Chandrashekhar B. Thanedar v. Donna Independent School District ( 2011 )

NUMBER 13-09-00589-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHANDRASHEKHAR B. THANEDAR, Appellant,
v.
DONNA INDEPENDENT SCHOOL DISTRICT, Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
Appellant, Chandrashekhar B. Thanedar, challenges the trial court‘s judgment in
favor of appellee, Donna Independent School District (―DISD‖), in a suit Thanedar filed
under the Texas Whistleblower Act. See TEX. GOV‘T CODE ANN. § 554.001–.010 (West
2004). In his suit, Thanedar alleged, among other things, that DISD, his employer,
suspended him with pay and later terminated his employment because he had
previously reported to law enforcement that certain DISD officials had engaged in
criminal behavior, including bribery, extortion, and theft.
Thanedar, appearing pro se both at trial and before this Court, sets forth fifteen
issues on appeal. We construe them as seven and rearrange them as follows: (1) the
trial court failed to comply with Texas Rules of Civil Procedure 296 and 297; (2)
Thanedar‘s suspension and dismissal are void because DISD failed to comply with the
Texas Open Meetings Act (―TOMA‖), see id. §§ 551.001–.146 (West Supp. 2010); (3)
Thanedar ―substantially prevailed‖ in the case, thereby entitling him to fees under
TOMA, see id. § 551.142; (4) the trial court erred by denying Thanedar‘s motion to
strike DISD‘s affirmative defense of after-acquired evidence; (5) the trial court erred by
failing to rule on certain motions before trial; (6) the jury charge was defective; and (7)
there was no evidence supporting the verdict. We affirm.
I. BACKGROUND
In March 2005, Thanedar applied for the position of DISD‘s chief financial officer
(―CFO‖). As part of the hiring process, Thanedar submitted a certificate indicating that,
in 1983, he had passed the examination required to become a certified public
accountant (―CPA‖) in Louisiana. According to DISD, the CFO was required to be a
certified CPA, and Thanedar represented to the board‘s search committee that he was
so certified. In fact, Thanedar was not, and never had been, certified or licensed as a
CPA in Texas. See TEX. OCC. CODE ANN. §§ 901.251–.260 (West Supp. 2010) (listing
requirements to obtain CPA certification in Texas). Unaware of this, the DISD board of
trustees voted on April 11, 2005 to appoint Thanedar as the district‘s CFO, and
2
Thanedar began his work at that position on April 18, 2005.
In March and April of 2006, Thanedar began making reports to various local,
state, and federal law enforcement agencies alleging that DISD officials had engaged in
illegal activity, including ―bribery, extortion, theft, E-Rate violations, overpayment of bills,
[and] payroll overpayments‖ in connection with the construction of Stainke Elementary
School in Donna, Texas. In defiance of the superintendent, Thanedar refused to sign a
check paying the general contractor in charge of the construction, noting that
investigations were still ongoing as to his allegations of wrongdoing.
The DISD board of trustees called a special board meeting for April 18, 2006. At
this meeting, according to Thanedar, the board purportedly decided to suspend
Thanedar with pay. Thanedar later received two letters: one dated April 19, 2006,
stating that he had been suspended with pay; and one dated April 24, 2006, stating that
DISD would not be renewing his employment contract. Believing that he was
terminated because of the reports he made to law enforcement, Thanedar filed
grievances pursuant to DISD policy, which were rejected.
Thanedar then sued DISD, asserting: (1) unlawful retaliation under the
Whistleblower Act; (2) violations of TOMA; (3) violations of the due course of law
provision of the Texas Constitution, see TEX. CONST. art. I, § 19; and (4) breach of
contract. He sought damages, as well as an injunction reinstating him as CFO, and a
declaration that his suspension and dismissal were invalid under TOMA.
The trial court granted a directed verdict in favor of DISD on all of Thanedar‘s
causes of action other than his Whistleblower Act claim. The jury found against
Thanedar on that claim, and the trial court rendered a take-nothing judgment in
3
accordance with the verdict. This appeal followed.
II. DISCUSSION
A. Findings of Fact and Conclusions of Law
By his first issue, Thanedar asserts that the trial court erred by declining to issue
findings of fact and conclusions of law after Thanedar made requests pursuant to Texas
Rules of Civil Procedure 296 and 297. See TEX. R. CIV. P. 296, 297. Following a bench
trial, a trial court‘s duty to file findings of fact and conclusions of law is mandatory
pursuant to a rule 296 request and a rule 297 reminder for the same. Tenery v. Tenery,
932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768,
771 (Tex. 1989). However, the trial court has no such duty after granting a defendant‘s
motion for directed verdict or after presiding over a jury trial. See IKB Indus. (Nig.), Ltd.
v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (―The purpose of Rule 296 is to
give a party a right to findings of fact and conclusions of law finally adjudicated after a
conventional trial on the merits before the court. In other cases findings and
conclusions are proper, but a party is not entitled to them.‖); see also Ditto v. Ditto Inv.
