Nina Lopez v. Tarrant County, Texas

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00194-CV

NINA LOPEZ APPELLANT AND APPELLEE

V.

TARRANT COUNTY, TEXAS APPELLEE AND APPELLANT

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-256361-11

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MEMORANDUM OPINION1

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I. INTRODUCTION

Nina Lopez appeals the trial court’s final judgment granting the motion for

summary judgment of Tarrant County, Texas. In three issues, Lopez argues that

the trial judge should have been recused in this case; that the trial court erred by

granting summary judgment in favor of Tarrant County; and that this court should

1
See Tex. R. App. P. 47.4.
reverse the trial court’s judgment and transfer this case “back to Dallas County.”

Tarrant County conditionally appeals the trial court’s judgment regarding its plea

to the jurisdiction. Because we overrule all three of Lopez’s issues on appeal, we

do not address Tarrant County’s conditional issue, and we will affirm.

II. BACKGROUND

Lopez began her employment with Tarrant County as a Receptionist for

Tarrant County Administrator G.K. Maenius in 2005. In 2010, Maenius promoted

Lopez to be his Executive Secretary. Lopez alleges that on Friday, April 23,

2010, Judi Scott, Agenda Coordinator for the Tarrant County Commissioners

Court, assaulted her. Robin Worthy, Assistant Director of Tarrant County Human

Resources Department, said that she first learned of the alleged assault when

Lopez reported it to her on April 23, 2010. Worthy said that she encouraged

Lopez to report her allegation to Maenius. Worthy notified Human Resources

Director Tina Glenn of Lopez’s allegation that same day.

Glenn emailed Lopez and also encouraged her to report the assault

allegation to Maenius. Lopez, however, did not notify Maenius on April 23.

Instead, on the next day, Saturday, April 24, 2010, Lopez reported her allegation

to the Fort Worth Police Department. Later that day, Lopez called Maenius and

reported her allegation. By Maenius’s account, Lopez expressed reluctance at

moving forward with her allegation. Maenius told Lopez that there was no option

but to investigate the alleged assault. As Maenius had directed, Lopez submitted

her written report to him on Monday, April 26, 2010.

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 After Maenius reviewed her report, he met with Lopez. Maenius then met

with Worthy and gave her a copy of Lopez’s report. On Tuesday, April 27, 2010,

Maenius met with Glenn and Worthy and directed them to immediately

investigate Lopez’s allegation. According to Glenn, Maenius was adamant that

an investigation be started immediately “to get to the bottom of what had

happened.”

Two investigations, one by the Tarrant County Sheriff’s Office and the

other by Glenn and Worthy, concluded that there was insufficient evidence to

support Lopez’s allegation that she had been assaulted. Maenius was not

actively involved in these investigations.

On the morning of Wednesday, June 30, 2010, according to multiple

witnesses, Lopez confronted Maenius, accusing him of providing her personal

telephone number to reporters from the press and arranging for those reporters

to call her the night before. Lopez further accused Maenius of coming to her

home uninvited. Lopez claimed that she felt compelled to, and did, send an

email to Tarrant County Sheriff Dee Anderson stating that she did not want

Maenius coming to her home. In short order, Maenius requested that Assistant

County Administrator Mark Mendez and Worthy come to his office. There,

Mendez and Worthy witnessed Lopez’s conduct.

Through affidavit, Worthy testified that Lopez was “yelling” and that she

repeatedly had to tell her to lower her voice. She described Lopez’s body

language as “agitated” and “animated.” Worthy said that Lopez’s conduct was

3
not appropriate for the workplace. Worthy also confirmed that Lopez had

accused Maenius of having reporters call her house the night before. During the

meeting, Worthy asked Lopez about these alleged calls. By Worthy’s account,

Lopez was unable to provide specifics about the alleged calls. Worthy testified

that she also heard Lopez tell Maenius it was “[y]our word against mine.”

