Jayson Steele v. City of Southlake, Texas, and Wade Goolsby, in His Official Capacity as Chief of Police Southlake Department of Public Safety

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00229-CV
JAYSON STEELE APPELLANT
V.
CITY OF SOUTHLAKE, TEXAS, APPELLEES
AND WADE GOOLSBY, IN HIS
OFFICIAL CAPACITY AS CHIEF OF
POLICE SOUTHLAKE
DEPARTMENT OF PUBLIC
SAFETY
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In four issues, appellant Jayson Steele appeals the trial court’s order
granting the motion for summary judgment and plea to the jurisdiction of
appellees City of Southlake, Texas (Southlake) and Wade Goolsby, in his official
capacity as chief of police for the Southlake Department of Public Safety (SDPS).
We affirm.
Background Facts
Appellant worked for Southlake as a police sergeant with a primary
responsibility of patrol. In 2005, Goolsby, who was licensed as a police officer in
1980, became Southlake’s Chief of Police Services.
According to appellant, in 2006, he began to learn about possible crimes
being committed by employees of Southlake’s police department. For example,
appellant heard that a sergeant had forced a detective to change information in
an offense report, and appellant believed that this act comprised official
oppression or tampering with a governmental record.1 Appellant also believed
that the department had set up an improper system of evaluating officers by the
number of citations that they had issued.2 Based on instances occurring in 2006
and 2007, which appellant described in an affidavit, he further believed that a
pattern was developing of supervisors improperly interfering with cases, recalling
cases that had already been submitted to the Tarrant County District Attorney,
suggesting “in-house probation” for offenders, and “selectively enforcing the law”
when the suspects were prominent members of the community or students of
Southlake Carroll High School. Appellant says that through an anonymous
survey, he reported some of his complaints about these actions to City Manager
1
See Tex. Penal Code Ann. §§ 37.10(a), 39.03(a) (West 2011).
2
See Tex. Transp. Code Ann. § 720.002(a) (West 2011) (prohibiting traffic
offense quotas).
2
Shana Yelverton. Appellant also discussed the alleged improprieties with
Lieutenant Michael Kenny.
In the summer of 2007, a group of Southlake’s police officers, including
appellant, approached the Tarrant County District Attorney’s Office with concerns
about Chief Goolsby’s handling of police incidents and investigations. Appellant
asserts that he made good faith reports of misconduct to an investigator with the
district attorney’s office and two Texas Rangers’ sergeants. In addition to some
of the facts discussed above, appellant told the investigator about how Chief
Goolsby allegedly told officers to falsify workers’ compensation claims when they
were injured in off-duty jobs. The district attorney’s office investigated the
concerns.3 A grand jury listened to witnesses speak about the department’s
alleged improprieties, but the grand jury did not issue criminal charges.
3
Following its investigation, in February 2008, the district attorney’s office
issued a report noting that a “sizeable faction” of Southlake’s police officers had
serious concerns about Chief Goolsby’s leadership. The district attorney
concluded that the allegations had not established criminal events, but the report
stated, “[T]he conclusion of the investigation should not be taken as weight for
one side or the other in the ongoing debate of police practices in the City.” The
report also stated that although the district attorney had forwarded some
concerns about the police department’s practices to Southlake’s management,
the district attorney did not have the “authority, the time, or the resources . . . to
investigate every one of the 56 officers in the department with regard to vague
rumors against them.”
3
In October 2007, appellant and Southlake’s Director of Public Safety Jim
Blagg4 exchanged e-mails about appellant’s concern that Chief Goolsby
endorsed “unethical” behavior. Blagg wrote to appellant that appellant’s
“snipping and knit-picking every word that anyone in a Supervisory role in [S]DPS
sa[id] or [wrote was] causing continuous strife that [was] unnecessary.”
Appellant says that after his exchange with Blagg, Chief Goolsby changed
appellant’s work status to a “less desirable position.”
On January 9, 2008, Southlake’s mayor, Andy Wambsganss, along with
one of Southlake’s city council members, Laura Hill, received an e-mail from
someone who identified himself only as “SDPS Officer.” The e-mail, which was
sent from southlakeneedshelp@live.com, contained information on SDPS
personnel that Councilmember Hill believed was confidential and should not have
been disclosed.5 Specifically, the e-mail stated in part,
4
As the director of public safety, Blagg oversaw the city’s police and fire
divisions, which comprise the SDPS. Thus, Chief Goolsby was subordinate to
Blagg. Blagg was also the city’s deputy city manager.
5
Mayor Wambsganss and Councilmember Hill stated that when they
received the e-mail, they were aware that the district attorney’s office was
investigating activities in the police department but were not aware of the specific
subjects of the investigation or the identity of the people who had complained to
the district attorney. Yelverton stated that she was also aware of the district
attorney’s investigation and that appellant had been involved in the investigation.
Yelverton explained that she “fully and completely cooperated with” the district
attorney’s office during the investigation.
4
As you may or may not know, Lt. Michael Kenny was fired today.
This is a great injustice as he was one of the major forces
behind exposing the wrong doing being conducted by our police
administration. Cases have been dropped or lowered without just
cause. The cases were not mishandled. There were not any
obstacles to prosecution. They were simply interfered with. The fact
that the parents of the children involved are high profile certainly
adds an air of suspicion as to the motives Chief Goolsby has for
interfering because there are no other reasons. In fact, there [is] a
series of lies that have been spoken by Chief Goolsby that are being
investigated by a Tarrant County Grand Jury as to why one of these
cases was dropped. Lt. Kenny gave Assistant City Manager Blagg
proof of these lies . . . . Instead of acting on this proof, Blagg has
buried it and ignored it.
Lt. Kenny gave Blagg written proof that Chief Goolsby used
city personnel, services, and equipment for personal gain. . . .
Lt. Kenny was on paid administrative leave for over three
months after he made the claim which was later substantiated by
Blagg and for which Goolsby received a verbal reprimand. . . . Now
Goolsby’s $5.00 theft has cost the city tens of thousands to cover
up. Besides, theft is theft. If your police chief is comfortable stealing
any amount, you should have a problem with that. All of this was
done while Lt. Kenny was an active witness of a Grand Jury
investigation. . . .
City administrators are acting like children hiding their report
cards from the parents. Only in this case, you are the parents.
Officers have brought allegations of case fixing, orders to violate the
civil rights of citizens, ticket quotas, inefficiency, and incompetence
to Blagg . . . . Nothing was investigated. . . . Blagg does not want to
know the real problems. Neither does [Yelverton]. They do not want
you to know either. . . .
....
