Ray L. Ender v. City of Austin--Appeal from 201st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

 
NO. 03-97-00329-CV
Ray L. Ender, Appellant
v.
City of Austin, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 95-09218, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
This case arises out of a dispute between Appellant Ray Ender and the City of Austin over the imposition of an alleged ticket-writing quota for police officers in the Motorcycle Division of the Austin Police Department. After Ender reported the alleged illegal quota, the Department transferred him from the Motorcycle Division to the Patrol Division. Ender then sued the City, claiming that his transfer violated the Whistleblower Act. See Tex. Gov't Code Ann. 554.001-.010 (West 1994 & Supp. 1997). (1) The trial court granted the City's motion for summary judgment on the ground that Ender could not prove the causation element of his cause of action. Because we conclude that the City did not meet its burden of proof in the summary-judgment proceeding, we will reverse the trial-court judgment and remand the cause for a trial on the merits.

BACKGROUND

A police officer since 1974, Ender began working in the Department's Motorcycle Division on May 3, 1987. Ender alleges that the City illegally evaluated officers in the Motorcycle Division based on a ticket-writing quota system. (2) According to Ender, on February 14, 1995, he discussed with his supervisor, Sergeant Sam Warren, the illegality of the alleged quota system. On May 1, 1995, Warren told Ender that he was recommending Ender's transfer because of his low productivity in ticket writing. During this conversation, Ender again informed Warren of his belief that the evaluation system imposed an illegal quota for ticket writing. Also on May 1, Ender discussed with Captain Joe Riffe the plan to transfer him and the transfer's basis in the allegedly illegal quota system. Through his attorney, Ender then reported the Department's alleged violation of the no-quota law to City Attorney Bob Rose on May 5, 1995. On either May 14 or May 15, 1995, Ender complained of his transfer's illegal basis to Deputy Chief Pulatie. Ender also notified Internal Affairs of the alleged violation on May 19, 1995. The City transferred Ender, effective May 21, 1995, to the Patrol Division.

Ender sued the City, alleging discrimination violating the Whistleblower Act. See Tex. Gov't Code Ann. 554.001-.010. The Whistleblower Act prohibits termination of or discrimination against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority. Id. 554.002. Ender claimed that the Police Department transferred him from the Motorcycle Division to the Patrol Division because he reported the illegal imposition of ticket quotas by the Motorcycle Division. The City did not dispute that Ender made the reports. The City only disputed whether the reports led to Ender's transfer. The City argued that the transfer occurred solely because of job performance problems, which admittedly included low ticket-writing productivity. The City moved for summary judgment, arguing that: (1) Ender could not prove a causal link between his report and the transfer and (2) Ender could not prove he had a good-faith belief that the alleged quota was illegal. The trial court granted the City summary judgment based on Ender's inability to prove a causal link.

On appeal, Ender argues as his sole point of error that a genuine issue of fact existed regarding causation. The City argues by cross-point that the trial court erred in failing to grant summary judgment on the ground that Ender did not have a good-faith belief that the quota was illegal.

 

STANDARD OF REVIEW

We review the trial court's summary judgment de novo. A movant for summary judgment must show that no genuine issue of material fact exists and thus it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Evidence favorable to the non-movant will be taken as true when determining whether there is a disputed material fact issue precluding summary judgment. See id. In addition, the reviewing court must consider every reasonable inference favoring the non-movant and resolve any doubts in the non-movant's favor. See id. at 549.

When a defendant seeks summary judgment, it must conclusively disprove at least one element of the plaintiff's cause of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The burden of producing controverting evidence sufficient to raise a fact issue shifts to the plaintiff only if the defendant has disproved an essential element. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

 

DISCUSSION

In his only point of error, Ender complains that the trial court erred in granting summary judgment based on its finding that Ender failed to establish a causal link between his report and subsequent transfer. The City responds that it conclusively negated this essential element of Ender's claim with its summary-judgment evidence of Ender's performance problems, including low ticket-writing activity.

