Opinion
No. 05-06-01282-CV.
Opinion Filed March 4, 2008.
On Appeal from the 354th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 69,255.
Before Justices MOSELEY, FITZGERALD, and MAZZANT.
Opinion By Justice FITZGERALD.
OPINION
Appellant Greg Guillaume sued his former employer, the City of Greenville, alleging that the City fired him in violation of the Texas Whistleblower Act and in violation of his rights under the First Amendment to the United States Constitution. He appeals a take-nothing summary judgment rendered against him. We reverse.
I. Background
A. Guillaume's allegations
Guillaume alleged the following facts in his live petition. He was employed by the City of Greenville as its director of administrative services, a position also known as finance director. One of his primary job duties was to assist the city manager in the preparation of the City's budget. The City's charter requires the city manager to submit the budget to the city council every year for its approval and adoption.
On August 9, 2004, Guillaume reviewed the numbers for the budget being prepared for submission to the city council. He became convinced that the budget contained material misstatements, and he forwarded his opinion to City Manager Karen Daly by email that day. Daly nevertheless submitted the budget to the city council on August 10, 2004. Guillaume reviewed the budget and believed that Daly had placed false information in the budget so it would appear to be balanced when in fact, he believed, there was a very large deficit. He further believed that Daly had violated the City's charter by submitting the false budget to the city council. He sent Daly an email on August 12, 2004 detailing the falsity of the budget. On August 19, 2004, however, Daly sent Guillaume an email in which she stated that she did not think that any changes in the budget were necessary. He responded that she needed to disclose the falsity of the budget to the city council.
On the morning of August 20, 2004, a public workshop on the budget was held. At that workshop, Guillaume gave Daly an opportunity to disclose the falsities in the budget. When she failed to do so, Guillaume told the city council that the proposed budget overstated general fund revenues by almost $888,000 and understated water utility fund expenditures and uses by $675,000. Thus, he told the council, the budget overstated the City's potential available resources by some $1,563,000. He told the council that he had warned Daly of this fact by email, and he requested an investigation by the council as authorized by the City's charter. The meeting adjourned at around 11:00 a.m. By the time he returned to his office at 12:30 that afternoon, his computer had been removed from his office. Daly informed him within three hours thereafter that he had been fired.
B. Procedural history
Guillaume sued the City under the Texas Whistleblower Act. The City filed a traditional and no-evidence motion for summary judgment seeking dismissal of that claim, in part for lack of evidence of proximate cause. More than seven days before the summary-judgment hearing, Guillaume amended his pleadings to add a claim that he had been fired in violation of the First Amendment to the United States Constitution. The trial court signed an order granting the City's motion for summary judgment, thereby dismissing Guillaume's Whistleblower Act claim.
The City immediately filed a "motion to dismiss with prejudice" attacking Guillaume's First Amendment claim. In that motion, the City argued that the same dearth of evidence of proximate causation that it had pointed out in its motion for summary judgment was fatal to Guillaume's First Amendment claim. A few days later, and apparently without conducting a hearing, the trial court signed an order dismissing all of Guillaume's claims with prejudice. Guillaume timely filed a motion to alter or amend the judgment. The trial court granted Guillaume's motion to the extent of signing a new final judgment in which it recited that it was granting "summary judgment" in favor of the City on both Guillaume's Whistleblower Act claim and his First Amendment claim.
Guillaume timely appealed.
II. Standard and Scope of Review
We review summary judgments under a de novo standard. Tex. Mun. Power Agency v. Pub. Util. Comm'n, 51 Tex. Sup. Ct. J. 216, 221 (Dec. 14, 2007). We consider all grounds presented in the summary-judgment motion and affirm if any ground is meritorious. Sefzik v. City of McKinney, 198 S.W.3d 884, 890 (Tex.App.-Dallas 2006, no pet.).
The trial court properly grants a no-evidence motion for summary judgment if, after adequate time for discovery, the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and the respondent produces no summary-judgment evidence raising a genuine issue of material fact on those elements. LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam). We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (applying the standards announced in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005), to a no-evidence summary judgment). The scope of our review includes both the evidence presented by the movant and the evidence presented by the respondent. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 881 (Tex.App.-Dallas 2007, no pet.).