According to Mendez’s affidavit, Lopez was “antagonistic” toward Maenius

during the meeting. Mendez stated that Lopez “kept interrupting [Maenius] and

would not let him finish his sentences.” Like Worthy, Mendez contended that

Lopez accused Maenius of arranging for a reporter from the Fort Worth Star-

Telegram to call her the night before. Mendez stated that Lopez kept “raising her

voice” and that she “appeared out of control.” Mendez averred that, “In my 26

years of work as a consultant and for Tarrant County, I had never seen an

employee confront an employer the way [] Lopez confronted [] Maenius. . . It was

my impression that [] Lopez’s behavior went far beyond what would be

appropriate and acceptable in the workplace.”

According to Maenius’s affidavit, Lopez came into his office that morning,

and she was “clearly agitated.” Maenius stated that after she ignored his

greeting, Lopez began to shout that she was “not going to stand for this anymore

and I want you to stop it.” Maenius said he did not know what she was talking

about. Maenius averred that, in a “confrontational tone,” Lopez said she had

received two phone calls the night before from a Fort Worth Star-Telegram

reporter, who allegedly asked her if she was Lopez and whether she worked for

4
Maenius. Maenius said that Lopez claimed to have talked to the reporter for a

“short while and then hung up” and that Lopez further claimed that the reported

called her back and asked the same questions and that after another short

conversation, she hung up on him a second time.

Maenius averred that Lopez accused him of giving the reporter her phone

number and told him to tell the reporter not to call her anymore. By Maenius’s

account, she then insisted that she did not want to discuss the issue anymore

and started to leave his office. Maenius contended that the entire confrontation

took him by surprise but that he stopped Lopez from leaving and asked her if she

was accusing him of having a reporter call her house. She said “yes.” He said

that she then stated that she did not want him coming to her home anymore and

that she had sent an email to “County Judge Glen Whitley, with a copy to Sheriff

Dee Anderson.” Lopez claimed that the email asked Judge Whitley and Sheriff

Anderson to instruct Maenius to not come to her home. Maenius said that he

replied that not only had he never been to her home, he did not even know where

she lived. When he asked Lopez why she was making these accusations, she

did not respond. Maenius said that at that point, he asked Worthy and Mendez

to come to his office.

Maenius stated that once Worthy and Mendez were in his office, he

attempted to relay to them what had just happened but that Lopez repeatedly

interrupted him. In their presence, Lopez again repeated that Maenius had

caused a reporter to call her, but when Worthy inquired whether her caller I.D.

5
would corroborate her story, Lopez said that she did not know whether the

person who had called her was in fact a reporter. Maenius said that Lopez also

confirmed to Worthy that Maenius had never been to her home. Maenius

described Lopez’s overall behavior in the meeting as “confrontational,

disrespectful and insubordinate.” He also averred that Lopez had made

“baseless and unfounded allegations which [she] later admitted were untrue.”

Maenius further stated that shortly after the meeting, Lopez sent him an email

apologizing for her behavior. In the email, Maenius said that Lopez described

her own behavior as “inexcusable.” Maenius said that Lopez copied this email to

Glenn, Worthy, Mendez, and Assistant County Administrator Jay Singleton.

Maenius averred that after “considering [] Lopez’s behavior and the

baseless accusations she had made on June 30, 2010, [he] made the decision to

terminate” her employment a couple of weeks later on July 14, 2010. Maenius

also cited Lopez’s “confrontational, disrespectful and insubordinate conduct”

during the meeting as grounds for termination. He stated that his decision to

terminate her employment was also “based on the high level of trust that must

exist in the working relationship between the County Administrator and the

Executive Secretary and the fact that this trust was irreparably damaged by []

Lopez’s behavior on June 30, 2010.” Maenius went on to state that after the

June 30, 2010 meeting, he “no longer had the trust in [] Lopez that is critical to”

her position.

6
 Singleton was in the office adjacent to Maenius’s office on the morning of

June 30, 2010. Singleton averred that he heard Lopez shouting from Maenius’s

office. He also said that the “shouting” by Lopez “went on for several minutes.”

According to Singleton, the shouting was so loud he could hear it “through

[Maenius’s] door into the common area and hallway.”

