Dreyer v. City of Southlake

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 25, 2008

No. 07-10970 Charles R. Fulbruge III

Clerk

TERESA DREYER

Plaintiff-Appellant

v.

SHANA YELVERTON, Individually and In Her Official Capacity as

Southlake City Manager; KEVIN HUGMAN, Individually and In His Official

Capacity as Southlake Human Resources Director; CHUCK KENDRICK,

Individually and In His Official Capacity as Southlake Public Works

Operations Manager

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CV-644

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In her appeal from a Rule 54(b) judgment against her state-law claim

(defamation), Teresa Dreyer challenges the summary judgment, awarded

pursuant to Texas law for official immunity, for Shana Yelverton (City of

Southlake, Texas, Manager), Kevin Hugman (City Human Resources Director),

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 07-10970

and Chuck Kendrick (City Public Works Operations Manager) (Defendants).

(Consistent with a Rule 54(b) judgment, Dreyer has other claims pending in

district court.) Dreyer asserts: the district court abused its discretion by

denying discovery prior to awarding summary judgment for Defendants against

her defamation claim; that discovery denial violated due process; and, in the

alternative, Defendants are not entitled to summary judgment based on official

immunity. AFFIRMED.

I.

Dreyer began her employment with the City in June 2003, as a water-

utilities assistant in the Public Works Department, and remained in that

position until her termination in 2006. She was terminated for falsifying her

timesheets, being absent from work, working at home, and working overtime

without permission.

Dreyer reported directly to Patterson, the Public Works Operations

Manager. Patterson, in turn, reported to Farahnak, the Director of the Public

Works Department. Dreyer asserts that, when she was hired, Patterson and

Farahnak “allowed her to work a flexible schedule” because her husband was

suffering from a serious illness. This modified schedule, Dreyer maintains,

allowed her to work from home, work abnormal hours, and report late to work.

In 2004, the City’s mayor and the Tarrant County district attorney,

suspicious of financial mismanagement and misconduct, initiated an

investigation of the Public Works Department. That investigation, which

concerned fraudulent timesheets, accepting bribes, and using city resources for

personal benefit, culminated in a number of terminations and criminal charges.

Among others, Patterson, Dreyer’s immediate supervisor, was terminated and

convicted for, inter alia, receiving payment for work he did not perform.

Dreyer asserts she questioned Patterson’s financial practices while he was

her supervisor; cooperated with the district attorney during the investigation;

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No. 07-10970

and was the last person interviewed by the district attorney prior to Patterson’s

being indicted. Defendant Kendrick replaced Patterson as the Public Works

Operations Manager in 2005.

Dreyer’s responsibilities included collecting timesheets from Public Works

Department employees, reviewing them, and forwarding them to Kendrick for

his review and final approval. Dreyer was classified as a “nonexempt employee”,

meaning her normal working hours were Monday through Friday, from 8:00 a.m.

to 5:00 p.m., with one hour for lunch. Overtime hours and work performed from

home or outside her normal duty hours and days required Kendrick’s approval.

On 27 March 2006, Dreyer submitted a timesheet to Kendrick for the two-

week pay period for Sunday, 12 March, through Saturday, 25 March, indicating

she worked a total of 96 hours. On the timesheet, Dreyer indicated that, for each

of the two weeks, she worked eight hours per day from 8:00 a.m. to 5:00 p.m.,

Monday through Friday, for 80 total hours. She also claimed 16 hours of

overtime: six hours on Sunday, 12 March (for processing work orders), and ten

hours for working through lunch each of the ten workdays.

On the day Dreyer submitted the timesheet, Kendrick immediately

informed her, via memorandum, that she was being placed “on paid

administrative leave . . . pending consideration of [her] falsely reporting payroll

records”. The next day, 28 March, Dreyer e-mailed Defendants Hugman and

Yelverton, and the Public Works Department Director, Price (who had replaced

Farahnak), and stated that, during the week of 19 March to 25 March, she

“reported to work around 10:00 a.m. each morning . . . and left work at 5:00 p.m.

each afternoon. The only day [she] took lunch was on Friday and [she] was gone

for 1.5 hours”. Dreyer explained that, on 21 March through 23 March, she

worked at home in the evenings on the City’s annual water-quality report. She

stated:

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No. 07-10970

I started recreating the report th[e] evening [of 21 March]. I worked

3 hours that evening from 7:00 p.m. to 10:00 p.m. I completed most

of page 2 containing a large table and material. On March 22, I

worked 3 hours from 7:00 p.m. to 10:00 p.m. and completed page 3

containing tables and documented water material. On March 23, I

worked 3 hours on the cover page and formatting the document with

required breaks in columns and tables for the printer to reformat

into their software . . . I worked a total of 9 hours on this report. I

reported 5 hours. When [Kendrick] accused me of misrepresenting

my time I told him I would take the hours off and did so.