The trial court properly grants a defendant's traditional motion for summary judgment if the movant conclusively proves every element of an affirmative defense or conclusively disproves an essential element of the plaintiff's claim. Henson v. Sw. Airlines Co., 180 S.W.3d 841, 843 (Tex.App.-Dallas 2005, pet. denied). Like the trial court, we must consider the evidence in the light most favorable to the nonmovant and resolve all doubts in the nonmovant's favor. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
III. Analysis
A. Whistleblower Act claim
1.
Elements
The Texas Whistleblower Act provides:
A state or local governmental entity may not suspend or terminate the employment of . . . a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.
Tex. Gov't Code Ann. § 554.002(a) (Vernon 2004). Thus, the elements of a Whistleblower Act claim are (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. Id.; Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995) (explaining the causation element). A "law" is a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. Tex. Gov't Code Ann. § 554.001(1) (Vernon 2004). The City has not argued that its charter is not a "law" under the Whistleblower Act, so we will assume for purposes of this appeal that it is. See City of Beaumont v. Bouillion, 873 S.W.2d 425, 447 (Tex.App.-Beaumont 1993) (holding that a city charter is a "law" under the Whistleblower Act), rev'd on other grounds, 896 S.W.2d 143 (Tex. 1995).
The phrase "who in good faith reports a violation of law" has required judicial interpretation. In Wichita County, Tex. v. Hart, the supreme court held that "good faith" consists of both an objective and a subjective component. 917 S.W.2d 779, 784 (Tex. 1996). "`Good faith' means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee's belief was reasonable in light of the employee's training and experience." Id. Whether employee was motivated by malice or personal vindictiveness is not relevant. Id. at 785. "The fact that an employee harbors malice toward an individual should not negate the Whistleblower Act's protection if the employee's report of a violation of law was honestly believed and objectively reasonable given the employee's training and experience." Id. at 786.
One of the City's summary-judgment grounds was that Guillaume's report did not involve an actual violation of the City's charter because "alleged errors in a draft of a proposed budget are not illegal as a matter of law." (1 CR 6.) This ground raises an additional question regarding the proper interpretation of the statutory phrase "in good faith reports a violation of law." Tex. Gov't Code Ann. § 554.002(a). Suppose a public employee witnesses a co-employee commit certain conduct. The first employee reasonably but incorrectly believes that this conduct violates Texas law and makes a factually accurate report. Can this report satisfy the elements of a Whistleblower Act claim? Some courts of appeals have indicated that it cannot. For example, the Corpus Christi Court of Appeals has stated that, although a Whistleblower Act plaintiff need not establish that a violation of the law actually took place, "there must be some law prohibiting the complained of conduct to give rise to a Whistleblower claim." Llanes v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642 (Tex.App.-Corpus Christi 2001, pet. denied); accord Scott v. Godwin, 147 S.W.3d 609, 622 (Tex.App.-Corpus Christi 2004, no pet.). At least two other courts of appeals have repeated this requirement from Llanes. City of Houston v. Cotton, 171 S.W.3d 541, 547 n. 10 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Lane v. Tex. Dep't of Health, No. 03-02-00578-CV, 2003 WL 21750608, at *3 n. 5 (Tex.App.-Austin July 30, 2003, pet. denied) (mem. op.).
The dissenting justice in the Llanes case argued that the majority took a wrong turn by holding that the plaintiff's report must identify conduct that actually violates an existing law. 64 S.W.3d at 644-45 (Yanez, J., dissenting). Justice Yanez argued that the requirement was inconsistent with the Texas Supreme Court's interpretation of "good faith," which seems to permit a reasonable but mistaken belief that conduct violates the law to suffice for purposes of the Whistleblower Act. Id. at 645 (Yanez, J., dissenting) (citing Harris County Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d 954, 955 (Tex. 1996) (per curiam)). She also pointed out that such a requirement was at odds with the Corpus Christi Court of Appeals' own prior holding that the Act "protects an employee who in good faith reports a violation, but turns out to be wrong about the legal effect of the facts." Id. at 644-45 (Yanez, J., dissenting) (citing Castaneda v. Tex. Dep't of Agric., 831 S.W.2d 501, 504 (Tex.App.-Corpus Christi 1992, writ denied)). The apparent inconsistency, however, did not prevent the Llanes majority from citing Castaneda in its own opinion. Id. at 642. Indeed, the Austin Court of Appeals recently recited both propositions back-to-back, as though they were synonymous:
[T]here must be some law prohibiting the complained-of conduct to give rise to a whistleblower claim. In other words, when an employee believes and reports in good faith that a violation has occurred, but is wrong about the legal effect of the facts, he is nevertheless protected by the whistleblower statute.
