Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00664-CV
Stephen TORRES,
Appellant
v.
CITY OF SAN ANTONIO,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-13430
Honorable Stephani A. Walsh, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 7, 2016
REVERSED AND REMANDED
Stephen Torres appeals the trial court’s order granting summary judgment in favor of the
City of San Antonio. Torres sued the City under the Texas Whistleblower Act after he was passed
over for a lieutenant position in the Arson department. He alleged the City retaliated against him
because he filed an internal report of wrongdoing two years before applying for the position. The
City moved for summary judgment, arguing it was entitled to judgment as a matter of law because
Torres failed to present a genuine issue of material fact establishing the alleged adverse
employment action would not have occurred “but for” his making a “good faith” report of the
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illegal activity. We reverse the trial court’s judgment and remand the cause for further
proceedings.
BACKGROUND
Torres worked in various positions at the San Antonio Fire Department (SAFD) for more
than 17 years. On June 18, 2009, while assigned to the Arson division, Torres observed Joe Rios,
a former Arson Investigator, using Arson/peace officer credentials to access a secure area of the
San Antonio Police Department (SAPD) building. Upon investigating, Torres was told that
another former Arson investigator, Art Villarreal, also had active Arson/peace officer credentials.
Because Rios and Villarreal were supposed to turn in their Arson credentials when they transferred
out of the Arson department, Torres believed that Rios and Villarreal were purposely breaking the
law. Torres believed the improper use of credentials to be a violation of department policy as well
as a Texas Penal Code violation and immediately relayed his concerns to his supervising captain,
Christopher Casals, via text message.
Five days later, Torres submitted a written memo to Deputy Chief Rodney Hitzfelder
detailing what he witnessed on June 18, 2009. In the memo, Torres stated he had been told that
Rios and Villarreal were allowed by Assistant Chief Noel Horan to maintain their peace officer
commissions to investigate firefighter fatalities as fire department safety officers. But Torres went
on to note that article 2.12 of the Code of Criminal Procedure, which defines “peace officers,”
does not include fire department safety officers. The memo also referenced Section 37.12 of the
Texas Penal Code, False Identification as Peace Officer. Believing that no action was being taken
in response to his complaints to Casals and Hitzfelder, Torres filed a report with the Office of
Municipal Integrity (OMI) two days after submitting the memo to Hitzfelder.
After an investigation, OMI discovered that Rios held credentials that erroneously listed
him as being assigned to Arson and also listed a badge number that had already been assigned to
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his replacement in Arson. In addition, the OMI investigation revealed that SAFD Chief Charles
Hood was aware that the commissions on Villarreal and Rios were being maintained, because he
approved them; Chief Hood, however, was unaware that public law only allows Arson
investigators to be commissioned. Ultimately, OMI labeled Torres’s allegation as “unfounded.”
“Although OMI could not validate the presence of fraud, the existing process by which SAFD
personnel outside of the Arson unit are allowed to maintain their peace officer status was
reevaluated to establish a process that would not violate existing policy or penal code as suggested
in the complaint [filed by Torres].” Accordingly, the process changed by having Chief Hood,
rather than San Antonio Police Chief William McManus, sign the credentials. Two months later,
Torres requested that he be transferred out of Arson, citing health issues and a deteriorating
relationship with Casals.
In 2012, Torres was working as a lieutenant in a fire suppression unit and applied for a
lateral transfer to Arson. Although the Arson lieutenant position would be a lateral transfer, it paid
$450 more per month than he was currently earning and included other benefits, such as a take
home vehicle, city phone, and city computer. Torres was one of two people to interview for the
position before a panel that would recommend a candidate to Assistant Chief Earl Crayton, who
would then pass the selection to Chief Hood for a final decision. The panel included Casals and
two other Arson supervisors, Lieutenant Kenneth Campbell and Acting-Lieutenant Anthony
Guerrero. The other candidate was James Bennett.