In their examination of the causation issue, neither the parties nor the trial court discussed the standard established by the Texas Supreme Court in Department of Human Services v. Hinds. See 904 S.W.2d 629, 636 (Tex. 1995). The Hinds court analyzed what role the report of illegal conduct should play in the employer's decision to take adverse action against the employee. The court considered both a sole-reason standard and a principal-reason standard before settling on a but-for rule. The court first determined that the legislature would have specified a sole-reason standard if it had intended to so limit the employee's cause of action. Id. at 634. The Hinds court thus concluded that the Whistleblower Act does not require an employee to prove that his reporting illegal conduct was the sole reason for his employer's adverse actions. Id.

Hinds also rejected a principal-reason causation standard for four reasons. Id. at 635. First, the court pointed out the difficulty involved in determining what makes a reason "principal." Id. Second, the court found that the Whistleblower Act does not permit an employee's report of illegal conduct to play any role, no matter how small, in an employer's decision to sanction him. Id. Third, the court determined that the principal-reason standard might harm employers who made the disputed personnel decision for sufficient sound reasons and did not act on any bad motive. Id. Finally, the court expressed concern that the principal-reason standard might shield an employee from adverse personnel action, even when warranted, because the report would inevitably play a part in the decision. Id.

Instead, Hinds established a but-for causation standard: "[T]he employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did." Id. at 636. Under this standard, the City could not negate the causation element merely by showing that it had other reasons for transferring Ender. The but-for standard requires conclusive proof that Ender's report did not play a role, however small, in the Police Department's decision to transfer him on May 21, 1995.

The City offered Sergeant Warren's affidavit as its only summary-judgment evidence negating the report's part in the transfer decision. Warren was Ender's direct supervisor and made the original decision to transfer Ender. In his affidavit, he states that Ender's allegation "formed no part of my decision to transfer him." He further states that he based the transfer decision solely on Ender's substandard job performance. The Texas rule permits granting summary judgment based on uncontroverted testimonial evidence of an interested witness only "if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c).

The Texas Supreme Court has interpreted the language "could have been readily controverted" to mean more than that the movant's summary-judgment proof could have been easily and conveniently rebutted. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Instead, the testimony at issue must be of a type that can be effectively neutralized by opposing evidence. See id. Thus, summary judgment is inappropriate in a case in which the credibility of the affiant is likely to be a dispositive factor. See id.; but see also Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (holding that a worker who brought a retaliatory-discharge action against his employer under the Workers' Compensation Act should have produced evidence of facts and circumstances to counter the employer's neutral explanation).

Especially at the summary-judgment stage, direct evidence of improper discrimination is often absent in employment-discrimination cases. See Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501, 505 (Tex. App.--Corpus Christi 1992, writ denied). Construing the evidence in the light most favorable to Ender, his ticket-writing average appears to have remained consistent, albeit on the lower end of the spectrum, since 1991. No drastic downward turn relative to other years appears to have occurred in 1994 or 1995. With its summary-judgment motion, the City submitted some memos regarding Ender's performance (3) and an April 1995 performance evaluation recommending his transfer. The City's discovery responses, incorporated by reference in Ender's summary-judgment motion, included Ender's December 1994 evaluation (dated February 14, 1995), which showed improvement in some areas over his June 1994 evaluation. Warren had written three of the four memos regarding Ender's performance before the six-month period governing the December 1994 evaluation, which showed improvement. No mention was made of the fourth memo in either the December 1994 evaluation or the April 1995 evaluation. The only significant difference in the two evaluations was that the April 1995 evaluation described in more detail Ender's reported failure to maintain his motorcycle properly. Ender's deposition testimony indicated that Warren's depiction of this equipment "abuse" may have omitted a description of the circumstances leading to the problems with his motorcycle. A reasonable inference in Ender's favor would be that his February 14 report to Warren about the illegality of the evaluation system, not performance problems, led to the April 1995 evaluation recommending his transfer.

Although the Department alleged that low ticket-writing activity and other unspecified performance problems were the reasons that Warren made the original decision to transfer Ender, the fact remains that the Department effected the transfer after Ender reported its allegedly illegal basis to his superiors. The Department's reasons for following through with Ender's transfer will determine the disposition of the causation issue, and this issue of intent depends so heavily on the credibility of the witnesses that it is not suitable for summary judgment. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986); Fleetwood v. Medical Center Bank, 786 S.W.2d 550, 556 (Tex. App.--Austin 1990, writ denied). Therefore, we sustain Ender's point of error because the City produced no evidence conclusively negating the causation element.