Tex. Dep't of Criminal Justice v. McElyea, No. 03-06-00244-CV, 2007 WL 2141259, at *6 (Tex.App.-Austin July 26, 2007, pet. filed) (citations omitted).
We need not, and do not, decide whether Llanes is correct that a Whistleblower Act plaintiff must show that his report involved conduct that actually violates an existing law, because Guillaume does not attack the summary judgment on this ground. He argues only that summary judgment was improper because his report concerned conduct by Daly that does violate the City's charter. We may not reverse a judgment on grounds not asserted by the appellant. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990) (per curiam); Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 838 (Tex.App.-Dallas 2005, no pet.). Accordingly, we must assume for purposes of this appeal that one essential element of Guillaume's whistleblower claim is that the facts as he reported them actually amounted to a violation of the City's charter.
2.
Application of the law to the facts
The City asserted both traditional and no-evidence grounds in its summary-judgment motion. The City asserted that Guillaume could adduce no evidence (1) that his report to the city council involved a violation of law, (2) that his conduct was undertaken in good faith, or (3) that he was terminated in retaliation for his report. In its traditional grounds, the City asserted (1) that the evidence negated the element of good faith, and (2) that the evidence negated the proposition that Guillaume was terminated in retaliation for his report. Guillaume challenges the dismissal of his Whistleblower Act claim in his first, third, fifth, and sixth issues. We conclude that Guillaume successfully raised a genuine issue of fact as to each element challenged by the City, and so we reverse the dismissal of Guillaume's Whistleblower Act claim.
a.
Violation of law
In his fifth and sixth issues, Guillaume argues that the evidence raises a genuine issue of fact as to whether he "in good faith report[ed] a violation of law." Tex. Gov't Code Ann. § 554.002(a). As previously noted, see Part III.A.1 supra, we must assume for purposes of this appeal that the Whistleblower Act required Guillaume to show that the conduct he reported actually constituted a violation of law-in this case, the City's charter. This is a question of law. Rogers v. City of Fort Worth, 89 S.W.3d 265, 274 (Tex.App.-Fort Worth 2002, no pet.). We conclude that he met that burden.
The evidence showed that Guillaume told the city council that the proposed budget submitted to it on August 10, 2004 overstated revenues by $888,000 and understated expenditures and uses by $675,000. He further told the council that this amounted to an overstatement of available financial resources by $1,563,000, and that he had informed Daly of the error on August 12. Guillaume argues that Daly's conduct in submitting the budget and not advising the council of the magnitude of the error at the August 20 budget workshop violated the City's charter, and so his report involved conduct that did violate the law.
For his legal support, Guillaume relies on several provisions of the City's charter that impose duties on the city manager. Section 37(2) requires the city manager to "[p]repare the budget annually and submit it to the Council," and section 37(4) requires her to "[k]eep the Council advised of the financial condition and future needs of the City of Greenville." Greenville, Tex., Charter §§ 37(2), (4) (1953). The City's fiscal year runs from October 1 through September 30. Id. § 41. "The City Manager shall submit to the Council a proposed budget not later than the first regularly scheduled Council meeting in the August prior to the beginning of each fiscal year." Id. § 42. The budget shall provide a complete plan for the fiscal year, and it shall contain a summary of proposed expenditures by department, character, and object. Id. §§ 42(7), (8). The budget must include a table comparing projected revenues with estimated revenues for the current fiscal year and actual revenues from the last completed fiscal year. Id. § 43. It must include a similar table for expenditures. Id. § 44. Finally, the charter provides that the "[t]otal estimated expenditures of the general fund and debt service fund shall not exceed the total estimated resources of each fund (prospective income plus cash on hand)." Id. § 56.