At the time of the interview, Torres was a certified firefighter advanced, fire officer II, fire
service instructor II, field examiner, and Arson investigator advanced. He was also an intermediate
peace officer. Torres had been a lieutenant for 11 years; Bennett had been a lieutenant for less
than one year and still needed to complete the police academy.
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Guerrero and Casals recommended Bennett for the position, while Campbell recommended
Torres due to his law enforcement experience and the fact that he was already certified. Though
the panel was impressed with Torres’s resume and experience, Chief Hood testified that based on
his knowledge of Torres’s time in Arson, he would not have assigned Torres the position even if
the panel had recommended it. Casals also testified that he did not recommend Torres, in part,
because of the way Torres handled the complaint about unauthorized credentials.
After learning that he had not been selected for the Arson lieutenant position, Torres filed
a complaint with the City alleging that he was discriminated against by Casals due to his
race/national origin. The City’s investigation did not find discrimination against Torres. Two
weeks later, Torres filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) alleging that he was passed over for the position due to his national origin.
Torres also filed a complaint with the Texas Commission on Law Enforcement Officer Standards
and Education (TCLEOSE) again alleging that Villarreal and Rios were inappropriately
maintaining peace officer credentials, though TCLEOSE declined to investigate further.
Thereafter, Torres filed the underlying suit claiming that the City retaliated against him for
filing the OMI complaint in violation of the Texas Whistleblower Act. The City moved for
summary judgment and Torres filed a response. The trial court granted the City’s summary
judgment motion. Torres timely appealed.
STANDARD OF REVIEW
Summary judgment is proper when the summary-judgment evidence shows that there are
no disputed issues of material fact and that the movant is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c). To obtain traditional summary judgment on an opposing party’s claims,
the movant must conclusively negate at least one essential element of each of the plaintiff’s claims.
See Lakey v. Taylor, 435 S.W.3d 309, 316 (Tex. App.—Austin 2014, no pet.) (citing Centeq
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Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). This court reviews a grant of summary
judgment de novo. Bank of America, N.A. v. Prize Energy Resources, L.P., No. 04-13-00201-CV,
2014 WL 4257865, at *4 (Tex. App.—San Antonio Aug. 29, 2014, pet. denied). In reviewing
entry of summary judgment, this court considers the evidence presented in the motion and response
in the light most favorable to the non-moving party, “crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”
Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d
557, 566 (Tex. App.—San Antonio 2014, pet. denied) (quoting Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)).
TEXAS WHISTLEBLOWER ACT
The Texas Whistleblower Act provides that a public employee may not be retaliated against
for reporting a violation of the law:
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 governmental entity or another
public employee to an appropriate law enforcement authority.
TEX. GOV’T CODE ANN. § 554.002(a) (West 2012). Thus, to establish a violation of the Texas
Whistleblower Act, a plaintiff must allege the following elements: (1) she was a public employee;
(2) she made a good faith report of a violation of law by her employing governmental entity or
another public employee; (3) she made the report to an appropriate law-enforcement authority; and
(4) she suffered retaliation as a result of making the report. Tex. Comm’n on Envt’l. Quality v.
Resendez, 450 S.W.3d 520, 522 (Tex. 2014) (per curiam).
DISCUSSION
In its motion for summary judgment, the City challenged the elements of “good faith”
(second element) and causation (fourth element).
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Good Faith
“‘Good faith’ means that (1) the employee believed that the conduct reported was a
violation of law and (2) the employee’s belief was reasonable in light of the employee’s training
and experience.” Bexar County v. Lopez, 94 S.W.3d 711, 714 (Tex. App.—San Antonio 2002, no
pet.) (quoting Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). Whether a public
employee believes that conduct he reports is a violation of law is subjective, while the second
element, i.e., the reasonableness of that belief in light of the employee’s training and experience,
is objective and ensures that the claimant receives the Act’s protection only if a reasonably prudent
employee in similar circumstances would have believed that the facts as reported were a violation
of the law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 682–83 (Tex.
2013).
