Whistleblower Act report qualified even though the chief already knew about the alleged regarding the violation of law.

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Special Guest Author, Laura Mueller.

City of Fort Worth v. Pridgen, et al., No. 05-18-00652-CV (Tex. App.—Dallas June 18, 2020) (mem. op.).

This is a Whistleblower Case (Texas Government Code Chapter 554) where the Dallas Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

In a well-publicized, police use of force case, an officer, Martin, was seen on Facebook Live and on his body camera footage using force against individuals while arresting them.  Due to the incident, claims of racism were made by the public against Officer Martin, and the incident was investigated by the two plaintiffs, high ranking members of the City of Fort Worth Police Department, Pridgen and Keyes.  After reviewing the footage, these officers reported to the Police Chief, who was aware of the incident, and the officers recommended that Officer Martin be terminated.  The Chief instead only suspended the officer for ten days.  Both Pridgen and Keyes were demoted after the investigation due to the allegation that the officers release confidential information to the victims’ attorney without the city’s authorization.

Under the Whistleblower Act, immunity from suit is waived when the city employee shows that:

(1) that the plaintiff was a public employee, (2) that the defendant was a state agency or local government, (3) that the plaintiff reported in good faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.—Dallas 2008, no pet.).

Good faith in this context requires that the employee must have believed that he was reporting a violation of law and this determination must be reasonable based on the employee’s training and experience.  To be a but-for cause of an employee’s demotion, the report must have been a reason, but is not required to be the sole cause of the adverse employment action.  The issues in this case was whether: (1) it is a report of a violation of law if the person to whom they report to already knows of the violation of law; (2) that the report was not made in good faith; and (3) the report was not the cause of the officers’ demotions.

The court held that a report can be sufficient under the Whistleblower Act even if the appropriate law enforcement agency to whom it is reported already knows of the violation, in this case the report to the Chief was sufficient even though the Chief was aware of the officer’s investigation and was familiar with the facts that led to the allegations.  The court also held that the officers made their report in objective good faith even if there was other evidence that may have negated the violation of law that they could have viewed but did not.  There is no duty for an employee to investigate a violation of law before reporting it for Whistleblower Act purposes.  Finally, the court held there was a sufficient nexus between the officers’ demotions and the report of violations of law based on the Chief’s negative attitude towards the report and the evidence of inconsistencies in the investigation and discipline of the officers.

If you would like to read this opinion click here.

Proof of allowing the provision of alcohol to a minor in an officer’s presence is sufficient for a general discharge on an F-5 termination report

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McCall v. Hays County Constable Precinct Three, No. 03-18-00355-CV (Tex. App.–Austin May 21, 2020) (mem.op.).

[Special guest summary author Laura Mueller, City Attorney for Dripping Springs, Texas]

The case involves an appeal from an Administrative Law Judge (ALJ) ’s order sustaining an F-5 termination report issued by Hays County.  The court of appeals held that there was sufficient evidence that the ALJ’s order was supported by substantial evidence.

McCall was a volunteer deputy still in his probationary period when the Hays Constable Office began investigating him for disciplinary purposes.  McCall was engaged to and lived with a 19-year-old female, who filed a family assault claim against McCall.  While the Constable’s Office was investigating the assault charge for employment purposes, the officer conducting the investigation found evidence, including from conversations with McCall, that his fiancée had been given and consumed alcohol in his presence.  Based on providing alcohol to a minor, McCall was terminated and provided an F-5 termination report with a general discharge notation.  McCall appealed the termination report to the State Office of Administrative Hearings, as required by the Occupations Code.  The Administrative Law Judge determined that there was sufficient cause for the general discharge notation.  McCall appealed.

First, the court looked at the Alcoholic Beverage Code provision that allows an underage person to drink in the presence of a parent.  In this case, the underage fiancée was drinking with McCall’s mother, not her own parent.  Because the underage fiancée is not under 18, McCall’s mother’s financial support of the underage fiancée did not create in loco parentis relationship.  Second, the court reviewed the argument there was insufficient evidence McCall provided or allowed his underage fiancée to consume alcohol.  The court reviewed the evidence under the substantial evidence standard and found that there was sufficient evidence for a general discharge, including McCall’s own statements related to his underage fiancée’s consumption of alcohol. Finally, the court reviewed the argument that Chapter 614 of the Government Code, which requires signed written complaints in order to terminate an officer, prohibits the submission of the evidence of alcohol consumption. While a family assault charge initiated the investigation, the reason for termination was evidence of allowing or providing alcohol to an underage individual.  The court did not hold that Chapter 614 could never limit what could be considered in an F-5 hearing, but that in this case, the evidence did not come from a complaint, but from the employer’s investigation of McCall’s own statements.  The court upheld the ALJ’s decision to uphold the general discharge based on substantial evidence of the appropriateness of the notation.