So far in the last couple of years that they have been here,
Blagg and Goolsby have brought shame and embarrassment to the
city by the appearance of inappropriate relationships influencing
hiring, Blagg paying himself to hire himself, a Grand Jury
investigation, and lies made in print and on television regarding an
inappropriately dropped case. Chief Goolsby appeared in two
5
endorsements for Roxanne Taylor Realty in full police uniform, in
violation of police department and city policy . . . .[6] Goolsby tells
Blagg he didn’t know the commercial was being shot and he just
walked in on accident . . . .
....
The city advertises I2ACT as [its] slogan for core values to its
employees. Integrity is the first word in that slogan and it very well
should be. City administration preaches integrity and yet covers the
truth when it is brought to their attention. Integrity for all but the
police chief who should be the most honest and unimpeachable in
the entire city. . . .
The police department is in poor shape and [is] getting worse.
Approximately 25% of the police department [is] either retiring or
looking elsewhere for jobs. That number will grow if indictments are
not returned by the Grand Jury. Many have lost faith in the city
altogether after repeated attempts to report their activities have been
met with indifference and retaliation. Chief Goolsby recently hired a
police recruit . . . that had been caught smoking marijuana in his car
while he was employed as a corrections officer . . . . [A sergeant]
was recently investigated by the DEA for purchasing Human Growth
Hormone illegally over the internet. He claimed to not know that it
was illegal to do so and that it was medically necessary for him. . . .
The DEA has turned him as a witness for the prosecution
against the online pharmacy. However, he was not disciplined by
Chief Goolsby. Is this the message that Southlake wants to send to
[its] youth? . . .
I don’t know what relationships the city administrators have
that have caused them to circle the wagons so fiercely and protect
the criminal activities that have occurred but, regardless if
indictments are returned, the Grand Jury investigation will be public
record and the testimony of your officers will shock you and your
constituents.
6
An SDPS general order prohibits employees from recommending the
“procurement of a particular product, professional service, or commercial
service.”
6
Councilmember Hill provided a copy of the e-mail to SDPS so that it could
look into the e-mail’s allegations and determine whether someone had improperly
accessed confidential information.7 Chief Goolsby received the e-mail. He
believed that the e-mail disclosed confidential information and that the
department needed to learn who sent it to discern whether a security breach had
occurred. He also believed that the facts recited in the e-mail were incomplete
and misleading.
Captain Rusty Daniels led an investigation into the source of the e-mail
and into how that source had learned about the issues addressed in the e-mail.8
He interviewed several of the police department’s employees, who all denied
having any knowledge about who sent the e-mail, and he required many
employees to answer written questions about the sending and content of the e-
mail. According to Captain Daniels, the investigation into the anonymous e-mail
required a “very substantial expenditure” of his time.
7
Councilmember Hill swore in an affidavit that her decision to turn over the
January 9, 2008 e-mail to SDPS was not retaliatory but was borne out of a
concern that SDPS needed to be aware of the e-mail’s allegations. She and
Mayor Wambsganss stated that they did not interpret the January 9 e-mail as
making a complaint under the city’s ethics code because there was no reference
to a particular provision of the code and there was no request for the city council
to take any particular action.
8
Chief Gooslby says that he directed Captain Daniels to investigate the
source of the e-mail but did not participate in Captain Daniels’s investigation.
7
On January 23, Mayor Wambsganss and Councilmember Hill received
another email from southlakeneedshelp@live.com. That e-mail, which purported
to be sent by retired police officer Quentin Watkins, stated,
I sent my letter to you so that you would see the truth.
My feelings about you were apparently wrong. I left the department
last year. I left because of the reasons I wrote about and others.
I figured if I told you that you would see me as an ex-employee with
a grudge. I hear that you just turned this information over to city
management who . . . started a witch hunt in the police department.
What you are allowing to happen to [Lt. Kenny] is wrong but I guess
you will figure that out when it goes to court.
Captain Daniels spoke to Watkins, and Watkins said that he had not sent the e-
mails. Watkins said that appellant had asked permission to use Watkins’s name
to send the second e-mail but that he had not given appellant permission. On
January 25, Watkins sent a notarized memo to Captain Daniels that stated in
part,
I have no idea what was said in either email because I did not write
them. I told Capt. Daniels that I had been contacted by [appellant]
by phone earlier in the week at which time [appellant] told me that an
email had been sent to a City [councilmember] and now [SDPS]
management was coming down hard on . . . personnel attempting to
find out who wrote the email. [Appellant] said that there was an
internal affairs investigation being conducted and that those involved
in the email . . . could be in a lot of trouble. [Appellant] went on to
ask if he could write an email using my name . . . .
....
I did not give anyone permission to use my name in any email
sent to the City of Southlake or to a City [councilmember].
Captain Daniels asked appellant to answer several questions about the e-
mails in writing, and appellant did so on January 29. He admitted to sending the
8
e-mails and stated that he had received permission to use Watkins’s name.9
Also on January 29, an attorney wrote a letter to Chief Goolsby to state that he
had been retained by appellant and to express his belief that appellant was
protected by the Whistleblower Act.10 Part of the letter stated, “I certainly hope
that the City and/or the Department and yourself will not retaliate against Sgt.
Steele for the information he has provided to the Tarrant County District
Attorney’s Office.” Captain Daniels also interviewed appellant more than once.
Appellant said that he had used Watkins’s name for “self preservation” because
he knew that the investigation was “closing in on him.” He expressed his belief
that Watkins had denied granting appellant permission to use Watkins’s name
because Watkins was running for a political office.
SDPS placed appellant on administrative leave with pay and benefits and
precluded him from performing any police work. On February 5, Captain Daniels
formally asserted fifteen potential grounds for misconduct against appellant
associated with appellant’s sending of the e-mails. Captain Daniels classified the
9
In his affidavit, appellant says that he sent the January 9 e-mail because
he was required to report unethical conduct to the city council; he claims that he
sent the e-mail anonymously for fear of retaliation.
10
See Tex. Gov’t Code Ann. §§ 554.001–.010 (West 2004); Tarrant Cnty.
v. McQuary, 310 S.W.3d 170, 173 (Tex. App.—Fort Worth 2010, pet. denied)
(“The Whistleblower Act has a twofold purpose: (1) protecting a public employee
from retaliation by her employer when, in good faith, the employee reports a
violation of law, and (2) securing lawful conduct on the part of those who direct
and conduct the affairs of public bodies.”).
9
fifteen grounds into appellant’s alleged violations of four of SDPS’s written
policies that
prohibited unbecoming conduct, including “discourtesy or conduct which
[brought] the department into disrepute or reflect[ed] discredit upon the
individual as an employee of [SDPS], or that which impair[ed] the operation
or efficiency of the Department or individual”;11
required SDPS employees to be truthful in all verbal statements and
written documentation because truthfulness was “essential and expected
when dealing with a single employee or the public”;12
required SDPS employees to follow federal, state, and local laws; 13 and
mandated that employees could not disseminate confidential information to
unauthorized people for any purpose.14
Appellant responded in writing to Captain Daniels’s fifteen allegations of
misconduct on February 7. Among other parts of his response, appellant
expressed his beliefs that information he had included in the January 9 e-mail
was public information under chapter 552 of the government code, that he was
authorized to disclose the information to city officials under Southlake’s employee
11
Captain Daniels alleged that appellant had made disparaging remarks
about Blagg’s, Chief Goolsby’s, and Yelverton’s integrity in the January 9 e-mail.