As part of its summary-judgment evidence, Tarrant County introduced an

email sent by Lopez shortly after the June 30, 2010 meeting. The email read

Ms. Robin,

Sheriff Anderson, inform me he did not have a copy of the email I
sent him, I did not ask Judge Whitley.

Nina Lopez
Executive Secretary
to G.K. Maenius
County Administrator

Tarrant County also introduced an email sent from Lopez to Maenius,

Singleton, Mendez, Glenn, and Worthy shortly after the June 30, 2010 meeting.

This email read:

Mr. Maenius,

I apologize. there’s no excuse, I’m tired, I haven’t eaten, I’m 2½
sizes down on my weight, stress, I haven’t slept, and I probably over
reacted. I have been afraid of being hit again.

I stand by my truth I was assaulted on April 23, 2010 in this office.

Nina Lopez
Executive Secretary
to G.K. Maenius
County Administrator

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 According to Glenn’s deposition testimony, she met with Lopez on July 1,

2010, to discuss what had transpired in the June 30, 2010 meeting. Glenn said

that Lopez asked if she would be written up for her conduct. Glenn told Lopez

that “any personnel action [regarding Lopez] would be decided by [] Maenius.” In

this meeting, Glenn asked Lopez about the phone calls Lopez claimed to have

received during the night of June 29, 2010. Glenn said that Lopez said that after

she “thought about it,” the calls may have been from a charity, and Lopez

claimed that she did not answer the second call.

Lopez told Glenn that on June 30, 2010, she told Maenius that she had

sent an email to Sheriff Anderson, asking him “to keep [Maenius] away from her

home.” Lopez explained that she had previously extended an invitation to

Maenius to come to her home to look for documents, but that she had changed

her mind. As Worthy had done, Glenn also asked Lopez for a copy of the email

Lopez claimed to have sent to Sheriff Anderson. Lopez could not produce the

email.

Through deposition, Lopez testified that while in Maenius’s office on the

morning of June 30, 2010, Maenius, Worthy, and Mendez consistently told her

that she was yelling and out of control. Lopez further testified that during the

meeting the others “convinced [her]” that she “was behaving badly.” Lopez,

however, stated that she believed she was not yelling and that Maenius’s tone

toward her caused her to cry. Lopez also admitted that she never sent an email

8
to Sheriff Anderson asking him to instruct Maenius not to come to her house.

She averred that she did not send the email out of respect for Maenius.

Lopez filed this suit against Tarrant County in Dallas, claiming that she had

been wrongfully terminated due to her allegation that Scott had assaulted her.

Tarrant County sought to transfer venue to Tarrant County. The Dallas County

trial court denied Tarrant County’s motion and Tarrant County appealed. In re

Tarrant Cnty., 345 S.W.3d 784, 786 (Tex. App.—Dallas 2011, original

proceeding, mand. granted). The Dallas Court of Appeals held that mandatory

venue for this cause of action was Tarrant County. Id. Tarrant County then filed

a combined plea to the jurisdiction and motion for summary judgment. Tarrant

County’s motion for summary judgment asserted the affirmative defense that

Lopez’s employment had been terminated independent of her assault allegation.

Prior to filing her response to Tarrant County’s combined motion, Lopez filed a

motion to recuse the assigned Tarrant County trial judge. Presiding Judge Jeff

Walker of the Eight Administrative Judicial Region of Texas denied Lopez’s

motion.

After considering Tarrant County’s combined motion, Lopez’s response,

and the summary-judgment evidence presented by the parties, the trial court

denied Tarrant County’s plea to the jurisdiction but granted summary judgment in

its favor. This appeal followed.

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 III. DISCUSSION

A. Lopez’s Recusal Motion

In her first issue, Lopez argues that Presiding Judge Walker erroneously

denied her motion to recuse the trial court judge of the 236th District Court of

Tarrant County. Lopez argues that because the trial judge’s salary is subsidized

by Tarrant County; because Tarrant County contributes to the trial judge’s

benefits—including healthcare and retirement contributions; and because

Maenius has “relationships with the State District Judges in Tarrant County from

projects such as the design and construction of . . . courthouse[s],” a “reasonable

person” would conclude that there is an “appearance of impropriety” for such a

judge to preside over a case involving Tarrant County.