Co., 158 Tex. 104, 106, 309 S.W.2d 219, 220 (1958) (noting that the trial court‘s filing of
findings of fact and conclusions of law following a jury trial ―was neither necessary nor
proper‖). The trial court was under no duty to issue findings of fact and conclusions of
law in this case.
Thanedar further contends by this issue that the judgment on appeal lacks finality
because it ―failed to specifically state that [it] actually disposed of all claims of parties,
[and] failed to rule on dispositive issues . . . .‖ We disagree. The judgment expressly
4
ordered that Thanedar take nothing by way of his suit against DISD and stated
specifically that ―all relief not expressly granted herein is denied.‖ Additionally,
[w]hen a judgment, not intrinsically interlocutory in character, is rendered
and entered in a case regularly set for a conventional trial on the merits,
no order for a separate trial of issues having been entered pursuant to
Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal
purposes that the Court intended to, and did, dispose of all parties legally
before it and of all issues made by the pleadings between such parties.
N. E. Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966); see Vaughn
v. Drennon, 324 S.W.3d 560, 561 (Tex. 2010) (per curiam).
The trial court‘s judgment in this case was final and appealable. We overrule
Thanedar‘s first issue.
B. Texas Open Meeting Act Claims
By his second and third issues, Thanedar claims that DISD ―never legally
terminated or suspended [his] employment‖; that any adverse employment action taken
against him ―is void because DISD did not name [him] or his position as a subject in his
notice of meeting‖; and that DISD‘s board of trustees ―took no ascertainable action‖
against him at any official board meeting. We construe these issues as challenging the
trial court‘s directed verdict on Thanedar‘s claims brought pursuant to TOMA. A
directed verdict is proper when (1) a defect in the opponent‘s pleadings makes them
insufficient to support a judgment, (2) the evidence conclusively proves a fact that
establishes a party‘s right to judgment as a matter of law, or (3) the evidence offered on
a cause of action is insufficient to raise an issue of fact. Koepke v. Martinez, 84 S.W.3d
393, 395 (Tex. App.—Corpus Christi 2002, pet. denied).
In his live pleading, Thanedar claimed that DISD ―woefully failed to specifically
describe or identify in its notice of April 18, 2006, that one of the subjects to be
5
addressed by the DISD during the meeting was the suspension of Thanedar‘s
employment with the DISD and/or the non-renewal of Thanedar‘s employment ‗contract‘
with DISD . . . .‖ It is undisputed that the notice of the April 18, 2006 meeting included
―Discussion/Possible Action on Personnel‖ as a meeting topic but did not list Thanedar‘s
name or his position specifically.
Section 551.002 of TOMA provides that ―[e]very regular, special, or called
meeting of a governmental body shall be open to the public, except as provided by this
chapter.‖ TEX. GOV‘T CODE ANN. § 551.002; see id. § 551.001(3)(E) (defining
―governmental body‖ to include a ―school district board of trustees‖). Section 551.041 of
the statute states that ―[a] governmental body shall give written notice of the date, hour,
place, and subject of each meeting held by the governmental body.‖ Id. § 551.041.
Generally, as long as a meeting notice alerts the reader to the topic for consideration, it
is not necessary for the notice to state all of the consequences which may flow from
consideration of the topic. Cox Enters., Inc. v. Board of Trustees, 706 S.W.2d 956, 958
(Tex. 1986); see Sokolow v. City of League City, 37 F. Supp. 2d 940, 946–47 (S.D. Tex.
1999). However, when the topic is of special interest to the public, the description must
be more detailed, and must provide ―reasonable specificity of the subject matter to be
considered.‖ Cox, 706 S.W.2d at 959. ―[A]s public interest in a matter increases, a
correspondingly more detailed description of the subject under consideration must be
given.‖ Rettberg v. Tex. Dep’t of Health, 873 S.W.2d 408, 411 (Tex. App.—Austin 2004,
no pet.) (citing Cox, 706 S.W.2d at 959; Point Isabel Indep. Sch. Dist. v. Hinojosa, 797
S.W.2d 176, 180 (Tex. App.—Corpus Christi 1990, writ denied)).
