Dallas Court of Appeals holds ex-police officer failed to establish his termination was in retaliation for whistleblower report of “pronoun confusion” in PD assault report

Michael Hackbarth v. University of Texas at Dallas  05-16-01250-CV (Tex. App— Dallas, January 4, 2018)

This is a Texas Whistleblower Act case where the Dallas Court of Appeals affirmed the trial court’s granting of the University’s motion for summary judgment.

Hackbarth was hired as a police officer for the University after retiring from the Dallas Police Department after 28 years of service. While on the force, a specific student at theno  University alleged her boyfriend, Rana, assaulted her. The investigator, MacKenzie, closed the case by allowing the complainant to sign a statement of non-prosecution, but instructed Rana to have no further contact with the complainant. MacKenzie issued an alert to officers to the escalating violence between the couple and that both had refused to prosecute. It advised officers to “take appropriate action” if they made contact and an offense had occurred.  Several months later Hackbarth along with Lt. Montgomery, were dispatched to a disturbance at the University library involving both students. Both denied any altercation.  When MacKenzie reviewed Hackbarth’s report he recognized the names. After consulting with the prosecutor, MacKenzie wanted an arrest for Rana, but Hackbarth insisted no violation occurred.  MacKenzie instructed Montgomery to draft an affidavit in support of an arrest warrant which Hackbarth disagreed with some of the wording. Hackbarth reported the incident to the Chief of Police. The Chief investigated and determined “pronoun confusion” caused an error in the report. Hackbarth complained to the DA and Texas Rangers. Rana later pleaded no contest to Class C assault in municipal court. The University’s assistant director over police performed a month-long investigation into the entire department and determined the complaints were unfounded. However, he listed several other performance failures, which launched an additional investigation. This second investigation revealed Hackbarth violated several department policies at different times and his supervisors relinquished their control over him due to his dominating behavior. MacKenzie was disciplined for failing to arrest Rana initially months before. Hackbarth was terminated along with his immediate supervisor, Brushwiller. After exhausting an appeal panel made up of law enforcement officers from other agencies, Hackbarth filed this whistleblower lawsuit. The trial court granted the University’s motion for summary judgment, which Hackbarth appealed.

When determining whether an agency expresses a negative attitude toward a whistleblower report, courts focus on the words and conduct of the final decision-makers who ultimately approved of the adverse employment action. The assistant director of police at the University made no recommendation or even opinion as to discipline or action to the Chief. It was the assistant director, on his own, who initiated the second investigation with no direction from the Chief or University PD. In determining whether an agency engaged in retaliatory conduct, the plaintiff may present evidence the agency treated a similarly-situated employee differently than it did the plaintiff.  The two examples offered by Hackbarth of comparators (who were progressively disciplined for other infractions) were not true comparators. The assistant director never determined either of these two comparing officers conducted investigations that were “inadequate, and completely devoid of any customary police investigatory procedures” or had the attitude problems attributable to Hackbarth. Brushwiller was also terminated, but made no whistleblower reports.  No evidence presented creates a fact issue to any of these comparative facts. As a result, the trial court properly granted the summary judgment.

If you would like to read this opinion click here.  Panel consists of Chief Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Chief Justice Francis. The attorneys listed for Hackbarth are David K. Watsky and Bob Gorsky. The Attorney listed for the University Of Texas At Dallas is Andrew Harris.

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