TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00208-CV
Howard W. Stanford, Appellant
v.
Del Asmussen, Appellee
NO. 22,346, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING
Factual Background
On September 1, 1995, Stanford (1) hired Asmussen as a supervisor of the M.D. Anderson Cancer Center Research and Education Facilities physical plant in Bastrop, Texas. Asmussen's alleged performance problems began a few months after he began as the facility's supervisor. On January 5, 1996, Stanford prepared a written evaluation detailing Asmussen's performance deficiencies. The evaluation listed problems in the areas of communication, cooperation, managerial skills, project work management, and safety. On January 19, Stanford placed Asmussen on official disciplinary notice for his performance problems effective for twelve months. The disciplinary notice provided specific performance goals for Asmussen to attain in order to be removed from the disciplinary status and retained as an employee. On February 23, Stanford met with Asmussen to discuss the areas of Asmussen's performance which continued to require improvement. Stanford prepared a memorandum following the meeting which specifically informed Asmussen that the disciplinary notice remained in effect until "substantial improvements are noted." In July 1996, Stanford informed Asmussen that he would most likely be terminated due to poor performance. Stanford provided Asmussen with a written memorandum on August 21 informing him of his intent to terminate him and providing Asmussen with an opportunity to respond. (2) Stanford terminated Asmussen on August 22 for unsatisfactory job performance.
Asmussen appealed his termination. After a hearing and an opportunity to present evidence, the hearing committee upheld the termination, which was affirmed by the vice president and president of M.D. Anderson. Asmussen filed a complaint with the Texas Commission on Human Rights and, after receiving his notice of right to file a civil action from the Commission, Asmussen filed this lawsuit alleging his termination by Stanford constituted age discrimination in violation of Texas Labor Code § 21.001 et seq. and intentional infliction of emotional distress. Stanford moved for summary judgment on the ground of official immunity which the district court denied. Stanford brings this interlocutory and accelerated appeal of the denial of his motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West Supp. 2000); Tex. R. App. P. 28.1.
Discussion
Official Immunity
Government employees are entitled to official immunity from suit arising from: (1) the performance of their discretionary duties, (2) performed in good faith, and (3) within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). When a defendant moves for summary judgment on the affirmative defense of official immunity, the defendant must conclusively prove each element of the defense as a matter of law. Chambers, 883 S.W.2d at 653; see Tex. R. Civ. P. 166a(c). If the defendant meets this burden, the plaintiff must then produce evidence raising a genuine issue of material fact to avoid the affirmative defense. Alamo Workforce Dev., Inc. v. Vann, No. 04-99-00762-CV, slip op. at 3 (Tex. App.--San Antonio, March 15, 2000, no pet. h.); Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied). We accept as true all evidence supporting the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). All inferences are indulged in favor of the non-movant and all doubts are resolved in his favor. Id.
The long-standing rule in Texas is that employment for an indefinite term may be terminated at will and without cause. Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723, 723 (Tex. 1990). Asmussen did not dispute that his termination was a discretionary act by Stanford or that Stanford was acting within the scope of his employment. The only issue then is whether Stanford acted in good faith when he terminated Asmussen. The test for good faith (3) of a government official is whether, under the same or similar circumstances, a reasonable government official could have believed that his actions were lawful based upon the information he possessed at the time of his conduct. Chambers, 883 S.W.2d at 656. The official need not prove that it would have been unreasonable to take a different action or that all reasonably prudent officials would have made the same decision. Neimes v. Ta, 985 S.W.2d 132, 144 (Tex. App.--San Antonio 1998, pet. dism'd by agr.). Good faith can be established as a matter of law when the official's factual recitation is otherwise supported by the evidence. Alamo Workforce Development, No. 04-99-00762-CV, slip op. at 10. Good faith may also be established as a matter of law, despite an affidavit's failure to employ the objective words recommended by Chambers, if reasonable minds could not differ from the conclusion drawn from the underlying facts. Id. at 10-11.
In order to controvert the official's summary judgment proof on good faith, the plaintiff must do more than show that a reasonably prudent official could have decided to take the action; the plaintiff must raise a fact issue that "no reasonable person in the defendant's position could have thought the facts were such that they justified the defendant's acts." Chambers, 883 S.W.2d at 657 (citing Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)). If officials of reasonable competence could disagree on the issue (of termination), then immunity should be recognized. Malley v. Briggs, 475 U.S. 335, 341 (1986).