The City's charter unambiguously requires the city manager to provide a detailed proposed budget to the city council for its consideration and ultimate approval. We agree with Guillaume that the charter would be rendered meaningless if it were construed to permit the city manager to submit a proposed budget containing figures bearing no relationship to reality. Such a budget would be useless as the planning tool it is plainly meant to be, especially in light of the balanced-budget requirement found in section 56 of the charter. We reject the City's argument that the obligation to be accurate did not apply to Daly's conduct because she was submitting only a draft budget to be used to "identify errors and changes" that needed to be made before she submitted the "final budget for Council approval." The charter makes no distinctions between draft proposed budgets and final proposed budgets, and we construe it to require any proposed budget submitted to the council in advance of its August meeting to be reasonably accurate. At a minimum, it required Daly to advise the council of the magnitude of the inaccuracy once Guillaume brought it to her attention.
The City asserts in its appellate brief that Daly "acknowledged there were errors in the draft budget [and] related those errors to the City Council." Its summary-judgment evidence, however, shows only that Daly "informed the City Council participants that the budget they were going to work on contained errors and changes would have to be made." We do not find any evidence that Daly explained what the errors were to the council.
Accordingly, we conclude that Guillaume's report involved conduct by Daly that violated the City's charter, and thus involved a violation of law for purposes of the Whistleblower Act. The City's no-evidence challenge attacking this element cannot support the dismissal of Guillaume's Whistleblower Act claim.
b.
Good faith
The City raised traditional and no-evidence summary-judgment grounds attacking the essential element of good faith. We analyze the evidence as to the subjective and objective prongs of the element of good faith as set forth in Wichita County, Tex. v. Hart, 917 S.W.2d 779 (Tex. 1996). Again we agree with Guillaume that the evidence raised a genuine fact issue.
Guillaume's affidavit raises a genuine fact issue as to whether he subjectively believed that Daly's conduct violated the law. He attested, "[I]t is my understanding based upon my experience and professional judgment that it is fraud to fail to disclose to the City Council errors in a budget that constitute material errors." He further attested, "When [the city manager] presents a budget to the Council and fails to disclose to the Council what she knows or learns to be the falsity of the information contained in the budget, that failure constitutes a violation of her legal duty and an act of fraud to fail to disclose." Finally, he attested, "It was my understanding of [the charter's budget] requirements that compelled my report to the City Council on August 20, 2004." From this testimony, a reasonable juror could find that Guillaume honestly believed that Daly had violated the City's charter by submitting the proposed budget to the city council. The City argues that its evidence establishes that Guillaume had a history of personal conflict with Daly and that his report was motivated solely by a desire to discredit her. But the Wichita County opinion is clear that the existence or absence of such malice is irrelevant under the Whistleblower Act. 917 S.W.2d at 785-86. The only issue is whether the employee honestly, subjectively believed that the law had been violated. Guillaume's affidavit raised a genuine issue of fact on that issue.
We also conclude that Guillaume's evidence raises a genuine fact issue as to whether his belief was objectively reasonable. We have already held that the facts as reported amounted to a violation of the City's charter. The objective prong of the good-faith requirement requires only that "a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law." Wichita County, 917 S.W.2d at 785 (emphasis added). Because the facts as reported by Guillaume amounted to a violation of the City's charter, it necessarily follows that Guillaume was objectively reasonable in believing that those facts constituted a violation of the law.
The City cites three cases in which other courts of appeals have held that a whistleblower plaintiff failed to carry his or her burden of proof on the element of good faith. Each of the cases cited by the City is distinguishable. In Texas Department of Criminal Justice v. Terrell, the whistleblower plaintiff relied solely on "unsubstantiated rumor and innuendo" as the factual basis for reporting illegal conduct by a superior. 18 S.W.3d 272, 277 (Tex.App.-Tyler 2000, pet. denied). The court of appeals held that this flimsy factual basis was legally insufficient evidence of the element of good faith. Id. In the instant case, by contrast, the City has not contested the factual accuracy of Guillaume's report, so Terrell is inapposite. In the second case, the plaintiff was fired after complaining that a supervisor had put a reprimand memo in her file that was "inaccurate" and "not justified." Donlevy v. City of The Colony, 8 S.W.3d 754, 756 (Tex.App.-Fort Worth 1999, no pet.). The court of appeals affirmed summary judgment against the plaintiff because she adduced no evidence of the objective reasonableness of her alleged belief that the reprimand memo was illegal. Id. at 757-58. In this case, unlike Donlevy, we have concluded that the conduct as reported by Guillaume actually did violate the law, thus necessarily satisfying his burden of proof as to the objective reasonableness of his belief.