12
Captain Daniels alleged that appellant had been untruthful, in part, by
sending the January 23 e-mail while claiming that Watkins had sent it along with
January 9 e-mail.
13
For example, Captain Daniels asserted that appellant had committed
forgery under the penal code by using Watkins’s name on the January 23 e-mail.
14
Captain Daniels alleged that appellant had divulged confidential
information about an employment background investigation, the firing of
Lieutenant Kenny, an internal affairs investigation, a grand jury investigation, and
an ongoing criminal investigation.
10
handbook because the information concerned illegal or unethical conduct and
violations of Southlake’s policies, that he had not been told by anyone to not
release the information, that he had not “released” confidential information at all
because he did not send the e-mails to anyone outside of Southlake’s
government, and that Watkins had allowed him to use Watkins’s name to send
the second e-mail. One of Captain Daniels’s fifteen allegations stated, “On
January 23, 2008[,] you were untruthful when you sent a second email to the City
of Southlake Mayor and Councilmember Laura Hill taking responsibility for
sending the first email, however claiming to be retired Southlake Officer Quentin
Watkins.” Appellant responded to this allegation by stating, “Given the lengths to
find me, I think my response was justified.” The last paragraph of appellant’s
response stated,
I find it interesting that I am being charged with 15 separate counts
of policy violations and yet most of the issues I brought forth in my
email have been completely ignored. I have report[ed] policy
violations, ethics code violations, and violations against the laws of
the State of Texas, all in good faith, and yet I am the one being
investigated.
Captain Daniels eventually recommended that thirteen of the fifteen grounds be
sustained.
The “Complaint Summary” portion of Captain Daniels’s written
investigation report stated,
On January 9, 2008[,] an email was received by a member of
the Southlake City Council which contained confidential information
concerning the background of SDPS Police Services personnel,
internal affairs investigations, disciplinary actions taken, the identity
11
of witnesses involved in [ongoing] criminal cases, and information
concerning a Tarrant County Grand Jury investigation. It also
contained information purported to be fact that actually was false or
misleading. In addition to the information released, there were
numerous derogatory comments concerning the integrity of the City
Manager, Director of Public Safety, and the Chief of Police.
Due to the nature of the confidential information released, an
administrative review was initiated. The scope of the review was to
determine the identity of the person responsible for composing and
sending the email. On January 18, 2008[,] interviews with SDPS
personnel began. On January 23, 2008[,] a second email was
received. In this email, the composer identified [himself] as retired
Southlake Police Officer Quentin Watkins.
As a result of this investigation, the composer of both emails
was identified as [appellant]. As a result of [appellant’s] actions, it
was alleged he violated SDPS policy, thus the ongoing
administrative review was changed to an internal affairs
investigation.
Captain Daniels’s report then detailed the contents of various statements that he
had received from witnesses who he had talked to in the investigation, including
appellant, Watkins, Councilmember Hill, and Blagg.
Chief Goolsby asked Lieutenant Ashleigh Douglas, appellant’s supervisor,
to review Captain Daniels’s investigation report and provide her opinions on the
allegations it contained. On March 3, 2008, Lieutenant Douglas issued a memo
stating that she had reviewed Captain Daniels’s report. Lieutenant Douglas
opined that eight of Captain Daniels’s alleged grounds of appellant’s misconduct
be sustained, including two of the grounds relating to appellant’s untruthfulness,
but she recommended demotion, rather than termination, as appellant’s
discipline. Lieutenant Douglas recognized that the “operation and efficiency of
12
the Department was temporarily impaired when several supervisory members of
the department were diverted from their normal duties to conduct the
investigation and subsequent reviews of the investigation.” Appellant says that
Lieutenant Douglas told him that Chief Goolsby tried to get her to alter her
recommendation of demotion.
On March 4, 2008, appellant submitted a hostile work environment
complaint to Yelverton. The complaint alleged several incidents of misconduct
by SDPS, some of which appellant stated that he had already reported to the
district attorney’s office, including that
in December 2006, a sergeant made a detective change parts of a report
to reflect a lower charge for a robbery at a Wendy’s restaurant, which
appellant believed could qualify as official oppression under the penal
code;
in May 2007, a sergeant repressed the investigation of a drug case
although the evidence supported a charge;
in May 2007, a sergeant improperly influenced the lowering of a charge
after a detective had already filed a case with the district attorney’s office;
Chief Goolsby provided false excuses to officers about why the Tarrant
County District Attorney’s office had not prosecuted cases;
Chief Goolsby and Captain Daniels ordered supervisors to evaluate
officers based on the number of citations that they issued each month;
Chief Goolsby tampered with a governmental record in connection with
appellant’s 2005 performance appraisal;
during an August 2007 meeting, Chief Goolsby implied that officers should
conceal their off-duty status if they got injured while working off duty so
that they could collect workers’ compensation benefits;
13
Chief Goolsby suppressed an investigation into the circumstances of
someone’s death when detectives believed that the death was suspicious;
and
appellant disclosed allegations about Chief Goolsby’s misconduct to Blagg,
but Blagg “never sought trained criminal investigators to look into these
allegations.”
In the complaint, appellant also expressed his opinions that in several
circumstances, he was treated unfavorably for reporting these allegedly unethical
behaviors by officers in the department and that the allegations of misconduct
that had been made against him were retaliation for the allegations that he had
made against the police administration. Yelverton had received the district
attorney’s report by the time appellant presented his hostile work environment
complaint.
Yelverton appointed Marigny Lanier, an attorney, to investigate the hostile
work environment complaint.15 On March 16, 2008, appellant sent a memo to
Yelverton titled, “Hostile Work/Harassing Environment Complaint Amendment.”
In the memo, appellant alleged that Chief Goolsby had discussed details of the
internal affairs investigation concerning appellant with other officers. Appellant
stated that “[i]nternal affairs investigations . . . are protected against the
information being distributed to preserve the integrity of the investigation.”
Between March 24 and April 17, Lanier interviewed appellant, Blagg, Captain
15
In her affidavit, Yelverton stated that she considered the hostile work
environment complaint “very seriously,” that she directed Lanier to not dismiss
the complaint on a technicality, and that the City paid thousands of dollars for
Lanier’s investigation.
14
Daniels, Chief Goolsby, Lieutenant Kenny, Yelverton, and others. Appellant
claims that Lanier did not adequately investigate his complaint.