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In Cox, the Texas Supreme Court found that the word ―personnel‖ was
insufficiently specific to notify the public of the selection of a new school district
superintendent. 706 S.W.2d at 959. The Court, noting that the ―[s]election of a new
school superintendent is not in the same category as ordinary personnel matters,‖ found
that more specificity was needed in order to provide ―full and adequate‖ notice to the
public under TOMA. Id.; see Salazar v. Gallardo, 57 S.W.3d 629, 633–34 (Tex. App.—
Corpus Christi 2001, no pet.); Point Isabel, 797 S.W.2d at 179; see also Rogers v. City
of McAllen, No. 13-07-00278-CV, 2008 Tex. App. LEXIS 6381, at *10 (Tex. App.—
Corpus Christi Aug. 21, 2008, no pet.) (mem. op.). Similarly, in Point Isabel, we found
that a public notice listing ―employment of personnel‖ as a meeting topic was insufficient
to advise the public that the hiring of school principals might be considered at the
meeting. 797 S.W.2d at 182. However, we also concluded that this language was
sufficient to advise the public that the positions of ―librarian, part-time counselor, band
director, and elementary school teacher‖ would be discussed at the meeting, reasoning
that ―[t]he record does not disclose public interest in these positions.‖ Id. at 183.
Thanedar asserts that his position of CFO was of such ―special interest to the
public‖ that DISD was required by TOMA to list the position and Thanedar‘s name as
subjects in the public notice. We disagree. While school principals and
superintendents have substantial interaction with the public and shoulder broad
policymaking responsibility, CFOs are concerned predominantly with internal school
district matters. The duties of a CFO therefore do not involve ―broad contact‖ with the
public such that the position requires greater notice specificity than that generally
required under TOMA. See Mayes v. City of De Leon, 922 S.W.2d 200, 203 (Tex.
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App.—Eastland, 1996, writ denied) (holding that the job of a police chief was of special
interest to the public because of ―the broad contact with the public that those duties
involve‖); see also Rettberg, 873 S.W.2d at 412 (holding that the position of executive
secretary of the State Board of Examiners of Professional Counselors was not of
special interest to the public). We note further that the only evidence Thanedar
produced on this issue was the testimony of certain DISD trustees and employees;
there was no evidence adduced specifically as to the importance of Thanedar‘s position
to the public at large. Accordingly, we cannot conclude that the position of CFO was of
such special interest to the public that a more specific notice was required.
The trial court‘s directed verdict as to Thanedar‘s TOMA claims was proper
because Thanedar failed to produce evidence sufficient to raise an issue of fact on
those claims.1 See Koepke, 84 S.W.3d at 395. Further, because Thanedar did not
prevail on those claims, he was not entitled to fees or costs under TOMA. See TEX.
GOV‘T CODE ANN. § 551.142 (providing that the trial court ―may assess costs of litigation
and reasonable attorney fees incurred by a plaintiff or defendant who substantially
prevails in an action‖ for injunctive relief under TOMA). We overrule Thanedar‘s second
and third issues.2
1
Thanedar does not challenge the trial court‘s directed verdicts on his constitutional due process
and breach of contract claims.
2
Also by his second issue, Thanedar asserts that: (1) the trial court ―erred in disregarding DISD‘s
willful and egregious violations of the certified agenda provisions of TOMA‖; and (2) he was never actually
suspended or terminated because the April 18, 2006 board meeting was not ―legally convened‖ and the
―individual action of a board member‖ is irrelevant.
First, Thanedar did not, in his live pleading or at trial, raise the issue of DISD‘s alleged non-
compliance with the certified agenda provisions of TOMA. See TEX. GOV‘T CODE ANN. § 551.103 (West
2004) (providing that ―[a] governmental body shall either keep a certified agenda or make a tape
recording of the proceedings of each closed meeting . . .‖). Accordingly, we do not entertain that
argument. See TEX. R. APP. P. 47.1 (requiring us to address ―every issue raised and necessary to final
disposition of the appeal‖).