If you would like to read this opinion, click here. The panel consists of Justices Goodwin, Baker and Smith.

Texas Supreme Court holds 90-day statute of limitations is a jurisdictional prerequisite to filing suit under Texas Whistleblower Act

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City of Madisonville, et al., v Sims, 18-1047 (Tex. April 17, 2020)

This is a Texas Whistleblower Act case where the Texas Supreme Court held the 90-day deadline for filing suit is jurisdictional.

David Sims was a police officer in the Madisonville Police Department. Sims received information that his boss, Sergeant Jeffrey Covington, planned to plant drugs in Covington’s ex-wife’s car to assist in his ongoing child-custody dispute. Sims and Covington had a bad history, both before and during Madisonville PD.  Sims told the Chief of Police, Charles May, but Chief May dismissed the information. Sims later discovered, by using an administrator access login, that Covington was compiling an “investigative file” on Sims presumably to have him fired. Sims was “dishonorably discharged” shortly afterwards for violating the Department’s computer-use policy. The dishonorable designation  was later changed to honorable by a SOAH administrative law judge.   Sims sued under the Texas Whistleblower Act after the SOAH determination (which was past the 90 day deadline to file suit). The City filed a plea to the jurisdiction, which was granted. The court of appeals reversed, holding the deadline was not jurisdictional. The City appealed.

Texas Government Code § 311.034 of the Code Construction Act makes statutory prerequisites to suit jurisdictional as to claims against governmental entities. The Texas Supreme Court has held “the term ‘statutory prerequisite’ refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.”  When a statutory prerequisite to suit is not met, “whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit),” the suit may be properly dismissed for lack of jurisdiction.  The Whistleblower Act clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief. But an employee with a Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act to obtain relief, including the statute of limitations. The Act states the employee “must sue” within ninety days. The ninety-day filing deadline is thus a jurisdictional statutory prerequisite to suit.  The plea should have been granted.

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

Lieutenants in civil service county not considered exempt employees for FLSA purposes says U.S. 5th Circuit

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Miller v Travis County, 19-50360, (US 5th Cir – March 26, 2020)

This is a Fair Labor Standards Act (FLSA)/overtime case where the U.S. 5th Circuit held the County failed to establish the lieutenants in the Sheriff’s office were exempt employees.

In the Travis County Sheriff’s department, the Sheriff is at the top. In descending order are the Chief Deputy, majors, captains, lieutenants, sergeants, detectives, and deputies.  The County falls under the civil service statute for law enforcement.  The lieutenants’ main responsibility is to manage the operation of units of sergeants and deputies.  The lieutenants participate in employment decisions regarding their coworkers, starting with hiring and promotion.  The lieutenants also participate in discipline and termination decisions. Believing they were entitled to overtime pay, the lieutenants sued Travis County and a jury issued an award in their favor. The County appealed.

The employer bears the burden of proving an employee is exempt from overtime pay under the FLSA. To qualify as an executive exemption, the employee must have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. The lieutenants could not hire/fire, so the jury only decided whether their opinions have particular weight in the decision. However, the hiring and promotional boards (made up of 6 officers)  did not provide the lieutenants any special influence. They sometimes sat on the boards, but, at least for hiring boards, they did so along with their subordinates. Thus, at most, a lieutenant’s recommendation accounted for one-sixth of the final tally.  The jury was properly instructed on the purpose of the civil service system, which includes a design to prevent any one viewpoint from having disproportionate influence.  As a result, the jury could have found for the County or for the lieutenants, given the facts. The jury found for the lieutenants. The same is true for the lieutenants’ role in discipline and termination. “There was evidence on both sides, and the jury picked a winner. Our task is not to determine whether the verdict was correct—only whether there was a sufficient basis to render it… There was.”  Since the review is under an abuse of discretion the County failed to establish an abuse of discretion.

If you would like to read this opinion click here. Panel consists of Smith, Ho, and Oldham.  Opinion by Judge Smith. Attorneys for the Appellant are Amy Stoeckl Ybarra, Leslie Wood Dippel, and Laurie R. Eiserloh. Attorneys for Appellee are Jacob Sheick and Meredith B. Parenti.

