Michael Gray v. City of Galveston, Texas ( 2013 )

Reversed and Remanded and Memorandum Opinion filed May 21, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00183-CV
MICHAEL GRAY, Appellant
V.
CITY OF GALVESTON, TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 10-CV-4432
MEMORANDUM OPINION
Michael Gray sued the City of Galveston claiming a violation of the Texas
Whistleblower Act. The Act waives governmental immunity if a governmental
entity takes adverse personnel action against a public employee who in good faith
reports to an appropriate law enforcement authority a violation of law by another
public employee. See TEX. GOV‘T CODE ANN. §§ 554.002, 554.0035 (West 2012).
The City filed a plea to the jurisdiction, and Gray contends the trial court erred by
granting the plea. We reverse and remand.
I. PROCEDURAL BACKGROUND
Gray alleged in his petition that he was a lieutenant in the Galveston Police
Department, serving as Commander of the Office of Professional Standards. He
alleged that he ―witnessed and became aware of criminal conduct by the Chief of
Police of the Galveston Police Department, Charles Wiley.‖ Gray reported
Wiley‘s conduct ―to an appropriate law enforcement agency, the Galveston County
Criminal District Attorney.‖ When Wiley became aware of the report, he
transferred Gray from Gray‘s position as Commander of the Office of Professional
Standards to the ―detective division.‖ Gray alleged, ―This assignment constituted
an adverse action.‖
The City filed a plea to the jurisdiction, arguing that Gray (1) did not make a
good faith report of a violation of law; (2) was not subjected to adverse personnel
action; and (3) did not exhaust administrative remedies under a collective
bargaining agreement. The City attached and referenced excerpts from Gray‘s
deposition and an affidavit from its expert, Michael Dirden. Appellant filed a
response, and the trial court held a hearing. At the hearing, the trial court admitted
into evidence the entire transcript from Gray‘s deposition and two letters that
Wiley had sent to Gray.
The trial court granted the plea, and Gray appealed.
II. ANALYSIS
Gray contends the trial court erred by granting the City‘s plea to the
jurisdiction because he (1) made a good faith report of a violation of law; (2)
suffered an adverse personnel action; and (3) exhausted administrative remedies.
The City responds to the first two arguments but not the third.
2
A. Standard of Review
A court lacks jurisdiction if the government is immune from suit. See City of
Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We review jurisdiction de
novo as a question of law. Id. When reviewing a trial court‘s ruling on a plea to
the jurisdiction, we consider the plaintiff‘s pleadings and relevant evidence,
construing the pleadings liberally in favor of the plaintiff. Id. The pleadings may
not be conclusory and must include sufficient jurisdictional facts to determine if
the trial court has jurisdiction. Id. If the pleadings do not contain sufficient facts
to affirmatively demonstrate the trial court‘s jurisdiction, the plaintiff should be
afforded the opportunity to amend unless the pleadings demonstrate incurable
jurisdictional defects. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004).
If the defendant challenges the existence of jurisdictional facts, the trial
court and this court consider relevant evidence when necessary to resolve
jurisdictional issues. Id. at 227. If the jurisdictional challenge implicates the
merits of the plaintiff‘s case and the evidence creates a fact question, then a court
cannot grant the plea to the jurisdiction. See id. at 227–28. ―[T]his standard
generally mirrors that of a summary judgment.‖ Id. at 228. To survive a plea to
the jurisdiction, a plaintiff is required ―to show that there is a disputed material fact
regarding the jurisdictional issue.‖ Id. We take as true all evidence favorable to
the nonmovant and indulge every reasonable inference and resolve any doubts in
the nonmovant‘s favor. Id.
B. Waiver of Immunity Under the Texas Whistleblower Act
To establish a waiver of governmental immunity under the Texas
Whistleblower Act, a plaintiff must (1) be a public employee; and (2) allege a
violation of the Act. State v. Lueck, 290 S.W.3d 876, 881 (Tex. 2009); see TEX.
3
GOV‘T CODE ANN. § 554.0035. A governmental entity violates the Act if it
―suspend[s] or terminate[s] the employment of, or take[s] 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 ANN. § 554.002(a); see also City of
Elsa, 325 S.W.3d at 625.
The City does not dispute that Gray was a public employee; Wiley was
another public employee; and the district attorney‘s office was an appropriate law
enforcement authority. Thus, we must determine whether Gray‘s pleading or proof
satisfied the requirements that he (1) in good faith reported a violation of law; and
(2) was subjected to an adverse personnel action. We conclude that Gray has
satisfied his burden on a plea to the jurisdiction.
1. Good Faith Report of a Violation of Law
The good faith requirement includes subjective and objective elements. Tex.
Dep’t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002). The subjective
element requires that the employee believes he or she was reporting an actual
violation of law. Id. The objective element requires that ―a reasonably prudent
employee in similar circumstances would have believed that the facts as reported
were a violation of law.‖ Id. The objective element ―must take into account
differences in training and experience‖ of the reporting individual. Wichita Cnty.,
Tex. v. Hart, 917 S.W.2d 779, 785 (Tex. 1996). ―Thus, the reasonableness of a
peace officer‘s belief that a law has been violated will be examined more closely
than will the belief of one in another, non-law enforcement profession.‖ Harris
Cnty. Precinct Four Constable Dep’t v. Grabowski, 922 S.W.2d 954, 956 (Tex.
