CITY OF MCALLEN v. LUCAS TORRES--Appeal from 139th District Court of Hidalgo County

NUMBER 13-03-184-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

CITY OF McALLEN, Appellant,

v.

LUCAS TORRES, Appellee.

___________________________________________________________________

On appeal from the 139th District Court

of Hidalgo County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellee, Lucas Torres, sued appellant, the City of McAllen (the City), alleging a violation of the Texas Whistleblower Act. See Tex. Gov t Code Ann. 554.001 et seq. (Vernon 2004). After a jury trial, a verdict was returned in favor of appellee awarding $18,000 in economic damages and $335,000 in compensatory damages. The trial court entered judgment on the verdict but adjusted compensatory damages to $250,000, the maximum allowed by statute. See id. 554.003(4). Appellant appeals the trial court s judgment by thirteen issues. We affirm.

I. FACTS

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

Appellant s thirteen issues on appeal can be divided into two categories: (1) issues relating to the trial court s jurisdiction; and (2) evidentiary issues. We will first address the issues regarding jurisdiction.

A. JurisdictionBy issues one and two, appellant argues that the trial court lacked jurisdiction because appellee failed to comply with the statutory prerequisites to filing suit under the Whistleblower Act, and therefore, immunity has not been waived.

Subject matter jurisdiction is a question of law and cannot be waived. Tex. Ass n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); Harris County v. Lawson, 122 S.W.3d 276, 279 (Tex. App. Houston [1st Dist.] 2003, pet. denied). In the absence of a waiver of governmental immunity, a court has no jurisdiction to entertain a suit against a governmental unit. Lawson, 122 S.W.3d at 279. When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Id.

In this case the parties do not dispute that appellee timely initiated his grievance proceeding regarding his transfer from the canine unit to patrol, thus fulfilling the requirements of sections 554.006(a) and (b). Rather, by its first issue, appellant argues that appellee failed to comply with section 554.006(d), which requires an employee to either terminate or exhaust his grievance prior to filing suit. // Appellant contends that because appellee filed his lawsuit while his grievance was still pending, the trial court lacked jurisdiction over the case.

The Houston Court of Appeals in Harris County v. Lawson, 122 S.W.3d 276 (Tex. App. Houston [1st Dist.] 2003, pet. denied), recently addressed this same issue. In that case, Lawson, a county employee, was terminated due to alleged improper conduct. Id. at 278. Lawson timely appealed his termination to the Harris County Sheriff and subsequently, timely appealed his termination to the Civil Service Commission. Id. While that administrative proceeding was still pending, Lawson filed his Whistleblower lawsuit against Harris County. Id. at 279. Because Lawson did not wait until his grievance proceeding was concluded, or alternatively, did not formally abandon his grievance proceeding before filing suit, Harris County argued that the trial court lacked jurisdiction over the case. Id. at 281. The Houston court reasoned that although Lawson did not formally terminate his appeal to the Civil Service Commission, he gave the County, as he was required to by section 554.006(d), its opportunity to redress his grievance before he filed suit. Id. at 284. The court concluded that Lawson complied with both the letter and spirit of section 554.006, and that to hold otherwise would be inconsistent with the plain language of section 554.006, the remedial nature of the Whistleblower Act, and the intent of the Legislature. Id. at 284-85. The court additionally concluded that a public employee s continued participation in a governmental entity s grievance or appeal procedures, after the employee has timely initiated his grievance, waited sixty days for a final decision, and timely filed suit, does not deprive the trial court of subject-matter jurisdiction over the case. Id. at 285.

We agree with the reasoning of the Houston court. In this case, appellee timely filed his grievance, waited sixty days for a final decision, and timely filed suit. Appellee gave appellant an opportunity to redress appellee s grievance before he filed suit. Accordingly, appellee s failure to formally terminate or exhaust the grievance procedure before filing suit does not deprive the trial court of jurisdiction. Appellant s first issue is overruled.

Appellant argues by its second issue that appellee failed to comply with section 554.005 which requires a public employee to sue not later than ninety days after the date on which the alleged violation occurred. Tex. Gov t Code Ann. 554.005 (Vernon 2004). Appellee was notified of his transfer by letter on February 16, 1998 and filed his lawsuit on May 19, 1998, more than ninety days later. However, the ninety day limitations period imposed under section 554.005 is tolled during the time the employee is following the grievance procedure. Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 781 (Tex. App. Fort Worth 2001, pet. denied); see Tex. Gov t Code Ann. 554.005, 554.006 (Vernon 2004). Appellee initiated the grievance procedure on March 19, 1998 at which date the limitations period was tolled. Therefore, appellee timely filed his suit before the ninety day limitations period had expired. Appellant s second issue is overruled.