In his Original Petition and Request for Disclosure, Torres alleged that at the time he
reported Rios badging in with his Arson/peace officer credentials, he believed such activity was
unlawful and his belief was reasonable. In its motion for summary judgment, the City argued
Torres’s OMI report was not made in good faith, but rather, was made “to shield Torres from the
consequences of unilaterally causing the credentials of Villarreal and Rios to be cancelled, and
then lying about it when directed to provide a statement to his superiors about his activities.” In
his affidavit, Villarreal averred that after Torres sent the text message to Casals, Casals called
Villarreal to determine why he and Rios still had their Arson credentials. Villarreal told Casals
they were maintaining their credentials at the direction of Chief Hood and Deputy Chief Neil
Horan so that they could investigate on-duty deaths of SAFD personnel. Villarreal then contacted
TCLEOSE and the Texas Commission on Fire Protection, which informed him that Rios and
Villarreal could keep their credentials with Chief Hood’s approval. A week after the phone call
from Casals, Villarreal discovered his and Rios’s identification cards no longer worked. Villarreal
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spoke with a civilian employee at the SAPD main building, who informed him that Torres had told
her to shut off Rios’s and Villarreal’s access cards because they were not in Arson and should not
have them. Villarreal reported the incident to Horan and Hitzfelder. In light of these facts, the
City claims that at the time Torres made his report, SAFD was already investigating the matter and
Torres knew Chief Hood had approved Villarreal and Rios maintaining their Arson credentials.
Thus, the City argues Torres had no subjective basis on which to believe fraud was occurring. The
City also argues Torres’s belief could not have been objectively reasonable because another
firefighter in Torres’s position with the same training, background, and personal relationships with
Villarreal and Rios would have contacted the two well-respected men to inquire about the facts
before reporting to Casals.
In Torres’s response to the motion for summary judgment, he contends his OMI report was
made in good faith: he personally witnessed the fraudulent conduct and cited the statute he believed
to be violated. Attached to Torres’s response were numerous exhibits, including excerpts from the
depositions of Torres, Casals, Campbell, Guerrero, and Chief Hood, as well as Torres’s affidavit.
In his deposition, Torres testified he did not confront Villarreal and Rios directly because he would
have had to arrest the men, it would have been outside his chain of command, and would require
reporting in any case. Additionally, OMI policy prohibits discussing facts or suspicions with
others. Torres further testified he never deactivated Rios’s and Villarreal’s identification cards
and was never told or made aware he was being investigated over the supposed deactivation
incident. Torres also testified that he went to OMI because Casals and Hitzfelder did not follow
up after he reported. “When I wrote that report to Hitzfelder, nothing happened. . . . We never
heard anything. We never heard that Chief Horan and Chief Hood said that it was okay for them
to have these credentials.” Because Torres had heard nothing more than “rumors” that Villarreal
and Rios were authorized to carry their Arson credentials, he decided to contact OMI.
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Torres’s summary judgment response cites to evidence showing that other employees
within the Arson department would have made a similar complaint had they witnessed the activity
in question. Campbell testified that Torres had a good-faith belief about the OMI complaint and
that he “handled it the way he thought best at the time.” Campbell confirmed that “when somebody
left Arson, you turned in your credentials. . . . Everybody knew that.” Guerrero likewise testified
that it was routine to turn in your credentials upon leaving Arson. When asked if he believed
Torres had a good-faith belief in making the complaint, Guerrero answered, “I can’t answer to why
his reasoning was, but he knew that up to that point, you couldn’t keep your credentials. The only
way that you were allowed to keep your credentials in the Arson office was because you were
assigned to Arson.” Guerrero further explained that had he witnessed Villarreal and Rios using
their Arson credentials, he would have told his captain. He would have also asked Rios and
Villarreal directly, and even if they had given him a valid reason for their keeping their credentials,
he probably would have gone back to his captain and said, “I don’t agree with it. You might want
to look into it.”
