Shawn Patton v. Harris County Community Supervision and Corrections Department

Reversed and Remanded and Memorandum Opinion filed November 23, 2005

Reversed and Remanded and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00683-CV

____________

SHAWN PATTON , Appellant

V.

HARRIS COUNTY

COMMUNITY SUPERVISION AND CORRECTIONS DEPARTMENT , Appellee

On Appeal from the 80 th

District Court

Harris County, Texas

Trial Court Cause No. 02-37476

M E M O R A N D U M O P I N I O N

This appeal arises from a final judgment

dismissing Shawn Patton = s Texas Whistleblower Act claims against

Harris County Community Supervision and Corrections Department ( A HCCSCD @ ). The final judgment is based on HCCSCD = s plea to the

jurisdiction and motions for summary judgment.

We reverse and remand.

HCCSCD provides supervision for Harris

County probationers pursuant to Chapter 76 of the Texas Government Code. [1] It is managed by a board of judges trying

criminal cases in Harris County. HCCSCD = s chief executive

officer at the relevant time was Nancy Platt, and Mike Enax was its deputy

director. Patton managed ten community

supervision officers ( A CSOs @ ) in HCCSCD = s south region and

reported to his branch director, Rogelio Perez.

In November of 2001, HCCSCD reorganized, requiring Patton to review his

CSOs = cases. Patton discovered and subsequently sent

approximately thirty problematic cases to one district court. The judge of that court subsequently

contacted Platt and asked for an independent audit of cases supervised by the

south region. Another district court

made a similar request. These audits

revealed additional noncompliance issues and indicated that Patton had

neglected his supervisory duties. In

early March of 2002, Perez spoke with Patton about his performance issues, and

Patton accepted responsibility for failing to monitor his CSOs. Perez recommended, and Enax approved, a Level

II disciplinary action plan designed to address Patton = s work

deficiencies. A date was set in June to

review Patton = s compliance with this plan. Patton does not challenge the propriety of

Perez = s disciplinary

action.

Per the requirements of his disciplinary

plan, Patton audited his CSOs = caseloads again,

and again discovered problems. One CSO

in particular failed to meet with two probationers for four months, and then

falsely reported those cases as being A directly @ supervised. [2] Patton reported the problems to Perez and was

advised he should inform the court with jurisdiction over the cases. On April 3, 2002, Patton informed the court = s liaison officer and

assistant district attorneys of the problems.

Within a few days, the judge of that court asked Platt to remove Patton

and the CSO from her court team. On

April 25th, the board of judges met with Platt and discussed their

dissatisfaction with the level of supervision at HCCSCD. Platt held a meeting in the south region on

May 1st to discuss problems with casework performance, wherein Platt generally

stated that people would be held accountable.

Patton was terminated immediately after the meeting. The decision to fire Patton was made by Platt

and carried out by Enax. Perez, Patton = s immediate

supervisor, was not a party to the decision and knew of no circumstances

justifying termination: Patton was in

compliance with his supervisory duties and disciplinary plan when he was

fired. Four months later, the board of

judges entered a A no confidence @ vote in Platt = s performance, and

she resigned.

Patton filed suit against HCCSCD asserting

a violation of the Texas Whistleblower Act.

Tex. Gov = t Code Ann. ' ' 554.001 B 010 (Vernon

2004). Specifically, Patton alleged

Platt was already facing criticism about HCCSCD = s generally poor

level of supervision when Patton made his report, which increased the amount of

scrutiny Platt faced as HCCSCD = s chief executive

officer. Patton alleges his termination

was a ploy by Platt to reassure the judges of her performance and thereby avoid

her own termination. Patton argues that,

in his twenty-two years at HCCSCD, no supervisor has ever been fired because of

CSO performance problems. HCCSCD filed a

plea to the jurisdiction, a no-evidence motion for summary judgment, and a

supplemental motion for summary judgment in response to Patton = s petition. After considering each of these, the trial

judge issued a final judgment dismissing Patton = s Whistleblower

claims. Patton appeals.

HCCSCD = s Plea to the

Jurisdiction

A plea to the jurisdiction C that is, a

dilatory plea seeking to defeat a claim without regard to its merits C must be addressed

by a trial court before litigation may proceed.