Dreyer’s timesheet, however, reflected neither the three hours (total of nine) on

21, 22, and 23 March, nor that she worked at home on the water-quality report.

This information was also not given to Kendrick when he initially questioned

her. Accepting Dreyer’s e-mail as true, she accounts for a total of 93.5 hours for

the two-week pay period at issue, 2.5 hours less than originally submitted.

Moreover, Dreyer conceded in her 28 March e-mail that she “did not ask

permission to create this [water-quality] document from home” and that “it is

solely [her] fault that [she] did not ask [Kendrick] about working on the water-

quality report at home”.

In a 3 April memorandum to Dreyer, Kendrick stated his records reflected:

she had worked only 30.75 hours during the week of 19 March through 25 March

(although she submitted 45 hours); she failed to notify Kendrick, her immediate

supervisor, that she would be late on any day from 19 March to 25 March; and

she was not authorized to work overtime hours or from home. Subsequently, for

summary-judgment purposes, Kendrick stated by declaration that the water-

quality report Dreyer alleged she worked on at home did not “represent any

significant amount of time expended by Ms. Dreyer, and particularly [did] not

support her claim that she had spent six hours working at her home on March

12 and her other claim that she had worked nine hours at home . . . the following

week”.

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No. 07-10970

In the 3 April memorandum, Kendrick also questioned Dreyer’s claim that

she worked six overtime hours processing work orders at home on Sunday, 12

March, because, at her home, Dreyer allegedly did not possess the software

required to process such orders. Kendrick concluded Dreyer submitted a false

timesheet, was absent from work without notice or permission, and failed to

receive written permission to work outside of her normal authorized working

hours or overtime. Accordingly, through the 3 April memorandum, Kendrick

informed Dreyer that she was terminated for those reasons.

When Kendrick originally questioned Dreyer about her timesheet on 27

March, she responded by removing the 16 overtime hours. Dreyer later asserted,

in her declaration attached to her response in opposition to Defendants’

summary-judgment motion, that she inadvertently wrote “work orders”, rather

than “purchase orders”, on the timesheet.

On 7 April, Dreyer filed a grievance, challenging her termination, with

Price, the Public Works Department Director. On 13 April, Price held a hearing.

Kendrick and an employee from human resources were present. At that hearing,

Dreyer is said to have conceded: she did not have Kendrick’s permission to work

overtime at the office or her home; and the hours reflected on the timesheet did

not reflect the actual hours she worked. Price concluded Dreyer submitted a

false timesheet and did not receive permission to work overtime or at home.

No transcript from the hearing is in the record on appeal. The above is

based on Price’s 21 April letter to Dreyer, recounting what she said at the

hearing and upholding her termination.

On 26 April, Dreyer appealed Price’s termination-decision to Defendant

Yelverton, the City Manager. As part of her appeal, she submitted (apparently

on 30 May, the day of the below-described hearing) a statement to Defendants

Yelverton and Hugman (the City Human Resources Director), asserting: the

overtime hours Dreyer submitted were hours worked from home; she had never

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No. 07-10970

been required to obtain her supervisor’s consent to be absent; and her

termination was in retaliation for her absence from work due to her husband’s

illness. In her appeal, Dreyer admitted, however, that, although her timesheet

stated she worked from 8:00 a.m. to 5:00 p.m. on Monday, 20 March, to Friday,

24 March, she reported to work at least an hour late on Monday through

Thursday of that week. She also claimed she notified Kendrick she would be

late, but conceded she “may not have had his permission”.

On 30 May, Yelverton conducted a hearing in accordance with the City’s

complaint and grievance procedure. (As with the first (13 April) hearing, no

transcript for this hearing is in the record on appeal.) On 8 June, Yelverton

notified Dreyer, by letter, that the termination was being upheld.

