Shawn Patton v. Harris County Community Supervision and Corrections Department ( 2005 )

Reversed and Remanded and Memorandum Opinion filed November 23, 2005

Reversed and Remanded and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00683-CV

____________

SHAWN PATTON, Appellant

V.

HARRIS COUNTY COMMUNITY SUPERVISION AND CORRECTIONS DEPARTMENT, Appellee

On Appeal from the 80^th District Court

Harris County, Texas

Trial Court Cause No. 02-37476

M E M O R A N D U M   O P I N I O N

This appeal arises from a final judgment dismissing Shawn Patton=s Texas Whistleblower Act claims against Harris County Community Supervision and Corrections Department (AHCCSCD@).  The final judgment is based on HCCSCD=s plea to the jurisdiction and motions for summary judgment. We reverse and remand.

HCCSCD provides supervision for Harris County probationers pursuant to Chapter 76 of the Texas Government Code.^[1]  It is managed by a board of judges trying criminal cases in Harris County.  HCCSCD=s chief executive officer at the relevant time was Nancy Platt, and Mike Enax was its deputy director.  Patton managed ten community supervision officers (ACSOs@) in HCCSCD=s south region and reported to his branch director, Rogelio Perez. In November of 2001, HCCSCD reorganized, requiring Patton to review his CSOs= cases.  Patton discovered and subsequently sent approximately thirty problematic cases to one district court.  The judge of that court subsequently contacted Platt and asked for an independent audit of cases supervised by the south region.  Another district court made a similar request.  These audits revealed additional noncompliance issues and indicated that Patton had neglected his supervisory duties.  In early March of 2002, Perez spoke with Patton about his performance issues, and Patton accepted responsibility for failing to monitor his CSOs.  Perez recommended, and Enax approved, a Level II disciplinary action plan designed to address Patton=s work deficiencies.  A date was set in June to review Patton=s compliance with this plan.  Patton does not challenge the propriety of Perez=s disciplinary action.

Per the requirements of his disciplinary plan, Patton audited his CSOs= caseloads again, and again discovered problems.  One CSO in particular failed to meet with two probationers for four months, and then falsely reported those cases as being Adirectly@ supervised.^[2]  Patton reported the problems to Perez and was advised he should inform the court with jurisdiction over the cases.  On April 3, 2002, Patton informed the court=s liaison officer and assistant district attorneys of the problems. Within a few days, the judge of that court asked Platt to remove Patton and the CSO from her court team.  On April 25th, the board of judges met with Platt and discussed their dissatisfaction with the level of supervision at HCCSCD.  Platt held a meeting in the south region on May 1st to discuss problems with casework performance, wherein Platt generally stated that people would be held accountable. Patton was terminated immediately after the meeting.  The decision to fire Patton was made by Platt and carried out by Enax.  Perez, Patton=s immediate supervisor, was not a party to the decision and knew of no circumstances justifying termination:  Patton was in compliance with his supervisory duties and disciplinary plan when he was fired.  Four months later, the board of judges entered a Ano confidence@ vote in Platt=s performance, and she resigned.

Patton filed suit against HCCSCD asserting a violation of the Texas Whistleblower Act. Tex. Gov=t Code Ann. '' 554.001B010 (Vernon 2004).  Specifically, Patton alleged Platt was already facing criticism about HCCSCD=s generally poor level of supervision when Patton made his report, which increased the amount of scrutiny Platt faced as HCCSCD=s chief executive officer.  Patton alleges his termination was a ploy by Platt to reassure the judges of her performance and thereby avoid her own termination.  Patton argues that, in his twenty-two years at HCCSCD, no supervisor has ever been fired because of CSO performance problems.  HCCSCD filed a plea to the jurisdiction, a no-evidence motion for summary judgment, and a supplemental motion for summary judgment in response to Patton=s petition.  After considering each of these, the trial judge issued a final judgment dismissing Patton=s Whistleblower claims.  Patton appeals.

HCCSCD=s Plea to the Jurisdiction

A plea to the jurisdictionCthat is, a dilatory plea seeking to defeat a claim without regard to its meritsCmust be addressed by a trial court before litigation may proceed. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  Whether a court has subject matter jurisdiction is a legal question, therefore, a plea to the jurisdiction is reviewed de novo.  Harris County v. Proler, 29 S.W.3d 646, 647 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The trial court must look to the plaintiff=s petition and accept its allegations as true when deciding a plea to the jurisdiction.  Bland Indep. Sch. Dist., 34 S.W.3d at 555.  The court may also consider evidence relevant to resolving jurisdictional issues.  Id. To prevail, the defense must show an incurable jurisdictional defect on the face of the pleadings that deprives the trial court of subject matter jurisdiction.  Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

 HCCSCD claims it is immune to this lawsuit because Patton has not met the Texas Whistleblower Act=s clear procedural prerequisites to filing suit.  Tex. Gov=t Code Ann. '' 554.002B006.  Specifically, HCCSCD argues Patton failed to show he reported a violation of law in good faithCtwo essential elements of a Whistleblower claim.

