Former employee failed to establish the person terminating her had knowledge of her whistle blower activities so the court should have dismissed the suit

City of Killeen v. Barbara Gonzales, 03-14-00384-CV (Tex. App. – Austin, November 3, 2015)

This is a Texas Whistleblower Act case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction based on a lack of jurisdictional evidence.

Gonzales was the Director of Finance for the City until her termination by the City Manager, Morrison.  Gonzales asserts she reported Fleet Services to the Police Chief for various alleged violations including improper expenditure of City funds and unlawful pay raises granted to certain employees as well as improper claiming of car allowances by other employees. Morrison terminated Gonzales’s employment in December 2012, just a couple weeks after the Killeen Police Department finished a criminal and internal investigation of Fleet Services, a City department that Gonzales directly supervised.  Lieutenant Jeff Donohue led the investigation and issued a report in late November in which he concluded that Gonzales had lied, was insubordinate, and had ignored the orders of Chief Baldwin not to return to Fleet Services while the investigation was underway. Morrison’s stated reasons for Gonzales’s termination were: (1) her failure to properly manage Fleet Services; (2) her insubordination by attempting to interfere with the criminal and internal investigations; and (3) her untruthfulness about whether she had followed direct orders concerning the investigations.  The City filed a plea to the jurisdiction based on a lack of evidence of causation (i.e. a link between the alleged reporting activity and her termination). The trial court denied the plea and the City appealed.

To show causation, the employee must demonstrate that the person who took the adverse employment action knew of the employee’s report of illegal conduct and took action because of it. Gonzales has presented no direct evidence that Morrison had any knowledge of her reports to Chief Baldwin or other officers with the Killeen Police Department. Morrison knew of the investigation after it had started but nothing indicated she knew Gonzales had made the reports. Instead, she relies on circumstantial evidence in an attempt to create a material fact issue.  After going through the record, the court held Gonzales did not present more than a scintilla of evidence that the reports were a basis for her termination. Knowledge of a report and a negative attitude towards the reports were not enough under City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000) and there was less evidence in this case. The plea should have been granted.

If you would like to read this opinion please click here. Panel: Justice Puryear, Justice Pemberton and Justice Field. Memorandum Opinion by Justice Puryear. The attorneys for the City are listed as Ms. Stephanie Schwab, Mr. Roy L. Barrett and Mr. John T. Hawkins.  The attorneys listed for Gonzales are Mr. Robert W. Schmidt, Mr. Roberto Flores, Ms. Elizabeth Shehan and Mr. L. Todd Kelly.