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C. Motion to Strike Affirmative Defense of After-Acquired Evidence
Thanedar argues by his fourth issue that ―DISD was required to but failed to
timely and specifically and sufficiently raise, and plead the affirmative defense of alleged
after acquired evidence.‖ He asserts that the trial court therefore erred in denying his
motion to strike that affirmative defense, raised by DISD in its sixth amended answer to
Thanedar‘s suit.3
The after-acquired evidence doctrine acts as a limitation on an employee‘s
recovery for a retaliatory discharge claim. Trico Techs. Corp. v. Montiel, 949 S.W.2d
308, 312 (Tex. 1997). Under the doctrine, ―[i]f an employer establishes that an
employee‘s misconduct was so severe that the employee would have been legitimately
discharged solely on that basis, after-acquired evidence of the employee‘s misconduct
bars reinstatement and recovery of actual damages for the period after the employer
Second, in claiming that he was ―never actually suspended or terminated,‖ Thanedar appears to
argue that the district superintendent unilaterally ordered his dismissal without authority given by the
board of trustees. However, the record reveals that those decisions were in fact taken by the board as a
whole. Further, a DISD policy document entitled ―DCD (Local)‖, introduced at trial as Plaintiff‘s Exhibit 24,
reflects that the board of trustees delegated to the superintendent the authority to dismiss ―noncertified
professionals, paraprofessionals, and auxiliary employees,‖ which (the parties appear to agree) includes
the district‘s CFO. Thanedar baldly asserts on appeal that ―[t]he purported policy DCD (Local) . . . is false
and fabricated as it was never adopted by the Board.‖ However, Thanedar did not challenge the
authenticity of the ―DCD (Local)‖ policy document at trial—indeed, he was the party that sought its
admittance as evidence. See TEX. R. APP. P. 33.1(a)(1). Moreover, Thanedar does not support his claim
that the document is false or fabricated with any legal argument, record references, or citations to
authority. See TEX. R. APP. P. 38.1(i). We do not find these arguments persuasive.
3
Thanedar also asserts by his fourth issue that the trial court erred in denying his motion to strike
DISD‘s seventh amended answer, which he claims was filed only two business days before trial. We note
that, according to the record, DISD‘s seventh amended answer was filed on July 20, 2009, some eight
days before voir dire took place on July 28, 2009. See TEX. R. CIV. P. 63 (providing that a party must
obtain leave of court in order to file pleadings within seven days of trial). Nevertheless, because
Thanedar does not support this argument with citations to authority, we consider it waived. See TEX. R.
APP. P. 38.1(i).
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discovered the grounds for termination.‖ Id. (finding that doctrine applies to retaliation
actions brought under the Texas Workers‘ Compensation Act).4
Here, DISD asserted that complaints regarding Thanedar‘s job performance were
sufficient, alone, to justify his dismissal. However, DISD‘s live pleading merely stated
that ―Defendant would specifically invoke the after acquired evidence doctrine‖ and did
not specify what evidence DISD would rely on as a basis for this defense. Thanedar
argues on appeal that DISD therefore failed to adequately plead the defense. He
claims that a defendant ―must do more than just state that it has some vague after
acquired evidence defense, but must show and generate the defense specifically.‖
We need not determine whether the defense was adequately pleaded because
Thanedar cannot show he was harmed by the alleged error. See TEX. R. APP. P.
44.1(a) (stating that error in a civil case is reversible only if it (1) probably caused the
rendition of an improper judgment, or (2) probably prevented appellant from properly
presenting the case on appeal). The jury was instructed not to address DISD‘s after-
acquired evidence defense if it found no liability on Thanedar‘s Whistleblower Act claim.
The jury found no liability and, in accordance with the instructions, did not consider any
affirmative defense. Thanedar therefore has not shown that the trial court‘s error, if any,
in denying his motion to strike was reversible. See id. His fourth issue is overruled.
4
The after-acquired evidence doctrine differs from the defense set forth in subsection 554.004(b)
of the Whistleblower Act in that the former acts only as a limitation on recoverable damages, whereas the
latter serves as a complete bar to recovery. See TEX. GOV‘T CODE ANN. § 554.004(b) (West 2004) (―It is
an affirmative defense to a suit under this chapter that the employing state or local governmental entity
would have taken the action against the employee that forms the basis of the suit based solely on
information, observation, or evidence that is not related to the fact that the employee made a report
protected under this chapter of a violation of law.‖); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312
(Tex. 1997).
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D. Failure to Rule on Motions Before Trial
By his fifth issue, Thanedar argues that the trial court erred by ―repeatedly failing
to rule on more than 19 motions (12 of Thanedar and 7 from DISD) that had
accumulated in 3 1/2 years before the beginning of jury trial, causing a great deal of
harm to Thanedar . . . .‖ Thanedar does not, in his brief, set forth the standard of review
applicable to a trial court‘s alleged failure to rule on motions, nor does he set forth the
standard of review applicable to the motions themselves. He does not explain what he
requested in the motions, whether he called them to the trial court‘s attention, whether
the trial court carried the motions with the trial, or how he was harmed by the trial court‘s
failure to rule before trial.5 Under these circumstances, nothing has been presented for
our review. See TEX. R. APP. P. 33.1(a); TEX. R. APP. P. 38.1(i) (requiring a ―clear and
concise argument for the contentions made, with appropriate citations to authority and
to the record‖). We overrule Thanedar‘s fifth issue.
