UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-20151
JEFFREY MOORE,
Plaintiff-Appellee,
VERSUS
THE CITY OF HOUSTON, ET AL
Defendants,
THE CITY OF HOUSTON
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-773)
July 2, 2001
Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.
PER CURIAM:*
The City of Houston (“the City”) lodged this appeal following
the entry of judgment against it after a jury rendered a verdict in
favor of Jeffrey Moore. Moore filed this suit following his
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5th Cir. R. 47.5.4.
indefinite suspension from the Houston Fire Department. He sought
relief on a number of grounds, but the only ground on which he
recovered was under the Texas Whistleblower Act (“the Act”). The
jury rendered a verdict in favor of Moore on his claim of
retaliatory discharge as a result of whistleblowing activity and
awarded damages in the amount of $104,446. After fixing the amount
of attorney’s fees and costs at $124,850, the district court
entered judgment on the verdict as supplemented by the award for
attorney’s fees.
On appeal, the City raises the following issues: 1) whether
Moore satisfied the Act’s requirement of initiating an
administrative grievance or appeal before filing suit; 2) whether
Moore was a “reporter” under the Act; 3) whether Moore needed to
demonstrate that he reported an actual violation of law; 4) whether
Moore produced sufficient evidence to establish a causal
relationship between whistleblowing activity and his termination;
5) the propriety of a jury instruction relating to whether the
activity on which Moore reported was a violation of law; and 6)
whether the district court awarded an excessive amount of
attorney’s fees.
1)
The City argues first that Moore failed to satisfy the Act’s
jurisdictional requirement of asserting an administrative claim.1
1
Interestingly, the City did not present this argument to the
district court.
2
The only administrative claim requirement is set forth under Texas
Gov’t Code Ann. § 554.006(a) (Vernon Supp. 2000), which provides
that: “[a] public employee must initiate action under the
grievance or appeal procedures of the employing state or local
governmental entity relating to suspension or termination of
employment or adverse personnel action before suing under this
chapter.”
After Moore received notice that he had been indefinitely
suspended, he timely filed a notice of appeal with the Civil
Service Commission. In the proceeding before the Civil Service
Commission, Moore testified that he had been retaliated against for
blowing the whistle on the fire department. Thus, Moore initiated
action under the City’s appeal procedures, and thereby satisfied
the administrative claim requirements of the statute.
2)
The City next argues that Moore did not establish that he was
a “reporter” of wrongdoing and that at most he established that he
was a witness. The record does not support the City’s argument.
Moore testified that he reported the deletion of service requests
on equipment to: Sergeant Fletcher with the Houston Police
Department; Tommy Shelton, a master mechanic with the fire
department; and Frank Gore, a shop foreman also with the fire
department. Moreover, Sergeant Fletcher’s testimony confirmed
Moore’s report to him.
3)
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The City argues next that Moore only reported violations of
internal fire department policy, not violations of law. As a
whistleblower, however, Moore only needed to have a good faith
belief that the deletion of work orders constituted a violation of
law, not that his belief was correct. Texas Dep’t of Crim. Justice
v. Terrell, 925 S.W.2d 44, 60 (Tex.App.–Tyler 1995, no writ). The
jury was entitled to find that Moore reasonably believed that the
deletion of work orders, which could result in damaging public
property and imperiling lives, was a violation of law.
4)
The City argues next that Moore failed to establish a causal
connection between his whistleblowing activity and his indefinite
suspension. The City points to its evidence that it fired Moore
because he made false statements in his employment application. It
is uncontested that Moore falsely represented in his employment
application that he held a MBA degree from the University of
Houston.
At the time of his indefinite suspension, Moore had been
employed by the Houston Fire Department over two years. Moore
argued that after he reported the deletion of requests to repair
fire department equipment, his immediate supervisor, Steve Dornak,
looked through his personnel file searching for a reason to suspend
him. This search revealed that Moore’s original application
indicated that he held a MBA degree, but a later application for
promotion did not represent that he held such a degree. Dornak
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testified that it was “by sheer chance” that he reviewed Moore’s
original application and discovered this discrepancy. He sent
these conflicting applications on to human resources, which
indefinitely suspended Moore for making a false statement in his
employment application.
The jury was entitled to conclude that Dornak searched Moore’s
personnel file because of Moore’s whistleblowing activity, that
this search led to the discovery of the false statement, which in
turn led to Moore’s indefinite suspension. The Texas Supreme Court
has established a generous standard for establishing causation in
whistleblower cases. In Texas Dep’t of Human Servs. v. Hinds, 904
S.W.2d 629 (Tex. 1995), the court stated that: “[t]he standard of
causation in whistleblower and similar cases should be that the
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.
Thus, the jury was entitled to conclude that, but for the
whistleblowing activity, the false statement in the application
would not have been discovered in 1997 and Moore would not have
been indefinitely suspended at that early date. We are satisfied,
therefore, that the jury was entitled to find that, but for Moore’s
whistleblowing activity, the City would not have indefinitely
suspended Moore when it did.
5)
The City argues finally that the court erred in instructing
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the jury that “the Houston Fire Department’s failure to follow its
own internal policies regarding equipment service requests
constitution [sic] a violation of law under the Whistleblower Act.”
The City, however, did not object to this instruction and we
therefore only review for plain error. Given the nature of the
misconduct Moore reported, namely, the intentional deletion of
requests to service vital fire department equipment, we are
satisfied that the court’s instruction that this conduct amounted
to a violation of law is not plain error.
6)
Finally, the City challenges the amount of the district
court’s award of attorney’s fees. Our review of the record reveals
no abuse of discretion in the amount the court awarded.
Conclusion
For the reasons stated above, we AFFIRM the judgment of the
district court.
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