Case: 17-51126 Document: 00514775342 Page: 1 Date Filed: 12/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-51126 United States Court of Appeals
Fifth Circuit
FILED
December 27, 2018
JENNIFER CRAMPTON,
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
JON WEIZENBAUM, in his individual capacity; SYLVIA RODRIGUEZ, in
her individual and official capacity; TEXAS HEALTH AND HUMAN
SERVICES COMMISSION, COURTNEY N. PHILLIPS, in her official
capacity as Executive Commissioner of the Texas Health and Human
Services Commission,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-959
Before STEWART, Chief Judge, KING and OWEN, Circuit Judges.
PER CURIAM:*
This lawsuit is the epilogue to Jennifer Crampton’s tumultuous 16-
month employment at the Texas Department of Aging and Disability Services.
Crampton alleges the defendants terminated her because she reported her
supervisor’s illegal activity in violation of the Texas Whistleblower Act, the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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First Amendment of the United States Constitution, and Article 1, § 8 of the
Texas Constitution. The district court granted summary judgment for the
defendants on all claims. Crampton appeals. For the reasons explained below,
we AFFIRM.
I.
Plaintiff Jennifer Crampton is a former employee of the now-defunct
Texas Department of Aging and Disability Services (“DADS”), which was
charged with licensing home-healthcare agencies. 1 Crampton’s job
responsibilities included reviewing the licenses DADS issued to ensure the
information on the licenses matched the information on the home-healthcare
agencies’ applications.
DADS hired Crampton in December 2014. The first few months of
Crampton’s employment were uneventful, but signs of the storm to come
appeared in April 2015. At that point, Crampton began having difficulty
getting along with a coworker, Olivia Williams. The problems appeared to
stem, at least in part, from Crampton finding excessive errors in Williams’s
work. Mary Jo Grassmuck, Crampton’s supervisor at the time, met with
Crampton and Williams and encouraged them to improve their relationship.
About six weeks later, Grassmuck gave Crampton an all-around positive
performance evaluation. She rated Crampton “Competent” or “Commendable”
in every category and “Commendable” overall. And despite her prior issues
with Williams, Grassmuck rated Crampton “Commendable” in both
1 DADS was abolished in reorganization and subsumed into the Texas Health and
Human Services Commission (“HHSC”) on September 1, 2017. See Tex. Gov’t Code
§ 531.0202. HHSC is therefore substituted as a party. See Fed. R. App. P. 43(c). Similarly,
defendant Jon Weizenbaum retired upon the dissolution of DADS. His responsibilities are
now executed by current HHSC Executive Commissioner Courtney N. Phillips. Accordingly,
Phillips is substituted for Weizenbaum in his official capacity. See id. Weizenbaum remains
a defendant in his individual capacity.
2
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“Communication Skills” and “Professionalism.” Further, Grassmuck wrote
that Crampton “[i]nteracts with coworkers in a positive manner.”
Grassmuck retired shortly after giving Crampton her performance
evaluation. Defendant Sylvia Rodriguez took over as Crampton’s immediate
supervisor. On July 22, 2015, Rodriguez, Crampton, and Cindy Bourland, who
sat two rungs above Rodriguez on the DADS organizational chart, met to
discuss several issues Crampton was having at work. They spoke to Crampton
about continued friction between her and Williams as well as “various
complaints” that had been lodged against Crampton. Among examples of the
latter were “a ‘shouting match,’ picking up others’ documents off the printer,
going into others’ cubicles, and insensitive language.” Bourland further
reprimanded Crampton for behaving disrespectfully towards Rodriguez. And
she told Crampton not to work unapproved overtime.
On September 14, 2015, Rodriguez announced a policy change regarding
the procedures for processing home-healthcare agencies’ requests to change
management personnel. Texas regulations prescribe minimum academic
qualifications for individuals holding certain management positions within
licensed home-healthcare agencies. See 40 Tex. Admin. Code § 18.11. DADS’s
prior policy required home-healthcare agencies to demonstrate their managers’
qualifications by sending the managers’ resumes with the agencies’ application
requests. Rodriguez announced to her staff that, as a new internal policy,
DADS would no longer require resumes to process change-of-management
requests.
Crampton testified that she saw Rodriguez’s new policy as being
incompatible with DADS’s responsibility to ensure that home-healthcare
agencies were run by properly credentialed managers. Sometime over the next
several weeks, Crampton began complaining about Rodriguez’s change to the
resume policy to various officials both inside and outside of DADS. Crampton
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sent these officials the same 57-page packet of material, which included a cover
letter, various emails discussing the policy change, and the regulations that,
according to Crampton’s interpretation, required DADS to check resumes
before processing change-of-management requests. In her deposition,
Crampton estimated that she sent these packets to about 40 or 50 different
offices and officials. 2 The recipients included the Office of the Governor, the
Office of the Attorney General, and numerous legislators. Crampton also
testified that she spoke with various officials on the phone contemporaneously
with mailing the packets.