On 8 September 2006, Dreyer filed this action, raising, through 42 U.S.C.

§ 1983, claims against the City, as well as Defendants in their official capacity,

for violations of her rights to free speech, equal protection, and due process.

Dreyer also presented a state-law defamation claim against Yelverton, Hugman,

and Kendrick (again, Defendants), in their individual capacity.

In answering, Defendants presented immunity defenses. Defendants also

filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to

state a claim. In that regard, on 19 October, the district court: issued an initial

scheduling order for consideration of the defenses of absolute immunity and

absolute privilege; and ordered Dreyer to file a Rule 7(a) reply. The Rule

12(b)(6) motion to dismiss was denied as premature.

Through a 24 October order, the court, inter alia, modified the initial

scheduling order to allow Defendants to pursue qualified, official, or absolute

immunity, or absolute privilege. In that order, the district court stayed all

discovery “pending resolution of the immunity . . . defense[] raised by

Defendants”.

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No. 07-10970

Dreyer filed the ordered Rule 7(a) reply on 20 November. Defendants then

moved for summary judgment pursuant to Rule 56, asserting, inter alia, official

immunity under Texas law. The following day, Dreyer filed an emergency

motion seeking modification of the scheduling order to allow Dreyer to conduct

discovery. In the brief in support of that motion, Dreyer requested the district

court to

modify its earlier Order which stayed discovery in this case, based

on the fact that the defendants are now seeking summary judgment

based upon official immunity, an element of which is the factual

element of good faith. Without allowing some form of limited

discovery, the plaintiff will be wholly unable to respond to this

aspect of the defendants’ motion for summary judgment.

Dreyer’s reply to Defendants’ brief in opposition to the motion adds

nothing to why the requested discovery was needed. In that reply, she stated:

“Additionally, the sort of discovery which the plaintiff seeks should be obvious

to the defendants: depositions of the individual defendants and other current

and former City . . . employees who can testify regarding the Public Works

Department’s policies and procedures as they relate to time records and the

plaintiff’s attendance and work product during the relevant time period.”

On 10 January 2007, the district court denied Dreyer’s discovery request.

Her opposition to summary judgment was filed that same day. Regarding

discovery, Dreyer asserted in her opposition that summary judgment was

improper because “no discovery has been conducted”.

In a 22 August amended order, the district court granted summary

judgment against Dreyer’s defamation claim, ruling Defendants were entitled

to official immunity under Texas law. Dreyer v. City of Southlake, No.

4:06CV644 (N.D. Tex. 22 Aug. 2007). The court also dismissed Dreyer’s federal-

civil-rights claims against Defendants because “the official-capacity claims are

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No. 07-10970

in reality claims against [the] City”. Id. (alteration in original) (citation and

internal quotation marks omitted).

In September 2007, the district court entered a judgment in favor of

Defendants pursuant to Rule 54(b), dismissing with prejudice all claims against

them. On the other hand, the claims against the City, pursuant to § 1983, are

pending in district court.

II.

Dreyer contests only the summary judgment against her defamation claim.

In other words, she does not appeal the dismissal of the federal-civil-rights

claims against Defendants in their official capacity.

A summary judgment is reviewed de novo, applying the same standard as

did the district court. E.g., Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir.

2005). Such judgment is proper if “there is no genuine issue as to any material

fact and . . . the movant is entitled to judgment as a matter of law”. FED. R. CIV.

P. 56(c). “A genuine issue of material fact exists if the record, taken as a whole,

could lead a rational trier of fact to find for the non-moving party.” Tubos de

Acero de Mexico, S.A. v. Am. Int’l Inv. Corp., 292 F.3d 471, 478 (5th Cir. 2002).

Restated, no genuine issue of material fact exists if, based on the summary-

judgment record, no reasonable juror could find for the nonmovant. E.g.,

Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 260 (5th Cir.), cert.

denied, 128 S. Ct. 181 (2007).

A district court’s decision to stay discovery is reviewed for an abuse of

discretion. E.g., Brazos Valley Coalition for Life, Inc. v. City of Bryan, Tex., 421

F.3d 314, 327 (5th Cir. 2005); Sutter Corp. v. P & P Indus., Inc., 125 F.3d 914,

917 (5th Cir. 1997). “A district court abuses its discretion if it bases its decision

on an erroneous view of the law or on a clearly erroneous assessment of the

evidence.” Cook Children’s Med. Ctr. v. New England PPO Plan of Gen’l Consol.