The Texas Whistleblower Act: (1) creates a cause of action, (2) sets procedural prerequisites for filing suit, and (3) clearly waives sovereign immunity once these requirements are met.  Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex. App.CHouston [1st Dist.] 2002, no pet.).  There are two procedural prerequisites for filing suit under this Act.  A petitioner must: (1) file suit within the appropriate limitations period and (2) initiate the employer=s grievance or appeal procedures before commencing litigation.  Tex. Gov=t Code Ann. '' 554.005B006; Carter, 84 S.W.3d at 792 n.6.  Patton filed suit within the appropriate limitations period. Patton also properly pled that there is no grievance or appeal procedure for terminated employees of HCCSCD or Harris County, and HCCSCD nowhere alleges there is such an administrative mechanism. Patton has, therefore, met the Whistleblower Act=s procedural requirements, and we find that HCCSCD=s sovereign immunity has been waived.^[3]  The trial court erred to the extent it based its final judgment upon HCCSCD=s plea to the jurisdiction.

No-Evidence Motions for Summary Judgment

HCCSCD argues in its no-evidence motions for summary judgment that Patton has produced no evidence to show he, in good faith, reported a violation of law, or that his report caused his termination.^[4]

The purpose of summary judgment is to eliminate patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.  Barrera v. State, 130 S.W.3d 253, 261 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  A no-evidence motion for summary judgment asserts that, after adequate time for discovery has passed, there is legally insufficient evidence of one or more essential elements on which the adverse party has the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  This motion is properly granted if: (1) there is a complete absence of proof of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence of a vital fact, (3) evidence of a vital fact is no more than a scintilla, or (4) evidence conclusively establishes the opposite of a vital fact.  Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 12 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  More than a scintilla of evidence exists if reasonable, fair‑minded people can differ in their conclusions; less than a scintilla exists if the evidence creates only the suspicion of a fact.  Proctor v. White, 155 S.W.3d 438, 442 (Tex. App.CEl Paso 2004, pet. denied).  We view the evidence in a light most favorable to the non‑movant, disregarding all contrary evidence and inferences.  Alaniz, 165 S.W.3d at 12.

Good-Faith Report of a Violation of Law

The Texas Whistleblower Act provides, inter alia, that no state or local governmental entity may fire a public employee who, in good faith, reports another public employee=s violation of law to an appropriate law enforcement agency. Tex. Gov=t Code Ann. ' 554.002(a).  AGood faith@ under the Texas Whistleblower Act means: (1) the employee honestly believed the conduct reported was a violation of law, and (2) the employee=s belief was objectively reasonable in light of his training and experience.  Wichita County v. Hart, 917 S.W.2d 779, 784B86 (Tex. 1996).  The good-faith requirement provides recourse for the well-meaning employee whose report did not amount to an actual violation of law, or who did not report it to the appropriate authorities.  See Tex. Dep=t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002) (explaining employee can recover under Whistleblower Act even if he did not report to appropriate law enforcement agency as long as he had a good-faith belief he was reporting to the appropriate authorities).  Therefore, as long as Patton honestly believed he reported acts that violate a law that does, indeed, exist, and that belief was objectively reasonable in light of his experience, he need not have reported an actual violation of law.  Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642B43 (Tex. App.CCorpus Christi 2001, pet. denied); City of Brenham v. Honerkamp, 950 S.W.2d 760, 763 (Tex. App.CAustin 1997, pet. denied).  The Texas Whistleblower Act defines law to include Aa rule adopted under a statute or ordinance,@ but does not include violations of internal policies that are not promulgated pursuant to statute.  Tex. Gov=t Code Ann. ' 554.001(1)(C); Ruiz v. City of San Antonio, 966 S.W.2d 128, 131 (Tex. App.CSan Antonio 1998, no pet.).

Patton filed an affidavit stating that he discovered violations of the code of ethics for probation officers when one of his CSOs failed to make contact with two probationers for four months and then falsely reported these cases as being directly supervised.^[5]

HCCSCD argues that the code of ethics is not a Alaw@ under the Whistleblower Act.  However, Patton pled the CSO=s conduct violated Chapter 76 of the Texas Government Code, which is clearly a law for Whistleblower purposes.  This chapter requires that every CSO Amust comply with a code of ethics developed by the [Community Justice Assistance Division of the Texas Department of Criminal Justice (CJAD)].@  Tex. Gov=t Code Ann. ' 76.005 (Vernon 2005).^[6]   The code of ethics requires, among other things, that a CSO must provide accurate information to the court for which he or she supervises probationers, and  must Apromptly inform the [c]ourt of any violation of or deviation from the [c]ourt=s instructions and orders.@  Thus, there is a genuine issue of material fact as to whether Patton reported a violation of the code of ethics, which constituted a violation of law.