We review the denial of a motion to recuse under an abuse of discretion

standard. See Tex. R. Civ. P. 18a(j)(1)(A). Judges are obligated to decide

matters presented to them and must not be recused unnecessarily. See Rogers

v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring); see also

In re K.E.M., 89 S.W.3d 814, 819 (Tex. App.—Corpus Christi 2002, no pet.).

A party seeking recusal must satisfy a “high threshold” before a judge must

be recused. Liteky v. United States, 510 U.S. 540, 558, 114 S. Ct. 1147, 1158

(1994) (Kennedy, J., concurring). In determining whether recusal is proper, “the

[] inquiry is whether a reasonable member of the public at large, knowing all the

facts in the public domain concerning the judge and the case, would have a

reasonable doubt that the judge is actually impartial.” Kniatt v. State, 239 S.W.3d

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910, 915 (Tex. App.—Waco 2007, order on reh’g) (citing Burkett v. State, 196

S.W.3d 892, 896 (Tex. App.—Texarkana 2006, no pet.)); see Rogers, 909

S.W.2d at 880 (Enoch, J., concurring). Accordingly, the determination of recusal

should be made based on a studied analysis of all of the circumstances involved

rather than a knee-jerk reaction to one fact in isolation. Kniatt, 239 S.W.3d at

915. This determination employs a “reasonable-person test,” and courts

evaluate the merits of a motion from “a disinterested observer’s point of view.”

Id.; Rogers, 909 S.W.2d at 882 (Enoch, J., concurring); see United States v.

Jordan, 49 F.3d 152, 156 (5th Cir. 1995) (explaining that courts must analyze

how facts would appear to “the well-informed, thoughtful and objective observer,

rather than the hypersensitive, cynical, and suspicious person.”).

Partiality, bias, and prejudice, in the context of recusal, do “not refer to all

favoritism, but only to such as is, for some reason, wrongful or inappropriate.”

Liteky, 510 U.S. at 552, 114 S. Ct. at 1156. Stated differently, the terms refer to

“predispositions that go beyond what is normal and acceptable” or to “favorable

or unfavorable” dispositions that are “excessive in degree.” Id. at 552, 114 S. Ct.

at 1155. Accordingly, the need for recusal is triggered only when a judge

displays an “attitude or state of mind so resistant to fair and dispassionate

inquiry” as to cause a reasonable member of the public to question the objective

nature of the judge's rulings. Id. at 557–58, 114 S. Ct. at 1158 (Kennedy, J.,

concurring).

11
 Courts enjoy a “presumption of judicial impartiality.” Abdygapparova v.

State, 243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The

presumption no doubt results from the well-accepted notions that conscientious

judges will nullify the effect of any potential bias by making themselves aware of

those possible biases and that they understand “their duty to render decisions

upon a proper record and to disregard” extraneous matters. Liteky, 510 U.S. at

562, 114 S. Ct. at 1160 (Kennedy, J., concurring).

For all of these reasons, the movant bears the burden of proving that

recusal is warranted. Abdygapparova, 243 S.W.3d at 198. That burden is only

satisfied when the movant provides facts demonstrating the presence of bias or

partiality “of such a nature and extent as to deny the movant due process of law.”

Office of Pub. Util. Counsel v. Public Util. Comm’n, 185 S.W.3d 555, 574 (Tex.

App.—Austin 2006, pet. denied); Roman v. State, 145 S.W.3d 316, 321 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d); see Abdygapparova, 243 S.W.3d at

198 (explaining that movant must show high level of antagonism that is so deep-

seated that it would be impossible for judge to render fair judgment). Conclusory

statements, conjecture, or mere assertions of bias will not satisfy the movant’s

burden or overcome the presumption of impartiality. Rogers, 909 S.W.2d at 881,

884 (Enoch, J., concurring); Abdygapparova, 243 S.W.3d at 198.