Crampton testified that around that same time, a coworker asked for
Crampton’s assistance recreating supposedly missing copies of license-renewal
letters—at Rodriguez’s direction—that Grassmuck had sent prior to her
retirement. To do so, Crampton would have needed to backdate the letters and
forge Grassmuck’s signature. Crampton said she refused to help because she
believed that recreating the letters amounted to fraud.
Meanwhile, on October 20, 2015, Bourland, Rodriguez, and two other
DADS officials began to discuss taking disciplinary action against Crampton.
On November 3, Bourland proposed issuing Crampton a “second-level
reminder” because of her continuous unprofessional and disruptive behavior. 3
Rodriguez prepared a memorandum to Crampton discussing the second-level
reminder, which listed about a dozen separate incidents since the July 22
meeting in which Crampton had behaved disrespectfully towards a coworker
or supervisor.
2 The record does not reflect the identity of each recipient. Only one packet is included
in the record, and it does not indicate to whom Crampton sent it. Crampton was unable to
recall everyone she sent a packet to in her deposition.
3 DADS’s progressive-discipline policy prescribes three levels of “reminders” prior to
termination for cause.
4
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In the memorandum, Rodriguez detailed a wide range of inappropriate
conduct. Recounting one incident, Rodriguez wrote, “On 9/22/15, I received an
email from Julie Cox, a DADS employee from one of our sister units. She asked
me if I was your manager. She reported that you were making fun of her and
taunting her for wearing a hat. Your behavior was not acceptable.” Rodriguez
recounted a separate incident, which took place about a week after Crampton
learned she had not been selected to interview for a promotion:
On 9/24/15 or 9/25/15, you entered Licensing and Certification
manager Bobby Schmidt’s office without knocking and closed the
door. Bobby stated that you appeared very upset. He said you
commented on the interview screening process, how those
employees who were interviewed were chosen, your qualifications
and experience and why you were not chosen. Bobby observed you
to use a loud and intimidating voice. He asked you to lower your
voice several times, but you refused. You walked away without
allowing Bobby an opportunity to respond. This type of behavior
was inappropriate, unprofessional and is considered
insubordination. Your communication with Bobby was poor.
These incidents are representative of Crampton’s other behavior discussed in
the memorandum. Rodriguez also reprimanded Crampton in the memorandum
for continuing to work unapproved hours. The memorandum made no mention
of any of Crampton’s complaints about the resume policy, the alleged forgery,
or related matters.
Bourland and Rodriguez met with Crampton on November 9 to discuss
the second-level reminder. Internal emails show that Bourland reported to two
HR representatives that, during the meeting, Crampton “continued to display
many of the behaviors for which she was receiving the [second] level reminder,”
such as giving “sarcastic and inappropriate” answers. Remarking that she had
“never experienced this exact type of response from an employee before,”
Bourland contemplated proceeding immediately to further discipline against
Crampton, but she ultimately decided against it.
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After receiving the second-level reminder, Crampton continued to
correspond with various offices and officials about the perceived problems with
the licensing unit. She also began alleging—including in a report to the Office
of the Inspector General for the Texas Health and Human Services
Commission (“OIG”)—that she received the second-level reminder in
retaliation for her whistleblowing.
On March 23, 2016, Rodriguez decided to take further disciplinary
action because Crampton’s behavioral issues continued unabated. Rodriguez
issued Crampton a third-level reminder on March 28. In the third-level
reminder memorandum, Rodriguez listed about a dozen additional incidents
in which Crampton acted unprofessionally, worked unapproved overtime, or
otherwise violated policy. All these incidents took place after Crampton
received the second-level reminder. For example, in discussing one
representative incident, Rodriguez wrote:
February 12, 2016 – You came into my office to discuss the DADS
approved training organization list; you became frustrated when I
didn’t agree with you that an assignment to you should have been
assigned to another staff member and stated “I’m done here. You
call me when you are ready to discuss this.” You turned and started
to leave my office. I responded that we were not done here and
reminded you that this was the type of behavior that led to your
Second Level Reminder. You displayed inappropriate,
disrespectful, and unprofessional behavior.
Rodriguez and Robbi Craig, an HR representative, met with Crampton
to discuss the third-level reminder with her. Crampton was again combative
during this meeting: she repeatedly interrupted Rodriguez, “laughed aloud”
while Rodriguez was reading from the memorandum, and tried to walk out of
the meeting twice before its conclusion. The next day, Crampton submitted
new information to the OIG, prompting it to reopen its investigation into her
allegations, which it had previously closed.