Chief Goolsby reviewed Captain Daniels’s report and Lieutenant Douglas’s
review of the report. Chief Goolsby issued a memo that sustained six of the
fifteen allegations of misconduct, including allegation number ten, concerning
“Truthfulness,” because Chief Goolsby found that appellant had “intentionally
used another person’s name as the author of an e-mail in order to avoid
detection and divert attention.” Chief Goolsby also sustained all four of the
“Unbecoming Conduct” allegations, stating that appellant’s “statements of ‘fact’
were based on rumors, opinions, and third-party information” and that the method
appellant used to express his concerns was “unprofessional and inexcusable.”
Chief Goolsby fired appellant in May 2008.
On May 8, 2008, Yelverton informed appellant by a letter that Lanier had
completed her investigation and that based on Lanier’s written report, Yelverton
had found that appellant had not been subjected to a hostile work environment in
retaliation for reporting his concerns about Chief Goolsby. In the report, Lanier
concluded that appellant had not made good faith reports of violations of law,
although Lanier said, with respect to appellant’s claim that Chief Goolsby had
imposed a ticket quota, that the good faith issue was a “close question.” Lanier
also determined that appellant had not suffered discriminatory and adverse
personnel actions or harassment because of the reports he had made; she found
appellant’s arguments in that regard to be speculative.
15
Through Southlake’s grievance policy, on May 15, appellant appealed
Chief Goolsby’s termination decision to Blagg, although appellant objected to
Blagg deciding the appeal because Blagg had been named in appellant’s hostile
work environment claim. Blagg declined to recuse himself because he believed
he could act fairly toward appellant. As part of the appeal, appellant criticized
much of Captain Daniels’s report and alleged that Watkins had allowed him “to
use [Watkins’s] name regardless of what pressure from the department made
him recant.”16 On June 10, Blagg met with appellant, appellant’s attorney,
Southlake’s attorney, and a human resources analyst. Blagg also considered
Daniels’s report and Douglas’s review of Daniels’s report. On June 13, Blagg
sustained appellant’s termination on the bases that (1) appellant had intended to
deceive the department with his e-mails and to “interfere with or prevent the
department from ascertaining the identity of the author of the [January 9] email”;
and (2) in the January 9 e-mail, appellant had made “purportedly factual
statements based on rumor and hearsay, something a reasonable officer should
know to avoid.” Blagg sustained six of the fifteen grounds for misconduct that
Captain Daniels had asserted.
16
Appellant voluntarily took a polygraph examination on June 4, 2008, and
the examiner determined that appellant was not being deceptive when he stated
that Watkins had told him that he could use Watkins’s name to send the January
23 e-mail. SDPS could have required appellant to take a polygraph examination
during the internal affairs investigation.
16
Appellant appealed Blagg’s decision to Yelverton. On June 20, appellant
sent a memo to Yelverton to argue for his reinstatement. The memo included
appellant’s assertions that Lanier’s investigation had been “wrought with errors.”
In the memo, appellant also said, “I know that I have made mistakes in this
situation[,] but there is not a single person involved in this series of incidents that
can claim innocence of all fault.” Appellant met with Yelverton on July 22, and
several days later, after Yelverton had interviewed Watkins and had considered
Captain Daniels’s report, Lieutenant Douglas’s review, and the termination
findings of Chief Goolsby and Blagg, Yelverton upheld the termination.
According to her affidavit, her decision was based on the tenth and eleventh
allegations of misconduct that Captain Daniels had generated, which both
concerned untruthfulness. In the affidavit, Yelverton said that the investigation
into the source of the e-mails was required to determine whether there had been
a breach of security. She also noted that appellant’s actions in sending the e-
mails were “deceptive whether or not he had [Watkins’s] permission.”
In August 2008, appellant sued Southlake “for retaliating against him” in
violation of the Whistleblower Act. Appellant asserted that his reports about
SDPS’s alleged misconduct caused his termination, and he sought
compensatory damages, reinstatement as a sergeant, and attorney’s fees.
Appellant later amended his petition several times; among other effects, the
amendments added Chief Goolsby as a defendant.
17
In December 2010, in one document, appellees filed a motion for summary
judgment and a plea to the jurisdiction. In their motion, appellees contended in
part that appellant had been fired because he was untruthful when sending the
January 2008 e-mails rather than because of the substance of his reports about
SDPS’s alleged wrongdoing. Appellees also asserted that appellant had no
evidence to support his claims. Appellant responded to appellees’ motion and
plea, contending that he was “ultimately terminated for making the report of
criminal violations against [Chief Goolsby] and other employees to the Tarrant
County District Attorney.”
Appellees objected to much of appellant’s summary judgment evidence,
including almost all of appellant’s affidavit, and appellees noted that appellant
had not contested that his termination would have occurred regardless of his
status as a whistleblower. The trial court sustained several of the objections,
granted appellees’ motion for summary judgment and plea to the jurisdiction
without specifying a reason for doing so, and dismissed all of appellant’s claims
with prejudice. Appellant brought this appeal.17
17
Appellant does not challenge the trial court’s decision to grant summary
judgment against his claim under chapter 614 of the government code, and we
therefore affirm the summary judgment as to that claim. See Torres v. Johnson,
91 S.W.3d 905, 908 n.3 (Tex. App.—Fort Worth 2002, no pet.) (explaining that
we must affirm summary judgments on unchallenged grounds).
18
Appellant’s Whistleblower Act Claim
In his second issue, appellant argues that appellees did not conclusively
establish their affirmative defense and that the trial court therefore erred by
granting their motion for summary judgment. 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 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 proves all the elements of the affirmative defense. Frost
Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ.
P. 166a(b), (c). To accomplish this, the defendant-movant must present
summary judgment evidence that conclusively establishes each element of the
affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
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
19
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[18] by the employing
governmental entity or another public employee to an appropriate law
enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a); see City of El Paso
v. Parsons, 353 S.W.3d 215, 225 (Tex. App.—El Paso 2011, 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; Tex. Dep’t of
Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 396 (Tex. App.—
Austin 2005, pet. denied). 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.
18
Under chapter 554, the “law” includes state and federal statutes, local
ordinances, and rules adopted under statutes or ordinances. Tex. Gov’t Code
Ann. § 554.001(1). Because we hold below that appellees were entitled to
summary judgment on an affirmative defense that is unrelated to whether
appellant’s reports were made in good faith, we will not address the issue of
good faith. See Tex. R. App. P. 47.1.