Tex. Dep = t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,

226 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554

(Tex. 2000). Whether a court has subject

matter jurisdiction is a legal question, therefore, a plea to the jurisdiction

is reviewed de novo . Harris

County v. Proler , 29 S.W.3d 646, 647 (Tex. App. C Houston [14th

Dist.] 2000, no pet.). The trial court

must look to the plaintiff = s petition and

accept its allegations as true when deciding a plea to the jurisdiction. Bland Indep. Sch. Dist. , 34 S.W.3d at

555 . The court may also consider

evidence relevant to resolving jurisdictional issues. Id .

To prevail, the defense must show an incurable jurisdictional defect on

the face of the pleadings that deprives the trial court of subject matter

jurisdiction. Brenham Hous. Auth.

v. Davies , 158 S.W.3d 53, 56 (Tex. App. C Houston [14th

Dist.] 2005, no pet.).

HCCSCD claims it is immune to this lawsuit

because Patton has not met the Texas Whistleblower Act = s clear procedural

prerequisites to filing suit. Tex. Gov = t Code Ann. ' ' 554.002 B 006. Specifically, HCCSCD argues Patton failed to

show he reported a violation of law in good faith C two essential

elements of a Whistleblower claim.

The Texas Whistleblower Act: (1) creates a

cause of action, (2) sets procedural prerequisites for filing suit, and (3)

clearly waives sovereign immunity once these requirements are met. Tex. S. Univ. v. Carter , 84 S.W.3d

787, 792 (Tex. App. C Houston [1st Dist.] 2002, no pet.). There are two procedural prerequisites for

filing suit under this Act. A petitioner

must: (1) file suit within the appropriate limitations period and (2) initiate

the employer = s grievance or appeal procedures before

commencing litigation. Tex. Gov = t Code Ann. ' ' 554.005 B 006; Carter ,

84 S.W.3d at 792 n.6. Patton filed suit

within the appropriate limitations period.

Patton also properly pled that there is no grievance or appeal procedure

for terminated employees of HCCSCD or Harris County, and HCCSCD nowhere alleges

there is such an administrative mechanism.

Patton has, therefore, met the Whistleblower Act = s procedural

requirements, and we find that HCCSCD = s sovereign

immunity has been waived. [3] The trial court erred to the extent it based

its final judgment upon HCCSCD = s plea to the

jurisdiction.

No-Evidence

Motions for Summary Judgment

HCCSCD argues in

its no-evidence motions for summary judgment that Patton has produced no

evidence to show he, in good faith, reported a violation of law, or that his

report caused his termination. [4]

The purpose of summary judgment is

to eliminate patently unmeritorious claims or untenable defenses; it is not

intended to deprive litigants of their right to a full hearing on the merits of

any real issue of fact. Barrera v.

State , 130 S.W.3d 253, 261 (Tex. App. C Houston [14th

Dist.] 2004, no pet.). A no-evidence

motion for summary judgment asserts that, after adequate time for discovery has

passed, there is legally insufficient evidence of one or more essential elements

on which the adverse party has the burden of proof at trial. Tex.

R. Civ. P. 166a(i). This motion

is properly granted if: (1) there is a complete absence of proof of a vital

fact, (2) rules of law or evidence bar the court from giving weight to the only

evidence of a vital fact, (3) evidence of a vital fact is no more than a

scintilla, or (4) evidence conclusively establishes the opposite of a vital

fact. Alaniz v. Rebello Food &

Beverage, L.L.C. , 165 S.W.3d 7, 12 (Tex. App. C Houston [14th

Dist.] 2005, no pet.). More than a

scintilla of evidence exists if reasonable, fair‑minded people can differ

in their conclusions; less than a scintilla exists if the evidence creates only

the suspicion of a fact. Proctor v.

White , 155 S.W.3d 438, 442 (Tex. App. C El Paso 2004, pet.

denied). We view the evidence in a light

most favorable to the non‑movant, disregarding all contrary evidence and

inferences. Alaniz , 165 S.W.3d at

12 .

Good-Faith Report of a Violation of Law

The Texas Whistleblower Act provides, inter

alia , that no state or local governmental entity may fire a public employee

who, in good faith, reports another public employee = s violation of law

to an appropriate law enforcement agency.