1996) (finding no evidence of this element because the peace officer believed only
that the other employee violated ―his department‘s internal policies,‖ and he
4
admitted he could think of no law the other employee violated).
―[A]n actual violation of the law is not required by the Whistleblower Act.
The Act requires only a good-faith belief that a violation of law has occurred.‖
City of Elsa, 325 S.W.3d at 627 n.3. An employee‘s ―‗report of an alleged
violation of law may be in good faith even though incorrect . . . as long as a
reasonable person with the employee‘s same level of training and experience
would also have believed that a violation had occurred.‘‖ Mata v. Harris Cnty.,
No. 14-11-00446-CV, 2012 WL 2312707, at *3 (Tex. App.—Houston [14th Dist.]
June 19, 2012, no pet.) (mem. op.) (quoting Town of Flower Mound v. Teague, 111
S.W.3d 742, 753 (Tex. App.—Fort Worth 2003, pet. denied)). Thus, ―‗when an
employee believes and reports in good faith that a violation has occurred, but is
wrong about the legal effect of the facts, he is nevertheless protected by the
whistleblower statute.‘‖ Id. (quoting Tex. Dep’t of Criminal Justice v. McElyea,
239 S.W.3d 842, 850 (Tex. App.—Austin 2007, pet. denied)). There is no
requirement that an employee have ―‗hard evidence to conclusively prove each and
every element of a violation of the [law] prior to qualifying for whistleblower
status.‘‖ Id. (quoting McElyea, 239 S.W.3d at 853). ―[A]n employee must have a
good-faith belief that a law, which in fact exists, was violated.‖ City of Houston v.
Cotton, 171 S.W.3d 541, 547 n.10 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied).
First, we note that Gray‘s petition is conclusory and, therefore, deficient.
Gray does not describe with any supporting facts the ―criminal conduct‖ that he
witnessed and reported to the district attorney‘s office, and he does not identify any
law that Wiley allegedly violated. However, this is not the end of our inquiry on a
plea to the jurisdiction. ―Even though [Gray‘s] pleadings do not sufficiently allege
jurisdictional facts, before his claim is dismissed for want of jurisdiction we will
5
look to the arguments and evidence the parties presented relevant to the existence
of jurisdictional facts.‖ City of Elsa, 325 S.W.3d at 625; see also Cnty. of Bexar v.
Steward, 139 S.W.3d 354, 359 (Tex. App.—San Antonio 2004, no pet.) (―We note
that [the employee‘s] failure to specify in his petition which particular provisions
of the criminal statute the alleged conduct violated does not defeat jurisdiction over
his claim.‖).
Gray testified at his deposition that he reported the crime of ―official
oppression,‖ among other offenses.1 He testified that in September 2010 he
―witnessed Charles Wiley deny or impede the right of Robert Sanderson to his
First Amendment.‖ Sanderson was a police officer with the Galveston Police
Department, and Sanderson told Gray that he intended to speak at a City Council
meeting. Gray explained that Wiley ―removed [Sanderson] from a Galveston City
Council meeting,‖ though Wiley did not use physical force. Gray witnessed Wiley
tell Sanderson, ―I‘m tired of this GMPA crap. You are not to go and speak to
Council unless you come and pass everything through me first.‖2 Wiley did not
say ―in words‖ what would happen if Sanderson spoke to the City Council that
day, but Gray believed there would be repercussions if Sanderson spoke to the City
Council. He reached this conclusion because Wiley ―turned very red, his voice
was elevated, his eyes were wide, he was pointing, [and] he was very agitated.‖
Wiley ―looked very aggressive, very upset.‖ Gray also testified, ―Wiley was
overheard telling the City Manager that, ‗Don‘t worry about Sanderson, I
threatened him.‘‖3
1
The City‘s plea and the appellate briefing primarily focus on the alleged violation of
law concerning official oppression. Gray also suggested Wiley‘s conduct amounted to witness
tampering and coercion of a public servant.
2
The GMPA is the Galveston Municipal Police Association.
3
Gray did not witness this statement, but ―it is permissible for a whistleblower‘s
6
Gray received a complaint from attorney Greg Cagle.4 Cagle told Gray that
Cagle believed Wiley had committed official oppression against Sanderson. Gray
looked at the official oppression statute and reached the opinion that Wiley‘s
conduct violated the statute. Gray then contacted Sanderson to confirm that Cagle
was acting on Sanderson‘s behalf. Gray told Sanderson that if Sanderson ―wished
to file a complaint that he fill out the Galveston Police Department complaint form
and turn it in to [Gray].‖5 Sanderson filled out the form and gave it to Gray. Gray
then reported the alleged violation of law to the district attorney, Kurt Sistrunk.