Here, we find nothing in Lopez’s argument that goes beyond conclusory

statements, conjecture, or mere assertions of bias or the appearance of

impropriety. Indeed, both in her motions to recuse filed in the trial court and filed

12
in this court, Lopez argued not only that the sitting trial judge that heard this case

should have been recused, but any judge who was paid a salary in part by

Tarrant County should have been recused. Furthermore, in her recusal motion,

Lopez specifically stated that she had no knowledge “that the judge in the 236th

District Court or any other sitting State District Judge has any actual bias

regarding the facts” of her case. Thus, admittedly, Lopez is relying on conjecture

and mere assertion. See Abdygapparova, 243 S.W.3d at 198 (“The court enjoys

a presumption of judicial impartiality which is not defeated by the mere assertion

of bias based on a trial judge’s previous judicial relationship with a defendant.”).

To be sure, Lopez did not present at the trial level, nor on appeal now, any

evidence that the sitting judge in the 236th District Court displayed a

predisposition that goes beyond what is normal and acceptable to any excessive

degree regarding her case. Liteky, 510 U.S. at 550, 552, 114 S. Ct. 1155. We

hold that Presiding Judge Walker did not abuse his discretion by overruling

Lopez’s motion to recuse the trial judge. See Tex. R. Civ. P. 18a(j)(1)(A). We

overrule Lopez’s first issue.

B. Lopez’s Whistleblower Act Claim

In her second issue, Lopez argues that Tarrant County did not conclusively

establish its affirmative defense and that the trial court therefore erred by

granting its motion for summary judgment. We disagree.

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

13
light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

establishes all the elements of the affirmative defense. Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); Chau v. Riddle, 254 S.W.3d

453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c).

Once the defendant produces sufficient evidence to establish the right to

summary judgment, the burden shifts to the plaintiff to come forward with

competent, controverting evidence that raises a fact issue. Van v. Pena, 990

S.W.2d 751, 753 (Tex. 1999); Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 665

(Tex. App.—Fort Worth 2010, no pet.). When a trial court does not specify the

ground relied on for granting summary judgment, the summary judgment will be

affirmed on appeal if any of the theories presented to the trial court and

preserved for appellate review are meritorious. Hanson v. Greystar Dev. &

Constr., LP, 317 S.W.3d 850, 852 (Tex. App.—Fort Worth 2010, pet. denied).

“A state or local governmental entity may not suspend or terminate the

employment of, or take other adverse personnel action against, a public

employee who in good faith reports a violation of law by the employing

14
governmental entity or another public employee to an appropriate law

enforcement authority.” Tex. Gov’t Code Ann. § 554.002(a) (West 2012); see

Steele v. City of Southlake, 370 S.W.3d 105, 116 (Tex. App.—Fort Worth 2012,

no pet.). A violation of section 554.002 waives governmental immunity. State v.

Lueck, 290 S.W.3d 876, 878 (Tex. 2009); see Tex. Gov’t Code Ann. § 554.0035

(West 2012). A person whose employment is terminated in violation of section

554.002 may sue for injunctive relief, reinstatement, damages, and reasonable

attorney’s fees. Tex. Gov’t Code Ann. § 554.003. The person must generally

sue within ninety days of the improper employment action. Id. § 554.005 (West

2012).

In this case, Tarrant County sought summary judgment on the affirmative

defense described by section 554.004(b) of the government code, which states:

It is an affirmative defense to a suit under this chapter that the
employing state or local governmental 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.

Id. § 554.004(b) (West 2012). Tarrant County argued in its motion that Maenius,

who had the sole authority to fire Lopez, terminated her employment for “conduct

unbecoming” of her position as Maenius’s Executive Secretary. Specifically,

Tarrant County argued, and offered competent summary-judgment evidence, that

Lopez’s conduct on June 30, 2010, included “shouting, being insubordinate,

disrespectful, confrontational and making accusations which Lopez later admitted

15
were untrue.” Tarrant County provided testimony from Maenius that Lopez was

terminated for the reasons set forth in the “Notice of Intent to Terminate.” The

termination notice cited that “[Lopez’s] demeanor and conduct” had “completely

undermined the trust and confidence required for [her] to successfully perform

[her] duties as Executive Secretary” as the reason for her termination.