By its third issue, appellant seeks to make a distinction in the conduct complained of by appellee which was the basis for his Whistleblower claim. Based on the allegations made in appellee s second amended petition, appellant argues that appellee alleges two discrete violations of the Act: (1) pre-transfer retaliation conduct on the part of Sergeant Jose Longoria; and (2) adverse personnel action consisting of appellee s transfer from the canine unit to patrol in February 1998. Appellant contends that the pre-transfer retaliation conduct does not constitute adverse personnel action prohibited by section 554.002, // and therefore the trial court had no subject matter jurisdiction over any claim based on such conduct. We do not agree with appellant s contention.

After reviewing the record and the facts of the case, this Court is of the opinion that the pre-transfer retaliation conduct falls within the definition of adverse personnel action. See Tex. Gov t Code Ann. 554.001(3) (Vernon 2004). As discussed in issues ten and eleven below, the pre-transfer retaliation conduct and the transfer of appellee to patrol duty are significantly related such that they should be considered as part of an ongoing course of adverse personnel action. It was shown at trial that the verbal abuse, harassment, and hostile work environment to which appellee was subjected led to and resulted in his transfer. The pre-transfer conduct constitutes an action which affected a public employee s transfer, and therefore falls within the definition of personnel action. See id. Appellant s third issue is overruled. Additionally, because appellant s fourth and fifth issues are based on this Court finding the pre-transfer retaliation conduct to be a separate and independent basis for appellee s Whistleblower Act claim, we overrule appellant s fourth and fifth issues. // Appellant contends by its sixth issue that the trial court lacked jurisdiction to award compensatory damages in the amount of $250,000 because appellee neither pled nor proved that the City has more than 500 employees, a requirement under the section 554.003. See Tex. Gov t Code Ann. 554.003. Appellee requests that this Court take judicial notice of the number of persons employed by the City for the period in question.

A court of appeals has the power to take judicial notice for the first time on appeal. Office of Pub. Util. Counsel v. Pub. Util. Comm n, 878 S.W.2d 598, 600 (Tex. 1994); City of Dallas v. Moreau, 718 S.W.2d 776, 781 (Tex. App. Corpus Christi 1986, writ ref d n.r.e.). To be the proper subject of judicial notice, a fact must be capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Tex. R. Evid. 201(b)(2); Office of Pub. Util. Counsel, 878 S.W.2d at 600. Judicial notice is mandatory if requested by a party and [the court is] supplied with the necessary information. Tex. R. Evid. 201(d);Office of Pub. Util. Counsel, 878 S.W.2d at 600. Here, appellee has provided the Court with a certified copy of the Employee Count for the City of McAllen for the years 1998 through 2002. For each of those years the number of people employed by the City was in excess of 1,000. The number of employees of the City is a matter of public record, and as such, it is capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned. See Office of Pub. Util. Counsel, 878 S.W.2d at 600. We therefore take judicial notice that the number of persons employed by the City was in excess of 500. The trial court had jurisdiction to award damages in the amount of $250,000. Appellant s sixth issue is overruled.

B. Evidentiary Issues

1. Violation of Law

Appellant s seventh issue relates to the requirement under the Whistleblower Act that an employee report a violation of law by the employing governmental entity. // Appellant argues that because there was no evidence, the trial court erred in concluding that appellee s complaint regarding Sergeant Longoria s alleged violation of the City s internal bidding policies constituted a report of a violation of the law within the meaning of section 554.002(a). // Appellant contends that the City s Purchasing & Contracting Policies & Procedures Manual simply governs internal policies which are not laws.

The issue of whether appellee reported a violation of law is a question of law. Rogers v. City of Fort Worth, 89 S.W.3d 265, 274 (Tex. App. Fort Worth 2002, no pet.). Accordingly, we review the trial court s determination under a de novo standard of review. Id.

Appellant challenges the existence of any evidence demonstrating that the provisions of the manual fall within the statutory definition of a law. After reviewing the record, we find the only evidence relevant to establishing the manual as law is the testimony of William Duck. On direct examination Duck testified:

Q.So any purchase request or anything that s needed for the McAllen Police Department goes through you, sir?

A.That s correct.

Q.And you are governed by policies and procedures that are set forth by the City of McAllen?

A.That s correct.

Q.Is that correct? And I assume that you are - - that you are familiar with these policies and procedures?

A. Yes, sir.

Q.You re also governed by the City of McAllen s ordinances?

A.That s correct.

Q.Is that correct? Which these policies and procedures are a part of, are they not?

A.Yes.

Q.Okay. Would you consider an ordinance a law, sir?

A.Yes.

On cross-examination Duck gave conflicting testimony stating that he did not know whether or not the manual had the same effect as an ordinance or whether the manual was promulgated pursuant to an ordinance. As this is the only evidence found in the record, we cannot conclude that the policy and procedures manual falls within the statutory definition of a law. However, we cannot find that error, if any, caused the rendition of an improper judgment because we conclude below that the trial court correctly found a violation of law based on abuse of official capacity. See Tex. R. App. P. 44.1. Therefore, appellant s seventh issue is overruled.