Mgmt., Inc., 491 F.3d 266, 271 (5th Cir. 2007) (quoting Esmark Apparel, Inc. v.

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No. 07-10970

James, 10 F.3d 1156, 1163 (5th Cir. 1994)) cert. denied, 128 S. Ct. 1223 (2008).

This abuse of discretion standard applies as well to a ruling, under Rule 56(f),

on whether to permit additional time for discovery or to obtain other summary-

judgment evidence to oppose summary judgment. E.g., Stearns Airport Equip.

Co., Inc. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999).

Dreyer maintains the district court’s discovery stay was improper and

denied her due process. In the alternative, she asserts the official-immunity

summary judgment was improper because a genuine issue of material fact exists

on whether Defendants acted in good faith.

A.

As noted, the district court, sua sponte, stayed discovery in its initial

scheduling order, and, despite Dreyer’s subsequent motion for discovery, did not

allow it prior to ruling on Defendant’s summary-judgment motion. Dreyer

presents two bases for challenging her not being permitted discovery regarding

state-law official immunity. Each basis fails.

1.

As her first basis for maintaining summary judgment was improper

because it was rendered without discovery, Dreyer relies on Schultea v. Wood,

47 F.3d 1427 (5th Cir. 1995) (en banc). Schultea held that, if a defendant claims

qualified immunity, the district court may require a plaintiff to file a Rule 7

reply to that defense. Id. at 1431. This is because, once the government official

pleads qualified immunity as an affirmative defense, the burden shifts to the

plaintiff to rebut the defense. E.g., Michalik v. Hermann, 422 F.3d 252, 262 (5th

Cir. 2005); Schultea, 47 F.3d at 1433. Contrary to Dreyer’s assertions, Schultea

does not expressly preclude a district court’s rendering summary judgment

without discovery.

Dreyer is correct, however, that district courts may be required to allow

discovery before ruling on a summary-judgment motion. On the other hand, it

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No. 07-10970

is incumbent upon counsel to properly move, under Rule 56(f), for such

discovery. Restated, “if a party cannot adequately defend [against a summary-

judgment] motion, Rule 56(f) is his remedy”. Washington v. Allstate Ins. Co., 901

F.2d 1281, 1285 (5th Cir. 1990) (citations omitted). But, “Rule 56(f) does not

require that any discovery take place before summary judgment can be granted”.

Id. (citations omitted).

Rule 56(f) provides:

If a party opposing [a summary-judgment] motion shows by

affidavit that, for specified reasons, it cannot present facts essential

to justify its opposition, the court may: (1) deny the motion; (2)

order a continuance to enable affidavits to be obtained, depositions

to be taken, or other discovery to be undertaken; or (3) issue any

other just order.

FED. R. CIV. P. 56(f) (emphasis added). Rule 56(f) “may not be invoked by the

mere assertion that discovery is incomplete; the opposing party must

demonstrate how the [requested discovery or time to provide other summary-

judgment evidence] will enable him to rebut the movant’s allegations of no

genuine issue of material fact”. Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994) (citation

and internal quotation marks omitted).

“Rule 56(f) allows for further discovery to safeguard non-moving parties

from summary judgment motions that they cannot adequately oppose.” Culwell

v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006) (citation omitted). “Such

motions are broadly favored and should be liberally granted.” Id. (citation

omitted). “A non-movant seeking relief under Rule 56(f) must show: (1) why he

needs additional discovery and (2) how that discovery will create a genuine issue

of material fact.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th

Cir. 2006); Beattie v. Madison County Sch. Dist., 254 F.3d 595, 605 (5th Cir.

2001); see also Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719

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No. 07-10970

(5th Cir. 1999) (“To obtain a continuance of a motion for summary judgment, a

party must specifically explain both why it is currently unable to present

evidence creating a genuine issue of material fact and how a continuance would

enable the party to present such evidence.” (citation and internal quotation

marks omitted)). “A party cannot evade summary judgment simply by arguing

that additional discovery is needed, and may not simply rely on vague assertions

that additional discovery will produce needed, but unspecified facts.” Adams,

465 F.3d at 162 (footnotes and internal quotation marks omitted).

In Access Telecom, the plaintiff contested the district court’s granting

summary judgment after staying discovery on everything except jurisdictional

issues. 197 F.3d at 719. Because the plaintiff did not file a Rule 56(f) motion,

this court held the plaintiff “waived the issue of inadequate discovery”. Id.

