Nina Lopez v. Tarrant County, Texas

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00194-CV
NINA LOPEZ APPELLANT AND APPELLEE
V.
TARRANT COUNTY, TEXAS APPELLEE AND APPELLANT
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-256361-11
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MEMORANDUM OPINION1
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I. INTRODUCTION
Nina Lopez appeals the trial court’s final judgment granting the motion for
summary judgment of Tarrant County, Texas. In three issues, Lopez argues that
the trial judge should have been recused in this case; that the trial court erred by
granting summary judgment in favor of Tarrant County; and that this court should
1
See Tex. R. App. P. 47.4.
reverse the trial court’s judgment and transfer this case “back to Dallas County.”
Tarrant County conditionally appeals the trial court’s judgment regarding its plea
to the jurisdiction. Because we overrule all three of Lopez’s issues on appeal, we
do not address Tarrant County’s conditional issue, and we will affirm.
II. BACKGROUND
Lopez began her employment with Tarrant County as a Receptionist for
Tarrant County Administrator G.K. Maenius in 2005. In 2010, Maenius promoted
Lopez to be his Executive Secretary. Lopez alleges that on Friday, April 23,
2010, Judi Scott, Agenda Coordinator for the Tarrant County Commissioners
Court, assaulted her. Robin Worthy, Assistant Director of Tarrant County Human
Resources Department, said that she first learned of the alleged assault when
Lopez reported it to her on April 23, 2010. Worthy said that she encouraged
Lopez to report her allegation to Maenius. Worthy notified Human Resources
Director Tina Glenn of Lopez’s allegation that same day.
Glenn emailed Lopez and also encouraged her to report the assault
allegation to Maenius. Lopez, however, did not notify Maenius on April 23.
Instead, on the next day, Saturday, April 24, 2010, Lopez reported her allegation
to the Fort Worth Police Department. Later that day, Lopez called Maenius and
reported her allegation. By Maenius’s account, Lopez expressed reluctance at
moving forward with her allegation. Maenius told Lopez that there was no option
but to investigate the alleged assault. As Maenius had directed, Lopez submitted
her written report to him on Monday, April 26, 2010.
2
After Maenius reviewed her report, he met with Lopez. Maenius then met
with Worthy and gave her a copy of Lopez’s report. On Tuesday, April 27, 2010,
Maenius met with Glenn and Worthy and directed them to immediately
investigate Lopez’s allegation. According to Glenn, Maenius was adamant that
an investigation be started immediately “to get to the bottom of what had
happened.”
Two investigations, one by the Tarrant County Sheriff’s Office and the
other by Glenn and Worthy, concluded that there was insufficient evidence to
support Lopez’s allegation that she had been assaulted. Maenius was not
actively involved in these investigations.
On the morning of Wednesday, June 30, 2010, according to multiple
witnesses, Lopez confronted Maenius, accusing him of providing her personal
telephone number to reporters from the press and arranging for those reporters
to call her the night before. Lopez further accused Maenius of coming to her
home uninvited. Lopez claimed that she felt compelled to, and did, send an
email to Tarrant County Sheriff Dee Anderson stating that she did not want
Maenius coming to her home. In short order, Maenius requested that Assistant
County Administrator Mark Mendez and Worthy come to his office. There,
Mendez and Worthy witnessed Lopez’s conduct.
Through affidavit, Worthy testified that Lopez was “yelling” and that she
repeatedly had to tell her to lower her voice. She described Lopez’s body
language as “agitated” and “animated.” Worthy said that Lopez’s conduct was
3
not appropriate for the workplace. Worthy also confirmed that Lopez had
accused Maenius of having reporters call her house the night before. During the
meeting, Worthy asked Lopez about these alleged calls. By Worthy’s account,
Lopez was unable to provide specifics about the alleged calls. Worthy testified
that she also heard Lopez tell Maenius it was “[y]our word against mine.”