E. Jury Charge
Thanedar complains by his sixth issue that the trial court‘s jury charge was
defective. Specifically, he argues that: (1) question number one is ―impermissibly
vague and misleading‖; (2) question number two ―unjustly assumes misconduct on
Thanedar‘s part and wrongfully fails to specify any misconduct and fails to provide
instructions‖; and (3) the instructions given were defective and inadequate.
5
Thanedar also argues by this issue that DISD‘s trial counsel ―engaged [in] ethnic baiting of [the]
jury creating incurable jury taint and engaged in improper jury argument.‖ He specifically complains of
defense counsel‘s offhand comments that Thanedar ―is not from the [Rio Grande V]alley‖ and that
counsel‘s nickname is ―Cantinflas.‖ He also accuses the jury of misconduct, noting that he ―interviewed‖
the jury foreman shortly after the verdict was rendered, and that during this interview (which is absent
from the record), the foreman stated that ―there wasn‘t enough time‖ to look into reasons for Thanedar‘s
discharge. These ancillary arguments, like the central argument of issue five, are not supported by
citations to authority and are therefore waived. See TEX. R. APP. P. 38.1(i).
11
The trial court must submit instructions and definitions to the jury as are
necessary to enable the jury to render a verdict. TEX. R. CIV. P. 277. The goal of the
charge is to submit to the jury the issues for decision logically, simply, clearly, fairly,
correctly, and completely. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.
1999). Failure to submit a question is not deemed grounds for reversing the judgment
unless its submission, in substantially correct wording, has been requested in writing by
the party complaining of the judgment. TEX. R. CIV. P. 278. We review charge
complaints for abuse of discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d
647, 649 (Tex. 1990). A clear failure to analyze or apply the law correctly will constitute
such an abuse. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We will reverse
only where the error in the jury charge is shown to have probably caused the rendition
of an improper judgment or probably prevented the appellant from properly presenting
the case on appeal. See TEX. R. APP. P. 44.1(a).6
Jury question number one asked: ―Was [Thanedar]‘s report of violations of law
made in good faith and a cause of [DISD]‘s terminating or suspending [Thanedar] . . . ?‖
In his proposed jury charge, Thanedar submitted the following corresponding question:
―Do you find by a preponderance of the evidence that Mr. Thanedar reported a violation
of law in good faith to an appropriate law enforcement agency which caused solely or in
part the defendant to take an adverse personnel action against Mr. Thanedar?‖
6
In defense of the court‘s charge, DISD repeatedly refers to the fact that the questions included
therein track those set forth in the State Bar of Texas Pattern Jury Charges. See STATE BAR OF TEXAS,
TEXAS PATTERN JURY CHARGES, 107.4 & 107.7 (1997 ed.). However, although the Pattern Jury Charges
are ―heavily relied upon by both the bench and bar,‖ Alamo Lumber Co. v. Pena, 972 S.W.2d 800, 808
(Tex. App.—Corpus Christi 1998, pet. denied), they ―are not law.‖ H.E. Butt Grocery Co. v. Bilotto, 985
S.W.2d 22, 37 (Tex. 1998). Without regard to the Pattern Jury Charges, the trial court was still under an
obligation to submit issues ―logically, simply, clearly, fairly, correctly, and completely.‖ Hyundai Motor Co.
v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).
12
Thanedar argues that the trial court‘s question number one was (1) ―impermissibly
vague‖ because it did not specify which ―report‖ it was referring to,7 and (2) erroneous
because it did not ask whether Thanedar made a report to an ―appropriate law
enforcement agency.‖ We disagree. Thanedar does not point to any authority, and we
find none, requiring that the jury question specify which report allegedly caused the
adverse personnel action. Moreover, the evidence at trial was uncontroverted that
Thanedar made reports to at least one ―appropriate law enforcement agency‖ and the
jury charge defined that term properly as set forth in the statute. See TEX. GOV‘T CODE
ANN. § 554.002(b) (stating that an ―appropriate law enforcement authority‖ is ―a part of a
state or local governmental entity or of the federal government that the employee in
good faith believes is authorized to: (1) regulate under or enforce the law alleged to be
violated in the report; or (2) investigate or prosecute a violation of criminal law‖). The
trial court did not err by submitting question number one.
Question number two asked: ―Did [Thanedar] engage in misconduct for which
[DISD] would have legitimately discharged him solely on that basis?‖ The jury was
instructed to answer this question only if it answered ―Yes‖ to question number one.