(“[T]he appropriate way to raise th[is] issue is for the party opposing the motion

for summary judgment to file a motion for a continuance with an attached

affidavit stating why the party cannot present by affidavit facts essential to

justify the party’s opposition”.).

In Waterloo Furniture Components, Ltd. v. Haworth, Inc., the Seventh

Circuit held “the mere fact that the district court granted [the defendant’s]

summary judgment motion prior to allowing any discovery is irrelevant”. 467

F.3d 641, 648 (7th Cir. 2006). In that case, after the district court stayed

discovery, the plaintiff filed a Rule 56(f) motion; it was denied. Id. The Seventh

Circuit held the district court did not abuse its discretion in denying the motion

because the plaintiff failed to adequately state why, absent further discovery, it

could not respond to the summary-judgment motion. Id.

As discussed, after the district court stayed all discovery, Dreyer filed an

emergency motion seeking modification of that order. In her motion, as quoted

earlier, Dreyer requested the district court to

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No. 07-10970

modify its earlier Order which stayed discovery in this case, based

on the fact that the defendants are now seeking summary judgment

based upon official immunity, an element of which is the factual

element of good faith. Without allowing some form of limited

discovery, the plaintiff will be wholly unable to respond to this aspect

of the defendants’ motion for summary judgment.

(Emphasis added.) Dreyer did not specifically discuss, however, why she needed

additional discovery and what discovery would likely produce. See Adams, 465

F.3d at 162. (Although not detrimental to this issue, Dreyer did not even

reference Rule 56(f) in her motion.)

Furthermore, Dreyer did not file the affidavit expressly required by Rule

56(f). As quoted above, in her conclusory motion, Dreyer asserted only: that one

element of state-law official immunity is good faith; and that, without “limited

discovery”, she would “be wholly unable to respond to this aspect of” Defendants’

summary-judgment claim to official immunity. And, as also noted, concerning

discovery, Dreyer’s opposition to summary judgment stated only that such

judgment was improper because “no discovery has been conducted”.

In sum, in district court, Dreyer requested discovery only on official

immunity’s good-faith element. Under Texas law, however, Defendants, not

Dreyer, have the burden for this element; they (government officials) must show

they acted in good faith. E.g., Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.

2002). (Conversely, as noted supra, when a government official pleads the

qualified-immunity affirmative defense, the burden shifts to the plaintiff. E.g.,

Michalik, 422 F.3d at 262.) Moreover, good faith is measured objectively,

without regard to the official’s subjective state of mind. Titus Reg’l Med. Ctr. v.

Tretta, 180 S.W.3d 271, 275 (Tex. App. 2005).

In support of their summary-judgment motion, Defendants presented,

inter alia, Dreyer’s above-discussed 28 March e-mail and her appeal statement

(apparently provided on 30 May 2006). In the e-mail, Dreyer admitted to:

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No. 07-10970

falsifying her timesheet; and not having permission to work from home. In her

appeal statement to Defendants Yelverton and Hugman, Dreyer again admitted

she reported to work late on Monday, 20 March, to Thursday, 23 March, and

conceded she “may not have had [her supervisor’s] permission”. Defendants also

submitted Dreyer’s original falsified timesheet. It is unclear what relevance

such “limited discovery” would have had to the objective element of good faith

for which, again, Defendants had the burden. In any event, Dreyer did not show,

as required for a Rule 56(f) motion, how discovery would have created a genuine

issue of material fact. See Adams, 465 F.3d at 162.

Therefore, because Dreyer did not comply with Rule 56(f) in requesting

discovery, the district court did not abuse its discretion in denying it. See Gibson

v. United States Postal Serv., 380 F.3d 886, 889 n.2 (5th Cir. 2004) (holding no

abuse of discretion in denying a Rule 56(f) motion because movant did not

explain how additional discovery would create a genuine issue of material fact);

see also Lewis v. City of Ft. Collins, 903 F.2d 752, 758-59 (10th Cir. 1990).

2.