According to Mendez’s affidavit, Lopez was “antagonistic” toward Maenius
during the meeting. Mendez stated that Lopez “kept interrupting [Maenius] and
would not let him finish his sentences.” Like Worthy, Mendez contended that
Lopez accused Maenius of arranging for a reporter from the Fort Worth Star-
Telegram to call her the night before. Mendez stated that Lopez kept “raising her
voice” and that she “appeared out of control.” Mendez averred that, “In my 26
years of work as a consultant and for Tarrant County, I had never seen an
employee confront an employer the way [] Lopez confronted [] Maenius. . . It was
my impression that [] Lopez’s behavior went far beyond what would be
appropriate and acceptable in the workplace.”
According to Maenius’s affidavit, Lopez came into his office that morning,
and she was “clearly agitated.” Maenius stated that after she ignored his
greeting, Lopez began to shout that she was “not going to stand for this anymore
and I want you to stop it.” Maenius said he did not know what she was talking
about. Maenius averred that, in a “confrontational tone,” Lopez said she had
received two phone calls the night before from a Fort Worth Star-Telegram
reporter, who allegedly asked her if she was Lopez and whether she worked for
4
Maenius. Maenius said that Lopez claimed to have talked to the reporter for a
“short while and then hung up” and that Lopez further claimed that the reported
called her back and asked the same questions and that after another short
conversation, she hung up on him a second time.
Maenius averred that Lopez accused him of giving the reporter her phone
number and told him to tell the reporter not to call her anymore. By Maenius’s
account, she then insisted that she did not want to discuss the issue anymore
and started to leave his office. Maenius contended that the entire confrontation
took him by surprise but that he stopped Lopez from leaving and asked her if she
was accusing him of having a reporter call her house. She said “yes.” He said
that she then stated that she did not want him coming to her home anymore and
that she had sent an email to “County Judge Glen Whitley, with a copy to Sheriff
Dee Anderson.” Lopez claimed that the email asked Judge Whitley and Sheriff
Anderson to instruct Maenius to not come to her home. Maenius said that he
replied that not only had he never been to her home, he did not even know where
she lived. When he asked Lopez why she was making these accusations, she
did not respond. Maenius said that at that point, he asked Worthy and Mendez
to come to his office.
Maenius stated that once Worthy and Mendez were in his office, he
attempted to relay to them what had just happened but that Lopez repeatedly
interrupted him. In their presence, Lopez again repeated that Maenius had
caused a reporter to call her, but when Worthy inquired whether her caller I.D.
5
would corroborate her story, Lopez said that she did not know whether the
person who had called her was in fact a reporter. Maenius said that Lopez also
confirmed to Worthy that Maenius had never been to her home. Maenius
described Lopez’s overall behavior in the meeting as “confrontational,
disrespectful and insubordinate.” He also averred that Lopez had made
“baseless and unfounded allegations which [she] later admitted were untrue.”
Maenius further stated that shortly after the meeting, Lopez sent him an email
apologizing for her behavior. In the email, Maenius said that Lopez described
her own behavior as “inexcusable.” Maenius said that Lopez copied this email to
Glenn, Worthy, Mendez, and Assistant County Administrator Jay Singleton.
Maenius averred that after “considering [] Lopez’s behavior and the
baseless accusations she had made on June 30, 2010, [he] made the decision to
terminate” her employment a couple of weeks later on July 14, 2010. Maenius
also cited Lopez’s “confrontational, disrespectful and insubordinate conduct”
during the meeting as grounds for termination. He stated that his decision to
terminate her employment was also “based on the high level of trust that must
exist in the working relationship between the County Administrator and the
Executive Secretary and the fact that this trust was irreparably damaged by []
Lopez’s behavior on June 30, 2010.” Maenius went on to state that after the
June 30, 2010 meeting, he “no longer had the trust in [] Lopez that is critical to”
her position.
6
Singleton was in the office adjacent to Maenius’s office on the morning of
June 30, 2010. Singleton averred that he heard Lopez shouting from Maenius’s
office. He also said that the “shouting” by Lopez “went on for several minutes.”