In the third case, the plaintiff was a systems analyst in the MIS division of the Texas Department of Human Services. Duvall v. Tex. Dep't of Human Servs., 82 S.W.3d 474, 476 (Tex.App.-Austin 2002, no pet.). One of Duvall's duties was to compile data for response-time reports that tracked how long it took the Department to respond to requests for information. Id. Duvall believed that one of the Department's divisions was using inaccurate statistical methods to compile its response times, and he reported this belief to his supervisor at a meeting about his own job performance. Id. He was fired a few months later, and he sued under the Whistleblower Act. Id. The trial court granted summary judgment for the Department, and the court of appeals affirmed for two reasons. First, it held that Duvall adduced no evidence that he made his report to an appropriate law enforcement authority. Id. at 478-82. Second, it held that Duvall adduced no evidence "other than his training and experience that his belief [that the response-time reports violated the law] was objectively reasonable." Id. at 483. The court also noted that, absent other evidence, "Duvall's recitation of his experience is not sufficient to meet the objective prong of Hart." Id. As in Donlevy, the court of appeals concluded that Duvall introduced no evidence to show "how his training and experience led him to believe that a violation of law occurred." Id. at 482. In this case, by contrast, we have concluded that the conduct reported by Guillaume did amount to a violation of the City's charter. Because the facts as reported by Guillaume actually amounted to a violation of law, it necessarily follows that he was objectively reasonable to believe that this was so. Thus, Duvall is distinguishable from the instant case.
As evidence that his belief was objectively reasonable, Duvall cited "his `participation in the development of the programming inherent in the collection of the data, his educational background, and his years of employment in the MIS department.'" Id. at 482.
For the reasons stated above, we conclude that Guillaume has raised a genuine fact issue as to the element of good faith. We sustain Guillaume's fifth and sixth issues.
c.
Causation
In his first and third issues, Guillaume argues that the evidence raises a genuine issue of fact as to the element of causation. The material issue is whether his report caused him to be terminated at the time the City terminated him. Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). We agree with Guillaume that the evidence raised a genuine issue of fact on this element.
In her affidavit, Daly attested that on August 17, 2004, she decided to fire Guillaume and to offer him 30 days' notice of his termination. In deposition testimony, she testified that she was going to fire Guillaume at a meeting scheduled for August 23. She further testified that she would not have fired Guillaume until August 23 if he had not made his report to the city council on August 20. And the evidence showed that Daly did fire Guillaume on August 20. The evidence thus clearly supports Guillaume's contention that he was fired at the time he was fired because of his report. This is all that is required to raise a fact issue on the element of causation. See Hinds, 904 S.W.2d at 636 ("[T]he standard of causation in whistleblower and similar cases should be that the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did.").
3.
Conclusion
We sustain Guillaume's first, third, fifth, and sixth issues. We reverse the trial court's summary judgment dismissing Guillaume's claim under the Whistleblower Act. B.
