Summary
In Barfield, we used the word "disclosure" in a parenthetical citation to support our conclusion that Barfield "did provide summary judgment evidence that he reported a violation of the law."
Summary of this case from City of Fort Worth v. PridgenOpinion
No. 05-04-00374-CV
Opinion Filed December 3, 2004.
On Appeal from the 192nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 97-11069-K.
Reverse and Remand.
Before Justices WRIGHT, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Johnny Barfield appeals the no-evidence summary judgment granted in favor of his former employer, Dallas Independent School District (DISD), in his lawsuit for wrongful termination and violation of the Whistleblower Act. DISD asserts that we cannot find reversible error because the record on appeal does not include Barfield's response to its motion for summary judgment. The record has been supplemented with the necessary documents. We reverse the judgment of the trial court and remand this case for trial on the merits.
Factual Background
The following facts are undisputed. Although Barfield had worked for DISD for three years in the maintenance department, he was considered temporary because DISD systematically terminated and then re-employed him at his former position. Barfield received a typical release memo dated July 2, 1997, and acknowledged its receipt on July 11, 1997. A typical corresponding Notice of Separation identified his effective date of "resignation/retirement" as July 17, 1997. On the morning of July 17, during an interrogation by two of his supervisors, Barfield admitted that he had provided the FBI with a copy of an asbestos certification that he had typed at the direction of his immediate supervisor. Barfield was immediately escorted out of the building.
Procedural History
On October 14, 1997, Barfield filed a grievance with DISD. He ultimately appeared before the personnel committee of the DISD board. On December 15, 1997, Barfield notified DISD that he was terminating the grievance procedure because no decision had been reached in his case. On that same day, Barfield filed this lawsuit against DISD for wrongful termination and violation of the Whistleblower Act, Tex. Gov't Code Ann. §§ 554.001-554.010 (Vernon 1994; Vernon Supp. 2002).
DISD filed a plea to the jurisdiction, challenging the trial court's subject matter jurisdiction on the ground Barfield had failed to timely exhaust his administrative remedies. The trial court denied the plea. This Court affirmed that denial, ruling that Barfield had ninety days to file his grievance under the Whistleblower Act, not fifteen days as imposed by DISD policy.
Following remand from this Court, DISD filed a second plea to the jurisdiction, alleging Barfield's grievance was not filed within ninety days of his termination and that his lawsuit was not filed within ninety days of his grievance. The trial court denied the plea. After reviewing the record, we determined, among other things, that Barfield did not receive unequivocal notice of final termination until July 17, 1997. We affirmed the trial court's denial and remanded the cause for trial.
DISD then filed its no-evidence motion for summary judgment. After Barfield filed his response, the trial court granted DISD's motion without explanation. Barfield appeals the court's ruling.
Applicable Law
Standard of Review
The purpose of the no-evidence summary judgment motion is to pierce the pleadings and evaluate the evidence to determine whether a trial is necessary. Benitz v. Gould Group, 27 S.W.3d 109, 112 (Tex.App. 2000, no pet.). A no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial . See Tex. R. Civ. P. 166a(i); see also Espalin v. Children's Medical Center of Dallas, 27 S.W.3d 675, 682-83 (Tex.App. 2000, no pet.) A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); see also Espalin, 27 S.W.3d at 683.
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App. 2000, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted). In determining whether the nonmovant has met his burden, we consider the evidence in the light most favorable to the nonmovant. General Mills, 12 S.W.3d at 833.
Texas Whistleblower Act
The purpose of the Texas Whistleblower Act is twofold: (1) to enhance open government by protecting public employees from retaliation by their employers when an employee reports a violation of the law in good faith; and (2) to secure lawful conduct by those who direct and conduct the affairs of government. See City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex.App. 1996, writ denied). Because the Act is remedial in nature, it must be liberally construed. Castenada v. Texas Dep't of Agric., 831 S.W.2d 501, 503-04 (Tex.App. 1992, writ denied). Before suing under the Whistleblower Act, the employee seeking relief must first initiate action under the grievance procedures of his employer. Tex. Gov't Code Ann. §§ 554.006(a) (Vernon 1994; Vernon Supp. 2002). If a final decision is not rendered before the sixty-first day after the initiation of the grievance procedures, the employee may elect to terminate the grievance process and commence a lawsuit. Tex. Gov't Code Ann. §§ 554.006(d)(2) (Vernon 1994; Vernon Supp. 2002)
To prevail on a whistleblower claim, the individual seeking relief must be able to show that: (1) he is a public employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law; (4) the report was made to an appropriate law enforcement authority; and (5) he suffered retaliation for making the report. Tex. Gov't Code Ann. §§ 554.002 (Vernon 1994; Vernon Supp. 2002).