We next determine whether there is more than a scintilla of evidence that Patton held a good-faith belief that he reported a violation of law.  Generally, when reviewing affidavits filed in opposition to summary judgment motions, the non-movant=s affidavit should be accepted as true, and every reasonable inference should be drawn in favor of the non-movant.  Bates v. Dallas Indep. Sch. Dist., 952 S.W.2d 543, 552 (Tex. App.CDallas 1997, writ denied).  Drawing every reasonable inference in favor of Patton, we hold that Patton has produced more than a scintilla of evidence as to his honest belief that a law was violated when his CSO violated the code of ethics for probation officers.  We also find there is more than a scintilla of evidence to show that Patton=s belief was objectively reasonable in light of his training and experience because: (1) Patton worked at HCCSCD for more than 22 years, (2) he supervised CSOs, (3) his immediate supervisor testified at deposition that CSOs must comply with HCCSCD=s code of ethics and court orders, (4) Patton received professional legal liability training and read publications sent out by CJAD, and (5) he was aware that the department could face liability if a CSO failed to properly supervise probationers (as is required by the code of ethics).  There is a genuine issue of material fact as to whether Patton=s belief was objectively reasonable.  This is especially true since the CSO=s conduct covered up violations of a direct court order and prevented HCCSCD from knowing the status of persons placed on probation. Accordingly, we hold there is sufficient summary judgment evidence that Patton reported a violation of law in good faith.

Causation

HCCSCD also argues Patton produced no evidence of causation.  A Whistleblower claimant must show the employer took retaliatory action because of the employee=s report.  City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000).  Specifically, HCCSCD contends Patton may not claim the statutory presumption establishing causation, and that the whole of Patton=s circumstantial evidence of causation amounts to no evidence at all.^[7]

HCCSCD=s no-evidence motion for summary judgment placed the burden of production on Patton to show legally sufficient evidence to support his Whistleblower claim.^[8]  Tex. R. Civ. P. 166a(i).  Specifically, Patton must provide proof that Platt would not have fired him when she did if it were not for his report of illegal conduct. Patton is not required to show that his report was the Asole cause@ of his termination.  Tex. Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995).  Patton replied with evidence that he was terminated within ninety days of his report, thereby raising a statutory presumption of causation.  HCCSCD agrees that Patton enjoys this presumption, but argues that it has Apresented ample evidence@ to rebut the presumption.

A presumption is a rule of law Aby which the finding of a basic fact gives rise to the existence of the presumed fact, until the presumption is rebutted.@  David Johnson, The Use of Presumptions in Summary Judgment Procedure in Texas and Federal Courts, 54 Baylor L. Rev. 605, 607 (2002) (quoting Hunter v. Palmer, 988 S.W.2d 471, 473 (Tex. App.CHouston [1st Dist.] 1999, no pet.)).  In a traditional motion for summary judgment, the movant has the burden of production and persuasion to show no genuine issue of material fact as to an essential element of the opposition=s claim or defense.  Barrera, 130 S.W.3d at 261.  In traditional motions, a movant mayCand indeed, mustCrebut a presumption applicable to the opponent or else fail on the motion.  See Keck v. Nat=l Union Fire Ins. Co., 20 S.W.3d 692, 699 (Tex. 2000) (finding movant did not maintain its burden of proof to show release agreement was fair and reasonable when it did not rebut presumption of unfairness attaching to contracts between attorneys and their clients).  By filing only a no-evidence motion for summary judgment, HCCSCD not only forced Patton to produce evidence of causation, but also tied its own hands by precluding an evidentiary response to Patton=s production.  See Stewart v. Transit Mix Concrete & Materials, Inc., 988 S.W.2d 252, 255 (Tex. App.CTexarkana 1998, pet. denied) (reversing trial court=s grant of defendant=s no-evidence motion for summary judgment when a fact issue remained as to whether plaintiffs were entitled to a presumption of causation in a failure-to-warn case and stating that, to defeat no-evidence motion, plaintiffs could either present evidence to support causation or rely upon a presumption of causation).  The presumption of causation raised by Patton would, in a trial on the merits, shift the burden to HCCSCD to produce sufficient evidence to justify a contrary finding.  But HCCSCD cannot undertake this burden in the context of a no-evidence motion for summary judgment.  A party may seek summary judgment on no-evidence grounds Awithout presenting summary judgment evidence.@  Tex. R. Civ. P. 166a(i).  HCCSCD may only point out essential elements of Patton=s claim which lack sufficient proof to survive.  Because HCCSCD cannot rebut the presumption raised by Patton, the presumed fact of causation remains and HCCSCD cannot prevail on this argument.^[9]