According to Singleton, the shouting was so loud he could hear it “through
[Maenius’s] door into the common area and hallway.”
As part of its summary-judgment evidence, Tarrant County introduced an
email sent by Lopez shortly after the June 30, 2010 meeting. The email read
Ms. Robin,
Sheriff Anderson, inform me he did not have a copy of the email I
sent him, I did not ask Judge Whitley.
Nina Lopez
Executive Secretary
to G.K. Maenius
County Administrator
Tarrant County also introduced an email sent from Lopez to Maenius,
Singleton, Mendez, Glenn, and Worthy shortly after the June 30, 2010 meeting.
This email read:
Mr. Maenius,
I apologize. there’s no excuse, I’m tired, I haven’t eaten, I’m 2½
sizes down on my weight, stress, I haven’t slept, and I probably over
reacted. I have been afraid of being hit again.
I stand by my truth I was assaulted on April 23, 2010 in this office.
Nina Lopez
Executive Secretary
to G.K. Maenius
County Administrator
7
According to Glenn’s deposition testimony, she met with Lopez on July 1,
2010, to discuss what had transpired in the June 30, 2010 meeting. Glenn said
that Lopez asked if she would be written up for her conduct. Glenn told Lopez
that “any personnel action [regarding Lopez] would be decided by [] Maenius.” In
this meeting, Glenn asked Lopez about the phone calls Lopez claimed to have
received during the night of June 29, 2010. Glenn said that Lopez said that after
she “thought about it,” the calls may have been from a charity, and Lopez
claimed that she did not answer the second call.
Lopez told Glenn that on June 30, 2010, she told Maenius that she had
sent an email to Sheriff Anderson, asking him “to keep [Maenius] away from her
home.” Lopez explained that she had previously extended an invitation to
Maenius to come to her home to look for documents, but that she had changed
her mind. As Worthy had done, Glenn also asked Lopez for a copy of the email
Lopez claimed to have sent to Sheriff Anderson. Lopez could not produce the
email.
Through deposition, Lopez testified that while in Maenius’s office on the
morning of June 30, 2010, Maenius, Worthy, and Mendez consistently told her
that she was yelling and out of control. Lopez further testified that during the
meeting the others “convinced [her]” that she “was behaving badly.” Lopez,
however, stated that she believed she was not yelling and that Maenius’s tone
toward her caused her to cry. Lopez also admitted that she never sent an email
8
to Sheriff Anderson asking him to instruct Maenius not to come to her house.
She averred that she did not send the email out of respect for Maenius.
Lopez filed this suit against Tarrant County in Dallas, claiming that she had
been wrongfully terminated due to her allegation that Scott had assaulted her.
Tarrant County sought to transfer venue to Tarrant County. The Dallas County
trial court denied Tarrant County’s motion and Tarrant County appealed. In re
Tarrant Cnty., 345 S.W.3d 784, 786 (Tex. App.—Dallas 2011, original
proceeding, mand. granted). The Dallas Court of Appeals held that mandatory
venue for this cause of action was Tarrant County. Id. Tarrant County then filed
a combined plea to the jurisdiction and motion for summary judgment. Tarrant
County’s motion for summary judgment asserted the affirmative defense that
Lopez’s employment had been terminated independent of her assault allegation.
Prior to filing her response to Tarrant County’s combined motion, Lopez filed a
motion to recuse the assigned Tarrant County trial judge. Presiding Judge Jeff
Walker of the Eight Administrative Judicial Region of Texas denied Lopez’s
motion.
After considering Tarrant County’s combined motion, Lopez’s response,
and the summary-judgment evidence presented by the parties, the trial court
denied Tarrant County’s plea to the jurisdiction but granted summary judgment in
its favor. This appeal followed.