Application Of Law To Facts
In its no-evidence motion for summary judgment, DISD alleged that Barfield could show no evidence that he (1) reported a violation of law, (2) suffered retaliation for making the report, or (3) gave DISD sixty days to consider his grievance. Because the trial court did not state the basis of its decision to grant summary judgment, Barfield must show that summary judgment was not proper on any ground asserted in the motion. See Offutt v. Southwestern Bell Internet Services, Inc., 130 S.W. 3d 507 (Tex.App. 2004, no pet.). After reviewing Barfield's response to the no-evidence motion for summary judgment and his arguments on appeal, we conclude that the trial court improperly granted DISD's motion.
In his first issue, Barfield argues that he presented sufficient summary judgment evidence regarding the violation of law. In response, DISD introduces a new argument, claiming that Barfield failed to report the conduct to an appropriate law enforcement agency. However, in a summary judgment appeal, we consider only those grounds actually presented to the trial court. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). DISD did not include this claim in its no-evidence motion for summary judgment. Because the trial court did not consider this claim, we will not address this argument now.
The evidence showed that Barfield provided a document that he knew to be false to the FBI. From his experience in working with the DISD maintenance department, he knew that the false information could be used to obtain supplemental pay and that the FBI was involved in an ongoing investigation of fraud within the department. Although Barfield characterized this wrong-doing in general terms, the evidence showed that elements of several offenses were alleged, including providing false statements to obtain property . See Tex. Penal Code Ann. § 32.32(b) (Vernon 2003). We therefore conclude that Barfield did provide summary judgment evidence that he reported a violation of the law. See Castaneda, 831 S.W.2d at 505 (a violation of the law includes any disclosure of information tending to directly or circumstantially prove a violation of the law). Accordingly, we sustain Barfield's first issue on appeal.
In his second issue, Barfield claims that he presented sufficient summary judgment evidence regarding retaliation. The evidence showed that the July 2, 1997 memo did not differ significantly from DISD's previous notifications to its temporary employees of their periodic separations from employment and that Barfield believed that his termination was temporary as each of his previous terminations had been. The evidence further reflects that, immediately after he admitted that he had contacted the FBI, one of his supervisors told him that he was fired. Barfield was then escorted from the building well before the end of his shift. We again conclude that the evidence showed that Barfield did not receive unequivocal notice that his employment was finally terminated until he was escorted from the building.
We agree with Barfield's argument that he is entitled to the causation presumption provided by the Whistleblower Act. See Tex. Gov't Code Ann. § 554.004(a) (Vernon 1994; Vernon Supp. 2002) (if the termination of a public employee occurs not later than the ninetieth day after he reports a violation of law, the action is presumed, subject to rebuttal, to be because the employee made the report). This constitutes a genuine issue of material fact that must be determined by a jury. Accordingly, we sustain Barfield's second issue.
In Barfield's third issue, he asserts that he presented sufficient summary judgment evidence that he filed his lawsuit at an appropriate time under the Whistleblower Act. In its response, DISD again attempts to raise arguments on appeal that it did not raise in its no-evidence motion. Again, we limit our review to the sufficiency of Barfield's response to the actual claim considered by the trial court: that Barfield cannot show that he gave DISD sixty days to consider his grievance.
The evidence shows that Barfield allowed at least sixty days to elapse between the commencement and termination of the grievance process. On October 14, 1997, Barfield hand-delivered his grievance form to the DISD director of personnel. On December 15, 1997, he notified the director of personnel and the secretary of the DISD board of trustees that he was terminating the grievance process because no decision had been reached in his case, correctly pointing out that sixty-one days had elapsed. As such, the trial court's granting of DISD's motion cannot be upheld on this ground. We sustain Barfield's third issue.
CONCLUSION
Having sustained all of Barfield's issues, we reverse the judgment of the trial court and remand this case for trial on the merits.