Even if there were no presumption in this case, we find Patton has produced more than a scintilla of evidence that, but for his report, he would not have been fired when he was.  Circumstantial evidence is sufficient to show a causal link between an employee=s discharge and that employee=s report of illegal activity.  Zimlich, 29 S.W.3d at 69.  Such evidence includes: (1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the employee=s report, (3) failure to adhere to established company policy on employment decisions, (4) discriminatory treatment in comparison to similarly situated employees, and (5) evidence that the reason for the adverse employment action was false.  Id. Patton showed: (1) a temporal connection between his report and termination, (2) disparate treatment between himself and other similarly situated employees, (3) and that Platt appeared to be addressing HCCSCD problems by terminating Patton.  Viewing the evidence in a light most favorable to Patton, we find there is more than a scintilla of evidence to show causation under the Texas Whistleblower Act.  See City of Fort Worth v. Johnson, 105 S.W.3d 154, 168 (Tex. App.CWaco 2003, no pet.) (finding legally sufficient circumstantial evidence to show causation where only one similarly situated employee was treated differently than plaintiff); see also Tomhave v. Oaks Psychiatric Hosp., 82 S.W.3d 381, 386 (Tex. App.CAustin 2002,no pet.), overruled on other grounds by Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) (explaining timing in retaliatory discharge is important and retaliatory discharge may be based on immediacy of termination following report).

Accordingly, we hold the trial court erred in dismissing Patton=s claims based on HCCSCD=s plea to the jurisdiction and no-evidence motions for summary judgment.  We therefore reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

---

^[1]  Probation law is codified in Texas as Acommunity supervision.@  Tex. Code Crim. Proc. Ann. Art. 42.12 (Vernon Supp. 2004B05).

^[2]  Direct supervision requires the CSO to meet face-to-face with the probationer at least once every three months.  HCCSCD receives state funding based on its number of cases that are directly supervised.  No state funds are received for indirect supervision cases.

^[3]  HCCSCD=s argument on the merits that Patton has not proven a good faith report of a violation of law is improper in a plea to jurisdiction.  This is especially true when HCCSCD agrees that Patton properly pled each of the Act=s requisite elements.

^[4]  HCCSCD filed a no-evidence motion for summary judgment and a supplemental motion for summary judgment.  The supplemental motion is argued solely on no-evidence grounds, and we review it together with HCCSCD=s initial no-evidence motion.

^[5]  Although we focus our analysis on Patton=s concern that the code of ethics for probation officers was violated, Patton was also concerned that his CSO violated the Texas Penal Code by falsifying a government document.  Tex. Pen. Code Ann. ' 37.10 (Vernon Supp 2004B05).  While he knew falsifying a government document violated Texas criminal law, Patton was unsure whether the monthly report qualified as a government document for purposes of that statute.

^[6]  CJAD wrote the code, which  Amust be adopted and implemented by every Community Supervision and Corrections Department in this State and by its officers and employees@; HCCSCD reproduces the code of ethics in its human resources manual.

^[7]  If an employee is fired within ninety days of his report, it is presumed under the Whistleblower Act, subject to rebuttal, that causation is establishedCthat the disciplinary action would not have occurred when it did if it were not for the employee=s report.  Tex. Gov=t Code Ann. ' 554.004(a).

^[8]  Patton=s burden is one of production, not of persuasionConce he raises more than a scintilla of evidence to support the elements of his claim challenged by HCCSCD, a court may not grant the no-evidence motion for summary judgment. See Alaniz, 165 S.W.3d at 12.

^[9]  We note that one court of appeals has addressed this issue and refused to consider evidence propounded by a no-evidence summary judgment movant.  Brown v. Big D Transport., Inc., 45 S.W.3d 703, 705 (Tex. App.CEastland 2001, no pet.) (quoting Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App.CEastland 2000, pet. denied).

But see, Cantu v. Texas Workforce Commission, 145 S.W.3d 236, 241 (Tex. App.CAustin 2004, no pet.) (setting out a burden-shifting analysis in reviewing a no-evidence motion for summary judgment and finding appellants did not establish prima facie case necessary to shift burden back to no-evidence summary judgment movant, but also stating it was unnecessary to proceed in the burden-shifting analysis because of this failure).  To the extent Cantu would permit a court of appeals to shift the burden of production between parties to a no-evidence motion for summary judgment, we disagree.

Although Russo v. Smith Int=l, Inc. used a burden-shifting analysis in a summary judgment context,  the motion granted in Russo was a hybrid traditional/no-evidence motion for summary judgment that did not clearly distinguish between the evidence, arguments and authorities supporting each.  93 S.W.3d 428, 433 n.4 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  We therefore distinguish Russo=s analysis from the present case.