9
III. DISCUSSION
A. Lopez’s Recusal Motion
In her first issue, Lopez argues that Presiding Judge Walker erroneously
denied her motion to recuse the trial court judge of the 236th District Court of
Tarrant County. Lopez argues that because the trial judge’s salary is subsidized
by Tarrant County; because Tarrant County contributes to the trial judge’s
benefits—including healthcare and retirement contributions; and because
Maenius has “relationships with the State District Judges in Tarrant County from
projects such as the design and construction of . . . courthouse[s],” a “reasonable
person” would conclude that there is an “appearance of impropriety” for such a
judge to preside over a case involving Tarrant County.
We review the denial of a motion to recuse under an abuse of discretion
standard. See Tex. R. Civ. P. 18a(j)(1)(A). Judges are obligated to decide
matters presented to them and must not be recused unnecessarily. See Rogers
v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring); see also
In re K.E.M., 89 S.W.3d 814, 819 (Tex. App.—Corpus Christi 2002, no pet.).
A party seeking recusal must satisfy a “high threshold” before a judge must
be recused. Liteky v. United States, 510 U.S. 540, 558, 114 S. Ct. 1147, 1158
(1994) (Kennedy, J., concurring). In determining whether recusal is proper, “the
[] inquiry is whether a reasonable member of the public at large, knowing all the
facts in the public domain concerning the judge and the case, would have a
reasonable doubt that the judge is actually impartial.” Kniatt v. State, 239 S.W.3d
10
910, 915 (Tex. App.—Waco 2007, order on reh’g) (citing Burkett v. State, 196
S.W.3d 892, 896 (Tex. App.—Texarkana 2006, no pet.)); see Rogers, 909
S.W.2d at 880 (Enoch, J., concurring). Accordingly, the determination of recusal
should be made based on a studied analysis of all of the circumstances involved
rather than a knee-jerk reaction to one fact in isolation. Kniatt, 239 S.W.3d at
915. This determination employs a “reasonable-person test,” and courts
evaluate the merits of a motion from “a disinterested observer’s point of view.”
Id.; Rogers, 909 S.W.2d at 882 (Enoch, J., concurring); see United States v.
Jordan, 49 F.3d 152, 156 (5th Cir. 1995) (explaining that courts must analyze
how facts would appear to “the well-informed, thoughtful and objective observer,
rather than the hypersensitive, cynical, and suspicious person.”).
Partiality, bias, and prejudice, in the context of recusal, do “not refer to all
favoritism, but only to such as is, for some reason, wrongful or inappropriate.”
Liteky, 510 U.S. at 552, 114 S. Ct. at 1156. Stated differently, the terms refer to
“predispositions that go beyond what is normal and acceptable” or to “favorable
or unfavorable” dispositions that are “excessive in degree.” Id. at 552, 114 S. Ct.
at 1155. Accordingly, the need for recusal is triggered only when a judge
displays an “attitude or state of mind so resistant to fair and dispassionate
inquiry” as to cause a reasonable member of the public to question the objective
nature of the judge's rulings. Id. at 557–58, 114 S. Ct. at 1158 (Kennedy, J.,
concurring).
11
Courts enjoy a “presumption of judicial impartiality.” Abdygapparova v.
State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The
presumption no doubt results from the well-accepted notions that conscientious
judges will nullify the effect of any potential bias by making themselves aware of
those possible biases and that they understand “their duty to render decisions
upon a proper record and to disregard” extraneous matters. Liteky, 510 U.S. at
562, 114 S. Ct. at 1160 (Kennedy, J., concurring).
For all of these reasons, the movant bears the burden of proving that
recusal is warranted. Abdygapparova, 243 S.W.3d at 198. That burden is only
satisfied when the movant provides facts demonstrating the presence of bias or
partiality “of such a nature and extent as to deny the movant due process of law.”
Office of Pub. Util. Counsel v. Public Util. Comm’n, 185 S.W.3d 555, 574 (Tex.
App.—Austin 2006, pet. denied); Roman v. State, 145 S.W.3d 316, 321 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d); see Abdygapparova, 243 S.W.3d at
198 (explaining that movant must show high level of antagonism that is so deep-
seated that it would be impossible for judge to render fair judgment). Conclusory
statements, conjecture, or mere assertions of bias will not satisfy the movant’s
burden or overcome the presumption of impartiality. Rogers, 909 S.W.2d at 881,
884 (Enoch, J., concurring); Abdygapparova, 243 S.W.3d at 198.