Tex. Gov = t Code Ann. ' 554.002(a). A Good faith @ under the Texas

Whistleblower Act means: (1) the employee honestly believed the conduct

reported was a violation of law, and (2) the employee = s belief was

objectively reasonable in light of his training and experience. Wichita County v. Hart , 917 S.W.2d

779 , 784 B 86 (Tex.

1996). The good-faith requirement

provides recourse for the well-meaning employee whose report did not amount to

an actual violation of law, or who did not report it to the appropriate

authorities. See Tex. Dep = t of Transp. v.

Needham , 82 S.W.3d 314, 320 (Tex. 2002) (explaining employee can recover under

Whistleblower Act even if he did not report to appropriate law enforcement

agency as long as he had a good-faith belief he was reporting to the

appropriate authorities). Therefore, as

long as Patton honestly believed he reported acts that violate a law that does,

indeed, exist, and that belief was objectively reasonable in light of his

experience, he need not have reported an actual violation of law. Llanes v. Corpus Christi Indep. Sch. Dist. ,

64 S.W.3d 638 , 642 B 43 (Tex. App. C Corpus Christi

2001, pet. denied); City of Brenham v. Honerkamp , 950 S.W.2d 760, 763

(Tex. App. C Austin 1997, pet. denied). The Texas Whistleblower Act defines law to

include A a rule adopted

under a statute or ordinance, @ but does not

include violations of internal policies that are not promulgated pursuant to

statute. Tex. Gov = t Code Ann. ' 554.001(1)(C); Ruiz v. City of San

Antonio , 966 S.W.2d 128, 131 (Tex. App. C San Antonio 1998,

no pet.).

Patton filed an affidavit stating that he

discovered violations of the code of ethics for probation officers when one of

his CSOs failed to make contact with two probationers for four months and then

falsely reported these cases as being directly supervised. [5]

HCCSCD argues that the code of ethics is

not a A law @ under the

Whistleblower Act. However, Patton pled

the CSO = s conduct violated

Chapter 76 of the Texas Government Code, which is clearly a law for

Whistleblower purposes. This chapter

requires that every CSO A must comply with a code of ethics

developed by the [Community Justice Assistance Division of the Texas Department

of Criminal Justice (CJAD)]. @ Tex.

Gov = t Code Ann. ' 76.005 (Vernon 2005). [6] The code of ethics requires, among other

things, that a CSO must provide accurate information to the court for which he

or she supervises probationers, and must

A promptly inform

the [c]ourt of any violation of or deviation from the [c]ourt = s instructions and

orders. @ Thus, there is a genuine issue of material

fact as to whether Patton reported a violation of the code of ethics, which

constituted a violation of law.

We next determine whether there is more than a scintilla of

evidence that Patton held a good-faith belief that he reported a violation of

law. Generally, when reviewing

affidavits filed in opposition to summary judgment motions, the non-movant = s affidavit should

be accepted as true, and every reasonable inference should be drawn in favor of

the non-movant. Bates v. Dallas Indep.

Sch. Dist. , 952 S.W.2d 543, 552 (Tex. App. C Dallas 1997, writ

denied). Drawing every reasonable

inference in favor of Patton, we hold that Patton has produced more than a

scintilla of evidence as to his honest belief that a law was violated when his

CSO violated the code of ethics for probation officers. We also find there is more than a scintilla

of evidence to show that Patton = s belief was

objectively reasonable in light of his training and experience because: (1)

Patton worked at HCCSCD for more than 22 years, (2) he supervised CSOs, (3) his

immediate supervisor testified at deposition that CSOs must comply with HCCSCD = s code of ethics

and court orders, (4) Patton received professional legal liability training and

read publications sent out by CJAD, and (5) he was aware that the department

could face liability if a CSO failed to properly supervise probationers (as is

required by the code of ethics). There

is a genuine issue of material fact as to whether Patton = s belief was

objectively reasonable. This is

especially true since the CSO = s conduct covered

up violations of a direct court order and prevented HCCSCD from knowing the

status of persons placed on probation.

Accordingly, we hold there is sufficient summary judgment evidence that

Patton reported a violation of law in good faith.