First Amendment claim
The procedural steps leading to the dismissal of Guillaume's First Amendment claim were irregular. The City never filed a motion for summary judgment addressing that claim, but instead it filed a "motion to dismiss with prejudice" two days after the trial court granted summary judgment dismissing Guillaume's Whistleblower Act claim. (4 CR 425, 426.) The only ground for dismissal asserted in that motion was Guillaume's inability to raise a fact issue on the element of causation. The trial court at first signed an order dismissing "any and all claims" asserted by Guillaume with prejudice (without referring to the motion to dismiss). (4 CR 430.) Guillaume filed a motion to alter or amend judgment in which he objected to the trial court's dismissing his First Amendment claim on any ground other than causation. He acknowledged that the causation standard was the same for both of his claims and essentially agreed that if the trial court had dismissed his Whistleblower Act claim based on the element of causation it could also grant summary judgment on his First Amendment claim for the same reasons. (4 CR 431-36.) The trial court then entered a new order, captioned "Final Judgment," in which it granted "summary judgment" on Guillaume's First Amendment claim. (4 CR 445.) We will analyze the trial court's dismissal of the First Amendment claim as though the City's motion to dismiss were a motion for summary judgment, based on the grounds stated therein and on the previously filed summary-judgment evidence, and as though Guillaume waived the ordinary notice requirements of Rule 166a.
In his second and fourth issues, Guillaume contends that the trial court erred in dismissing his First Amendment claim because he raised a genuine fact issue on the element of causation, which was the only ground asserted in the motion to dismiss. The First Amendment protects public employees against retaliation for the exercise of their free-speech rights under some circumstances. Garcetti v. Ceballos, 126 S. Ct. 1951, 1957 (2006). A violation of a public employee's First Amendment rights is actionable under 42 U.S.C. § 1983. Scott v. Godwin, 147 S.W.3d 609, 616 (Tex. App-Corpus Christi 2004, no pet.). Courts have held that the elements of a First Amendment retaliation claim are: (1) speech by a public employee involving a matter of public concern, (2) the employee's interest in commenting on matters of public concern outweighs the employer's interest in efficiency, (3) an adverse employment action, and (4) the speech motivated the adverse employment action. Scott, 147 S.W.3d at 616; see also Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999). For purposes of this opinion, we need discuss only the fourth element.
On issues of federal law, we are bound only by the decisions of the United States Supreme Court and the Texas Supreme Court. We may, however, look to decisions of inferior federal courts such as the Fifth Circuit for persuasive authority. Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
To prove causation, the plaintiff in a First Amendment retaliation case must prove that his protected speech was a substantial or motivating factor in his employer's adverse employment decision. Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992). The timing of a defendant's conduct in relation to the plaintiff's speech may be circumstantial evidence of a retaliatory motive. McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1999). If the plaintiff meets his burden, the burden then shifts to the employer to prove that it would have taken the same action in the absence of the protected conduct. Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007). As noted above, our supreme court has held that "the standard of causation in whistleblower and similar cases should be that the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did." Hinds, 904 S.W.2d at 636 (emphasis added). Based on the similarity between claims under the Whistleblower Act and retaliation claims under the First Amendment, we hold that the same causation standard applies to both claims. We have already concluded that the evidence raises a genuine issue of fact as to whether Guillaume's speech before the city council caused the City to fire him when it did. Accordingly, the dismissal of Guillaume's First Amendment claim was improper and must be reversed.
The City urges us to affirm the dismissal of Guillaume's First Amendment claim based on the holding in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), which was decided the day before the trial court signed its first summary-judgment order and nine days before the trial court dismissed Guillaume's First Amendment claim. According to the City, Garcetti stands for the proposition that the First Amendment does not protect public employees from disciplinary actions as a result of statements they make pursuant to their official duties rather than as private citizens. The City argues that Guillaume's First Amendment claim fails as a matter of law under this test. This ground, however, was not raised in the City's motion to dismiss, which is the only vehicle in which it attacked Guillaume's First Amendment claim. The only ground the City asserted in its motion to dismiss was Guillaume's inability to prove causation. We will not affirm the dismissal based on grounds not presented to the trial court, to which Guillaume had no opportunity to respond. See Ketter v. ESC Med. Sys., Inc., 169 S.W.3d 791, 800 n. 5 (Tex.App.-Dallas 2005, no pet.) (applying this rule in summary-judgment context). We express no opinion about the proper application of Garcetti to this case or about any aspect of Guillaume's First Amendment claim beyond our specific holding that Guillaume raised a genuine issue of material fact as to the element of causation.
We sustain Guillaume's second and fourth issues and reverse the dismissal of his First Amendment claim.
IV. Conclusion
We reverse the trial court's dismissal of Guillaume's claims and remand the case for further proceedings consistent with this opinion.