Here, we find nothing in Lopez’s argument that goes beyond conclusory
statements, conjecture, or mere assertions of bias or the appearance of
impropriety. Indeed, both in her motions to recuse filed in the trial court and filed
12
in this court, Lopez argued not only that the sitting trial judge that heard this case
should have been recused, but any judge who was paid a salary in part by
Tarrant County should have been recused. Furthermore, in her recusal motion,
Lopez specifically stated that she had no knowledge “that the judge in the 236th
District Court or any other sitting State District Judge has any actual bias
regarding the facts” of her case. Thus, admittedly, Lopez is relying on conjecture
and mere assertion. See Abdygapparova, 243 S.W.3d at 198 (“The court enjoys
a presumption of judicial impartiality which is not defeated by the mere assertion
of bias based on a trial judge’s previous judicial relationship with a defendant.”).
To be sure, Lopez did not present at the trial level, nor on appeal now, any
evidence that the sitting judge in the 236th District Court displayed a
predisposition that goes beyond what is normal and acceptable to any excessive
degree regarding her case. Liteky, 510 U.S. at 550, 552, 114 S. Ct. 1155. We
hold that Presiding Judge Walker did not abuse his discretion by overruling
Lopez’s motion to recuse the trial judge. See Tex. R. Civ. P. 18a(j)(1)(A). We
overrule Lopez’s first issue.
B. Lopez’s Whistleblower Act Claim
In her second issue, Lopez argues that Tarrant County did not conclusively
establish its affirmative defense and that the trial court therefore erred by
granting its motion for summary judgment. We disagree.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
13
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to
summary judgment on an affirmative defense if the defendant conclusively
establishes all the elements of the affirmative defense. Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); Chau v. Riddle, 254 S.W.3d
453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c).
Once the defendant produces sufficient evidence to establish the right to
summary judgment, the burden shifts to the plaintiff to come forward with
competent, controverting evidence that raises a fact issue. Van v. Pena, 990
S.W.2d 751, 753 (Tex. 1999); Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 665
(Tex. App.—Fort Worth 2010, no pet.). When a trial court does not specify the
ground relied on for granting summary judgment, the summary judgment will be
affirmed on appeal if any of the theories presented to the trial court and
preserved for appellate review are meritorious. Hanson v. Greystar Dev. &
Constr., LP, 317 S.W.3d 850, 852 (Tex. App.—Fort Worth 2010, pet. denied).
“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
14
governmental entity or another public employee to an appropriate law
enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a) (West 2012); see
Steele v. City of Southlake, 370 S.W.3d 105, 116 (Tex. App.—Fort Worth 2012,
no pet.). A violation of section 554.002 waives governmental immunity. State v.
Lueck, 290 S.W.3d 876, 878 (Tex. 2009); see Tex. Gov’t Code Ann. § 554.0035
(West 2012). A person whose employment is terminated in violation of section
554.002 may sue for injunctive relief, reinstatement, damages, and reasonable
attorney’s fees. Tex. Gov’t Code Ann. § 554.003. The person must generally
sue within ninety days of the improper employment action. Id. § 554.005 (West
2012).
In this case, Tarrant County sought summary judgment on the affirmative
defense described by section 554.004(b) of the government code, which states:
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.
Id. § 554.004(b) (West 2012). Tarrant County argued in its motion that Maenius,
who had the sole authority to fire Lopez, terminated her employment for “conduct
unbecoming” of her position as Maenius’s Executive Secretary. Specifically,
Tarrant County argued, and offered competent summary-judgment evidence, that
Lopez’s conduct on June 30, 2010, included “shouting, being insubordinate,
disrespectful, confrontational and making accusations which Lopez later admitted
15
were untrue.” Tarrant County provided testimony from Maenius that Lopez was
terminated for the reasons set forth in the “Notice of Intent to Terminate.” The
termination notice cited that “[Lopez’s] demeanor and conduct” had “completely
undermined the trust and confidence required for [her] to successfully perform
[her] duties as Executive Secretary” as the reason for her termination.