 

When alleged harasser was placed on restrictions, then restrictions were removed five months later, the fact the employer believed it did not have time to respond to subsequent complaint is irrelevant says El Paso Court of Appeals

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County of El Paso, Texas v. Monique Aguilar, 08-19-00082-CV, (Tex. App – El Paso, March 18, 2020)

This is a gender discrimination/hostile work environment case where the El Paso Court of Appeals reversed-in-part and affirmed-in-part the denial of the County’s plea to the jurisdiction. [Comment: this is a 42-page opinion, so that is why the summary is longer than normal.]  The case presents a detailed thought process analysis under employment law, including prima facie element analysis and burden shifting.

Aguilar worked for the County in various positions for nearly twenty-four years.  She was holding the position of Facilities Manager when she complained to her supervisors and HR that she was paid substantially less than not only the male who previously held the position of Facilities Director (which was reorganized and formed in the Facilities Manager position) but also less than other similarly situated male coworkers.  She also raised the issue of pay disparity with the County Commissioner’s Court. She also complained she was harassed by a male co-worker.  The supervisor put restrictions on the co-worker in 2014, limiting contact with Aguilar and her staff. That restriction was lifted five months later, but according to Aguilar, the co-worker, Lucero, resumed his harassing behavior. When Aguilar obtained an email the supervisor wanted to discuss Lucero with her and her behavior in a meeting where he was present, she experienced an anxiety attack and eventually resigned. Aguilar brought suit under the Texas Commission on Human Rights Act (“TCHA”) under a constructive discharge theory. The County filed a plea to the jurisdiction, which was denied.

The court first went through numerous pages regarding the affidavits and determined the trial court did not abuse its discretion in considering Aguilar’s affidavit. Next, the court determined Aguilar was required to establish she was “treated less favorably than similarly situated members of the opposing class[.]” The County presented evidence that Aguilar did not hold the same job position,  duties and responsibilities, or requirements for education as the comparators she listed. The applicable test is not whether the positions are comparable in some respects; the test is whether the positions are “comparable in all material respects.” While Aguilar’s burden at the prima facie stage was not onerous, it did require, at a minimum, that she present evidence raising a fact issue on whether she was similarly situated to members outside her protected group who were treated differently. She did not present contradicting evidence as to two other managers, but did as to a third, Cruz. As a result, the plea should have been granted as to disparate regarding the first two managers, but was properly denied as to Cruz. As far as the harassment claim goes, County argues that Lucero’s comments did not create a hostile work environment because many of them were made to persons other than Aguilar. But those comments were made about Aguilar and were humiliating to her. In addition, because many of the comments were made to her staff and to contractors with whom she worked, they interfered with her ability to perform her job duties. Aguilar demonstrated that a disputed material fact exists concerning whether her work environment was objectively hostile or abusive. While the restrictions on Lucero were put in place, they were lifted five months later and he returned to his prior behavior.  While the County asserts it did not have time to respond to the return, Aguilar’s hostile work environment claim is not based solely on the final week of her employment, divorced from the years of harassing conduct that preceded that week. A reasonable person could conclude that this failure effectively communicated to Aguilar that Lucero would be permitted to once again humiliate Aguilar and interfere with her job performance. As to her retaliation charge, she asserted after complaining about Lucero, her supervisor sent her an email accusing her of inappropriate behavior in a meeting. When her supervisor emailed her to discuss “next steps” she took that to mean discipline of her, so she resigned. The totality of the circumstances surrounding Aguilar’s hostile work environment claim create a fact issue as to whether retaliation was committed by the County for reporting harassment.  However, no fact issue exists regarding Aguilar’s retaliation charge for reporting disparate pay.   In sum, the plea was properly denied as to some claims, but should have been granted as to others.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley and Justices Rodriguez and Palafox. Opinion by Justice Palafox. Docket page with attorney information can be found here.

Nurse who reported believed violation of overtime restrictions to legal department deemed not to have reported to proper agency under Whistleblower Act

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Erin Reding v. Lubbock County Hospital District d/b/a University Medical Center, 07-18-00313-CV, (Tex. App – Amarillo, March 18, 2020)

This is a Texas Whistleblower Act case where the Amarillo Court of Appeals affirmed the granting of the hospital district’s plea to the jurisdiction.

Reding is a registered nurse working for the Lubbock County Hospital District d/b/a University Medical Center (“UMC”). UMC announced plans for a new policy that would require nurses to sign up for two mandatory “on call” shifts per month and discipline for those who did not comply. Reding believed the proposed compulsory shifts would violate § 258.003 of the Texas Health & Safety Code, prohibiting a hospital from requiring a nurse to work mandatory overtime.  She filed a complaint with the human resources and legal departments. Reding was later terminated and she asserts the termination was retaliatory.  She brought suit under the Texas Whistleblower Act. UMC filed a plea to the jurisdiction which was granted.  Reding appealed.

