Gail L. Moore v. Earl Bullock, Dallas County Clerk--Appeal from 95th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-99-298-CV

GAIL L. MOORE,

Appellant

v.

EARL BULLOCK,

DALLAS COUNTY CLERK,

Appellee

From the 95th District Court

Dallas County, Texas

Trial Court # DV98-07139-D

O P I N I O N

Moore appeals from a summary judgment granted in favor of Earl Bullock, Dallas County Clerk. She claims that the trial court erred in granting summary judgment because genuine issues of material fact exist with regard to her claim of retaliatory discharge under the Texas whisteblower statute.

Background

James Smith, criminal division manager of the Dallas County Clerk s office, hired Moore on May 1, 1998 and subsequently terminated her employment forty-five days later. Approximately one week after Moore was hired, she reported what she believed to be illegal activities occurring in the county clerk s office to the county auditor. Soon thereafter, the county auditor conducted a surprise inspection of the county clerk s office. Three weeks later, Moore was fired. Moore alleges that she was fired in retaliation for her report to the county auditor in violation of Texas Government Code section 554.002(a). Bullock moved for summary judgment on the ground that Smith had no knowledge of the report by Moore to the county auditor. Bullock alleges that summary judgment was proper because without knowledge of the whistleblower report there could be no retaliation.

Standard of Review

The standards for reviewing a summary judgment are well established. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Id. at 548-49. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 549. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id.

Whistleblower Statute

Government Code section 554.002(a), commonly called the whistleblower statute, states that a local government entity may not terminate a public employee who in good faith reports a violation of the law by the employing governmental entity. See Tex. Gov. Code Ann. 554.002(a). To recover under the whistleblower statute, an employee must prove that without the report of a violation of the law, the retaliatory conduct would not have occurred when it did. See Texas Dep t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995); Ruiz v. City of San Antonio, 966 S.W.2d 128, 131 (Tex. App. Austin 1998, no pet.). The causal nexus between the report and the alleged retaliatory conduct is presumed if the alleged retaliatory conduct occurs within ninety days of the report. See Tex. Gov. Code Ann. 554.004. This presumption, however, is rebuttable. Id.

The Evidence

Bullock adduced summary judgment proof through the affidavit of James Smith. Smith states that he was not told about any report to the Dallas County auditor s office and that he fired Moore based on her job performance. Bullock also adduced proof through the deposition of Moore. Moore testified that she did not tell anyone of the report and instructed the auditor s office that she did not want her name mentioned in connection with the audit. Felicia Harrell, who took the report from Moore, provided testimony that she told no one about the report and did not mention it when she conducted the surprise audit of the clerk s office. Bullock s proof, standing alone, negates the causation element of Moore s whistleblower claims.

However, Moore argues that summary judgment was improper because Bullock s evidence does not establish as a matter of law that Smith had no knowledge of the report. She relies on Smith s affidavit in which he states that he was not told of the report. She claims that this does not preclude his knowledge coming from other sources. Also, she argues that a notation on Smith s calendar for the date of the auditor s surprise inspection raised a fact issue on knowledge. Smith s calendar notes the occurrence of a Jennifer-Gail incident on that date. She also alleges that her work was more closely scrutinized than other employees after her report and that Bullock produced no evidence that Smith was the only person involved in her termination. She claims that other employees could have conversed with Smith with regard to her termination and her report to the auditor s office.

We find that Moore has raised a material fact issue as to causation in her response to Bullock s motion for summary judgment. The presumption under section 554.004 of the Texas Government Code applies because Moore was terminated within ninety days of her report. We recognize that summary judgment may be based on the testimony of an interested witness if the evidence is clear, positive and direct, otherwise free from contradictions and inconsistencies, and could have been readily controverted. See Tex. R. Civ. P. 166a(c). However, where the issue is causation in retaliatory firing cases, the affidavit of an interested witness will not support judgment as a matter of law. See Castaneda v. Texas Dep t of Agric., 831 S.W.2d 501, 505 (Tex. App. Corpus Christi 1992, writ denied). Also, it is inherently difficult to produce direct evidence of an employer s retaliatory conduct at the summary judgment stage of the proceedings. See Ruiz v. City of San Antonio, 966 S.W.2d 128, 132 (Tex. App. Austin, 1998, no pet.). We find it probative of causation that the incident happened the same date as the inspection and Bullock offers no explanation for the coincidence.

Indulging all reasonable inferences in favor of Moore, we find that her summary judgment proof raises a fact issue as to the causal link between her report to the auditor and her termination. Accordingly, we sustain Moore s only point.

The judgment of the trial court is reversed and remanded for further proceedings.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Reversed and remanded

Opinion delivered and filed May 16, 2001

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