In Lopez’s response to Tarrant County’s motion, she generally asserted

that “[t]here is ample evidence linking [Tarrant County’s] termination of [Lopez] to

her report that she was assaulted.” Lopez further asserted that she disputed that

“she engaged in the conduct of which she is accused and [Tarrant County’s] own

HR representative admits she suggested to Maenius that Lopez not be

terminated but instead given progressive discipline or be allowed to transfer.”

But, other than pointing to “circumstantial” evidence that tended to demonstrate a

link between her termination and her assault allegation, Lopez did not provide

competent controverting evidence against much of the evidence regarding

Tarrant County’s affirmative defense.

Indeed, Lopez pointed to evidence in the record that she had denied

“yelling at Maenius and instead testified that she cried when Maenius began

asking her if she had gone to the media.” She also pointed to evidence in the

record that “HR Director Glenn testified she had reservations about terminating

Lopez.” Significantly, and as Tarrant County points out, Lopez did not, however,

produce summary-judgment evidence controverting that she made false

accusations against Maenius that she later admitted were not true; that she

16
untruthfully claimed she had sent an email to Sheriff Anderson that she later

admitted she did not send; that she was “out of control” and kept interrupting

Maenius during the June 30, 2010 meeting; that she was “animated” and

“agitated” at Maenius during the meeting; that she engaged in disrespectful

behavior “beyond [what] would be appropriate and acceptable in the workplace”;

or that she had falsely accused Maenius of coming to her home.

The affirmative defense in section 554.004(b), if conclusively established,

tends to negate the causation element of a plaintiff’s claim because to show

causation in a Whistleblower Act case, “a public employee must demonstrate that

after he reported a violation of the law in good faith to an appropriate law

enforcement authority, the employee suffered discriminatory conduct by his

employer that would not have occurred when it did if the employee had not

reported the illegal conduct.” Hurley v. Tarrant Cnty., 232 S.W.3d 781, 786 (Tex.

App.—Fort Worth 2007, no pet.) (emphasis added); see City of Fort Worth v.

Zimlich, 29 S.W.3d 62, 68 (Tex. 2000); Tex. Dep't of Human Servs. v. Hinds, 904

S.W.2d 629, 636 (Tex. 1995) (“[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.”). This causation standard has been described as a “but for” causal nexus

requirement. Hurley, 232 S.W.3d at 786 (citing Rogers v. City of Fort Worth, 89

S.W.3d 265, 280 (Tex. App.—Fort Worth 2002, no pet.)).

17
 Typically, a causal link between the employee’s report of illegal conduct

and the adverse employment action may be established by circumstantial

evidence, including knowledge of the report of illegal conduct, expression of a

negative attitude toward the employee’s report of the conduct, failure to adhere to

established policies regarding employment decisions, discriminatory treatment of

the reporting employee in comparison to similarly situated employees, and

evidence that the stated reason for the adverse employment action was false.

City of El Paso v. Parsons, 353 S.W.3d 215, 226 (Tex. App.—El Paso 2011, no

pet.) (citing Zimlich, 29 S.W.3d at 69); Hurley, 232 S.W.3d at 786. On appeal,

Lopez heavily relies on such circumstantial evidence in an effort to establish

summary judgment was improper; she asserts, among other facts, that

o Tarrant County did not adhere to its “normal practice” of
progressive discipline;

o Maenius terminated Lopez within three months of her report of
assault;

o Lopez had testified that Maenius was hostile to her report; and

o Tarrant County did not terminate a similarly situated employee.2

It is indeed possible that these facts amount to circumstantial evidence

showing that Lopez’s allegation of assault provided one basis for Maenius’s

2
In her response to Tarrant County’s summary judgment, Lopez argued
that a similarly situated employee had not been terminated. Lopez seems to
have attempted to add this argument to her issue on appeal, but she did so
through a partial footnote that is clearly incomplete. In the interest of justice, we
have considered this as one of the factual bases of her issue. Cf. Tex. R. App.
P. 38.1(f).