Concerning no discovery, Dreyer also maintains she was denied due

process as a result. Defendants counter that she failed to raise this due-process

contention in district court. Dreyer did present this issue, however, in her brief

in support of her emergency motion to strike Defendants’ summary-judgment

motion.

Hill v. McDermott, Inc., 827 F.2d 1040, 1044 (5th Cir. 1987) (citing Celotex

Corp. v. Catrett, 477 U.S. 317 (1986)), held: “A summary judgment reached in

accordance with Federal Rule of Civil Procedure 56 . . . satisfies the

requirements of due process.” As discussed supra, discovery is not mandatory

before a Rule 56 summary judgment may be granted. See Washington, 901 F.2d

at 1285. The district court, in its discretion, stayed all discovery. Dreyer failed

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No. 07-10970

to properly seek discovery under Rule 56(f). In short, Dreyer’s due-process rights

were not violated. See Hill, 827 F.2d at 1044.

B.

In the alternative, Dreyer maintains Defendants were not entitled to state-

law official immunity. In granting summary judgment on that basis, the district

court did not address Defendants’ alternative absolute-immunity claim.

Likewise, for the following reasons, we agree that Defendants are entitled to

official immunity, and, therefore, do not address absolute immunity.

1.

By motion to this court, filed a week prior to oral argument, Dreyer seeks

to supplement the record with documents obtained through discovery for her

pending federal-civil-rights claims in district court against the City. Those

materials, however, were not presented to the district court in opposition to

summary judgment and, therefore, were not considered when it upheld official

immunity. Needless to say, “[w]e are limited in our [de novo review of a

summary judgment] to that information properly before the district court at the

time of its decision”. Palasota v. Haggar Clothing Co., 499 F.3d 474, 489 n.12

(5th Cir. 2007) (citation omitted).

2.

“Official immunity is an affirmative defense that shields government

employees from personal liability so that they are encouraged to vigorously

perform their duties.” Telthorster, 92 S.W.3d at 460-61 (citation omitted). A

public official sued under Texas law is entitled to official immunity for acts:

performed within the scope of his authority; that were discretionary; and, for

which the official acted in good faith. City of Lancaster v. Chambers, 883 S.W.2d

650, 653 (Tex. 1994) (citations omitted). As discussed supra, it is the

government employee, not the plaintiff, who has the burden for each of these

elements. Telthorster, 92 S.W.3d at 461.

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No. 07-10970

The parties do not dispute, and the record establishes, that Defendants

were performing discretionary duties within the scope of their authority.

Therefore, at issue is only the last prong of the official-immunity analysis:

whether Defendants acted in good faith.

As discussed supra, to make this determination, the court applies an

objective standard and asks “whether a reasonably prudent official, under the

same or similar circumstances, could have believed that his conduct was justified

based on the information he possessed when the conduct occurred”. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex. 2004) (citations omitted).

In other words, this standard is concerned solely with whether, based on the

information known at the time the action was taken, a reasonable official would

have believed his action was justified. Ballantyne v. Champion Builders, Inc.,

144 S.W.3d 417, 426 (Tex. 2004).

The summary-judgment record establishes, under this objective standard,

that a reasonable official, based on the information then known, would have

believed terminating Dreyer was justified. The City’s employee handbook states:

Nonexempt employees performing work at any time other than

authorized working hours is strictly forbidden unless authorized in

writing by the employee’s supervisor.

(Emphasis added.) The handbook provides for, inter alia, the termination of

employees who are “[a]bsen[t] from duty without notice to and permission from

the immediate supervisor except in circumstances beyond control which prevent

giving notice” and for employees who “falsify[] personnel records”. (Emphasis

added.)

Dreyer does not assert she had written permission from Kendrick to work

the overtime hours she submitted on her timesheet. Indeed, she admitted in her

28 March 2006 e-mail that she claimed payment for hours she did not work. She

also conceded, in that e-mail, apparently at the 13 April 2006 hearing, and for

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No. 07-10970

her 26 April 2006 appeal, that, inter alia, she did not have authorization to

arrive late to work, work from home, or work overtime. She committed each act

within the timesheet period at issue. Accordingly, under the applicable objective

standard, and based on the information available at the time of Dreyer’s

termination, Defendants are entitled to summary judgment based on official

immunity under Texas law.

III.

For the foregoing reasons, the judgment for Defendants Yelverton,

Hugman, and Kendrick is AFFIRMED.

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