Stanford supported the motion for summary judgment with his own affidavit. Part of Stanford's job required him to evaluate, discipline and direct Asmussen's job performance. Stanford outlined two incidents which prompted him to discipline Asmussen. Stanford testified that the facility experienced a problem with its heating unit in December 1995. The problem endangered the health and safety of the laboratory animals. According to Stanford, Asmussen failed to require an on-call employee to report to the facility immediately in order to remedy the problem. This resulted in a delay in the repair and compromised the animals. After the incident, Stanford requested Asmussen to discipline the on-call employee, which Asmussen refused to do. The facility also experienced a problem with its natural gas supply. The natural gas supplied to the facility was not odorized, preventing the detection of a leak. Asmussen failed to act promptly to remedy the problem for several months endangering the employees and animals at the facility. Asmussen's inaction forced Stanford to remedy the problem himself.
As a result of these incidents, four months after Asmussen began his employment as supervisor, Stanford placed Asmussen on official notice, effective for twelve months, that his job performance did not meet the requirements of the position. Stanford prepared a memorandum detailing problems with Asmussen's performance in the areas of communication, cooperation, managerial skills, project work management, and safety. The memorandum identified Asmussen's problems in communicating with all levels of staff at the facility. Stanford also detailed Asmussen's lack of cooperation and failure to follow directions given by his superiors, as well as Asmussen's failure to bring the facility into compliance with certain safety requirements.
In February 1996, Stanford met with Asmussen to discuss the areas of his performance which had improved and those which continued to be unsatisfactory. Stanford informed Asmussen in writing that the earlier twelve-month disciplinary period remained in effect, despite improvement in some areas. According to Stanford, although he continued to counsel Asmussen, his performance remained unsatisfactory. By August, most of Asmussen's performance problems identified by Stanford still existed. Stanford testified that after careful deliberation he determined it was necessary to terminate Asmussen due to his poor job performance.
The evidence suggests that Stanford believed he had a valid basis for terminating Asmussen, and that he acted in good faith. Stanford outlined many areas of Asmussen's job performance which did not satisfy the requirements of his position. Because Stanford established good faith, the burden shifted to Asmussen to submit summary judgment evidence that no reasonable person in Stanford's position could have believed his conduct to be reasonable in light of the information possessed by Stanford at the time of the termination. See Chambers, 883 S.W.2d at 656.
Asmussen presented his own affidavit and a report of his expert witness, Whitney Smith, in opposition to Stanford's motion. Asmussen did not dispute the incidents identified by Stanford as the reason for placing Asmussen on official notice. Other than contending that Stanford did not want Asmussen working in Stanford's department at all, Asmussen's affidavit wholly fails to address the "reasonable supervisor" standard enunciated in Chambers. See Chambers, 883 S.W.2d at 656. His affidavit fails to present evidence that no reasonable person could have believed the facts justified the termination. Asmussen did not dispute the incidents giving rise to his original disciplinary action. He simply stated that he had never been accused of being insubordinate before this job, and that he must have been performing his job to a satisfactory level given his one favorable evaluation in June.
Smith's report concludes, based on a satisfactory job performance review in June 1996, "[i]t is impossible to believe that the Plaintiff's performance could deteriorate so seriously within the space of two months that he would lose his job based upon poor performance." Smith does not dispute the incidents precipitating the official notice or the poor performance reviews received by Asmussen. Smith's affidavit is silent on the sole issue that Asmussen was required to prove--that no reasonable supervisor in Stanford's position would have believed under the facts known to Stanford that the termination was warranted. We conclude that Asmussen failed to controvert Stanford's summary judgment proof.
We conclude that a reasonable person in Stanford's position could have believed the termination was justified. According to Stanford's summary judgment evidence, Asmussen's conduct had endangered the employees and animals at the facility. Asmussen also failed to follow instructions from his superior. Despite Stanford's attempts to work with Asmussen after problem areas were identified, Asmussen's performance did not improve. Accordingly, we conclude that Stanford acted in good faith in terminating Asmussen.