Reding alleged that she “reasonably and in good faith believed that [UMC’s] legal department was the appropriate authority to whom she should report the violation.” However, the Texas Supreme Court has consistently held that “reports up the chain of command are insufficient to trigger the Act’s protections.” To qualify, the internal department must also have outward-looking powers, as an “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.” While the legal department at UMC may oversee internal compliance with the law governing nurses’ work hours, that is not the same as having the authority to enforce laws against third parties. The plea was properly granted.

If you would like to read this opinion click here. The panel consists of Chief Justice Quinn and Justices Pirtle and Parker. Memorandum Opinion by Justice Parker. The attorney listed for Reding is J. Craig Johnston.  The attorney listed for UMC is Don C. Dennis.

Texas Supreme Court holds deputies travel home from approved extra-duty work at football game was within “course and scope” of employment for worker’s compensation purposes

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Mary Orozco v County of El Paso, 17-0381(Tex. March 20, 2020)

This is a worker’s compensation case, but the key issue is whether the deputy who died in a vehicular accident while driving his assigned patrol car, was in the course and scope of his employment.  The  Texas Supreme Court held he was within the course and scope.

Orozco was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car’s windshield on the expressway. At the time of his death, Orozco was a sergeant with the El Paso County Sheriff’s Department. However, Sergeant Orozco was not scheduled to work for the department that night. He instead worked an extra-duty assignment at a University of Texas El Paso (UTEP) football game.  Because the work at UTEP was extra-duty employment (and not considered off-duty) and might entail the use of an officer’s law-enforcement powers under the policy manual, Sergeant Orozco wore his uniform, badge, and gun to the football game, and he drove there in his assigned patrol car. After completing his work at the UTEP football game, Sergeant Orozco also used the patrol car for his return trip home, which is when the accident occurred. His surviving spouse filed a claim under the Worker’s Compensation Act.  The County asserts the claim should be denied.  All procedural administrative steps were taken and suit was filed. The Court of Appeals ruled in favor of the County and the widow appealed.

The Texas Supreme Court recently held the question of whether an officer is on or off duty does not determine whether the officer’s conduct falls within the scope of his employment. “Peace officers are . . . relatively unique among governmental employees as they may be required to spring into action at a moment’s notice, even while off duty.” Because a peace officer is always a peace officer, even during off-duty hours, the capacity in which an officer is acting can be nebulous. While the parties made arguments regarding his status at the football game, the Court held that was not the focus. It is Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that is at issue.

As a general rule, travel to and from work does not originate in the employer’s business and, in some instances, is expressly excluded from the course and scope of employment by statute.  While exceptions may have previously existed for travel that is an integral or required part of the employee’s work, the Legislature has since codified its definition of course-and-scope which controls.  The Court analyzed a lot of the record and testimony and determined that Orozco’s “use” of the vehicle was authorized and not purely for personal use. Further, the statutory test asks whether the activity producing injury relates to, originates in, and furthers the employer’s business affairs. The operation of a marked patrol car on the public streets is an activity that clearly relates to and originates in the work or profession of the El Paso County Sheriff’s Department. Patrolling El Paso’s roads is a significant part of the department’s work. Moreover, having uniformed deputies in marked patrol cars on El Paso streets furthers the work of the sheriff in preserving the peace.

The statutory definition of the term “course and scope of employment” excludes two types of travel- the coming-and-going rule and the dual-purpose rule.  Travel to and from work is governed solely by the coming-and-going rule, while all other travel is subject to the dual-purpose rule. Here  it appears undisputed that Orozco “contacted the Sheriff’s dispatch as he left the extra-duty assignment that he was in route to his home and available for calls.”  After analyzing numerous parts of the record which made clear he was subject to call while driving home and was required to respond to emergencies if observed, the Court concluded that the authorized operation of Orozco’s patrol car to and from the approved extra-duty assignment was a law-enforcement activity similar to his on-duty work for the county.  As a result, his death occurred during the course and scope of his employment.

If you would like to read this opinion click here. The docket page can be found here.