20
Among other grounds, appellees 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) (emphasis added). Appellees argued in the trial court that
appellant’s “deceptive actions in the face of an official investigation would have
inevitably caused a termination of his employment.” In appellant’s response to
appellees’ motion, he generally asserted that he could produce evidence of his
claims and stated that he was “ultimately terminated for making the report of
criminal violations against the Chief and other employees to the Tarrant County
District Attorney,” but he did not specifically respond to appellees’ ground for
summary judgment under section 554.004(b)’s affirmative defense.19
The affirmative defense in section 554.004(b), if proven, 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
19
Appellant also objected to much of appellees’ summary judgment
evidence, but appellant’s issues on appeal do not attack the admissibility of
appellees’ evidence.
21
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.”).20 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.)).
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.
Parsons, 353 S.W.3d at 226 (citing Zimlich, 29 S.W.3d at 69); Hurley, 232
20
Although the supreme court discussed the issue of causation in
Whistleblower Act cases in Zimlich and in Hinds, the court did not discuss the
effect of section 554.004(b)’s affirmative defense upon causation in either case
because in both cases, the allegedly retaliatory employment action occurred
before the effective date of section 554.004(b). See Zimlich, 29 S.W.3d at 66–
67; Hinds, 904 S.W.2d at 637.
22
S.W.3d at 786. On appeal, appellant relies on such evidence; he asserts, among
other facts, that
during his investigation, Captain Daniels knew of appellant’s reports of
allegedly illegal conduct by SDPS employees to the district attorney; at the
time of their successive termination decisions, Chief Goolsby, Blagg, and
Yelverton also knew of appellant’s involvement in making the reports; and
Chief Goolsby, Blagg, and Yelverton were aware of the January 9 e-mail
that appellant sent, which contained complaints against each of them;
in their summary judgment affidavits, Yelverton, Blagg, Chief Goolsby, and
Captain Daniels described appellant’s anonymous January 9, 2008 e-
mailed whistleblower report as a deceptive act, which implies that they
viewed the report negatively; and Blagg’s October 2007 e-mail exchange
with appellant, in which Blagg said that appellant was “knit-picking,” also
shows that Blagg viewed whistleblower reports negatively;
although Chief Goolsby usually did not discuss internal affairs
investigations, he discussed appellant’s investigation with other SDPS
employees; and during Captain Daniels’s investigation, Captain Daniels
did not provide appellant with an opportunity to take a polygraph test
concerning whether Watkins gave consent to use his name in the January
23, 2008 e-mail even though under a general order, Captain Daniels had
the authority to do so; and
by describing the January 9 e-mail as deceptive, Yelverton conceded that
the anonymous whistleblower report itself was a cause of the termination
decision; and although Captain Daniels, Chief Goolsby, and Blagg claim to
have not known about appellant’s report of misconduct to the district
attorney, other facts show that they knew of the report, and their
“conscious attempt to hide their knowledge . . . shows that the
whistleblower report was a factor in their investigation and decision to
terminate” appellant.21
21
In the argument portion of appellant’s summary judgment response in the
trial court, he did not specify the facts that he now relies upon on appeal to defeat
appellees’ affirmative defense. “Generally, the nonmovant must expressly
present to the trial court any reasons for avoiding the movant’s right to summary
judgment.” Bassett v. Am. Nat’l Bank, 145 S.W.3d 692, 696 (Tex. App.—Fort
Worth 2004, no pet.); see also Tex. R. Civ. P. 166a(c) (explaining that issues “not
23
It is possible that these facts amount to circumstantial evidence showing
that appellant’s reports of misconduct provided one basis for appellees’ decision
to fire appellant. Under the plain language of section 554.004(b),22 however,
appellees are nonetheless entitled to their affirmative defense if the decision to
fire appellant would have been made solely on a basis that is independent of the
fact of the reports. Tex. Gov’t Code Ann. § 554.004(b). Appellant correctly notes
that 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. Thus, if the employee’s report
would not have been enough by itself to cause the employer’s adverse
employment action but was an indispensible component, in combination with
other facts, of the action, then the report 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
expressly presented to the trial court by written motion, answer or other response
shall not be considered on appeal as grounds for reversal”).
22
See Gray v. Nash, 259 S.W.3d 286, 291 (Tex. App.—Fort Worth 2008,
pet. denied) (“When construing a statute, our goal is to ascertain and give effect
to the legislature’s intent as expressed by the plain and common meaning of the
statute’s words.”).
24
554.004(b)’s affirmative defense precludes liability. See Tex. Gov’t Code Ann. §
554.004(b).
The supreme court demonstrated this principle in Haggar Clothing Co. v.
Hernandez, in which the court examined causation under a statute that precludes
retaliatory discharges and is therefore similar to the Whistleblower Act. 164
S.W.3d 386, 388 (Tex. 2005).23 Hernandez was injured while working for Haggar
as a seamstress. Id. at 387. After Hernandez did not return to work for more
than a year following her injury, Haggar fired her under a leave-of-absence policy
that provided that the “maximum amount of time an employee could remain on
leave, regardless of the reason, was one year.” Id. Hernandez sued Haggar,
alleging that she had been fired for filing a workers’ compensation claim after she
had been injured, and although a jury rendered a verdict in her favor and a court
of appeals affirmed the trial court’s judgment on the verdict, the supreme court
reversed on the ground of legal insufficiency. Id. That court explained,
In affirming the trial court’s judgment, the court of appeals
focused heavily on evidence Hernandez presented that Haggar’s
safety-incentive policies, which included bonus opportunities for
23
Hernandez concerned a claim under section 451.001 of the labor code,
which states, in part, that a person may not discharge or discriminate against an
employee because the employee has filed a workers’ compensation claim in
good faith. Id.; see Tex. Labor Code Ann. § 451.001(1) (West 2006). Plaintiffs in
retaliatory discharge claims under section 451.001 may rely on the same types of
circumstantial evidence of causation as plaintiffs in Whistleblower Act claims.
See Louis v. Mobil Chem. Co., 254 S.W.3d 602, 611 (Tex. App.—Beaumont
2008, pet. denied); see also Cont’l Coffee Products Co. v. Cazarez, 937 S.W.2d
444, 450 (Tex. 1996) (comparing the Whistleblower Act to section 451.001 and
stating that the same principles of causation should apply to both statutes).
25
units that had accumulated a certain number of hours without a “lost-
time accident” that required an employee to miss work, pressured
employees not to report workplace injuries for fear of upsetting co-
workers. Hernandez also presented evidence that plant managers
were under economic pressure to minimize workers’ compensation
claims, that she had felt pressured to remain at work the day of her
accident, and that [Haggar’s plant manager] had threatened not to
pay for her treatment by a chiropractor the day after the accident.
This may constitute circumstantial evidence supporting a causal link
between Hernandez's termination and her filing a workers'
compensation claim. We held in Cazarez, however, that an
employer who terminates an employee pursuant to the uniform
enforcement of a reasonable absence-control provision will not be
liable for retaliatory discharge. The above evidence is thus
immaterial if Hernandez’s termination was required by the uniform
enforcement of Haggar’s one-year leave-of-absence policy.
