In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-01-00466-CV
____________
LILLIAN LOZANO, Appellant
V.
SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee
On Appeal from the 190th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2000-51561
Appellant, Lillian Lozano, appeals a summary judgment under both Rule 166a(b) and Rule 166a(i), rendered in favor of appellee, Spring Branch Independent School District ("SBISD"). We address whether Lozano has raised a genuine issue of material fact regarding the element of causation under the Texas Whistleblower Act. We reverse and remand.
Standard of Review
In a traditional summary judgment under Rule 166a(b), the defendant's burden of proof is to show as a matter of law that the plaintiff has no cause of action against him. Tex. R. Civ. P. 166a(b); Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.--Houston [14th Dist.] 2001, no pet.). A trial court should grant a defendant's motion for summary judgment if a defendant disproves at least one essential element of the plaintiff's cause of action. Wilkens, 57 S.W.3d at 503. In deciding whether a disputed material fact issue precludes summary judgment, we will take as true all evidence favoring the nonmovant. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). We indulge every reasonable inference and resolve any reasonable doubt in favor of the nonmovant. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
In a no-evidence summary judgment under Rule 166a(i), the movant must specifically state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). The burden then shifts to the non-movant to bring forth evidence that raises a fact issue on the challenged elements. Id. When reviewing the grant of a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.--Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion." Macias, 988 S.W.2d at 317. Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id.
Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When the trial court does not specify the ground or grounds for its summary judgment ruling, we will affirm if any of the theories advanced is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). If the appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment. RHS Interests, Inc. v. 2727 Kirby LTD., 994 S.W.2d 895, 897 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (citing State Farm Fire & Cas. Co., 858 S.W.2d at 381).
We set out the facts in the light most favorable to Lozano.
Facts From January 1992 to June 10, 1999, Lozano, a Mexican-American, worked as a police officer for SBISD. Throughout her years of employment with SBISD, Lozano repeatedly received satisfactory performance evaluations. On May 12, 1999, SBISD renewed Lozano's at-will employment contract. On May 21, 1999, SBISD gave Lozano a 5% pay raise. On the same day, SBISD Chief Brawner approved a summer schedule specifying Lozano's daily shifts through August 29, 1999, and authorized paid time off for Lozano to attend the Texas Gang Investigators Association summer conference.
On May 22, 1999, Lozano worked a SBISD function with several other SBISD and Houston Police Department officers. Lozano heard another officer, Michael Fleming, make a disparaging remark about Mexicans. (1) On May 24, 1999, Lozano filed a written complaint with SBISD Police Captain Gary Silver about Fleming's comments. On May 25, 1999, Lozano completed an SBISD grievance form to initiate a formal internal grievance process.
Sometime in April or May, 1999, Lozano's supervising officer, Chief Brawner, began to investigate Lozano. As a result of this investigation, Chief Brawner concluded (1) Lozano may have padded her hours on four separate occasions during the months of April and May of 1999, (2) Lozano had taken an extra job working security at Lakewood Church without obtaining written approval for the job as required under SBISD policy, and (3) Lozano accepted benefits through her worker's compensation policy and Crime Victims Assistance Fund while receiving full pay from SBISD.
On June 11, 1999, Chief Brawner called Lozano into his office and asked her if she could explain the time-sheet discrepancies, the unauthorized job, and the benefits she accepted while on full pay. Lozano asked for documentation to see the basis of the allegations, but Chief Brawner did not provide it. Lozano asked for both additional time in which to respond and for an attorney, but Chief Brawner denied these requests. Chief Brawner then gave Lozano a pre-drafted termination letter. This meeting was the first time Chief Brawner had questioned Lozano about the time-sheet discrepancies. The same day Lozano was fired, Chief Brawner recommended Officer Fleming for Officer of the Year in connection with the Texas Gang Association Conference.