Conclusion
We hold that the summary judgment evidence establishes as a matter of law that a person in Stanford's position could have believed his conduct in firing Asmussen was reasonable. Having established the only element of his affirmative defense which was challenged as a matter of law, we conclude Stanford is entitled to official immunity from Asmussen's claims for intentional infliction of emotional distress and discrimination claims. We reverse the district court's denial of Stanford's motion for summary judgment and render judgment that Stanford is immune from Asmussen's claims.
Jan P. Patterson, Justice
Before Justices Jones, Yeakel and Patterson
Reversed and Rendered
Filed: July 27, 2000
Do Not Publish
1. Stanford is the Director of Research and Education Facilities for M.D. Anderson Cancer Center.
2. Stanford requested a response from Asmussen within four hours of issuing his memorandum. Asmussen did not respond within the time requested by Stanford; rather, he responded seven days after he was terminated.
3. We disagree with Asmussen's reliance on Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996), which defined good faith as meaning (1) the employee believed that the conduct reported was a violation of the law and (2) the employee's belief was reasonable in light of the employee's training and experience. Hart discusses the good faith required for reporting a violation of the law in a Whistleblower Act case and cites Chambers for the definition of good faith in an official immunity context. Id. at 785.
nford testified that after careful deliberation he determined it was necessary to terminate Asmussen due to his poor job performance.
The evidence suggests that Stanford believed he had a valid basis for terminating Asmussen, and that he acted in good faith. Stanford outlined many areas of Asmussen's job performance which did not satisfy the requirements of his position. Because Stanford established good faith, the burden shifted to Asmussen to submit summary judgment evidence that no reasonable person in Stanford's position could have believed his conduct to be reasonable in light of the information possessed by Stanford at the time of the termination. See Chambers, 883 S.W.2d at 656.
Asmussen presented his own affidavit and a report of his expert witness, Whitney Smith, in opposition to Stanford's motion. Asmussen did not dispute the incidents identified by Stanford as the reason for placing Asmussen on official notice. Other than contending that Stanford did not want Asmussen working in Stanford's department at all, Asmussen's affidavit wholly fails to address the "reasonable supervisor" standard enunciated in Chambers. See Chambers, 883 S.W.2d at 656. His affidavit fails to present evidence that no reasonable person could have believed the facts justified the termination. Asmussen did not dispute the incidents giving rise to his original disciplinary action. He simply stated that he had never been accused of being insubordinate before this job, and that he must have been performing his job to a satisfactory level given his one favorable evaluation in June.
Smith's report concludes, based on a satisfactory job performance review in June 1996, "[i]t is impossible to believe that the Plaintiff's performance could deteriorate so seriously within the space of two months that he would lose his job based upon poor performance." Smith does not dispute the incidents precipitating the official notice or the poor performance reviews received by Asmussen. Smith's affidavit is silent on the sole issue that Asmussen was required to prove--that no reasonable supervisor in Stanford's position would have believed under the facts known to Stanford that the termination was warranted. We conclude that Asmussen failed to controvert Stanford's summary judgment proof.
We conclude that a reasonable person in Stanford's position could have believed the termination was justified. According to Stanford's summary judgment evidence, Asmussen's conduct had endangered the employees and animals at the facility. Asmussen also failed to follow instructions from his superior. Despite Stanford's attempts to work with Asmussen after problem areas were identified, Asmussen's performance did not improve. Accordingly, we conclude that Stanford acted in good faith in terminating Asmussen.
Conclusion
We hold that the summary judgment evidence establishes as a matter of law that a person in Stanford's position could have believed his conduct in firing Asmussen was reasonable. Having established the only element of his affirmative defense which was challenged as a matter of law, we conclude Stanford is entitled to official immunity from Asmussen's claims for intentional infliction of emotional distress and discrimination claims. We reverse the district court's denial of Stanford's motion for summary judgment and render judgment that Stanford is immune from Asmussen's claims.
Jan P. Patterson, Justice
Before Justices Jones, Yeakel and Patterson
Reversed and Rendered
Filed: July 27, 2000
Do Not Publish
1. Stanford is the Director of Research and Education Facilities for M.D. Anderson Cancer Center.
2. Stanford requested a response from Asmussen within four hours of issuing his memorandum. Asmussen did not respond within the time requested by Stanford; rather, he responded seven days after he was terminated.
3. We disagree with Asmussen's reliance on Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996), which defined good faith as meaning (1) the employee believed that the conduct reported was a violation of