Section 39.03 of the Texas Penal Code describes the offense of official
oppression: ―A public servant acting under color of his office or employment
commits an offense if he . . . intentionally denies or impedes another in the
exercise or enjoyment of any right, privilege, power, or immunity, knowing his
conduct is unlawful[.]‖ TEX. PENAL CODE ANN. § 39.03(a)(2) (West 2011). The
City argues that Gray‘s belief that Wiley violated this law is objectively
unreasonable. The City notes that neither the City nor Gray has found a case in
Texas in which a public official was prosecuted under this statute for conduct
similar to Wiley‘s. Further, the City contends that there is no evidence of ―any
intent by the Chief to deny specific rights, including any theoretical right to free
speech.‖
A prosecution for impeding a person‘s ―right to free speech‖ appears
possible under the statute from a plain reading. In Jones v. Westergren, the Corpus
Christi Court of Appeals found that a district judge had ―good cause‖ to conduct a
knowledge about violations of law to be based on hearsay.‖ McElyea, 239 S.W.3d at 853.
4
Cagle is representing Gray in this suit.
5
Gray testified that part of his responsibility as Commander of the Office of Professional
Standards (or ―internal affairs‖) was to conduct or supervise others conducting investigations
regarding allegations of misconduct of police officers in the Galveston Police Department.
7
court of inquiry proceeding to investigate whether a district attorney had
committed official oppression. See 771 S.W.2d 669, 673 (Tex. App.—Corpus
Christi 1989, orig. proceeding).6 In particular, Judge Westergren testified by
affidavit that he had good cause to believe that the district attorney had committed
official oppression when the district attorney ―intentionally denied and impeded
one Bill Jensen and others in the exercise and enjoyment of the right of free speech
to criticize in any manner however founded or unfounded, the operation of the
office of the District Attorney.‖ Id. at 672–73. Thus, a prosecution for official
oppression by impeding the ―theoretical right to free speech‖ seems plausible.
The City suggests it is ―quite a proposition that a Chief of Police, the head of
a paramilitary organization, cannot expect to be notified of his officer‘s conduct as
a matter of course, without being accused of a quelling [sic] officers‘ First
Amendment rights.‖ Although a government may regulate its employees‘ speech
to a certain degree, a police officer does not forfeit his or her First Amendment
rights by serving in a ―paramilitary organization.‖ See generally Martin J.
McMahon, Annotation, First Amendment Protection for Law Enforcement
Employees Subjected to Discharge, Transfer, or Discipline Because of Speech, 109
A.L.R. FED. 9 (1992); 12B TEX. JUR. 3D Constitutional Law § 234 (2012).
Whether Wiley actually impeded Sanderson‘s First Amendment right is a complex
issue not determinable from this record. But Gray need not establish an actual
violation of law; he need only allege and show with some jurisdictional evidence
that his belief was reasonable under the circumstances. See City of Elsa, 325
S.W.3d at 627 n.3. A reasonably prudent person in Gray‘s position could have
believed that Sanderson had a First Amendment right to speak in a public forum
such as a city council meeting. See Surita v. Hyde, 665 F.3d 860, 866, 869–874
6
The statute was subsequently amended to require ―probable cause.‖ See TEX. CODE
CRIM. PROC. ANN. art. 52.01(b)(1) (West 2006).
8
(7th Cir. 2011) (denying qualified immunity on the plaintiff‘s First Amendment
claim when the city‘s mayor prevented the plaintiff from speaking at a city council
meeting until and unless the plaintiff met with the mayor and apologized to another
city employee); Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir. 2009) (―[T]estimony
before a city council might otherwise be just the sort of citizen speech protected by
the First Amendment . . . .‖); Lindsey v. City of Orrick, Mo., 491 F.3d 892, 898–91
(8th Cir. 2007) (denying qualified immunity for the city‘s mayor based on a
governmental employee‘s First Amendment claim when the employee was
terminated after criticizing the city council at a city council meeting); Beckwith v.
City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1556–57 (11th Cir. 1995)
(reversing trial court‘s JNOV on a fire chief‘s First Amendment retaliation claim
because the chief‘s speech at city council meetings was protected under the First
Amendment).
A government employer, including a police department, cannot rely upon an
internal notification policy such as Wiley‘s if the policy would stifle an officer‘s
First Amendment right. Cf. Turner v. Perry, 278 S.W.3d 806, 820–21 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (police department‘s policy
requiring officers to ―contact an AISD Police Supervisor prior to contacting any
[assistant district attorney] for charges‖ could not be ―applied lawfully to authorize
adverse employment action‖ when the officer‘s speech was ―protected by the First
Amendment‖).
The City argues that there is no proof of Wiley‘s intentional denial of
Sanderson‘s rights or that Wiley ―knew his conduct was unlawful,‖ as required by
the statute. However, ―[p]roof of a culpable mental state almost invariably
depends upon circumstantial evidence,‖ and a fact finder ―can infer knowledge
from all the circumstances, including the acts, conduct, and remarks of the accused
9
and the surrounding circumstances.‖ E.g., Gant v. State, 278 S.W.3d 836, 839
(Tex. App.—Houston [14th Dist.] 2009, no pet.). The circumstances Gray was
entitled to consider include that Wiley asked or ordered Sanderson to leave a City
Council meeting at which Sanderson had intended to speak. Wiley told Sanderson
that Sanderson was ―not to go and speak to Council‖ unless Sanderson ―pass[ed]
everything through [Wiley] first.‖ Although Wiley never identified specific
consequences for Sanderson‘s noncompliance, Wiley ―turned very red, his voice
was elevated, his eyes were wide, he was pointing, [and] he was very agitated.‖
Wiley looked ―very aggressive.‖ Gray could have reasonably believed that Wiley
intended to impede Sanderson from speaking at the City Council meeting. Further,
Wiley later allegedly told the City Manager to not worry about Sanderson because
Wiley had ―threatened him.‖ From all of these circumstances, Gray could have
reasonably believed that Wiley acted intentionally and knew his conduct was
unlawful.