Trial court’s denial of plea after evidentiary hearing was proper given the trial court decides disputed facts unrelated to merits of underlying claims

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City of San Antonio v. Pedro J. Arciniega, 04-19-00467-CV, (Tex. App – San Antonio, Jan 15, 2020)

This is an employment discrimination case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Arciniega sued the City alleging a claim for age discrimination after his employment was terminated. The City filed a plea to the jurisdiction asserting Arciniega failed to timely file his administrative complaint with the Texas Workforce Commission within 180 days after the date he was terminated. Arciniega asserted he filed it within 180 days after receiving the  City’s letter notifying him of his termination. When the hearing was held on the plea the City asserted it should be an evidentiary hearing on exactly when Arciniega received notice and Arciniegra’s attorney asserted his affidavit was sufficient to create a fact issue. The City’s attorney responded the trial court was required to hear evidence and resolve fact issues regarding jurisdiction when the challenged jurisdictional facts are not intertwined with the merits of the case.  The court allowed an evidentiary hearing at which witnesses were presented. After the testimony, the court denied the plea.

Legally, the 180-day period “begins when the employee is informed of the allegedly discriminatory employment decision.” A trial court “must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.”  When a defendant asserts and supports with evidence that the trial court lacks subject matter jurisdiction and the facts underlying the merits and subject matter jurisdiction are intertwined, a plaintiff is only required to show that there is a disputed material fact regarding the jurisdictional issue. A different standard applies, however, when a jurisdictional issue is not intertwined with the merits of a plaintiff’s claim. In that situation, “disputed fact issues are resolved by the court, not the jury.” Based on the applicable standard of a review the court found that the denial of the plea, was an implicit finding Arciniega timely filed his administrative complaint with the TWC.  Viewing the evidence in the light most favorable to the trial court’s finding, Arciniega’s testimony supported that finding. As a result, the plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Alvarez, Rios, and Watkins. Memorandum Opinion by Justice Rios. Docket page with attorney information found here.

City allowed to appeal civil service order since hearing examiner performed her own Internet search on medication side-effects

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City of Fort Worth v. Shea O’Neill, 02-18-00131-CV (Tex. App. – Fort Worth, Jan. 23, 2020).

The Fort Worth Court of Appeals reversed-in-part and affirmed-in-part a trial court order regarding whether the court had jurisdiction over an appeal from a hearing examiner’s decision under the Civil Service Act.

Shea O’Neill was indefinitely suspended as a firefighter with the City.  O’Neill, while on work-related leave, struck a 70-year-old fellow parent at a football scrimmage. The parent alleged he sustained facial injuries, several cracked and broken teeth, and a bloody nose.   The fire chief found that O’Neill had violated several fire-department rules and regulations and imposed the suspension.  O’Neill appealed and a hearing examiner reversed the suspension. The City appealed to the district court, which granted O’Neill’s plea to the jurisdiction holding it had no jurisdiction over the hearing examiner’s decision. The City appealed.

The City asserts the district court had jurisdiction to consider the appeal for two reasons: (1) the hearing examiner’s decision was procured by unlawful means because she considered evidence not admitted at the hearing and (2) the hearing examiner exceeded her jurisdiction because she concluded that the fire department’s due-process violations compelled her to reinstate O’Neill.  The Civil Service Act mandates that a decision be made on evidence submitted at the hearing. A hearing examiner’s decision is “final and binding on all parties.” An appeal is permitted only if the hearing examiner was without jurisdiction or exceeded his/her jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. It is undisputed the hearing examiner conducted her own independent Internet research on the side effects of certain drugs. O’Neill counters the search results were not “procured” through unlawful means. In ordinary usage, “procure” means to “to cause to happen or be done” and to “bring about.”  The hearing examiner found the “slap” was defensive in nature and unlikely to have caused the broken teeth or bones and dismissed the nosebleed as being caused by the slap. The court held a fact issue exists regarding the side-effects evidence and whether it led the hearing examiner to decide that the evidence overall did not support the fire chief’s findings and conclusions.  Such was improper and was procured through an unlawful means as the medication issue was not submitted during the hearing as evidence.  As a result, the “procured through unlawful means” ground entitled the City to reversal of the order granting the plea and a remand for further proceedings. However, the hearing examiner also determined that the department did not fully investigate the facts and allegations and did not give O’Neill an adequate opportunity to respond to the allegations. Such is within her discretion. Nothing in the Civil Service Act prohibits hearing examiners from reinstating a firefighter based on a finding that the department did not give due process during the disciplinary process. That ground was overruled by the court, even though it still remanded the case.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr, Visiting Justice Massengale.  Memorandum opinion from Justice Kerr. The docket page with attorney information can be found here.

