DARRELL R. SCOTT v. CITY OF HOUSTON--Appeal from 133rd District Court of Harris County

   NUMBER 13-05-461-CV

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI - EDINBURG

DARRELL R. SCOTT, Appellant,

v.

CITY OF HOUSTON, Appellee.

On appeal from the 133rd District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez

Appellant, Darrell R. Scott, sued the city of Houston under the Texas Whistleblower Act. See Tex. Gov=t Code Ann. _ 554.002 (Vernon 2005). The trial court granted a traditional motion for summary judgment in favor of the City. See Tex. R. Civ. P 166a. This appeal ensued. By five points of error, appellant contends that the trial court erred in granting summary judgment. For the reasons that follow, we affirm.

I. BACKGROUND

The City hired appellant in 1990 in the Department of Public Works and Engineering as a Plant Operator Trainee. Appellant eventually advanced to Maintenance Mechanic III. During his employment with the City, appellant was counseled on January 10, 1992 for failure to follow instructions; disciplined in writing on June 11, 1998 for dereliction of duties; suspended without pay on August 20, 1999 for failing to follow directives and misuse of City property; suspended without pay on October 8, 2001 for failure to follow the City=s workability guidelines for injured employees; and again suspended without pay on April 10, 2002 for dereliction of duties, failure to follow directives, and insubordination.

On December 29, 2003, appellant requested an investigation into the City=s hiring practices, alleging what he claimed to be unlawful hiring practices. The record does not show what actions the City took pursuant to the claim. On January 6, 2004, appellant requested the Office of Inspector General (AOIG@) to investigate this matter. The OIG investigated and then closed the inquiry report, finding no evidence of illegal or unauthorized activity. On March 4, 2004, appellant filed a Concern with the City regarding the matter. The City closed the Concern when they determined that appellant had not applied for the position that was the subject of the Concern.

In July 2003, the City modified its disciplinary policy and adopted the Superior Performance Program, a policy of Apositive corrective action@ that consisted of a series of progressive disciplinary measures. Appellant received notice of the new disciplinary policy on March 5, 2004, and was told that under the new plan, his April 10, 2002 suspension would be reclassified to a Reminder II- two steps below indefinite suspension. Appellant did not file a grievance about this decision.

On March 19, 2004, appellant was given a Decision Making Leave (ADML@) for making inappropriate gestures toward a co-worker. The DML was supported by an OIG investigation of the incident that sustained the allegation that appellant made an obscene gesture to another co-worker. The DML is a one-day leave, with pay, so the employee can make a decision whether to correct the problem behavior and make a commitment toward acceptable performance, or immediately resign from the City. As part of the DML, employees are required, upon returning to work, to either sign a commitment form or resign. When appellant returned from the DML, he refused to do either. Appellant did not request an administrative review of the DML.

In accordance with the disciplinary policy, the City relieved appellant of duty with pay on March 23, 2004 for refusing to commit to acceptable performance and then indefinitely suspended appellant on May 5, 2004 after a hearing held on April 9, 2004. Appellant appealed his indefinite suspension to the City of Houston Civil Service Commission, and on May 25, 2004, the Commission sustained the suspension.

II. STANDARD OF REVIEW

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the non-movant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548 49.

The scope of review on appeal from summary judgment is limited. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P 166a; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In the present case, the City moved for summary judgment on an affirmative defense. See Tex. Gov=t Code Ann. _ 554.004(b) (Vernon 2005).

A defendant must establish each element of an affirmative defense when it moves for summary judgment based on that affirmative defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). Summary judgment will be affirmed only if the record establishes that the movant conclusively proved all elements of its affirmative defense as a matter of law. Clear Creek, 589 S.W.2d at 678.

The motion for summary judgment shall state specific grounds on which judgment is sought, and a summary judgment may not be granted on grounds which are not raised by the movant in his motion. Tex. R. Civ. P. 166a; McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993). A motion for summary judgment must stand or fall on the grounds expressed therein; reliance may not be placed on briefs or summary judgment evidence. McConnell, 858 S.W.2d at 341. When a trial court=s order granting summary judgment does not specify the grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. V. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

III. ANALYSIS

The City of Houston moved for summary judgment on several grounds, one of which is the affirmative defense provided by the Texas Whistleblower Act:

It is an affirmative defense to a suit under this chapter that the employing state or local government entity would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law.

Tex. Gov=t Code Ann. _ 554.004(b).

The City=s motion for summary judgment was supported with evidence of appellant=s disciplinary history. The summary judgment evidence shows that appellant was disciplined a total of six times during his employment with the City. The summary judgment evidence also shows that after appellant returned from the DML, he refused to sign a form committing to acceptable performance. The Superior Performance Program gave employees two choices: either sign the commitment or resign immediately. Appellant did neither. Instead, appellant presented a position statement insisting that he had been totally committed to acceptable performance, and characterizing the basis for the DML as Afalse maligning and slanderous statements which defamed my character.@ Appellant further contended the DML was retaliation for his investigation requests.

Appellant was given a Loudermill hearing before indefinite suspension was imposed. The record of the hearing, held on April 9, 2004, indicates that appellant knew the consequences of not signing the commitment form, yet refused to sign it. Appellant alleged the commitment form was false, but presented no evidence as to why it was false; instead he merely referenced his prior position statement. The position statement, however, provides only unsubstantiated assertions that the DML was false. It provides no evidence to contradict the OIG determination that appellant made an obscene gesture to a co-worker. It also provides no evidence of retaliation by the City.

The summary judgment record contains ample evidence of a legitimate, non-discriminatory reason for appellant=s indefinite suspension. After considering all of the evidence in the light most favorable to appellant, we conclude that the City established its affirmative defense as a matter of law. The City would have indefinitely suspended appellant based on information, observation, or evidence not related to appellant=s claim. See Tex. Gov=t Code Ann. _ 554.004(b). Accordingly, we conclude summary judgment was appropriate under this ground. Given our disposition, we need not address appellant=s remaining issues. See State Farm, 858 S.W.2d at 380.

The trial court=s judgment is affirmed.

______________________

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion delivered and

filed this the 29th day of June, 2006.