After terminating Lozano's employment, Chief Brawner reported her to the Texas Commission on Law Enforcement Officer Standards and Education for six counts of violating the Texas Penal Code and SBISD policies. Chief Brawner also reported Lozano to the Harris County District Attorney's Office, but the District Attorney's office declined to prosecute because of insufficient evidence. Chief Brawner recommended to the Crime Victims Compensation Division that it prosecute Lozano for receiving double compensation for on-the-job injuries, but the Crime Victims Compensation Division would not prosecute. Lozano filed this suit against SBISD. SBISD moved for both a no-evidence summary judgment and a traditional summary judgment, challenging the element of causation under the Texas Whistleblower Act. Lozano now appeals, claiming in her sole point of error that she raised a genuine issue of material fact precluding summary judgment.
The Texas Whistleblower Act
A governmental entity is liable under the Whistleblower Act for discriminating against a public employee who reports a violation of law. (2) See Tex. Gov't Code Ann. §§ 554.001-.009 (Vernon Supp. 2002). Proof of causation in a whistleblower claim is necessary to raise a question of fact and avoid summary judgment. See Texas Dept. of Human Servs. v. Hinds, 904 S.W.2d 629, 632-33 (Tex. 1995). An employee's mere subjective conclusion that she was terminated for whistleblowing is "wholly inadequate to raise a fact issue." Blocker v. Terrell Hills City, 900 S.W.2d 812, 814 (Tex. App.--San Antonio 1995, writ denied). Rather, the employee must produce evidence showing that, absent her whistleblowing or report of a violation of law, she would not have been terminated when she was. Hinds, 904 S.W.2d at 636. In other words, the employee must establish a "but for" causal nexus between the protected activity and the employer's prohibited conduct. Texas Natural Res. Conservation Comm'n v. McDill, 914 S.W.2d 718, 723 (Tex. App.--Austin 1996, no writ).
The employee need not, however, establish that the protected activity was the sole cause of the employer's prohibited conduct. Hinds, 904 S.W.2d at 635. We presume a causal nexus exists if the retaliatory conduct occurs within 90 days of the employee's report of a violation of law. Tex. Gov't Code Ann. § 554.004 (Vernon Supp. 2002). This presumption is rebuttable. Id. The rebuttable presumption does not shift the burden of proof and can stand only in the absence of evidence to the contrary. McDill, 914 S.W.2d at 723. Once sufficient evidence is produced to support a finding of the non-existence of the presumed fact, the case then proceeds as if no presumption had ever existed. Id. at 724.
It is undisputed Lozano was fired within 90 days of her report. Therefore, a rebuttable presumption arose that a causal nexus existed between Lozano's report and her termination. See Blocker, 900 S.W.2d at 813-14. Because of this presumption, SBISD had the burden to present evidence to the contrary. See id. SBISD presented summary judgment evidence that it did not terminate Lozano's employment as a result of her report, but that her termination resulted from her repeated violations of SBISD policy relating to falsification of time sheet records, failure to obtain authorization to work an extra job, and wrongful acceptance of worker's compensation benefits. This evidence negated the rebuttable presumption that a causal nexus existed between Lozano's report and her termination, and carried SBISD's initial burden under Rule 166a(b). See id. (rendering summary judgment in favor of employer for presenting evidence conclusively showing employer terminated employee as a result of his violation of policy and not employee's whistleblower report). Because SBISD presented evidence negating causation under Lozano's whistleblower claim, Lozano then had the burden to present more than a scintilla of controverting evidence raising an issue of fact to defeat summary judgment. See id.
An employee can raise an issue of fact by presenting circumstantial evidence. See id.; see also City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000). Such circumstantial evidence regarding the employer's conduct could include the following: (1) knowledge of the report of illegal conduct; (2) expression of a negative attitude toward the employee's report of the conduct; (3) failure to adhere to established company policies regarding employment decisions; (4) discriminatory treatment in comparison to similarly situated employees; or (5) evidence that the stated reason for the adverse employment action was false. Zimlich, 29 S.W.2d at 69.