Id. at 388 (emphasis added) (citations omitted). Following Hernandez, courts of
appeals, including our own court, have held that circumstantial evidence of
retaliation is immaterial when an employer proves an independent basis for an
adverse employment action. See Parker v. Valerus Compression Servs., LP, No.
01-10-00916-CV, 2011 WL 3918159, at *5–6 (Tex. App.—Houston [1st Dist.]
Aug. 25, 2011, pet. denied) (stating that when an employer proves a uniform,
independent basis for termination, the terminated employee “must provide
competent evidence that the employer treated him differently from similarly
situated employees in order to survive a summary judgment motion”); Alonso v.
Stanley Works, Inc., 111 S.W.3d 850, 851–52 (Tex. App.—Dallas 2003, no pet.);
see also Jackson v. FedEx Ground Package Sys., Inc., No. 02-07-00246-CV,
2008 WL 1867931, at *4–6 (Tex. App.—Fort Worth Apr. 24, 2008, no pet.) (mem.
op.) (affirming a summary judgment in favor of an employer because the
26
employer’s post-injury drug screening policy, which the employee did not comply
with, comprised an independent ground for termination).
In his brief, appellant states that his termination was “centered on his
sending of the January 23, 2008” e-mail, which he says was an attempt to
preserve his anonymity. He concedes that the January 23 e-mail implied that
Watkins wrote the January 9 e-mail. Regardless of whether Watkins gave
appellant permission to associate Watkins’s name with the January 23 e-mail
(which is a disputed fact), appellant’s statement in the January 23 e-mail that
Watkins had written the January 9 e-mail was intentionally false; it was, as
appellant admitted, an attempt to divert Captain Daniels’s investigation.
An SDPS employee’s violation of a general order may result in
“counseling, reprimand, suspension, and/or dismissal.” One general order states
that a Southlake police officer should be “[h]onest in thought and deed in [the
officer’s] personal and official life.” Another order states, “One of the standards
of ethical conduct is truthfulness. Truthfulness is essential and expected when
dealing with a single employee or the public.” Yet another general order
classifies untruthfulness as a “Class One Complaint” that must be investigated
according to internal affairs procedures. Although SDPS’s policy provides for
differing levels of discipline, a general order states, “It is recognized that it may
occasionally be necessary to dismiss an employee without progressing through
any earlier disciplinary measures.”
27
General Order 621.03 provides a “Discipline Decision Matrix” that lists ten
possible infractions and the recommended discipline upon the first, second, and
third occurrences of those infractions within a twelve-month period. For example,
for a critical performance deficiency, the matrix recommends retraining,
probation, or a reprimand for the first occurrence; probation or a suspension for
the second occurrence; and a three-day suspension or termination for the third
occurrence. For sexual harassment by inappropriate comments, the matrix
recommends discipline ranging from verbal counseling to a three-day suspension
for the first occurrence, a written reprimand to a three-day suspension for the
second occurrence, and a three-day suspension to demotion or termination for
the third occurrence. For untruthfulness, the matrix simply recommends
termination for the first occurrence.
Yelverton made the ultimate decision to terminate appellant’s employment
with Southlake. Under authority from Texas courts, we must primarily consider
the rationale of her decision in determining whether appellees rightfully prevailed
on their affirmative defense. See Harris Cnty. v. Vernagallo, 181 S.W.3d 17, 26
n.15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (declining to adopt the
“conduit” theory, which permits liability when one supervisor makes a
recommendation regarding an employee to another innocent supervisor who acts
on that recommendation without conducting any independent judgment); City of
Fort Worth v. Johnson, 105 S.W.3d 154, 169 (Tex. App.—Waco 2003, no pet.)
(“The trial court’s finding that Pete Nelson’s negative attitude caused Johnson’s
28
termination has no bearing on the outcome of this case. Nelson did not have the
ultimate authority to either terminate or reinstate Johnson.”); see also Costello v.
Bank of Am., N.A., No. 14-06-00195-CV, 2007 WL 4303499, at *4 (Tex. App.—
Houston [14th Dist.] Dec. 11, 2007, no pet.) (mem. op.) (“Costello contends there
is overwhelming evidence that Brugger expressed a negative attitude . . . .
Brugger, however, was not the decision maker in Costello’s termination.”).24
Yelverton stated that she does not become involved in termination
decisions until they reach her level of the appeal process. She explained, “I
independently try to determine if the totality of the information supports or does
not support the matters that are being appealed. . . . I become the final decision-
maker under governing rules. . . .” In Yelverton’s affidavit, she said,
My focus was on Charge Nos. 10 and 11 . . . dealing with the use of
the name Quentin Watkins by [appellant] in connection with the
second January 23, 2008 email which also claimed credit for having
sent the earlier January 9, 2008 email.
....
. . . The key charges against [appellant] which were the basis
for overruling his appeal were Charge Nos. 10 and 11 . . . .
[Appellant] certainly knew that by sending an anonymous email . . .
with a number of complaints and with sensitive and confidential
24
Citing a United States Supreme Court case that concerned liability under
a federal statute, appellant argues that a “review of the animus of all persons
involved in investigating or terminating [appellant] is necessary to determine
whether the good faith report was a cause of the retaliatory conduct.” See Staub
v. Proctor Hosp., 131 S. Ct. 1186, 1192–93 (2011). But even in that case, the
Court recognized that if the employer’s ultimate action is taken for “reasons
unrelated to the supervisor’s original biased action . . . then the employer will not
be liable.” Id. at 1193.
29
information, there would certainly be an investigation conducted to
determine the identity of the sender. Initially sending such an email
in an anonymous fashion was deceptive. However, when [appellant]
sent a second email January 23, 2008 claiming to [be] Quentin
Watkins, this was yet another untruthful and deceptive act. . . .
. . . While certainly any employee in any business should be
truthful as they carry out the business of their employer, it is
particularly important for a Police Officer to be truthful. A Police
Officer will regularly write reports involving charges or potential
charges or investigations. . . . A Police Officer will be called upon to
give testimony in various courts. . . . It is my understanding that
under appropriate circumstances, in a criminal proceeding, a
criminal defendant may have a right to be informed that an Officer
has been found to be untruthful, and such information potentially can
be used to impeach the Officer’s credibility . . . . I was concerned
that if [appellant] felt that he could bend the truth or be untruthful for
purposes of a claim that he thought was righteous, this could carry
over into his work as a Police Officer and supervisor. . . .
. . . [Southlake’s charter] clearly provides that any employee
or appointed official is required to be truthful . . . . Southlake
General Order § 603.04 requires employees to be truthful . . . . The
City’s applicable disciplinary rules included in the General Orders
manual indicate that a Police employee will be terminated for a first
time offense involving untruthfulness . . . .