2. Abuse of Official Capacity

In its eighth issue, appellant contends the trial court abused its discretion in admitting and considering evidence of abuse of official capacity // in determining whether appellee had reported a violation of law because appellee failed to allege in his petition that abuse of official capacity was the basis for appellee s report.

Absent special exceptions, we construe a petition liberally in favor of the pleader. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); Torch Operating Co. v. Bartell, 865 S.W.2d 552, 554 (Tex. App. Corpus Christi 1993, writ denied). We will look to the pleader s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Roark, 633 S.W.2d at 809. A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Id. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense. Id.

Appellee alleged in his petition that he reported improper and unlawful activity conducted by Sgt. Jose Longoria, chief of the K-9 division, in awarding a bid for construction of dog kennels to a family member. Thereafter, [he] was subjected to retaliation. The petition also stated in the section setting out the cause of action, [appellee] in good faith reported the improper and unlawful conduct of Sgt. Jose Longoria. Longoria and others retaliated against [appellee] in violation of the Whistle Blower Act. When given a liberal construction, we find the allegation of improper and unlawful activity in awarding a bid for construction is broad enough for the court to determine that abuse of official capacity, see Tex. Pen. Code Ann. 39.02(a) (Vernon 2003), was the basis for the report and thereby allow the introduction of such evidence. Additionally, we find the allegations sufficient to give appellant fair notice that it would have to defend against a claim originating from the alleged improper and unlawful actions of Sergeant Longoria. See Roark, 663 S.W.2d at 809. Therefore, the trial court did not err in admitting evidence regarding abuse of official capacity and in using this evidence to find there had been a violation of law. Appellant s eighth issue is overruled.

3. Good Faith

In its ninth issue, appellant argues that there was no evidence to support the jury s finding that the reported violation of law was made in good faith. //

The Texas Supreme Court has defined the term good faith in the context of the Whistleblower 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. Tex. Dep t of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002) (citing Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). The first prong is subjective and ensures that an employee seeking a remedy under the Whistleblower Act believed that he was reporting an actual violation of law. See id. The second prong of the definition is objective and ensures that, even if the reporting employee honestly believed that the reported act was a violation of law, the reporting employee only receives Whistleblower Act protection if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law. See id. Appellant concedes there is evidence to support the first element, but denies the existence of any evidence supporting the second. Therefore, we will only address the legal sufficiency as to the second element.

Legal sufficiency issues are called no evidence issues or matter of law issues, depending upon whether the complaining party had the burden of proof. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App. Amarillo 1988, writ denied). When, as in this case, the complaining party did not have the burden of proof at trial, it must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App. Fort Worth 1994, no writ). Under a legal sufficiency review, we must view the evidence in a light that tends to support the finding and disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). Anything more than a scintilla of evidence is legally sufficient to support the finding. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000).

To establish the objective prong of the good faith test, the appellee must establish that a reasonably prudent public employee in similar circumstances, with similar training and experience, would have believed that the facts as reported amounted to a violation of law. Hart, 917 S.W.2d at 784-85. A report of an alleged violation of law may be made in good faith even though incorrect, as long as a reasonable person with the employee s same level of training and experience would also have believed that a violation had occurred. Town of Flower Mound v. Teague, 111 S.W.3d 742, 753 (Tex. App. Fort Worth 2003, pet. denied). Because of his training and experience in assessing legal violations, the reasonableness of a peace officer s belief that a law has been violated will be examined more closely than will the belief of a person who is not in law enforcement. Id. (citing Harris County Pct. Four Constable Dep t v. Grabowski, 922 S.W.2d 954, 956 (Tex. 1996)).

Our review of the record focuses on portions of the deposition testimony of Officer Albert Garcia introduced at trial. Officer Garcia testified that he participated in the construction of a dog kennel at his home when he was a trainee in the canine unit. During the kennel construction, Sergeant Longoria supervised the pouring of the concrete while his son Joey did not participate. When asked if there was an appearance of a conflict of interest and impropriety in Joey being a subcontractor and Sergeant Longoria having a hand in selecting Joey as a subcontractor, Officer Garcia answered in the affirmative. Officer Garcia also testified that he believed appellee s complaint had merit and was correct.

Viewing this evidence in a light that tends to support the finding and disregarding all evidence and inferences to the contrary, see Lenz, 79 S.W.3d at 19, we find the evidence legally sufficient to establish that a reasonably prudent public employee in similar circumstances, with similar training and experience, would have believed that the facts as reported amounted to a violation of law. See Hart, 917 S.W.2d at 784-85. Therefore, the evidence is legally sufficient to support the jury s finding that the reported violation of law was made in good faith. Appellant s ninth issue is overruled.