In Lopez’s response to Tarrant County’s motion, she generally asserted
that “[t]here is ample evidence linking [Tarrant County’s] termination of [Lopez] to
her report that she was assaulted.” Lopez further asserted that she disputed that
“she engaged in the conduct of which she is accused and [Tarrant County’s] own
HR representative admits she suggested to Maenius that Lopez not be
terminated but instead given progressive discipline or be allowed to transfer.”
But, other than pointing to “circumstantial” evidence that tended to demonstrate a
link between her termination and her assault allegation, Lopez did not provide
competent controverting evidence against much of the evidence regarding
Tarrant County’s affirmative defense.
Indeed, Lopez pointed to evidence in the record that she had denied
“yelling at Maenius and instead testified that she cried when Maenius began
asking her if she had gone to the media.” She also pointed to evidence in the
record that “HR Director Glenn testified she had reservations about terminating
Lopez.” Significantly, and as Tarrant County points out, Lopez did not, however,
produce summary-judgment evidence controverting that she made false
accusations against Maenius that she later admitted were not true; that she
16
untruthfully claimed she had sent an email to Sheriff Anderson that she later
admitted she did not send; that she was “out of control” and kept interrupting
Maenius during the June 30, 2010 meeting; that she was “animated” and
“agitated” at Maenius during the meeting; that she engaged in disrespectful
behavior “beyond [what] would be appropriate and acceptable in the workplace”;
or that she had falsely accused Maenius of coming to her home.
The affirmative defense in section 554.004(b), if conclusively established,
tends to negate the causation element of a plaintiff’s claim because to show
causation in a Whistleblower Act case, “a public employee must demonstrate that
after he reported a violation of the law in good faith to an appropriate law
enforcement authority, the employee suffered discriminatory conduct by his
employer that would not have occurred when it did if the employee had not
reported the illegal conduct.” Hurley v. Tarrant Cnty., 232 S.W.3d 781, 786 (Tex.
App.—Fort Worth 2007, no pet.) (emphasis added); see City of Fort Worth v.
Zimlich, 29 S.W.3d 62, 68 (Tex. 2000); Tex. Dep't of Human Servs. v. Hinds, 904
S.W.2d 629, 636 (Tex. 1995) (“[T]he standard of causation in whistleblower and
similar cases should be that the employee’s protected conduct must be such
that, without it, the employer’s prohibited conduct would not have occurred when
it did.”). This causation standard has been described as a “but for” causal nexus
requirement. Hurley, 232 S.W.3d at 786 (citing Rogers v. City of Fort Worth, 89
S.W.3d 265, 280 (Tex. App.—Fort Worth 2002, no pet.)).
17
Typically, a causal link between the employee’s report of illegal conduct
and the adverse employment action may be established by circumstantial
evidence, including knowledge of the report of illegal conduct, expression of a
negative attitude toward the employee’s report of the conduct, failure to adhere to
established policies regarding employment decisions, discriminatory treatment of
the reporting employee in comparison to similarly situated employees, and
evidence that the stated reason for the adverse employment action was false.
City of El Paso v. Parsons, 353 S.W.3d 215, 226 (Tex. App.—El Paso 2011, no
pet.) (citing Zimlich, 29 S.W.3d at 69); Hurley, 232 S.W.3d at 786. On appeal,
Lopez heavily relies on such circumstantial evidence in an effort to establish
summary judgment was improper; she asserts, among other facts, that
o Tarrant County did not adhere to its “normal practice” of
progressive discipline;
o Maenius terminated Lopez within three months of her report of
assault;
o Lopez had testified that Maenius was hostile to her report; and
o Tarrant County did not terminate a similarly situated employee.2
It is indeed possible that these facts amount to circumstantial evidence
showing that Lopez’s allegation of assault provided one basis for Maenius’s
2
In her response to Tarrant County’s summary judgment, Lopez argued
that a similarly situated employee had not been terminated. Lopez seems to
have attempted to add this argument to her issue on appeal, but she did so
through a partial footnote that is clearly incomplete. In the interest of justice, we
have considered this as one of the factual bases of her issue. Cf. Tex. R. App.