Lozano presented summary judgment evidence disputing SBISD's claim that it terminated her employment based on her alleged repeated violations of policy. Lozano disputed all of SBISD's accusations that she overstated her hours with evidence that she worked all the hours reported. (3) Lozano produced evidence that she submitted a request for authorization to work the extra job, following the same practice the other officers used, and that it was Chief Brawner's usual practice to approve out-of-district extra jobs. Further, Lozano submitted evidence that Captain Silver was responsible for filing her request for benefits under SBISD's worker's compensation policy and for benefits through the Texas Crime Victim's Assistance Fund.
Lozano also presented evidence tending to show the existence of a causal link between her termination and report of the illegal conduct. Lozano's evidence showed that, although the initial investigation began in response to the suspicion she was padding her time sheets, Chief Brawner did not limit his investigation to time sheet abuse, but instead commenced a full investigation into Lozano's compliance with SBISD policy. Lozano's evidence also included the following: (1) the bulk of SBISD's investigation occurred after she had reported Officer Fleming's remarks; (2) SBISD did not inquire into Lozano's acceptance of worker's compensation benefits until after her report, over one year later; (3) SBISD did not investigate Lozano's unauthorized extra job at Lakewood Church until after her report; and (4) SBISD did not verify her employment at Lakewood Church until after she was fired. Lozano also submitted evidence that, prior to her report, she had repeatedly received satisfactory performance evaluations.
Lozano also presented some summary judgment evidence suggesting she may have suffered discriminatory treatment in comparison with similarly situated employees. Lozano submitted evidence that Chief Brawner singled Lozano out for failing to obtain written authorization to work an extra out-of-district job, when he often allowed other officers to work similar jobs.
Indulging all reasonable inferences in favor of Lozano, we hold that her summary judgment proof raised a material fact issue as to the existence of a causal link between her report and SBISD's alleged retaliatory conduct. Accordingly, we hold that the trial court erred in rendering summary judgment on her claim and sustain her sole point of error.
Conclusion
We reverse the judgment of the trial court and remand the cause.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Price. (4)
Do not publish. Tex. R. App. P. 47.4.
1. An HPD officer had asked the group of SBISD and HPD officers, "Did you
hear about Mexico warning all tourists about coming to Houston over the
police shootings?" Officer Fleming responded by stating, "F*** them
Mexicans their [sic] all a bunch of dope dealing mother f***ers. They need to
send them all back to Mexico. F*** them."
2. 3. Lozano disputed SBISD's claims she had padded her hours on the following
occasions:
- On April 17, 1999, Lozano had been scheduled to work only until 11:00 p.m. on a patrol shift, but stated on her time sheet that she had worked until 11:30 p.m. Chief Brawner checked the radio log, call of service records, and radio voice recorder but was unable to confirm that Lozano had worked until 11:30 p.m. Lozano claimed she worked overtime to complete her job duties without prior approval, and her overtime was subsequently approved by Sergeant Hughson.
- On April 24, 1999, Lozano wrote 1:00 a.m. on her time sheet as the time she left the Memorial High School prom, although two other officers reported they believed she had left at 12:30 p.m. The officers did not actually see Lozano leave. Lozano claimed she left the dance area around 12:45 a.m. and went to the valet area, where she stayed and spoke to several parents until the end of her shift.
- On May 8, 1999, Lozano stated she worked until 7:00 a.m. at the Stratford High School "After Prom," but reported a downed city stop light at 6:24 a.m. from a location between Stratford High School and Landrum Middle School, her next assignment. Lozano claimed she presented her time sheets before she worked the weekend events, which accounted for the discrepancy in the locations reported, and that she was working at all times on May 8, 1999, from 12:00 a.m. to 7:00 a.m.
- On May 15, 1999, Lozano indicated she worked from 7:30 a.m. to 3:30
p.m. at Landrum Middle School. Lozano was not on site to respond to
an alarm call at Landrum Middle School at approximately 3:05 p.m.
Lozano claimed she waited until the end of her shift to take a lunch
break at the Burger King down the street when the alarm went off.
David Rivera, the principal of Landrum Middle School, stated Lozano
frequently did not have time to take a lunch when she worked at school.
Further, Chief Brawner charged Landrum Middle School for the entire
eight hours Lozano claimed she worked that day.
4. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.