18
decision to terminate her employment. But under the plain language of section

554.004(b), Tarrant County is nonetheless entitled to its affirmative defense if

Maenius decided to terminate Lopez solely on a basis that was independent of

her report. Tex. Gov’t Code Ann. § 554.004(b).

The Whistleblower Act does not require an employee to prove that the

reporting of illegal conduct was the sole reason for the complained-of adverse

employment action. Hurley, 232 S.W.3d at 786. If the employee’s report would

not have been enough by itself to cause the employer’s adverse employment

action—but was an indispensable component, in combination with other facts, of

the action—then the employee’s report legally caused the action under the

Whistleblower Act. See id. If, however, the evidence conclusively establishes

that any possible consideration by the employer of the fact that the employee

made a report was only superfluous to the adverse employment action and that

the action would have occurred regardless of the fact of the report, then section

554.004(b)’s affirmative defense precludes liability. See Tex. Gov’t Code Ann.

§ 554.004(b).

Relying on this court’s decision in Rogers, Lopez argues, like she did in

her response to Tarrant County’s summary judgment motion, that the trial court

erred by concluding that no genuine issue of material fact exists regarding

Tarrant County’s claim that she was fired for her conduct on June 30, 2012.

Rogers, 89 S.W.3d at 280. Lopez argues that Rogers stands for the proposition

that an employer’s failure to adhere to its progressive-discipline policy is

19
evidence that her termination “was not justified.” Lopez further argues that like

the plaintiff in Rogers who denied being untruthful, she produced summary

judgment evidence that she denies the allegation that she yelled at Maenius

during the June 30, 2010 meeting. Setting aside the significant procedural

differences between this case and Rogers, we believe that Lopez’s reliance on

Rogers is misplaced. See id. at 285 (holding, in bench trial, that trial court was

free to believe employee’s controverted testimony that he did not engage in

untruthful conduct which allegedly served as reason for him being fired).

It is true that in Rogers this court discussed the defendant’s failure to

adhere to its progressive-discipline policy. Id. at 281. But that discussion was

singularly focused on whether Rogers had presented circumstantial evidence

tending to link his termination with his whistleblower report. Id. The defendant’s

failure to adhere to these policies was not relevant to our discussion regarding

whether the defendant had established its affirmative defense. Id. at 284. Also,

unlike in Rogers where the plaintiff had provided evidence disputing the only

reason cited for his termination other than his whistleblower report, Lopez merely

cites evidence controverting whether she had yelled at Maenius, while leaving

alone and uncontroverted the remaining evidence that Tarrant County offered

evidence of regarding its independent reasons for terminating Lopez’s

employment. In fact, as Tarrant County points out, Lopez admits that she

engaged in inappropriate behavior on June 30, 2010, but believes that her

discipline should have been less drastic than termination.

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 Furthermore, we agree with Tarrant County that Lopez’s case is strikingly

similar to this court’s decision in Steele. 370 S.W.3d at 125. Like Steele, where

despite the fact that evidence existed that the employer skipped several less-

drastic measures in its progressive discipline policy and simply terminated Steele

for his undisputed untruthfulness, Tarrant County provided uncontroverted

summary-judgment evidence that Maenius terminated Lopez for untruthful,

disrespectful, and “conduct unbecoming” of her position as Maenius’s Executive

Secretary. Tarrant County also provided uncontroverted summary judgment

evidence that Maenius had the sole authority to terminate Lopez and that he

believed his trust in her had been shattered by her actions on June 30, 2010,

which was necessary in order for her to fulfill her duties as his Executive

Secretary.