The City also suggests that Gray‘s report was ―admittedly contrived with his
own attorney.‖ Although the City‘s interpretation may be a possible inference
from the evidence, another inference is that it would be more reasonable for Gray
to believe he was reporting a violation of law after an attorney had provided him an
affirmative opinion on the matter. See Teague, 111 S.W.3d at 749–50, 753–54
(finding sufficient evidence that several police officers reported a violation of law
with objective good faith in part because an assistant district attorney had advised
the officers that the described conduct would be consistent with misdemeanor and
felony violations).7 We consider the conversation between Cagle and Gray as one
7
Cf., e.g., United States v. Boyle, 469 U.S. 241, 251 (1985) (noting that under some
circumstances when an attorney advises a taxpayer on a matter of tax law, ―it is reasonable for
the taxpayer to rely on that advice‖); In re Hayes Microcomputer Prods., Inc. Patent Litig., 982
F.2d 1527, 1543 (Fed. Cir. 1992) (noting that in the defense of a claim of willful patent
infringement, ―reliance on competent counsel‘s opinion is evidence of good faith‖).
10
of many circumstances leading to Gray‘s reasonable belief that a violation of law
had occurred, as we view the evidence in the light most favorable to Gray.
Upon reviewing the parties‘ trial and appellate briefing and the record
evidence, we conclude that a reasonably prudent person in similar circumstances
could have believed that the facts as reported were a violation of law, and the
evidence raises a fact question on this jurisdictional issue. Thus, the trial court
should not have granted the plea to the jurisdiction on this ground. See City of
Elsa, 325 S.W.3d at 626.
2. Adverse Personnel Action
For purposes of the Texas Whistleblower Act, ―‗Personnel action‘ means an
action that affects a public employee‘s compensation, promotion, demotion,
transfer, work assignment, or performance evaluation.‖ TEX. GOV‘T CODE ANN.
§ 554.001. In Montgomery County v. Park, the Texas Supreme Court adopted the
United State Supreme Court‘s test for Title VII‘s retaliation provision to determine
what constitutes ―adverse personnel action‖ under the Texas Whistleblower Act.
See 246 S.W.3d 610, 614–15 (Tex. 2007) (citing Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53 (2006)). ―[F]or a personnel action to be adverse within the
meaning of the Act, it must be material, and thus likely to deter a reasonable,
similarly situated employee from reporting a violation of the law.‖ Id. at 612. The
purpose of this standard is to allow claims based on retaliatory actions ―likely to
deter‖ reporting of governmental violations of law while weeding out ―petty
slights‖ and ―minor annoyances.‖ Id. at 614 (quotation omitted). Another goal is
to bar trivial claims resulting from a plaintiff‘s unusual subjective feelings, but to
allow claims arising from the particular circumstances of the challenged action. Id.
at 614–15. The test accounts for the fact that an employer‘s action could be
immaterial in some situations but material in others. Id. at 615. Park identified
11
some nonexclusive factors, including whether the alleged adverse personnel action
negatively affected the employee‘s (1) prestige; (2) opportunity for advancement;
(3) working conditions; (4) pay or income; or (5) ability to obtain outside
employment. See id. But the court noted that ―the presence or absence of any one
of these factors is not dispositive.‖ Id. Whether an action is adverse within the
meaning of the Act is generally a question of law, although a fact finder must
decide disputed issues of predicate fact. Id.
In his petition, Gray alleged that the transfer ―from his position as
Commander of the Office of Professional Standards to the Detective Division . . .
constituted an adverse action.‖ Gray also alleged that he, ―a lieutenant, then
reported to a Sergeant.‖ This petition contains only a meager factual basis for
determining whether he was subjected to adverse personnel action. We
nonetheless look to the arguments of the parties and remainder of the jurisdictional
evidence. See City of Elsa, 325 S.W.3d at 625.
On appeal, Gray contends he was subjected to adverse personnel action
when he was reassigned from Commander of the Office of Professional Standards
to the detective division, assigned to a sergeant, suspended with pay while he was
being investigated for misconduct, and issued three written letters of reprimand;
and he claims that he lost his ability to receive ―on-call‖ pay and work an extra job
at the ―BP Claims Center.‖ The City contends that (1) Gray waived and cannot
rely on any alleged adverse personnel actions other than the reassignment, such as
the written letters of reprimand and accompanying suspension with pay; (2) Gray‘s
own evidence contradicts his allegations concerning his assignment to a sergeant
and his abilities to receive on call pay or work an extra job; and (3) the
reassignment and other personnel actions were not adverse as a matter of law.