Based on Torres’s response, and viewing the evidence as a whole in the light most
favorable to Torres, we conclude a fact issue exists on the element of “good faith.” Taking as true
Torres’s testimony that he was unaware of what became of his initial internal complaints to Casals
and Hitzfelder, as well as the testimony from Campbell and Guerrero indicating that they would
have also reported the incident in question to OMI, we hold a disputed fact issue exists as to
whether Torres’s decision to report to OMI was reasonable. Accordingly, the City did not
conclusively negate the “good faith” element as a matter of law.
“But For” Causation
A necessary element of a whistleblower claim is causation: that the employee suffered an
adverse employment action because she reported a violation of the law in good faith to an
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appropriate law-enforcement agency, although the employee’s report need not be the sole reason
for the adverse employment action. Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633-
34 (Tex. 1995). To show causation, the employee must demonstrate that after she reported a
violation of the law in good faith to an appropriate law-enforcement agency, the employee suffered
discriminatory conduct by her employer that would not have occurred when it did if the employee
had not reported the illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000).
In Department of Human Services v. Hinds, the Texas Supreme Court established a but-for
causation standard in whistleblower actions: “[T]he employee’s protected conduct must be such
that, without it, the employer’s prohibited conduct would not have occurred when it did.” 904
S.W.2d at 636. Under this standard, the City cannot negate the causation element merely by
showing that it had other reasons for not selecting Torres for the Arson lieutenant position. To the
contrary, the but-for standard requires conclusive proof that Torres’s OMI report did not play a
role, however small, in the City’s decision to not award the position to him. See Ender v. City of
Austin, No. 03-97-00329-CV, 1997 WL 658986, at *3 (Tex. App.—Austin Oct. 23, 1997, no pet.).
In its motion for summary judgment, the City put forth a host of reasons why Torres
“cannot meet his burden to prove causation.” The City alleged: Torres provided no evidence
showing any retaliatory action in the over two years subsequent to his making the report and prior
to the non-selection; Bennett was legitimately selected for the position based on the merits of his
application and interview performance; 1 Casals legitimately preferred Bennett to Torres; the non-
selection was warranted based on Torres’s past misconduct; and Torres was not credible and
changed his story of non-selection from discrimination to whistleblowing.
1
The City did not dispute that Torres was more qualified than Bennett in that Bennett lacked certain certifications
necessary to perform the job.
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In his summary judgment response, Torres relied on evidence that Chief Hood and Casals
both stated Torres’s credential complaint was the reason Torres was not selected for the Arson
lieutenant position. The ultimate decision-maker regarding the position Torres applied for was
SAFD Chief Charles Hood. Although Chief Hood testified that Torres was not selected for the
position because of his “lack of leadership, his impulsiveness, his not understanding the chain of
command, his dealing with the media without authorization, his impulsivity to go to OMI without
going through the chain of command,” he also acknowledged that the interview panel considered
Torres’s OMI report as a factor in its decision-making process. Hood testified that Torres’s
complaint “should never have gone to OMI.”
Similarly, Campbell testified that Casals brought up Torres’s OMI report during the
selection process. Campbell told Casals he “couldn’t use this against Steve.” In response, Casals
said, “Steve launched that investigation, he nearly cost me my job.” Campbell testified he believed
Torres and Casals had a “tense” relationship due to the OMI fraudulent credential investigation.
Campbell further testified that Torres was more qualified for the position than Bennett because he
was already certified and had law enforcement experience.
Although the City offered several reasons why Torres was not selected for the position in
question, we are mindful of the fact that Torres was not required to prove that his reporting of the
fraudulent credentials was the sole reason for his non-selection. Based on the foregoing, there is
some evidence in the summary judgment record that both Chief Hood and Casals considered the
fact that Torres reported the misuse of credentials to OMI when considering whether to select him
for the Arson position. Thus, viewing the entire record in the light most favorable to Torres, we
conclude the City did not negate causation as a matter of law.
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CONCLUSION
Having sustained Torres’s issues on appeal, we reverse the trial court’s order granting
summary judgment and remand the cause to the trial court for further proceedings.
Rebeca C. Martinez, Justice
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