P. 38.1(f).
18
decision to terminate her employment. But under the plain language of section
554.004(b), Tarrant County is nonetheless entitled to its affirmative defense if
Maenius decided to terminate Lopez solely on a basis that was independent of
her report. Tex. Gov’t Code Ann. § 554.004(b).
The Whistleblower Act does not require an employee to prove that the
reporting of illegal conduct was the sole reason for the complained-of adverse
employment action. Hurley, 232 S.W.3d at 786. If the employee’s report would
not have been enough by itself to cause the employer’s adverse employment
action—but was an indispensable component, in combination with other facts, of
the action—then the employee’s report legally caused the action under the
Whistleblower Act. See id. If, however, the evidence conclusively establishes
that any possible consideration by the employer of the fact that the employee
made a report was only superfluous to the adverse employment action and that
the action would have occurred regardless of the fact of the report, then section
554.004(b)’s affirmative defense precludes liability. See Tex. Gov’t Code Ann.
§ 554.004(b).
Relying on this court’s decision in Rogers, Lopez argues, like she did in
her response to Tarrant County’s summary judgment motion, that the trial court
erred by concluding that no genuine issue of material fact exists regarding
Tarrant County’s claim that she was fired for her conduct on June 30, 2012.
Rogers, 89 S.W.3d at 280. Lopez argues that Rogers stands for the proposition
that an employer’s failure to adhere to its progressive-discipline policy is
19
evidence that her termination “was not justified.” Lopez further argues that like
the plaintiff in Rogers who denied being untruthful, she produced summary
judgment evidence that she denies the allegation that she yelled at Maenius
during the June 30, 2010 meeting. Setting aside the significant procedural
differences between this case and Rogers, we believe that Lopez’s reliance on
Rogers is misplaced. See id. at 285 (holding, in bench trial, that trial court was
free to believe employee’s controverted testimony that he did not engage in
untruthful conduct which allegedly served as reason for him being fired).
It is true that in Rogers this court discussed the defendant’s failure to
adhere to its progressive-discipline policy. Id. at 281. But that discussion was
singularly focused on whether Rogers had presented circumstantial evidence
tending to link his termination with his whistleblower report. Id. The defendant’s
failure to adhere to these policies was not relevant to our discussion regarding
whether the defendant had established its affirmative defense. Id. at 284. Also,
unlike in Rogers where the plaintiff had provided evidence disputing the only
reason cited for his termination other than his whistleblower report, Lopez merely
cites evidence controverting whether she had yelled at Maenius, while leaving
alone and uncontroverted the remaining evidence that Tarrant County offered
evidence of regarding its independent reasons for terminating Lopez’s
employment. In fact, as Tarrant County points out, Lopez admits that she
engaged in inappropriate behavior on June 30, 2010, but believes that her
discipline should have been less drastic than termination.
20
Furthermore, we agree with Tarrant County that Lopez’s case is strikingly
similar to this court’s decision in Steele. 370 S.W.3d at 125. Like Steele, where
despite the fact that evidence existed that the employer skipped several less-
drastic measures in its progressive discipline policy and simply terminated Steele
for his undisputed untruthfulness, Tarrant County provided uncontroverted
summary-judgment evidence that Maenius terminated Lopez for untruthful,
disrespectful, and “conduct unbecoming” of her position as Maenius’s Executive
Secretary. Tarrant County also provided uncontroverted summary judgment
evidence that Maenius had the sole authority to terminate Lopez and that he
believed his trust in her had been shattered by her actions on June 30, 2010,
which was necessary in order for her to fulfill her duties as his Executive
Secretary.