Causation

HCCSCD also argues Patton produced no evidence of

causation. A Whistleblower claimant must

show the employer took retaliatory action because of the employee = s report. City of Fort Worth v. Zimlich , 29

S.W.3d 62, 67 (Tex. 2000). Specifically,

HCCSCD contends Patton may not claim the statutory presumption establishing

causation, and that the whole of Patton = s circumstantial

evidence of causation amounts to no evidence at all. [7]

HCCSCD = s no-evidence motion

for summary judgment placed the burden of production on Patton to show legally

sufficient evidence to support his Whistleblower claim. [8] Tex.

R. Civ. P. 166a(i). Specifically,

Patton must provide proof that Platt would not have fired him when she did if

it were not for his report of illegal conduct.

Patton is not required to show that his report was the A sole cause @ of his

termination. Tex. Dept. of Human

Servs. v. Hinds , 904 S.W.2d 629, 636 (Tex. 1995). Patton replied with evidence that he was

terminated within ninety days of his report, thereby raising a statutory

presumption of causation. HCCSCD agrees

that Patton enjoys this presumption, but argues that it has A presented ample

evidence @ to rebut the

presumption.

A presumption is a rule of law A by which the

finding of a basic fact gives rise to the existence of the presumed fact, until

the presumption is rebutted. @ David Johnson, The Use of Presumptions in

Summary Judgment Procedure in Texas and Federal Courts , 54 Baylor L. Rev . 605, 607 (2002) (quoting

Hunter v. Palmer , 988 S.W.2d 471, 473 (Tex. App. C Houston [1st

Dist.] 1999, no pet.)). In a traditional

motion for summary judgment, the movant has the burden of production and

persuasion to show no genuine issue of material fact as to an essential element

of the opposition = s claim or defense. Barrera , 130 S.W.3d at 261 . In traditional motions, a movant may C and indeed, must C rebut a

presumption applicable to the opponent or else fail on the motion. See Keck v. Nat = l Union Fire Ins.

Co. ,

20 S.W.3d 692, 699 (Tex. 2000) (finding movant did not maintain its burden of

proof to show release agreement was fair and reasonable when it did not rebut

presumption of unfairness attaching to contracts between attorneys and their clients). By filing only a no-evidence motion for

summary judgment, HCCSCD not only forced Patton to produce evidence of

causation, but also tied its own hands by precluding an evidentiary response to

Patton = s production. See Stewart v. Transit Mix Concrete & Materials, Inc. , 988 S.W.2d 252, 255 (Tex. App. C Texarkana 1998, pet. denied)

(reversing trial court = s grant of defendant = s no-evidence motion for summary

judgment when a fact issue remained as to whether plaintiffs were entitled to a

presumption of causation in a failure-to-warn case and stating that, to defeat

no-evidence motion, plaintiffs could either present evidence to support

causation or rely upon a presumption of causation). The presumption of causation raised by Patton

would, in a trial on the merits, shift the burden to HCCSCD to produce

sufficient evidence to justify a contrary finding. But HCCSCD cannot undertake this burden in

the context of a no-evidence motion for summary judgment. A party may seek summary judgment on

no-evidence grounds A without presenting summary judgment

evidence. @ Tex. R. Civ. P. 166a(i). HCCSCD may only point out essential elements

of Patton = s claim which lack sufficient proof to

survive. Because HCCSCD cannot rebut the

presumption raised by Patton, the presumed fact of causation remains and HCCSCD

cannot prevail on this argument. [9]

Even if there were no presumption in this

case, we find Patton has produced more than a scintilla of evidence that, but

for his report, he would not have been fired when he was. Circumstantial evidence is sufficient to show

a causal link between an employee = s discharge and that

employee = s report of

illegal activity. Zimlich , 29

S.W.3d at 69 . Such evidence includes:

(1) knowledge of the report of illegal conduct, (2) expression of a negative

attitude toward the employee = s report, (3)

failure to adhere to established company policy on employment decisions, (4)

discriminatory treatment in comparison to similarly situated employees, and (5)

evidence that the reason for the adverse employment action was false. Id.

