse discretion in either report employer activity that the in sustaining Appellees’ special exceptions malice, or good spite, faith and not result of dismissing Burgess’ (2) suit for failure to re- jealousy, personal gain; or that the plead. Burgess’ point of error is overruled. employee cause to had reasonable believe the activity would adverse effect on have an The trial order of court’s dismissal is af- public. Id. Actual violation statute is . firmed. necessary, plaintiff not must show: wrongdoing [t]he asserted about which LARSEN, Justice, concurring. complaint is must be made demonstrated Although acknowledge I the Texas to contravene substantial societal concerns Supreme formally not recognized Court has reflected in our and federal constitu- today, action we address here I statutes, judicial tions and decisions and separately it urging write to do so. The sole decisions, regula- administrative rules and question is this whether we should tions, public policy. other statements recognize private whistleblowing cause of recog- action the Court declined to Burgess’ petition Mr. out a makes cause of (“at facts”) nize these this time on Winters action under these criteria. Publishing v. Houston Chronicle (Tex.1990). high recognized Believing pro- It is time this this Texas employees acting public case meets all the elements of the cause of tection for years clearly Doggett’s action Justice interest. In the four since outlined Winters concurrence, empowered legislature if to do so I was decided has would failed act criteria, example, employer good 5. For in a would small what (such office) lawyer reasonably business one or two faith to be as a believed activities that indefinitely whistleblowing probable have to retain would have adverse em- effect on the ployee proposed public? Doggett who meets all of the circum- area. Under these this vital of action is judicially-created cause stances a The cause only appropriate, but critical.
not forth, it clearly set of action has been crafted, comprehend I thoughtfully delay incorporating it reason for further Although into law. I would reverse our it the merits if it case and remand my mandate as an intermediate were within so, judge recognize to do I this is a appellate high For that power given to our court. reason, majority opinion. I concur in the WINKINS,
Thomas Donald E. Cave and Cave, Appellants, Marcella D. Jr., Mytelka, Buckley, Andrew J. John A. Galveston, appellants. INVESTMENTS, FRANK WINTHER *6 Bower, INC., Poole, Douglas Kenneth J. Frederick W. Gautier Galveston Cowen, Galveston, appellees. Partnership, Appellees. Beach Limited David E. No. 01-92-01258-CV. MIRABAL, Before COHEN HEDGES, JJ. Texas, Appeals Court of (1st Dist.). Houston OPINION Aug. 1994. MIRABAL, Justice. Published Part Pursuant take-nothing sum- This is an from a Tex.R.App.P. mary judgment against plaintiffs a suit
alleging and DTPA1 violations. fraud three, through cross-points
In one jurisdic- appeal for want of motion to dismiss tion, lacks appellees assert that this Court to time- jurisdiction appellants failed because appeal. ly perfect their summary judg- Appellants appeal from a The sum- signed on March mary judgment did not become final until the trial court September when nonsuiting appellees’ coun- signed an order Having no motion for new terclaims. filed trial, days appellants had until October appeal. perfect their September TejcBus. (Vernon Supp.1994). § 17 1987 & a Com.Code Ann.