First, we will review the evidence considered by the trial court. Next, we
12
address each of the City‘s contentions. We ultimately conclude that that under the
totality of the circumstances, Gray‘s reassignment, reprimands, and suspension
with pay would likely deter a reasonable, similarly situated employee from
reporting a violation of law.
a. The Evidence
Gray testified at his deposition that when he told Wiley about the report to
the district attorney‘s office, Wiley said, ―That‘s it, I have no faith in you anymore
to command your division.‖ Wiley told Gray to ―clean out [Gray‘s] office and
report to Captain [Heyse] for assignment in Investigative Services Bureau.‖ Gray
was immediately transferred to Financial Crimes Investigations in the Investigative
Services Bureau. In a letter to Gray, Wiley wrote that the transfer was made
―[b]ecause of your unprofessional and insubordinate actions.‖ Wiley also wrote
that in Gray‘s position as ―Supervisor of Professional Standards and Internal
Affairs, [Gray] reported directly to the Chief of Police.‖ Wiley explained that
Gray ―necessarily had to and did serve as a confidant‖ to the Chief of Police
concerning ―overall oversight of departmental operations.‖ Wiley wrote further,
―In this role you had an unusually high level of access to me and my work,
including participating in senior staff meetings, that other officers of equal rank,
were not privileged to.‖ Wiley confirmed that Gray‘s status as a ―direct report‖ to
Wiley allowed Gray ―unfettered access to issues and matters necessitating the
highest confidence between us.‖
Gray testified that he was ―removed from a command position and put into
an investigative position that could be held by an officer.‖ Unlike the
―investigative position‖ that could be held by an officer, the ―command position‖
was at least a ―sergeant position.‖ He testified that after the transfer he was
―assigned to a sergeant.‖ Gray ranked his former position of Commander higher
13
than his then-current position of Assistant to the Chief.8 Regarding the desirability
of the Commander position, Gray explained:
I believe a professional in the law-enforcement area would be able to
tell you the same thing, that your resume and your desirability for
another agency, Federal agency, they would want you to be in a high-
ranking or high-level administrative position where you are
supervising and commanding a division. And that would give you
more experience and be better for your resume.
Gray also testified that within about three months of his transfer, he received
three separate written letters of reprimand—―approximately 20 pages in [his] file.‖
In his ten-year career in law enforcement, he had never before received a letter of
reprimand. One of the reprimands concerned Gray‘s investigation of Wiley.9
During the City‘s investigation of Gray leading up to that reprimand, Gray was
placed on a suspension with pay for four to five weeks.
Gray testified, ―It damaged my career,‖ and it caused ―personal strain, stress,
[and] lack of sleep.‖ He also explained, ―It wouldn‘t be a wise choice to apply‖ for
other law-enforcement jobs ―when you have such letters in your background.‖ But
he also explained that he had not looked for work outside the police department
and he had no immediate plans to do so. He testified that advancement within the
Galveston Police Department was dictated by law under the civil service program
only ―up until lieutenant.‖ He testified that unnamed persons, in addition to Cagle,
opined that the reprimands would have an actual effect on his career.
Gray testified further that as a result of the transfer and reprimands, he lost
his ability to receive ―on-call pay‖ and the ability to work an extra job—
8
After Wiley retired or resigned from his position, Gray was made Assistant to the Chief.
9
The reprimands are not part of the record. Gray testified that one of the reprimands
concerned an order he received ―to delete files and destroy copies . . . about the investigative
materials or the documents or recordings or anything that I had in reference to Charles Wiley and
what I referred to the D.A.‘s office.‖
14
specifically, the ―BP Claims Center‖ job. Before the transfer, he received ―on-call
pay‖ and had worked the BP Claims Center job, which paid $30 per hour. Gray
testified, however, that after the transfer he made no effort to obtain on-call pay,
and other officers in the detective division received on-call pay. Further, although
he had attempted to find other work in lieu of the BP Claims Center job, he could
not identify any particular job and could not recall whether he in fact worked
another job.
The City‘s expert, Dirden, opined that Gray‘s conduct of, among other
things, initiating an investigation of the Chief of Police and removing files from
the Office of Professional Standards contrary to a captain‘s orders, ―reveals
inadequate performance at best, and would properly serve as the basis for some
form of discipline.‖ Dirden believed that Gray‘s transfer was ―entirely
appropriate,‖ though he also opined generally that an interdepartmental transfer
―would not be an adverse employment action detrimental to any officer‘s career,‖
and rather, an officer with experience in several areas ―may be viewed as a ‗better‘
officer by a supervisor or chief.‖ Dirden also testified, ―A reprimand is a minimal
form of supervision for the conduct described and would not constitute discipline.‖
b. Waiver
We hold that Gray did not waive his ability to rely on unpleaded adverse
personnel actions. Evidence of reprimands, a suspension, and other issues were
before the trial court, and the City addressed the reprimands in its plea to the
jurisdiction. Gray‘s failure to reference conduct other than the reassignment in his
petition does not incurably deprive the trial court of jurisdiction. See City of Elsa,
325 S.W.3d at 625–26. The only case cited by the City to support the waiver
argument is inapt. In Leonard v. Abbott, 171 S.W.3d 451 (Tex. App.—Austin
2005, pet. denied), a vexatious litigant waived his ability to complain about the
15
trial court‘s dismissal ―with prejudice‖ when he first raised the issue in an untimely
supplemental motion for new trial. Id. at 461. Leonard did not concern the scope
of review for a plea to the jurisdiction.
c. Allegations Lacking Evidentiary Support
We disagree with the City that Gray‘s allegation of ―reporting to a sergeant‖
has no support in the evidence. When discussing the letters of reprimand, Gray
testified that he was ―a lieutenant assigned to a sergeant.‖ This testimony supports
his allegation; although there is conflicting evidence in the record, we must view
the evidence in the light most favorable to Gray.