 

DEFENDANT'S CROSS-POINT OF ERROR

As a cross-point of error, the City raises the trial court's failure to grant summary judgment based on an additional argument in its motion. In addition to the causation issue, the City argued that it could conclusively negate another essential element of Ender's claim--his good-faith belief that the complained-of conduct was illegal. See Tex. Gov't Code Ann. 554.002(a) (West 1994 & Supp. 1997). The Act protects a public employee who in good faith reports his employer's violation of a law, even if he is wrong about the legal effect of the facts. See Lastor v. City of Hearne, 810 S.W.2d 742, 744 (Tex. App.--Waco 1991, writ denied). The trial court found that the City had not established Ender's lack of a good-faith belief that the Department's activity was illegal and therefore refused to grant summary judgment on that basis.

The Texas Supreme Court has defined the term "good faith" as used in the Act to mean 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." Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). Ender presented summary-judgment evidence that he believed that the Department's evaluation system violated the law. This subjective belief satisfies the first prong. See Harris County Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996).

Both the Hart and Grabowski courts noted that the second prong of the good-faith test requires that a police officer's belief be examined more closely for reasonableness than the belief of a public employee in a non-law-enforcement profession. See Grawbowski, 922 S.W.2d at 956; Hart, 917 S.W.2d at 785. Even if we examine reasonableness more closely, the City's evidence does not establish the objective unreasonableness of Ender's belief. Instead of direct evidence, the City relied on its interpretation of the no-quota statute to support its theory that Ender's belief was unreasonable. The City reasoned that because the statute prohibits requiring a "predetermined or specified" number of tickets, Ender's acknowledgment that the Department requires officers to meet an average standard indicates that he could not have had a good-faith belief in his claim of illegal activity. Whether Ender or the City is correct about the legality of the Department's evaluation system is irrelevant for our purposes. What matters is that reasonable minds could come to different conclusions about the statute's application to the evaluation system. The City's interpretation neglects the implications of the language in the no-quota statute stating that state agencies or subdivisions may not "establish or maintain, formally or informally, a system, program, or plan" for evaluating employees based on the issuance of a specified number of tickets. See Act of June 16, 1991, 72d Leg., R.S., ch. 657, 1991 Tex. Gen. Laws 2406 (current version at Tex. Transp. Code Ann. 720.002 (West 1997)) (emphasis added). A reasonable employee could perceive the Department's ticket-average system as an informal way of maintaining issuance of a certain number of tickets. Ender's position as a police officer does not provide him with the special knowledge that statutory interpretation requires. The City's argument does not provide evidence that Ender's belief was objectively unreasonable, even for a police officer.

The objective-reasonableness requirement ensures that an employer violates the Whistleblower Act only "if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law." Hart, 917 S.W.2d at 785. The City argues that this requirement obliges Ender to produce summary-judgment evidence such as affidavits from other officers to establish that his view was that of a reasonably prudent employee in similar circumstances. We disagree. Imposing this burden would grant the Act's protection to a reporting employee only if he could produce other employees willing to testify against their employer. In effect, the burden would nullify the Act. In fact, however, Ender's deposition testimony indicated that other officers shared his view of the evaluation system. The City produced no controverting evidence. Because the City's summary-judgment evidence did not negate the good-faith element of Ender's claim, we overrule the City's cross-point of error.

 

CONCLUSION

Because we sustain Ender's point of error, we reverse the trial-court judgment and remand the cause for further proceedings.

 

_____________________________________________

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Reversed and Remanded

Filed: October 23, 1997

Do Not Publish

1. Although the Legislature amended the Act effective June 15, 1995, Section 11 of the amendatory act provides that discrimination occurring prior to that date will continue to be governed by the former law. Because the alleged discriminatory transfer occurred on May 21, 1995, the former law controls this cause of action.

2. See Act of June 16, 1991, 72d Leg., R.S., ch. 657, 1991 Tex. Gen. Laws 2406 (current version at Tex. Transp. Code Ann. 720.002 (West 1997)) (prohibiting establishment of a quota for tickets).

3. The four memos were dated as follows: July 1992, January 1994, March 1994, and December 1994.

ined the term "good faith" as used in the Act to mean 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." Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996). Ender presented summary-judgment evidence that he believed that the Department's evaluation system violated the law. This subjective belief satisfies the