For all of these reasons, based upon the summary-judgment evidence that

Tarrant County presented and upon the lack of evidence by Lopez to raise a

genuine issue of material fact that she would not have been fired based on her

conduct in the June 30, 2010 meeting, we conclude that Tarrant County

conclusively proved their entitlement to summary judgment on the affirmative

defense of section 554.004(b). See Tex. Gov’t Code Ann. § 554.004(b); see also

Steele, 370 S.W.3d at 125–26 (holding defendants entitled to summary judgment

based on affirmative defense that the employing governmental entity would have

taken the action against the employee based on uncontroverted evidence of

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employee’s untruthfulness despite the fact that the employee made a

whistleblower report). We overrule Lopez’s second issue.

C. Venue

In her third issue, Lopez argues that the appropriate venue for this case

was Dallas County and that because venue was proper in Dallas County, where

she originally filed this suit, “the judgment should be reversed and the case

transferred back to Dallas County.” Lopez’s argument is based on the fact that

both Tarrant County and Dallas County are members of the North Central Texas

Council of Governments and that the Texas Whistleblower Act has a permissible

venue provision predicated on whether a county is in the same geographic area

that has an established council of governments. See Tex. Gov’t Code

§ 554.007(b) (West 2012). Thus, according to Lopez, she should have been

entitled to keep this suit in Dallas County and it was improper that the Dallas

County trial court, after Tarrant County appealed the trial court’s original denial to

the Dallas Court of Appeals, ultimately granted Tarrant County’s motion to

transfer venue to Tarrant County. Tarrant Cnty., 345 S.W.3d at 784–85.

Tarrant County argues, among other things, that because the Dallas Court

of Appeals held that the mandatory provisions of the Texas Government Code

controlled over the permissive venue provisions of the Texas Whistleblower Act,

and because the Supreme Court of Texas denied Lopez’s petition to review that

decision, the law-of-the-case doctrine applies in this appeal. See Wohlfahrt v.

Holloway, 172 S.W.3d 630, 633–34, 638 (Tex. App.—Houston [14th Dist.] 2005,

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pets. denied), cert. denied, 549 U.S. 1052 (2006) (reasoning that law of the case

doctrine applied even though disputed holding was from a different court of

appeals where appellant provided “no argument regarding changed issues or

facts”). And, Tarrant County argues, because the decision of the Dallas Court of

Appeals was not “clearly erroneous,” this court should decline Lopez’s invitation

to reconsider the Dallas Court of Appeals’s holding in this case that mandatory

venue was in Tarrant County. We agree with Tarrant County.

The law-of-the-case doctrine is “that principle under which questions of law

decided on appeal to a court of last resort will govern the case throughout its

subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986);

see also Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 71 (Tex.

App.—San Antonio 2011, no pet.). The doctrine operates to narrow the issues in

successive stages of litigation and is based upon goals of “uniformity of decision

as well as judicial economy and efficiency.” Hudson, 711 S.W.2d at 630. It is a

long-standing principle that application of the law-of-the-case doctrine lies within

the discretion of the reviewing court, depending on the particular circumstances

surrounding the case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 715 (Tex.

2003) (citing Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1066–67

(1896)).

Here, we see no reason to violate the goals of uniformity of decision as

well as judicial economy by declaring that the previously-decided venue issue

was erroneous. Tarrant Cnty., 345 S.W.3d at 786 (“[W]e conclude the

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mandatory venue provision of § 15.015 of the Civil Practice and Remedies Code

still controls over the permissive venue provision of the Whistleblower Act, and

the trial court abused its discretion in denying relator’s motion to transfer venue.).

Under the law-of-the-case doctrine, in this case, venue was proper in Tarrant

County. Id.; See Wohlfahrt, 172 S.W.3d at 633–34, 638. We overrule Lopez’s

third issue.

IV. CONCLUSION

Having overruled all three of Lopez’s issues, we need not address Tarrant

County’s conditional issue, and we affirm the trial court’s judgment. See Tex. R.

App. P. 43.2(a).

/s/ Bill Meier
BILL MEIER
JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: August 25, 2015

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