However, we agree with the City that Gray‘s allegations concerning on-call
pay and the BP Claims Center job do not support a conclusion of adverse
personnel action. A reasonable employee would not be deterred from reporting a
violation of law based on non-receipt of on-call pay that the employee never
sought; nor has Gray shown that by not working the BP Claims Center job and
failing to be ―on-call,‖ that he lost access to objectively equivalent extra work. See
Park, 246 S.W.3d at 615–16 & n.9 (finding no adverse personnel action when the
employee did not show that his former ―security coordinator‖ position ―allowed
him to work more extra jobs than he would have without it‖; there was no evidence
that the employee ―lost access to objectively equivalent extra work‖). Gray could
not even recall if he worked elsewhere at the time.
Accordingly, we do not rely on Gray‘s testimony concerning on-call pay and
the BP Claims Center job in reaching our conclusion that Gray was subjected to
adverse personnel action.
16
d. Gray was Subjected to Adverse Personnel Action
We conclude that Gray‘s reassignment, reprimands, and suspension with pay
amounted to adverse personnel action. The evidence discussed above concerning
Gray‘s reassignment from a ―command position‖ to an ―investigative position,‖
where he reported to an officer with a lower rank and no longer served as a ―direct
report‖ to the Chief of Police, supports a conclusion that Gray was transferred to a
less prestigious position within the Galveston Police Department with a less
significant role. See id. at 615 (identifying ―prestige‖ as one factor to consider and
finding no adverse personnel action when the plaintiff did not argue that the ―loss
of his security coordination responsibilities affected his prestige‖); see also
Burlington, 548 U.S. at 71 (finding sufficient evidence of adverse personnel action
when the plaintiff‘s former position required more qualifications, which was ―an
indication of prestige‖).10 This conclusion is not based on Gray‘s purely subjective
belief or preference for one job over another. He testified that a law enforcement
professional would say that being a commander makes the person a more desirable
candidate for employment.
Before Park and Burlington, this court, relying on Fifth Circuit precedent,
held that a supervisor‘s reprimand could not constitute an adverse personnel action
as a matter of law for discrimination claims. See Crye v. Rohmax USA, Inc., No.
14-02-01153-CV, 2003 WL 22724741, at *1 & n.7 (Tex. App.—Houston [14th
Dist.] Nov. 20, 2003, no pet.) (mem. op.) (citing Messer v. Meno, 130 F.3d 130,
140 (5th Cir. 1997)).11 However, Burlington overruled the ―more restrictive
10
Even if Gray had not been ―assigned to a sergeant,‖ but rather to a captain as the City
suggests, it would still be undisputed that he was removed from a position reporting directly to
the Chief of Police and thereafter reported to a captain.
11
See also Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 575 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.
1997)).
17
approach‖ followed by the Fifth Circuit as it applied to retaliation claims. See 548
U.S. at 60.12 By adopting the Burlington materiality standard for retaliation claims,
Park necessarily dictates that our prior holdings about reprimands in
discrimination cases are not controlling for determining adverse personnel actions
in a retaliation case. Because we must consider all of the circumstances
surrounding the alleged adverse personnel action, we will consider the fact that
appellant received three written reprimands—―approximately 20 pages in [his]
file‖—which he had never before received during his career in law enforcement.
Further, after Burlington, the Fifth Circuit suggested that placing an
employee on paid administrative leave could be evidence of adverse employment
action in a retaliation case. See McCoy v. City of Shreveport, 492 F.3d 551, 560–
61 (5th Cir. 2007).13 The court observed that ―placement on administrative leave
may carry with it both the stigma of the suspicion of wrongdoing and possibly
significant emotional distress. Instances of administrative leave can also
negatively affect an officer‘s chances for future advancement.‖ Id. at 561. In
Stewart v. Mississippi Transportation Commission, the Fifth Circuit again noted
that ―[p]lacing an employee on paid administrative leave . . . cannot be said to be a
‗petty slight.‘‖ 586 F.3d 321, 332 (5th Cir. 2009). But that employee did not
satisfy the Burlington standard in part because ―[t]here was no suggestion that the
leave was the result of any fault on Stewart‘s part, such as might carry a stigma in
12
The Fifth Circuit had applied the ―ultimate employment decision‖ standard for both
discrimination and retaliation claims; Burlington clarified that the ―ultimate employment
decision‖ standard did not apply to retaliation claims. See 547 U.S. at 56–57, 60. See generally
McCoy v. City of Shrevport, 492 F.3d 551, 559–561 (5th Cir. 2007) (discussing the difference
between the test for discrimination and retaliation claims post-Burlington).
13
The court ―recognize[d] that it [was] at least a close question‖ but decided that it ―need
not answer this question today.‖ McCoy, 492 F.3d at 561.
18
the workplace.‖ Id.14 Unlike in Stewart, Gray‘s administrative leave resulted from
the City investigating him for misconduct, and he received a written letter of
reprimand at the conclusion of the investigation. Accordingly, we will consider
the fact that appellant was suspended with pay for over a month while the City
investigated him for misconduct related to the Sanderson matter.
