A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action says Dallas Court of Appeals

 

City of Dallas v. Christopher Worden, 05-17-00490-CV )Tex. App. – Dallas, July 3, 2018).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Whistleblower Act case where the Dallas Court of Appeals reversed the denial and dismissed the Plaintiff’s claims.

Worden is a police officer who responded to a suspicious-persons call at a Wal-Mart Supercenter parking lot regarding a group of juveniles. Multiple officers arrived and separated various suspects. During the stop, Officer Nicholas Smith and Sergeant Fred Mears told Worden to take the handcuffs off of a juvenile they had detained. He was unaware at the time that Smith had been threatening to fight the juvenile or that Mears was mocking him. When Worden realized the antagonism, he again handcuffed the juvenile and placed him in the squad car. Worden reported these events (the Juvenile Incident) to his supervisor and other investigators. Then, months later, Worden and other officers responded to a report of an active shooter in a vehicle.  Video of the confrontation reportedly showed Worden “body-slamming” the suspect against the side of his car and inappropriate force. Worden was placed on paid administrative leave during the IA investigation. Worden was later suspended for 10 days due to the Juvenile incident and an additional 15 days due to the active-shooter incident. Worden appealed internally. His record was cleared for the juvenile incident and his suspension for the active-shooter incident was reduced. After returning to work, Worden was reassigned to Communications.  He brought this Whistleblower Act case, based on the juvenile incident. The City filed a plea to the jurisdiction which was denied. The City appealed.

Under the Whistleblower Act, an employee can sue only for adverse employment actions. The test for adverseness under the Act is an objective one: the action taken “must be material, and thus likely to deter a reasonable, similarly situated employee from reporting a violation of the law.” Worden alleges that Communications had “a stigma attached to it,” and that it was “for ‘troubled’ or ‘problem’ officers,” but he offers nothing more than his personal opinion to support that judgment. A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action. Worden alleges further that his assignment to the Department’s Employee Development Program (EDP) was an adverse action taken in retaliation against him for his report concerning the Juvenile Incident. Worden testified that the EDP has a “negative connotation to it” because it operates under the Internal Affairs Department and he believes the program is a remedial one. However, the record established he was “boarded and identified as a candidate” for the EDP in June 2015, shortly after he returned to work from his suspension and was assigned to the Communications Division.  However, Worden did not do anything under the program and was not required to. It therefore is not adverse. A host of other complaints were determined to be minimal issues which did not rise to the level of an adverse action. Finally, the court held Worden failed to establish a causal connection between any alleged actions and his reports. The court declined to apply a conduit theory of liability due to alleged animus from other officers. As a result, the plea should have been granted. The case was reversed and rendered in favor of the City.

If you would like to read this opinion, click here. Panel consists of Justice Francis, Justice Evans and Justice Boatright. Memorandum Opinion by Justice Boatright.  The attorneys listed for the City are Barbara E. Rosenberg, Ayeh Barzin Powers and Sarah Mendola.  The attorneys listed for Worden are John Peter Hagan and Cynthia J. Lambert