Supervisor entitled to qualified immunity as to one suspended employees 1st Amendment claim but not the other

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Benfield v. Magee, 18-30932, (U.S. 5th Cir. December 17, 2019)

This is a First Amendment in employment action where the U.S. 5th Circuit reversed the denial of the individual supervisor’s qualified immunity defense and dismissed the claims as to one employee, but not the other.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training, which required the approval of the medical director. Warren asserts he suggested changes to the procedures manual which would prevent Magee, their supervisor, from electronically signing in lieu of the medical director. Warren asserts afterward Magee harassed him (including criticizing Warren’s religious beliefs, denying him a promotion, accusing him of inappropriate relationships.)  When a new co-medical director inquired into the Plaintiff’s recertification, they blamed Magee for telling them to electronically falsify the records. Magee suspended Warren and Benfield for falsification.   Warren and Benfield sued Magee directly, claiming that he suspended them for exercising their First Amendment free-speech and free-association rights.  The trial court denied Magee’s assertion of qualified immunity and he appealed.

Warren’s letter of changes to the procedure’s manual occurred 19 months prior to his suspension. And while a plaintiff can establish a causal connection with other inferences, Warren’s allegations do virtually nothing to establish a chronology or relationship. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity.  Warran would be unable to overcome the qualified immunity defense without stating with specificity when he was harassed.  As a result, his assertions are insufficient to establish a causal connection and such claims are dismissed. However, Magee made no substantive argument for dismissing Benfield’s free-speech claim, believing Benfield raised only a freedom of association claim. As a result, the denial was proper as to Benfield.

If you would like to read this opinion click here. Panel consists of Justices Stewart, Clement and Ho.  Opinion by Justice Clement. The attorney listed for Magee is Edwin H. Byrd.  The attorney listed for Warren and Benfield is Bryce J. Denny.

Texas Supreme Court holds no-evidence MSJ proper to challenge jurisdiction; TOMA waiver of immunity does not include declaratory judgment claims

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Town of Shady Shores v Swanson, 18-0413 (Tex. Dec. 13, 2019)

This is an employment case, but the focus on the opinion is a procedural one.  Importantly, the Texas Supreme Court held 1) a no-evidence motion for summary judgment was proper to raise a jurisdictional challenge and 2) the Texas Open Meetings Act (TOMA) did not waive immunity for declaratory relief, only mandamus and injunctive relief.

Swanson was the former Town Secretary for Shady Shores. She brought claims asserting she was wrongfully discharged. The Town filed a plea to the jurisdiction which was granted as to the Sabine Pilot and Whistleblower claims. The  Town later filed traditional and no-evidence summary judgment motions (on immunity grounds) as to the Texas Open Meetings Act declaratory judgment claims, which the trial court denied.  The Town took an interlocutory appeal, but Swanson kept filing motions. The trial court granted Swanson leave to file a motion for a permissive interlocutory appeal as Swanson asserted she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the Town’s notice of appeal for the summary judgments. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal the Town filed a separate mandamus action (which was consolidated for purposes of appeal). The court of appeals declined to issue the mandamus noting the trial court did not actually sign any orders and noted Swanson did not timely file an appeal and was not granted a permissive appeal. Court of appeals summary found here.

The court of appeals held allowing a jurisdictional challenge on immunity grounds via a no-evidence motion would improperly shift a plaintiff’s initial burden by requiring a plaintiff to “marshal evidence showing jurisdiction” before the governmental entity has produced evidence negating it.  It also held the entity must negate the existence of jurisdictional facts. After recognizing a split in the appellate courts, the Texas Supreme Court rejected the reasoning noting in both traditional and no-evidence motions, the court views the evidence in the light most favorable to the nonmovant.  Because the plaintiff must establish jurisdiction, the court could “see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.”  Thus, when a challenge to jurisdiction that implicates the merits is properly made and supported, whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary judgment, the plaintiff will be required to present sufficient evidence on the merits of her claims to create a genuine issue of material fact.  Such a challenge is proper using a no-evidence summary judgment motion.  Next, the Court held  the UDJA does not contain a general waiver of immunity, providing only a limited waiver for challenges to the validity of an ordinance or statute.  UDJA claims requesting other types of declaratory relief are barred absent a legislative waiver of immunity with respect to the underlying action. Under  TOMA, immunity is waived only “to the express relief provided” therein—injunctive and mandamus relief—and the scope does not extend to the declaratory relief sought. Thus, TOMA’s clear and unambiguous waiver of immunity does not extend to suits for declaratory relief against the entity. However, Swanson did seek mandamus and injunctive relief as well, which were not addressed by the court of appeals, even though argued by the Town. As a result, such claims are remanded to the court of appeals to address.