Thanedar argues that this question improperly assumes that DISD‘s defense under
section 554.004(b) of the Whistleblower Act is based on evidence of ―misconduct,‖
whereas the statute allows the defense to be based on any ―information, observation, or
evidence that is not related to the fact that the employee made a report protected under
this chapter.‖ TEX. GOV‘T CODE ANN. § 554.004(b). Even assuming that submission of
this question was incorrect, we find no reversible error. As noted, the jury, as
7
According to Thanedar‘s testimony, he made separate reports to, among others, the Texas
Education Agency, the Federal Bureau of Investigation, DISD Police, the Federal Communications
Commission, and the United States Department of Justice.
13
instructed, did not consider question number two because it did not find liability under
question number one. Therefore, Thanedar cannot show he was harmed by any error.
See TEX. R. APP. P. 44.1(a).
Finally, Thanedar argues that the instructions given to the jury were defective.
Specifically, the charge instructed the jury that Thanedar ―has the burden to prove each
element of his claim by a preponderance of the evidence.‖ A separate section of the
charge, entitled ―Plaintiff‘s Burden of Proof Under the Texas Whistleblower Act,‖ stated
as follows:
You are instructed that under the ―Texas Whistleblower Act‖ the Plaintiff,
[Thanedar], has the burden to prove by a preponderance of the evidence
that [DISD] suspended him after he, in good faith, reported a violation of
law to an appropriate law enforcement authority and that the suspension
would not have occurred when it did, absent Plaintiff‘s report.
The actual text of the Whistleblower Act, on the other hand, states as follows:
A public employee who sues under this chapter has the burden of proof,
except that if the suspension or termination of, or adverse personnel
action against, a public employee occurs not later than the 90th day after
the date on which the employee reports a violation of law, the suspension,
termination, or adverse personnel action is presumed, subject to rebuttal,
to be because the employee made the report.
TEX. GOV‘T CODE ANN. § 554.004(a) (emphasis added).
The instructions given as part of the jury charge were erroneous in two ways.
First, the charge neglects to advise the jury of the rebuttable presumption provided in
section 554.004(a), which is indisputably applicable in the instant case. See id.
Second, the charge is incorrect when it states that Thanedar bore the burden to prove
―that the suspension would not have occurred when it did, absent Plaintiff‘s report.‖ In
fact, the existence of an alternate justification for a plaintiff‘s suspension or dismissal is
an affirmative defense for which the defendant bears the burden of proof, not an
14
element of the tort for which the plaintiff would bear the burden. See id. § 554.004(b)
(―It is an affirmative defense to a suit under this chapter that the employing state or local
governmental entity would have taken the action against the employee that forms the
basis of the suit based solely on information, observation, or evidence that is not related
to the fact that the employee made a report protected under this chapter of a violation of
law.‖).
The trial court abused its discretion in submitting this instruction in the jury
charge. Moreover, Thanedar preserved the error by submitting substantially correct
versions of the questions and instructions in his proposed jury charge. See TEX. R. CIV.
P. 278. However, we find that the errors we have identified are not grounds for reversal
because the errors did not cause Thanedar to suffer harm. As detailed further infra,
DISD produced evidence indicating that the board of trustees had significant legitimate
concerns regarding Thanedar‘s job performance. Accordingly, even if the jury had been
properly instructed as to the statutory presumption, the jury could have reasonably
concluded that the presumption had been effectively rebutted, thereby shifting the
burden again to Thanedar to show causation. We cannot say, therefore, that the
charge errors probably caused the rendition of an improper verdict or prevented
Thanedar from preventing his case on appeal. See TEX. R. APP. P. 44.1. Thanedar‘s
sixth issue is overruled.
F. Evidence Supporting Rejection of Whistleblower Claim
By his seventh issue, Thanedar claims that no evidence supported the jury‘s
finding that DISD did not unlawfully retaliate against him under the Whistleblower Act.
15
We construe this argument as a challenge to the legal sufficiency of the evidence
supporting the jury‘s verdict.
In general, evidence will be considered legally sufficient if it would enable
reasonable and fair-minded people to reach the verdict under review. City of Keller v.
Wilson, 168 S.W.3d 802, 823 (Tex. 2005). However, when a party attacks the legal
sufficiency of an adverse finding on an issue upon which it had the burden of proof, that
party must demonstrate on appeal that the evidence establishes, as a matter of law, all
vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001). We review the evidence in the light most favorable to the verdict, crediting
evidence that supports the verdict if reasonable jurors could and disregarding all
contrary evidence that a reasonable jury could have disbelieved. City of Keller, 168
S.W.3d at 822.