With that background, Yelverton stated, “A Police Officer who is not truthful and
credible would be terminated for those reasons . . . regardless of any other
possible motivating factor.” [Emphasis added.] Yelverton explained that during
the time that she has worked for Southlake (since 1993) she was not aware of
any other police employee who was determined to be intentionally untruthful and
was allowed to continue employment. In explaining the basis of her decision to
terminate appellant’s employment, Yelverton stated,
When I handled [appellant’s] appeal and acted as the final decision-
maker when I made my ruling . . . , I did not in any way retaliate
30
against [appellant] for engaging in whistleblowing. There is no doubt
that [appellant] admitted that he sent an anonymous email and then
later attempted to cover up his involvement in the anonymous email
by using the name Quentin Watkins . . . . Based on this deception
and untruthfulness, I would have taken my actions involving
[appellant] solely on this information or observation or evidence of
deception and untruthfulness. [Emphasis added.]
Chief Goolsby, who initiated appellant’s termination, and Blagg, who
initially upheld it, echoed Yelverton’s sentiments about the determinative effect of
appellant’s untruthfulness upon his discipline. For example, Chief Goolsby
stated in his affidavit,
[T]he most significant charges against [appellant] that . . . I thought
should be sustained were the charges involving his untruthfulness
. . . . I thought those charges were the most important because
there was no doubt that [appellant] had been untruthful. . . .
. . . Additionally, when the initial administrative investigation
was ongoing, [appellant] apparently realized he was likely to be
identified as the anonymous sender. Therefore, instead of stepping
forward to identify himself as the sender, he continued his untruthful
deception by . . . pretend[ing] that Quentin Watkins had sent the first
email and second email. . . .
. . . Even if Watkins did give permission to [appellant], I
considered [appellant’s] action of covering up the true sender to be
deceptive and untruthful. . . .
. . . [A]n Officer’s truthfulness and credibility are essential to
the Officer’s function as a Police Officer.
. . . A Police Officer who is not truthful and credible would be
terminated for those reasons regardless of any other possible
motivating factor.
....
. . . In short, regardless of whether or not [appellant] could
establish that he had whistleblower status, his admitted deception
and untruthfulness would have resulted in his termination . . . .
31
Like Yelverton, Chief Goolsby stated that during the time he worked for
Southlake (since 2005), he was not aware of any police employee who was
charged with intentional untruthfulness, had that charge sustained, and was
allowed to continue employment.
Blagg said in his affidavit that it
is particularly important for a Police Officer to be truthful. A Police
Officer will regularly write reports involving charges or potential
charges or investigations. A Police Officer will, from time to time,
need to assist in preparing . . . sworn affidavits for purposes of
obtaining warrants . . . . A Police Officer will be called upon to give
testimony . . . . If a Police Officer is not truthful, then his coworkers
and supervisors will question his credibility . . . . Courts and
prosecutors may question the Officer’s credibility if the Officer has
been found to be untruthful. . . .
. . . A Police Officer who is not truthful and credible would be
terminated for those reasons . . . regardless of any other possible
motivating factor.
....
. . . What was most relevant to my decision was the fact that
[appellant] intended to deceive the Department and interfere with or
prevent the Department from finding out the identity of the sender of
the email.[25]
25
Although upon appellees’ objection, the trial court excluded deposition
excerpts that appellant attached to his summary judgment response, we note
that even if we were to consider those excerpts, they are consistent with the
basis of appellees’ affirmative defense. In a deposition taken in connection with
a lawsuit that Lieutenant Kenny brought against Southlake, Blagg said that
appellant was fired because he “sent an email to the Mayor and a member of the
City Council alleging to be another retired police officer.” Captain Daniels
testified in a similar deposition that the issue that “ultimately got [appellant]
terminated was a truthfulness issue because he identified himself as . . . being
somebody else.”
32
Captain Daniels agreed with this sentiment, stating in his affidavit that regardless
of whether appellant “could establish that he had whistleblower status, his
admitted deception and untruthfulness should have resulted in his termination.”
The evidence also demonstrates that people outside of Southlake’s government
viewed appellant’s untruthfulness with the same seriousness that Yelverton,
Blagg, Chief Goolsby, and Captain Daniels did; when appellant looked for jobs
with other police agencies after his firing from Southlake, he was told that he
would not be hired because he was fired for untruthfulness.
In his brief, appellant appears to concede that Yelverton “terminated [him]
because he was untruthful when he sent the second email claiming to be retired
Officer Watkins.” Appellant argues, however, that appellees cannot establish
their affirmative defense because “(1) the January 23, 2008 email is based on
information, observation, and evidence related to the fact that [he] made a report;
[and] (2) [appellees] cannot establish that the January 23, 2008 email is the sole
reason for [his] termination.” First, we disagree that the inevitable (according to
appellees’ affidavits) termination of appellant’s employment for untruthful
statements within the January 23 e-mail is related to the “fact that [appellant]
made a report protected [under chapter 554 of the government code] of a
violation of law.” See Tex. Gov’t Code Ann. § 554.004(b). Appellant’s
whistleblower report was complete and was effectively protected under chapter
554 at the time he sent the first, anonymous e-mail to Mayor Wambsganss and
Councilmember Hill on January 9. From that time through January 23, he could
33
have done nothing (to therefore remain anonymous until, at some future point, he
was asked about his role in sending the e-mail),26 or he could have truthfully
taken responsibility for the January 9 e-mail; instead, through the January 23 e-
mail, he lied (either with or without Watkins’s permission). The lie was not a
component of appellant’s making a report protected by chapter 554; rather, as
appellant has conceded, it was a component of diverting the police department’s
investigation.
Second, we disagree with appellant that to be entitled to their affirmative
defense, appellees must show that appellant’s January 23 e-mail was the sole
basis for his termination or that appellant’s whistleblower reports were not a basis
for the termination. Rather, under the facts of this case, section 554.004(b)
required appellees to prove that disregarding any improper basis that they might
have had for terminating appellant, they would have terminated him based on the
proper basis of his untruthfulness. See id.; Vela v. City of Houston, 186 S.W.3d
49, 54–55 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (concluding that even
assuming that the plaintiff’s allegations concerning whistleblower retaliation were
true, the city was entitled to summary judgment because it proved that it would
have nonetheless disciplined the employee for falsifying records and violating city
policies); see also Hernandez, 164 S.W.3d at 388–89 (explaining this rationale in
26
Thus, we disagree with appellant that the effect of sustaining appellees’
affirmative defense is to “subject all anonymous reporters to retaliatory
treatment.” Appellees’ evidence demonstrates that appellant would have been
fired apart from his initial anonymity because he lied.