Patton showed: (1) a temporal connection between his report and

termination, (2) disparate treatment between himself and other similarly

situated employees, (3) and that Platt appeared to be addressing HCCSCD problems

by terminating Patton. Viewing the

evidence in a light most favorable to Patton, we find there is more than a

scintilla of evidence to show causation under the Texas Whistleblower Act. See City of Fort Worth v. Johnson , 105

S.W.3d 154, 168 (Tex. App. C Waco 2003, no

pet.) (finding legally sufficient circumstantial evidence to show causation

where only one similarly situated employee was treated differently than

plaintiff); see also Tomhave v. Oaks Psychiatric Hosp ., 82 S.W.3d 381,

386 (Tex. App. C Austin

2002,no pet.), overruled on other grounds by Binur v. Jacobo , 135

S.W.3d 646 (Tex. 2004) (explaining timing in retaliatory discharge is important

and retaliatory discharge may be based on immediacy of termination following

report).

Accordingly, we hold the trial court erred

in dismissing Patton = s claims based on HCCSCD = s plea to the

jurisdiction and no-evidence motions for summary judgment. We therefore reverse and remand this cause to

the trial court for further proceedings consistent with this opinion.

/s/ J. Harvey Hudson

Justice

Judgment

rendered and Memorandum Opinion filed November 23, 2005.

Panel

consists of Justices Hudson, Frost, and Seymore.

[1] Probation law

is codified in Texas as A community supervision. @ Tex.

Code Crim. Proc. Ann. Art. 42.12 (Vernon Supp. 2004 B 05).

[2] Direct

supervision requires the CSO to meet face-to-face with the probationer at least

once every three months. HCCSCD receives

state funding based on its number of cases that are directly supervised. No state funds are received for indirect

supervision cases.

[3] HCCSCD = s argument on the merits that Patton has not proven a

good faith report of a violation of law is improper in a plea to

jurisdiction. This is especially true

when HCCSCD agrees that Patton properly pled each of the Act = s requisite elements.

[4] HCCSCD filed a

no-evidence motion for summary judgment and a supplemental motion for summary

judgment. The supplemental motion is

argued solely on no-evidence grounds, and we review it together with HCCSCD = s initial no-evidence motion.

[5] Although we focus our analysis on

Patton = s concern that the code of ethics

for probation officers was violated, Patton was also concerned that his CSO

violated the Texas Penal Code by falsifying a government document. Tex.

Pen. Code Ann. ' 37.10 (Vernon Supp 2004 B 05). While he knew falsifying a government

document violated Texas criminal law, Patton was unsure whether the monthly

report qualified as a government document for purposes of that statute.

[6] CJAD wrote the

code, which A must be adopted and implemented by every Community

Supervision and Corrections Department in this State and by its officers and

employees @ ; HCCSCD reproduces the code of ethics in its human

resources manual.

[7] If an employee

is fired within ninety days of his report, it is presumed under the

Whistleblower Act, subject to rebuttal, that causation is established C that the disciplinary action would not have occurred

when it did if it were not for the employee = s

report. Tex. Gov = t Code Ann. ' 554.004(a).

[8] Patton = s burden is one of production, not of persuasion C once he raises more than a scintilla of evidence to

support the elements of his claim challenged by HCCSCD, a court may not grant

the no-evidence motion for summary judgment.

See Alaniz , 165 S.W.3d at 12 .

[9] We note that

one court of appeals has addressed this issue and refused to consider evidence

propounded by a no-evidence summary judgment movant. Brown v. Big D Transport., Inc. , 45

S.W.3d 703, 705 (Tex. App. C Eastland 2001, no pet.) (quoting Hight v. Dublin

Veterinary Clinic , 22 S.W.3d 614, 619 (Tex. App. C Eastland 2000, pet. denied).

But see, Cantu v. Texas Workforce Commission , 145

S.W.3d 236, 241 (Tex. App. C Austin 2004, no pet.) (setting out a burden-shifting

analysis in reviewing a no-evidence motion for summary judgment and finding

appellants did not establish prima facie case necessary to shift burden

back to no-evidence summary judgment movant, but also stating it was

unnecessary to proceed in the burden-shifting analysis because of this

failure). To the extent Cantu

would permit a court of appeals to shift the burden of production between

parties to a no-evidence motion for summary judgment, we disagree.

Although Russo v. Smith Int = l, Inc. used

a burden-shifting analysis in a summary judgment context, the motion granted in Russo was a

hybrid traditional/no-evidence motion for summary judgment that did not clearly

distinguish between the evidence, arguments and authorities supporting

each. 93 S.W.3d 428 , 433 n.4 (Tex. App. C Houston [14th Dist.] 2002, pet. denied). We therefore distinguish Russo = s analysis from the present case.