4. Causation

By its tenth and eleventh issues, appellant argues that the evidence is legally insufficient to support the jury s finding (1) that appellee s report against Sergeant Longoria of unlawful conduct was a cause of the City transferring appellee to patrol when it did and (2) that the City would not have transferred appellee if he had not filed a report. Appellant s evidentiary sufficiency argument in these two issues focuses on the causal connection between appellee s report of unlawful activity and the City transferring him to patrol.

To show causation, a public employee must demonstrate that after he or she reported a violation of the law in good faith to an appropriate law enforcement authority, the employee suffered discriminatory conduct by his or her employer that would not have occurred when it did if the employee had not reported the illegal conduct. Zimlich, 29 S.W.3d at 67; Tex. Dep t of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). The employee must establish a but for causal connection between the reported violation of law and the employer s actions. City of Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex. App. Waco 2003, no pet.). However, the employee need not establish that the reported violation of law was the sole cause of the employer s action. Id. In this case, appellee was required to establish that his transfer to patrol would not have occurred when it did but for his report of illegal conduct.

In this case, we must examine the evidence regarding the City s decision to transfer appellee to patrol duty. Appellee testified at trial that after making the report of Sergeant Longoria s illegal activities, he was singled out by Sergeant Longoria and treated differently than the other trainees. Appellee was required to train with his dog on his own and away from the group. He was subjected to harassment from Sergeant Longoria and forced to proceed with his canine training in a hostile work environment. Appellee testified that working in such an environment began affecting his performance at work, he could not concentrate and he could no longer do his job. As a result, appellee sought the help of a psychiatrist. Appellee testified that his inability to concentrate and to study ultimately resulted in his failing the final exam.

The foregoing actions by Sergeant Longoria prompted appellee s January 19, 1998 letter to Chief Longoria seeking a different trainer and refusing to return to the existing work environment. According to the March 23, 1998 letter by Chief Longoria, it was appellee s disruptive and counterproductive presence in the unit which was the basis for the Chief s decision to transfer appellee. From our review of the record we conclude that appellee s disruptive and counterproductive presence was a result of the hostile training environment created by Sergeant Longoria in retaliation for appellee filing a report against him. We therefore find this to be at least some evidence, more than a scintilla, of a causal connection between appellee s transfer and his reporting of a violation of law. See Zimlich, 29 S.W.3d at 69. Appellee provided sufficient evidence that his transfer to patrol would not have occurred when it did but for his report of illegal conduct. See Johnson, 105 S.W.3d at 163. Therefore, there is legally sufficient evidence to support the jury s finding. Appellant s issues ten and eleven are overruled.

5. Damages

By its twelfth issue, appellant argues that the evidence is legally insufficient to support the jury s finding that appellee suffered $350,000 in compensatory damages // as a result of his transfer to patrol. Specifically, appellant argues there is no evidence regarding non-pecuniary losses resulting from appellee s transfer to patrol, and that the evidence regarding non-pecuniary losses allegedly suffered by appellee relates only to the pre-transfer hostile work environment. However, as we concluded above, the pre-transfer work environment is directly related to the transfer. Therefore, in our review we will consider evidence of non-pecuniary losses allegedly suffered as a result of the hostile work environment and as a result of the transfer.

Our review of the record reveals evidence that appellee sought treatment from a psychiatrist, Cesar Matos, M.D., as a result of the harassment from Sergeant Longoria. Medical records and reports of Dr. Matos show that appellee was suffering from symptoms of anxiety, severe depression and insomnia. Appellee was prescribed prozac and other drugs to treat these symptoms. Appellee received treatment from Dr. Matos from January 5, 1998 until September 1, 1998. Additional medical records were introduced illustrating continuing treatment and psychotherapy sessions to treat appellee s depression. This treatment began on June 11, 1999 and continued until June 12, 2000. Appellee also testified as to the depression he suffered, his lack of concentration, and his inability to work as a result of the harassment and hostile work environment.

Viewing this evidence in a light that tends to support the finding and disregarding all evidence and inferences to the contrary, see Lenz, 79 S.W.3d at 19, we find the evidence to be legally sufficient to support the jury s award of compensatory damages. Appellant s twelfth issue is overruled.

In its thirteenth issue, appellant contends that the evidence is legally insufficient to support the jury s finding that appellee suffered $18,000 in past lost wages.

The evidence consists of appellee testifying that he would have made approximately $4,500 more per year as a canine officer than as a patrolman. Appellee calculated total lost wages at $17,951.96 when adding in the overtime and assignment pay to which he was entitled. This evidence constitutes more than a scintilla of evidence and therefore is legally sufficient. Appellant s thirteenth issue is overruled.

III. CONCLUSION

Having overruled appellant s thirteen issues, we accordingly affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 19th day of May, 2005.