The Ninth Court of Appeals affirmed judgment for City in First Amendment/Whistleblower claims since no causal connection was present
Special contributing author Laura Mueller, City Attorney for Dripping Springs
Samer Shobassy v. City of Port Arthur, No. 09-18-00363-CV (Tex. App.—Port Arthur November 19, 2020) (mem. op.).
In this appeal from a trial court’s judgment dismissing the plaintiff’s retaliation-in-employment case. The Beaumont Court of Appeals affirmed the trial court’s summary judgment.
The plaintiff worked as an assistant city attorney for the city for five years and the city attorney was the plaintiff’s supervisor. During the plaintiff’s employment, he discussed the city’s compliance with purchasing law in the context of his employment as an assistant city attorney. He was terminated by the city attorney and was given a termination notice which indicated that he was terminated because, among other things, he failed to follow-up on tasks and communicate with the city attorney and failed to complete the tasks assigned to him. Plaintiff sued the city in district court claiming a Whistleblower Act claim and that his termination violated his First Amendment rights. The city filed a plea to the jurisdiction and no evidence motion for summary judgment which the trial court granted.
To establish a claim for retaliation under the Whistleblower Act, the plaintiff has to show that the employer’s termination would not have occurred had the plaintiff not made a good faith allegation of violation of law to an appropriate law enforcement authority. Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995). The report has to be a “but-for” cause of the termination. Office of the Attorney Gen. of Tex. v. Rodriguez, 605 S.W.3d 183, 198 (Tex. 2020). The plaintiff was unable to make the causal connection. To establish a claim for a free-speech retaliation claim, the plaintiff must show the plaintiff was terminated for engaging in constitutionally protected speech. Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996). The speech in question is not protected if it is spoken within the context of the employee’s official duties. Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 1998). The Whistleblower claim was dismissed because the claims of illegal conduct by the City were not made until after the termination. The free speech claim was invalid because his speech was performed and related to is employment position. The dismissal of both was proper.
If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen and Justices Kreger and Horton. Opinion by Justice Hollis Horton