34
the context of a workers’ compensation retaliation claim). For this reason, as
explained in Hernandez, appellant’s circumstantial evidence of a possible
retaliatory basis for his termination does not defeat appellees’ entitlement to
summary judgment because it does not cast doubt that Chief Goolsby, Blagg,
and ultimately, and most importantly, Yelverton, would have fired him for his
admitted untruthfulness; at most, the evidence shows that there might have been
more than one ground on which appellees would have fired him.
Referring to Lieutenant Douglas (who did not have authority to decide
appellant’s discipline), appellant argues that the “only person not implicated by
[his] reports recommended that he not be terminated.” For two reasons, we
cannot see the relevance of this fact to appellees’ affirmative defense. First,
although Lieutenant Douglas did not recommend that appellant be terminated,
she did recommend that he be disciplined (by demotion and probation) on the
basis that he was untruthful in the January 23 e-mail. Second, it is not imperative
to appellees’ affirmative defense that Southlake was required to fire appellant for
untruthfulness or that every SDPS employee would have come to the same
termination decision that Yelverton did. Instead, it is appellees’ defense, based
on the unambiguous, uncontroverted evidence they presented, that the decision
makers in this case—Chief Goolsby, Blagg, and Yelverton—would have
uniformly terminated him for untruthfulness regardless of any other factor.
In his brief, appellant relies in part on Moreno v. Texas A & M Univ.-
Kingsville, 339 S.W.3d 902 (Tex. App.—Corpus Christi 2011, pet. filed). In that
35
case, Moreno, the university’s comptroller, had been fired after she reported her
belief that her supervisor had broken the law by improperly receiving an out-of-
state tuition waiver for his daughter. Id. at 905. In its motion for summary
judgment, the university
produced evidence that [the supervisor] had other legitimate, non-
retaliatory reasons for terminating Moreno’s employment, including
that Moreno: (1) was unable to complete specific and complicated
budget-related tasks on her own; (2) did not provide budget reports
to [the supervisor] in a timely manner after he requested them;
(3) interfered with and delayed the hiring process for an engineer
because she did not agree with the salary that [the supervisor]
proposed for him; (4) failed to provide required information and
services to other [university] departments in a timely manner; and
(5) was generally uncooperative and difficult to work with. . . .
Moreno produced evidence, however, that these stated
reasons for her termination were pretextual.
Id. at 914 (emphasis added) (explaining that the university’s reasons could have
been pretextual because, in part, Moreno presented evidence that the
university’s provost believed her to be thorough, knowledgeable, ethical, and
competent). We have not located evidence in this case that raises a genuine
issue of material fact that casts doubt on Yelverton’s statement that she would
have fired appellant for untruthfulness apart from any other motivation. For
example, we have not found evidence that Yelverton (or Chief Goolsby or Blagg)
failed to fire someone who was similarly situated to appellant and who was found
to be and admitted to be untruthful. See Hernandez, 164 S.W.3d at 389 (holding
that there was no causation in a workers’ compensation retaliation case because
the plaintiff did not present more than a scintilla of evidence that the employer’s
36
policy was not uniformly enforced or that the employer’s explanation for the
termination was false); Parker, 2011 WL 3918159, at *5 (“When an employer
provides proof that it terminates an employee pursuant to a uniformly applied . . .
policy, a terminated employee must provide competent evidence that the
employer treated him differently from similarly situated employees in order to
survive a summary judgment motion.”).
Appellant compares his firing to the discipline faced by two other Southlake
employees: Kevin Northcutt and Lieutenant Kenny. Yelverton’s affidavit
described that several years before appellant made his whistleblower complaints,
Northcutt, who worked in Southlake’s Public Works Department, made a
whistleblower report about that department’s wrongdoing. Yelverton said that
Northcutt’s whistleblowing led to extensive investigations by the city and
precipitated the firing of a number of Southlake’s employees. Because Northcutt
was involved in the wrongdoing, he was suspended for a period of time, but he
continued to be employed by the city for five years after that until he voluntarily
resigned. We conclude that Northcutt’s continued employment with Southlake
does not raise a genuine issue of material fact that casts doubt on the reason for
appellant’s firing; Northcutt was not found to be untruthful, and he was not an
employee of the police department.
Yelverton’s affidavit also said of Lieutenant Kenny,
In one instance, former Police Lieutenant Michael Kenny had faced
several internal charges, and based on an initial determination that
he had been untruthful, his employment was terminated. During the
37
appeal process, I determined that Michael Kenny may have stated
information incorrectly, but did not do so intentionally. Therefore, I
decided Kenny had not been untruthful. Michael Kenny’s
employment was reinstated. [Emphasis added.]
Like Northcutt, Lieutenant Kenny is not similarly situated with appellant.
Yelverton ultimately found Lieutenant Kenny to not be untruthful, and it is
indisputable that appellant was untruthful when he wrote in the January 23 e-mail
that Watkins had sent the January 9 e-mail. If anything, the evidence as to
Lieutenant Kenny’s initial discipline of termination for untruthfulness and
subsequent reinstatement when he was found to not be untruthful supports
appellees’ affirmative defense that they would have fired appellant for
deceptiveness and untruthfulness.27
For all of these reasons, based upon the summary judgment evidence that
appellees presented and upon the lack of evidence by appellant to raise a
genuine issue of material fact that he would not have been fired based on his
untruthfulness, we conclude that appellees conclusively proved their entitlement
to summary judgment on the affirmative defense of section 554.004(b), and we
hold that the trial court did not err by granting appellees’ motion for summary
judgment and plea to the jurisdiction. See Tex. Gov’t Code Ann. § 554.004(b);
Tex. R. Civ. P. 166a(b), (c); Lueck, 290 S.W.3d at 883 (explaining that the
27
We note that this evidence also seems to contradict appellant’s claim that
he was fired because he was a whistleblower. Appellant has noted that
Lieutenant Kenny and Northcutt were also whistleblowers, and according to
Yelverton, Lieutenant Kenny and Northcutt retained their employment with
Southlake.
38
elements of a whistleblower claim may be considered to determine both
jurisdiction and liability). We overrule appellant’s second issue, and because that
issue is dispositive of appellant’s claim under the Whistleblower Act, we decline
to address appellant’s other issues.28 See Tex. R. App. P. 47.1.
Conclusion
Having overruled appellant’s second issue, which is dispositive in his
appeal, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
MCCOY, J., concurs without opinion.
DELIVERED: May 31, 2012
28
In his fourth issue, appellant contends that the trial court abused its
discretion by excluding some of his summary judgment evidence upon appellees’
objections. We have considered the summary judgment evidence specifically
described within appellant’s fourth issue, and we have determined that the
evidence does not affect the resolution of appellant’s second issue. Appellant’s
first and third issues discuss other grounds upon which the trial court might have
granted appellees’ summary judgment motion.
39