In arguing that Gray did not suffer an adverse personnel action, the City
relies on Dirden‘s opinion testimony quoted above. Dirden opined generally about
interdepartmental transfers and reprimands, and he testified that Gray‘s transfer
was ―appropriate.‖ At best, Dirden‘s testimony would contradict Gray‘s testimony
and the reasonable inferences to be drawn therefrom, and there is simply a fact
question that must be resolved by a fact finder. See Park, 246 S.W.3d at 615
(noting that a ―fact finder must decide disputed issues of predicate fact‖ concerning
whether ―a challenged action is adverse within the meaning of the Act‖).
For legal argument, the City relies exclusively on Park and several decisions
from the Fifth Circuit, only one of which was issued after Burlington. Given that
Burlington disapproved of the Fifth Circuit‘s earlier approach, we do not find the
City‘s pre-Burlington cases particularly persuasive.15 Further, Gray‘s case is not
comparable to the Park case. The Montgomery County Sheriff‘s Department had
14
Stewart was placed on paid administrative leave while the employer investigated her
claims of misconduct by another employee. Stewart, 586 F.3d at 326.
15
For example, Pegram v. Honeywell, Inc. followed the ―ultimate employment decision‖
standard specifically rejected in Burlington. See 361 F.3d 272, 282 (5th Cir. 2004); see also
Burlington, 548 U.S. at 67. That standard required an adverse personnel action to relate to
decisions ―such as hiring, granting leave, discharging, promoting, and compensating.‖ Pegram,
361 F.3d at 282. Similarly, Serna v. City of San Antonio required the plaintiff to show that a
transfer was ―equivalent‖ to ―discharges, demotions, refusals to hire, refusals to promote, and
reprimands.‖ 244 F.3d 479, 483 (5th Cir. 2001). And in Lee v. City of New Orleans, the court
found that a police officer‘s transfer was not an adverse employment action because the officer
did not establish that the transfer resulted in ―loss of compensation, duties, or benefits.‖ 156 F.
App‘x 618, 619 (5th Cir. 2005) (per curiam). The only test we apply is the one announced in
Burlington and Park.
19
removed Park‘s duties as ―security coordinator‖ for a convention center. Park, 246
S.W.3d at 612–13. Park argued that ―as security coordinator he had the ability to
assign himself extra jobs.‖ Id. at 615. The Texas Supreme Court found no adverse
personnel action because Park received no extra salary as the security coordinator
and he made no showing that the position allowed him to work more extra jobs
than he would have without it. Id. The court noted that Park did not argue that the
loss of his responsibilities ―affected his prestige.‖ Id.
The City contends that another similar case is Harrison v. Corrections Corp.
of America, a recent unpublished opinion16 from the Fifth Circuit holding that an
employee suffered no adverse personnel action when the employer reprimanded
the employee and transferred him to a different department. 476 F. App‘x 40, 44–
45 (5th Cir. 2012). The employee testified that he had been ―verbally counseled,‖
had received ―bad evaluations,‖ and had been ―reprimanded for misplacing a tool.‖
Id. at 44. The employee testified that the reprimand was ―fair,‖ and the Fifth
Circuit reasoned that a ―reasonable employee would not be dissuaded by a
reprimand and punishment he considered to be fair.‖ Id. Thus, the verbal
reprimands and generic bad evaluations were mere ―trivial harms‖ under the
Burlington standard. Id. at 44–45. The transfer was not an adverse personnel
action because there was no record evidence showing that the new position offered
fewer ―opportunities for promotion or salary increases, involved a greater
likelihood of termination, or the like.‖ Id.
Gray, however, did not admit that his three written reprimands were fair, and
Harrison‘s holding about the transfer was based on the employee‘s failure to
substantiate his particular appellate contentions with record evidence. See id.
16
The opinion is ―not precedent‖ according to the Fifth Circuit Rules. See 5TH CIR. R.
47.5.4.
20
Harrison cited with approval other Fifth Circuit opinions acknowledging that ―‗a
lateral reassignment to a position with equal pay could amount to a materially
adverse action in some circumstances.‘‖ Stewart, 586 F.3d at 332 (quoting Aryain
v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir. 2008)). The Fifth Circuit
found no adverse personnel action in Stewart based on an administrative assistant‘s
reassignment from one supervisor to another in part because the employee‘s
position, job title, and duties were unchanged, ―and there [was] no evidence that
she suffered a diminution in prestige.‖ Id. The court reached the same result when
a Wal-Mart cashier in the Tire Lube Express department was reassigned as a sales
associate in the infant department. Aryain, 534 F.3d at 485. The court reasoned
that there was no evidence that the sales associate position was viewed as less
prestigious, and the employee admitted that she did not view the transfer as a
demotion. Id. In Gray‘s case, as discussed above, the record evidence supports a
conclusion that Gray was transferred to a lesser position. Further, in neither
Stewart nor Aryain was the employee suspended due to allegations of misconduct
or issued written reprimands in addition to the ―lateral‖ transfer.
The reassignment in Gray‘s case is more similar to City of El Paso v.