The Whistleblower Act states 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 ANN. § 554.002(a). A public employee whose employment is
suspended or terminated in violation of the statute may sue to obtain (1) reinstatement
to the employee‘s former position or an equivalent position, (2) compensation for wages
lost during the period of suspension or termination, and (3) reinstatement of fringe
benefits and seniority rights. Id. § 554.003(b).
The following elements are required to establish a claim under the Whistleblower
Act: (1) the plaintiff is a public employee; (2) the report was made in good faith; (3) the
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report involved a violation of law; (4) the report was made to an appropriate law
enforcement authority; and (5) the plaintiff suffered retaliation as a result of making the
report. Bexar County v. Lopez, 94 S.W.3d 711, 714 (Tex. App.—San Antonio 2002, no
pet.) (citing TEX. GOV‘T CODE ANN. § 554.002(a)). A ―good faith‖ report means that the
plaintiff must have believed he was reporting conduct that constituted a violation of law
and his belief must have been reasonable based on his training and experience. City of
Elsa v. Gonzalez, 325 S.W.3d 622, 626 (Tex. 2010); see Wichita County v. Hart, 917
S.W.2d 779, 785 (Tex. 1996) (noting that those with law enforcement training have ―far
more exposure and experience in determining whether an action violates the law,‖ and
thus, the reasonableness of their belief that a law has been violated will be examined
more closely than will the beliefs of non-law enforcement employees).
We first address the causation element of retaliation. Pointing to Thanedar‘s
failure to disclose to the board that he was not licensed as a CPA, his refusal to pay the
Stainke Elementary School contractor, and other job performance-related complaints,
DISD argues that Thanedar ―did not prove that [DISD] took the action [it] did as a result
of [Thanedar] making a report to them.‖8 We note that Thanedar did not bear the
exclusive burden at trial to establish the causation element. As noted, section
554.004(a) of the Whistleblower Act states that, if a suspension or termination is
imposed within ninety days of the report to law enforcement, a rebuttable presumption
arises that the suspension or termination was imposed because of that report. TEX.
8
This is a misstatement of the applicable law. A Whistleblower Act plaintiff need not show that
he made a report of illegal activity to the entity that ordered the adverse employment action; rather, the
plaintiff must show that a report was made to law enforcement and that the adverse employment action
was the result of the report having been made. Bexar County v. Lopez, 94 S.W.3d 711, 714 (Tex. App.—
San Antonio 2002, no pet.) (citing TEX. GOV‘T CODE ANN. § 554.002(a)).
17
GOV‘T CODE ANN. § 554.004(a). It is undisputed that Thanedar‘s suspension and
termination occurred within ninety days of his making the reports of wrongdoing. 9
Accordingly, the burden was on DISD to rebut the statutory presumption that the
suspension and termination were caused by Thanedar‘s reports. See id. We find that
DISD met that burden.
Matthew Jones, a member of the DISD board of trustees at the time of
Thanedar‘s suspension and dismissal, testified that ―turmoil‖ developed in the district‘s
business office during Thanedar‘s tenure as CFO. He explained further:
I don‘t know exactly what Mr. Thanedar was doing or not doing, but I think
he was approving every single PO [purchase order] at one point.
And what that was causing was a great delay in numerous, numerous
payments that were supposed to be going out. And we had principals that
were going crazy because they had students lined up to go on trips and
they had people there but there was no—the hotel hadn‘t been paid for or
the trip to Houston or whatever, there was no payment. They couldn‘t get
any POs out.
And we had circumstances where, for example, the athletic department
had purchased tractors to keep the fields cut and everything, and those
were being threatened to be repossessed because no payments had been
made.
So we had a huge disagreement about what needed to be done to
make—basically we were just way behind on a bunch of payments and
people were not getting things done that needed to be done, and Mr.
Thanedar was holding all the payments.
Jones was then asked specifically why he voted to end Thanedar‘s employment with
DISD. He responded:
A number of issues were all surfacing at the same point, the payroll
department and the purchase orders being one. I think probably the one
that was the biggest concern to me and that really pushed things over the
9
As noted, Thanedar disputes the notion that the DISD board of trustees properly exercised its
legal authority to suspend or dismiss him. However, he does not dispute that the purported suspension
and dismissal occurred within ninety days of his reports to law enforcement.
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top far and away was our bond issue. Mr. Thanedar . . . made statements
to me and to the entire Board that we could go out for our entire bond
amount, which I recall being 42 million—and that could be wrong one way
or the other.