If you would like to read this opinion click here. Justice Lehrmann delivered the opinion of the Court. The docket page with attorney information is found here.

Former Employee Failed to Brief and ID Records Establishing Causation or Pretext in Employment Case

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Orlando Toldson v. Denton Independent School District, 02-18-00394-CV (Tex. App. – Fort Worth, Nov. 21, 2019)

This is a sexual harassment/retaliation claim where the Fort Worth Court of Appeals affirmed the employer’s motion for summary judgment.

Toldson worked for Denton Independent School District (DISD) as a paraprofessional teacher’s aide off and on from 2009 until he was terminated in February 2015. In 2014 Toldson served as an aide in the special education department at Ryan High School (RHS). Toldson complained to the assistance principle several times that the teacher (Ms. Winrow) was overly demanding and that Toldson did not know what was expected of him in the classroom. Toldson made no allegations during these meetings that Winrow had sexually harassed him.  These complaints continued for several months until Toldson eventually did mention what he felt was inappropriate sexual comments. DISD offered to move Toldson to a different classroom while investigating his complaints. The principle interviewed five witnesses,  did not find any who corroborated Toldson’s allegations of sexual harassment.  The principle concluded the investigation and offered to move Toldson to another teacher, to which Toldson objected. Toldson complained to the DISD HR department and asserted his immediate supervisors began retaliating against him by requiring him to be at department meetings where Winrow would be present. Toldson followed the grievance procedures up the process, but with no resolution he would accept. During this entire time, Toldson’s job performance at RHS was an issue including often arriving late for work, he often left early, and he was often absent, all without providing proper notification to his superiors. He also took longer breaks than allowed, as well as unauthorized breaks that left students unsupervised. Toldson was reassigned to a different campus.  While there, the record reflects Toldson sexually harassed a female teacher. Upon learning of the incidents, DISD terminated Toldson. Toldson sued for sexual harassment and retaliation. The DISD filed a motion for summary judgment, which was granted. Toldson appealed.

Regarding his retaliation claim, the court noted no evidence was identified by Toldson establishing causation. While Toldson asserts an email present somewhere in the record constitutes direct evidence of causation, Toldson failed to identify, cite, or adequately brief the email for the court. Toldson bears the burden of supporting his contentions with appropriate citations to the record. Failing that, Toldson fails to meet his burdens.  Further, the court agreed DISD presented evidence of a legitimate, non-retaliatory reason for terminating Toldson’s employment. Toldson failed to demonstrate a fact issue exists regarding pretext. The court likewise had difficulty finding Toldson had properly briefed and identified arguments and issues regarding the sexual harassment claim. The court noted the summary judgment record in this case exceeds 2,000 pages. Of the nineteen sentences of alleged facts Toldson relies upon to show a fact issue the sexual harassment charge, eight contain no citation to the record whatsoever and the rest do not explain how they are related to any form of harassment.  Toldson provided no reference to a specific place in the record where any exhibits exist, so he failed to brief his issues. The summary judgment was affirmed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Womack and  Wallach. The attorney listed for the district is Thomas P. Brandt.  The attorney listed for Toldson is Anthony Hamilton Green.

Firefighter’s claims against City dismissed since no adverse employment actions occurred; only minor internal decisions

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Billy Fratus v. The City of Beaumont, 09-18-00294-CV (Tex. App. – Beaumont, Oct. 10, 2019).

This is an employment discrimination/retaliation/firefighter case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Fratus was a firefighter who sued for 1) free speech equitable relief and 2) race discrimination and 3) retaliation under Chapter 21 of the Labor Code.  Fratus asserted the Fire Chief, Huff, did not like Fratus was Hispanic and excluded him from meetings, denied him discretionary perks of the job, spoke bad about him, interfered with Fratus’ relationship with his physician while on disability leave, and a host of other assertions centering on personality slights. Fratus also alleged that the City retaliated against him for speaking out against what he believed was Chief Huff’s sexual harassment of another employee, and for disagreeing with Chief Huff’s firing of one employee. The City filed a plea to the jurisdiction which was granted. Fratus appealed.