For all of these reasons, based upon the summary-judgment evidence that
Tarrant County presented and upon the lack of evidence by Lopez to raise a
genuine issue of material fact that she would not have been fired based on her
conduct in the June 30, 2010 meeting, we conclude that Tarrant County
conclusively proved their entitlement to summary judgment on the affirmative
defense of section 554.004(b). See Tex. Gov’t Code Ann. § 554.004(b); see also
Steele, 370 S.W.3d at 125–26 (holding defendants entitled to summary judgment
based on affirmative defense that the employing governmental entity would have
taken the action against the employee based on uncontroverted evidence of
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employee’s untruthfulness despite the fact that the employee made a
whistleblower report). We overrule Lopez’s second issue.
C. Venue
In her third issue, Lopez argues that the appropriate venue for this case
was Dallas County and that because venue was proper in Dallas County, where
she originally filed this suit, “the judgment should be reversed and the case
transferred back to Dallas County.” Lopez’s argument is based on the fact that
both Tarrant County and Dallas County are members of the North Central Texas
Council of Governments and that the Texas Whistleblower Act has a permissible
venue provision predicated on whether a county is in the same geographic area
that has an established council of governments. See Tex. Gov’t Code
§ 554.007(b) (West 2012). Thus, according to Lopez, she should have been
entitled to keep this suit in Dallas County and it was improper that the Dallas
County trial court, after Tarrant County appealed the trial court’s original denial to
the Dallas Court of Appeals, ultimately granted Tarrant County’s motion to
transfer venue to Tarrant County. Tarrant Cnty., 345 S.W.3d at 784–85.
Tarrant County argues, among other things, that because the Dallas Court
of Appeals held that the mandatory provisions of the Texas Government Code
controlled over the permissive venue provisions of the Texas Whistleblower Act,
and because the Supreme Court of Texas denied Lopez’s petition to review that
decision, the law-of-the-case doctrine applies in this appeal. See Wohlfahrt v.
Holloway, 172 S.W.3d 630, 633–34, 638 (Tex. App.—Houston [14th Dist.] 2005,
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pets. denied), cert. denied, 549 U.S. 1052 (2006) (reasoning that law of the case
doctrine applied even though disputed holding was from a different court of
appeals where appellant provided “no argument regarding changed issues or
facts”). And, Tarrant County argues, because the decision of the Dallas Court of
Appeals was not “clearly erroneous,” this court should decline Lopez’s invitation
to reconsider the Dallas Court of Appeals’s holding in this case that mandatory
venue was in Tarrant County. We agree with Tarrant County.
The law-of-the-case doctrine is “that principle under which questions of law
decided on appeal to a court of last resort will govern the case throughout its
subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986);
see also Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 71 (Tex.
App.—San Antonio 2011, no pet.). The doctrine operates to narrow the issues in
successive stages of litigation and is based upon goals of “uniformity of decision
as well as judicial economy and efficiency.” Hudson, 711 S.W.2d at 630. It is a
long-standing principle that application of the law-of-the-case doctrine lies within
the discretion of the reviewing court, depending on the particular circumstances
surrounding the case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 715 (Tex.
2003) (citing Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1066–67
(1896)).
Here, we see no reason to violate the goals of uniformity of decision as
well as judicial economy by declaring that the previously-decided venue issue
was erroneous. Tarrant Cnty., 345 S.W.3d at 786 (“[W]e conclude the
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mandatory venue provision of § 15.015 of the Civil Practice and Remedies Code
still controls over the permissive venue provision of the Whistleblower Act, and
the trial court abused its discretion in denying relator’s motion to transfer venue.).
Under the law-of-the-case doctrine, in this case, venue was proper in Tarrant
County. Id.; See Wohlfahrt, 172 S.W.3d at 633–34, 638. We overrule Lopez’s
third issue.
IV. CONCLUSION
Having overruled all three of Lopez’s issues, we need not address Tarrant
County’s conditional issue, and we affirm the trial court’s judgment. See Tex. R.
App. P. 43.2(a).
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DELIVERED: August 25, 2015
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