And the bonds are ones you get to build other schools. And . . . if you‘re
going to do that, then that creates additional tax, so it was going to take
seven additional cents [per $100 valuation] to everybody in Donna on their
property tax in order to be able to have a 42-million-dollar bond, that‘s
what we were looking at. And as a board, we were not willing to do
that. . . .
Mr. Thanedar made the statement to us that we could—there [are] two
sets of taxes. There is one that is for your bond elections, and there is
another one that we get funded off of just for our general stuff, one
basically for buildings and new buildings and one for everything else. . . .
One of them used to be capped at 1.50 per hundred. . . . [W]e call that the
M&O, maintenance and operations tax. . . . Then you have on top of that
an existing . . . tax for those bonds you pass for the old schools you built.
And if you want to get new ones and get new money that number is going
to go up. . . .
And Mr. Thanedar explained to the board that we could reduce the one
that was 1.50 down to 1.43 with very low impact to the district, to the tune
of something less than a million dollars, maybe 6 or 700 something
thousand dollars. . . . So, . . . one [tax rate] would go up and one would go
down and taxpayers would still be paying $1.16 total. Their taxes wouldn‘t
go up. But we would just kind of reallocate it out of the general fund tax
and move it over into the building tax. . . . And Mr. Thanedar assured us
we could—he could absorb this 6 or $700,000, whatever it was, into the
budget and we would go on down the road and no problem.
Well, so upon that information, we went out and voted to . . . go out for a
bond in March, and the election is in May. . . .
At some point in time we met with Chuy Ramirez, who was our bond
counsel. . . . We had also another party involved in that, is a financial
advisor you get. When you‘re going to sell bonds into the market and
throughout the process, you have a financial advisor, which is a third-
party, who was an expert. Ours were, I think, out of San Antonio or
somewhere called Dain Rauscher.
We asked them if Mr. Thanedar was correct, [i]s he right that we can really
go down on the M&O side seven cents without having a huge impact. . . .
They said, [―]Hey, we don‘t know. That sounds wrong to us, but we‘re not
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experts in that area. We will try to help you find out. Mr. Thanedar
assured us that he was correct.[‖]
Then at a meeting we had with Mr. Ramirez, . . . Ramirez explained that
he completely disagreed with Mr. Thanedar‘s analysis of the seven-cent
issue. And Mr. Thanedar in what I took to be a very offensive and rude
way told him that he didn‘t know anything that he was talking about and
that Mr. Thanedar was right. . . . And so after that meeting, we got back
involved with Dain Rauscher. They went directly to TEA. And TEA, the
guy who writes the proposals, sent us back information saying no, that‘s
not a $700,000 difference. That‘s a 7 million—6 to 7 million reduction in
your funding from the State you‘re going to get. If you go from $1[.50] to
$1.43 on your general fund dollars, you‘re going to lose 7 million.
And I‘ll tell you, at that point I lost every bit of confidence in Mr. Thanedar
because we were already deep in to the process. He knew—and that
would have bankrupted our district in no time at all had we taken that
action or we would have just had to raise the tax and had lied to our
constituents and to our community. And so that—that was the major
factor for me in having no further confidence in Mr. Thanedar and what he
said being accurate.
Trustee Juan Gilbert Guerrero testified that, at the April 18, 2006 board meeting, Jones
recommended to the board that it terminate Thanedar‘s employment, Guerrero made a
motion to approve the recommendation, the motion was seconded by another trustee,
and the board voted unanimously in favor of the motion.
Considering this evidence, we find that reasonable and fair-minded people could
have concluded that DISD effectively rebutted the statutorily-mandated presumption.
See id. § 554.004(a); City of Keller, 168 S.W.3d at 823. Further, a reasonable juror
could have concluded from this evidence that the DISD board of trustees suspended
and terminated Thanedar due to his job performance, and not because of the reports
Thanedar made to law enforcement. See TEX. GOV‘T CODE ANN. § 554.004(b).
Because Thanedar failed to establish, as a matter of law, all vital facts in support of his
Whistleblower Act claim, see Dow Chem. Co., 46 S.W.3d at 241, the evidence was
20
legally sufficient to support the jury‘s rejection of that claim. Thanedar‘s seventh issue
is overruled.
III. CONCLUSION
We affirm the trial court‘s judgment.10
DORI CONTRERAS GARZA
Justice
Delivered and filed the
18th day of August, 2011.
10
Thanedar requests in his brief that we impose sanctions on DISD‘s trial counsel, Eileen Leeds,
for ―engaging in ethnic baiting of jury and for obstructing justice.‖ Having reviewed the record, we find
Thanedar‘s issue to be utterly lacking in merit. We deny his request.
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