Fratus’ claims for declaratory relief centered only on past allegations.  As a result, it is actually a claim for monetary damages for which the City is immune. Further, claims for equitable relief for constitutional violations “cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity.” Since Fratus did not sue any individuals, the equitable relief claims are dismissed. To prevail on a retaliation claim based on protected free speech Fratus has to establish, among other things, he spoke out on a matter of public concern. Speech made privately between a speaker and his employer rather than in the context of public debate is generally not of public concern. The record shows Fratus made criticisms to other co-workers, which does not qualify. A retaliation claim is related to but distinct from a discrimination claim, and it focuses upon the employer’s response to the employee’s protected activity. The TCHRA addresses only “ultimate employment decisions” and does not address “every decision made by employers that arguably might have some tangential effect upon employment decisions.”  Actionable adverse employment actions do not include disciplinary filings, supervisor’s reprimands, poor performance reviews, hostility from fellow employees, verbal threats to fire, criticism of the employee’s work, or negative employment evaluations.  The pleadings and record reflect Fratus did not allege any adverse employment decisions, only petty disagreements and internal rifts. Fratus failed to plead a prima facie claim. Fratus’s appellate brief states that he also has an issue under the Texas Open Meetings Act.  However, such does not meet briefing requirements because it lacks citations to the record or to applicable authority and therefore presents nothing for review. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson. Opinion by Justice Johnson.  The attorney listed for Fratus is Laurence Watts.  The attorneys listed for the City are Tyrone Cooper and Sharae Reed.

Beaumont Court of Appeals holds firefighter’s last-chance agreement in collective bargaining city deprived trial court of jurisdiction to hear appeal of indefinite suspension

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Michael Scott Nix v. City of Beaumont, 09-18-00407-CV (Tex. App. -Beaumont – Oct. 3, 2019)\

This is an interlocutory appeal in a firefighter suspension case where the Beaumont Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Nix filed a petition seeking declaratory and equitable relief against the City based on his indefinite suspension from his position as a firefighter. He asserted the Collective Bargaining Agreement (“CBA”) was invalid because the City allegedly failed to comply with the Texas Open Meeting Act (“TOMA”) requirements when the CBA was negotiated.  He also asserts the “last chance” agreement he entered into with the Fire Chief was invalid. Nix’s last-chance agreement probated part of the suspension, but noted he could be terminated if he violated any terms of the agreement.  Nix’s suspension in 2015 resulted in the last-chance agreement and the Chief determined he violated the sick leave policy in 2017 resulting in an indefinite suspension. Nix asserts in the absence of a valid contract, the suspensions were invalid, depriving him of due process of law and a protected property interest. The City filed a plea to the jurisdiction, which was granted.  Nix appealed.

TOMA has a limited waiver of immunity. An action taken in violation of TOMA is voidable, not void. When a department head suspends a firefighter for violating a civil service rule, the suspension may be for a reasonable period not to exceed fifteen calendar days or for an indefinite period. Tex. Loc. Gov’t Code Ann. § 143.052(b). The firefighter may accept the suspension or appeal to the Civil Service Commission. If the firefighter disagrees with the Commission, the employee may file suit in district court. The question of whether the City posted the CBA 2012-2015 negotiations in accordance with TOMA is not relevant because it is the CBA 2015-2020 CBA applicable to his underlying challenge to his indefinite suspension in 2017.  The City provided evidence showing proper postings for the negotiation of the 2015-2020 CBA.  When Nix accepted the last-chance agreement in 2015, he had the opportunity to refuse the Chief’s offer and appeal his suspension to the Commission; however, Nix agreed to waive his right to appeal, including the right to appeal the Chief’s 2017 decision determining that Nix had violated the Agreement. Nix waived all rights he may have to file suit against the City as to any issue directly or indirectly related to the last-chance agreement or to his indefinite suspension.  As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justice Horton and Justice Johnson.  Opinion delivered by Chief Justice McKeithen. The attorneys listed for Nix are Melissa Azadeh and Laurence Watts.  The attorneys listed for the City are Sharae Reed and Tyrone Cooper.

U.S. Supreme Court holds ADEA applies to governmental entities, regardless of the size (i.e., under 20 employees)

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Mount Lemmon Fire District v Guido, et al., 17-587 (U.S. November 6, 2018).

Firefighters sued the District asserting it violated the Age Discrimination in Employment Act.  The parties disputed the language of the ADEA. The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).  The firefighters asserted that the “also means” language creates a separate category of employers regardless of size.

After a detailed analysis of the history and wording in the ADEA and comparing the language to Title VII, the Court held the ADEA applies to political subdivisions of the state regardless of the number of employees. The ordinary meaning of “also means” is additive rather than clarifying. Furthermore, the text of §630(b) pairs States and their political subdivisions with agents — a discrete category that, beyond doubt, carries no numerical limitation. The Court acknowledged reading the ADEA as written to apply to states and political subdivisions regardless of size gives the ADEA a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ.

If you would like to read this opinion, click here. GINSBURG, J., delivered the opinion of the Court, in which all other justices joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.