Parsons, 353 S.W.3d 215 (Tex. App.—El Paso 2011, no pet.). The El Paso Court
of Appeals held that the evidence was legally and factually sufficient to support the
jury‘s verdict that a firefighter was subjected to adverse personnel action by his
―transfer to a less prestigious position‖ even though there was no reduction in his
pay or change in his job title, and he received subsequent pay raises. Id. at 227–28.
Parsons was the ―Training Chief‖ for the City of El Paso‘s Fire Department
training academy, where he performed a number of significant duties related to the
training of firefighters. See id. at 218–19. After he reported a violation of law by
his superiors, the Fire Chief transferred Parsons from the training academy to
21
headquarters. Id. at 221. Although he retained the title of ―Training Chief‖ and
received salary increases, his job responsibilities were substantially reduced. See
id. The Fire Chief also issued a written reprimand concerning an unrelated
incident, describing Parsons‘s conduct as ―unprofessional and unacceptable.‖ Id.
at 223. After the Fire Chief retired, a new Fire Chief transferred Parsons back to
the training academy where he resumed his more substantive duties. See id. at 224.
The court of appeals held that the totality of the circumstances would allow a jury
to conclude that Parsons was subjected to adverse personnel action within the
meaning of the Act. Id. at 228.
Similarly, in Kessler v. Westchester County Department of Social Services,
the Seventh Circuit held that Kessler presented sufficient evidence on summary
judgment to create a genuine issue of fact concerning whether he was subjected to
an adverse employment action based on a reassignment that operated as a ―de facto
demotion.‖ 461 F.3d 199, 202, 210 (7th Cir. 2006). Kessler admitted that he was
never disciplined, suspended, or written up; his salary, benefits, and hours of work
were not decreased in any way; he never received an unsatisfactory evaluation; and
his job title remained the same. Id. at 202, 205. However, after his transfer he was
stripped of many of his earlier management responsibilities. See id. at 209.
Whereas he previously had been ―[u]nder the general direction of the
Commissioner of Social Services or Deputy Commissioner, . . . he no longer
reported to them but instead reported to a supervisor whose grade level was no
higher than his.‖ Id. Although he previously had functioned ―as part of the top
management of the Department,‖ he no longer functioned in that role after his
transfer and was required to perform lower-level work ―alongside employees
several grades below his.‖ Id.17
17
Although Parsons and Kessler identified more significant evidence concerning the lack
22
Simply put, Gray was the commander of a division within the Galveston
Police Department reporting directly to the Chief of Police. After the
reassignment, he was no longer the commander of a division, and he reported to a
sergeant or other officer of lower rank than the Chief. He was suspended with pay
for over a month while he was investigated for misconduct, and he received three
written letters of reprimand in his personnel file. These were not petty slights or
minor annoyances. Gray‘s claim of an adverse personnel action is not trivial or
based on subjective feelings. Accordingly, we hold that the City‘s actions would
likely deter a reasonable, similarly situated employee from reporting a violation of
law.
Gray has adduced sufficient evidence of his Whistleblower Act claim to
overcome the City‘s plea to the jurisdiction. The plea should not have been
granted on this ground. Gray‘s first and second issues are sustained.
C. Exhaustion of Administrative Remedies
Citing only Gregg County v. Farrar, 933 S.W.2d 769 (Tex. App.—Austin
1996, writ denied), in its plea to the jurisdiction, the City argued that the trial court
lacked jurisdiction due to Gray‘s failure to exhaust administrative remedies.18
However, this court, sitting en banc, specifically disagreed with Farrar and held
that ―it is clear that every deadline and procedure found throughout the Act is not
jurisdictional.‖ Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d
of prestige of the reassignments, we are mindful of the stage of the current litigation—a plea to
the jurisdiction—where Gray is not expected to prove his case simply to establish jurisdiction.
See Miranda, 133 S.W.3d at 228 (―By requiring the state to meet the summary judgment
standard of proof in cases like this one, we protect the plaintiffs from having to ‗put on their case
simply to establish jurisdiction.‘‖ (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(2000))).
18
Specifically, the City argued that Gray failed to complete the fourth step identified in
the collective bargaining agreement: arbitration.
23
815, 817, 818 n.23 (Tex. App.—Houston [14th Dist.] 2003) (en banc), aff’d 159
S.W.3d 631 (Tex. 2005). The Texas Supreme Court affirmed, stating that the Act
―does not require that grievance or appeal procedures be exhausted before suit can
be filed; rather, it requires that such procedures be timely initiated and that the
grievance or appeal authority have 60 days in which to render a final decision.‖
159 S.W.3d at 632.19
The City has never argued that Gray failed to timely initiate the grievance
procedure or wait the required 60 days; in fact, the City conceded that Gray ―filed
a grievance and pursued the initial three steps of his administrative remedies.‖20
Accordingly, the City‘s plea should not have been granted on this ground.
Gray‘s third issue is sustained.
III. CONCLUSION
Having sustained all of Gray‘s issues, we reverse the trial court‘s judgment
and remand for further proceedings.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
19
The supreme court declined to address whether a failure to meet these requirements
deprives the trial court of jurisdiction. Barrett, 159 S.W.3d at 622.
20
The City did not address the exhaustion of administrative remedies issue in its brief on
appeal.
24