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As part of the third-level reminder, Crampton was given paid time off to
reflect upon whether she wanted to continue working at DADS. Upon her
return to work on April 1, Rodriguez and Craig met with Crampton to discuss
her decision. During this meeting, which Rodriguez recorded, Crampton
combatively denied any wrongdoing, alleged that all the discipline taken
against her was retaliatory, repeatedly attempted to shift the subject to other
employees’ various malfeasance, and called Rodriguez a “sleaze.” 4 Following
that meeting, Rodriguez and Craig met with several other DADS officials to
discuss Crampton, and Rodriguez decided to proceed towards termination.
Rodriguez sent Crampton a notice of possible disciplinary action on April 7,
which repeated the allegations in the third-level reminder memorandum and
discussed Crampton’s behavior at the March 28 and April 1 meetings. After
reviewing Crampton’s response, Rodriguez sent Crampton a termination letter
on April 15.
4 The following exchange is an illustrative example of the meeting:
Ms. Craig: Respond to Sylvia [Rodriguez] positively and cooperatively
when given guidance direction.
Ms. Crampton: Oh, I would love to. That’s again, Sylvia, what do you
want? What else do you want, Sylvia? That was nice, kind, “yes.”
Ms. Rodriguez: You are being very disrespectful.
Ms. Crampton: That’s not disrespectful.
Ms. Rodriguez: That is disrespectful.
Ms. Crampton: No.
Ms. Craig: I would suggest going forward that your second level
manager be present or another manager be present for your private meetings.
Ms. Crampton: Me too.
Ms. Craig: Because there’s obviously a very difference [sic] in
perception –
Ms. Crampton: There is.
Ms. Craig: – between – but honestly from what I’ve seen from you, I’ve
seen you be very disrespectful.
Ms. Crampton: Because you haven’t been around, Robbi, to see what’s
going on.
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Crampton filed this lawsuit in state court against DADS, Rodriguez in
her official and individual capacities, and DADS Commissioner Jon
Weizenbaum in his official and individual capacities. She alleged that
Rodriguez terminated her in retaliation for complaining about Rodriguez’s
resume policy in violation of the Texas Whistleblower Act, the First
Amendment to the United States Constitution, and Article 1, § 8 of the Texas
Constitution. 5 The defendants removed the lawsuit to the federal district court.
After briefing on the defendants’ motion for summary judgment was complete,
Crampton moved to supplement the record with a declaration from
Grassmuck, Crampton’s original supervisor. In a single order, the district court
denied Crampton’s motion to supplement and granted the defendants’ motion
for summary judgment. Crampton appeals.
II.
We review orders granting summary judgment de novo, applying the
same standard as the district court. See Smith v. Reg’l Transit Auth., 827 F.3d
412, 417 (5th Cir. 2017). Summary judgment is proper when “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine
dispute of material fact means that [the] ‘evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
When the nonmoving party will bear the burden of persuasion at trial
and “the moving party initially shows the non-movant’s case lacks support, ‘the
non-movant must come forward with “specific facts” showing a genuine factual
5 Crampton brings her First Amendment claims via 42 U.S.C. § 1983. Texas has no
§ 1983 analog, so her § 8 claim is limited to injunctive relief. See City of Beaumont v.
Bouillion, 896 S.W.2d 143, 149 (Tex. 1995).
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issue for trial.’” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th
Cir. 2018) (quoting TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.
2002)). “Although we draw all reasonable inferences in favor of the nonmovant
at the summary judgment stage, a mere ‘scintilla of evidence’ in support of [the
nonmovant’s] position will not do, nor will ‘some metaphysical doubt as to the
material facts.’” Funches v. Progressive Tractor & Implement Co., 905 F.3d 846,
849 (5th Cir. 2018) (per curiam) (citations omitted) (first quoting Anderson, 477
U.S. at 252, then quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). When the moving party will bear the burden of
persuasion at trial, “evidence must be adduced supporting each element of the
defense and demonstrating the lack of any genuine issue of material fact with
regard thereto.” Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877
(5th Cir. 2002).
We first address whether a reasonable jury could find for Crampton on
her Texas Whistleblower Act claim. We then ask the same of Crampton’s First
Amendment and § 8 claims.
A.
The Texas Whistleblower Act makes it unlawful for a “state or local
governmental entity [to] 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
§ 544.002(a). The Texas Supreme Court has held that causes of action under
the Texas Whistleblower Act carry a but-for causation requirement—that is,
the employee must prove that if she had not reported a violation of the law,
she would not have suffered an adverse employment action. See Tex. Dep’t of
Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). If a Whistleblower
Act plaintiff shows her protected activity was a factor in her termination, the
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defendant may nonetheless prevail if it shows, as an affirmative defense, that
it would have terminated the plaintiff regardless of whether she engaged in
protected activity. Tex. Gov’t Code § 544.004(b); see also Fort Worth Indep. Sch.
Dist. v. Palazzolo, 498 S.W.3d 674, 681 (Tex. App.—Fort Worth 2016, pet.
denied).
1.
All parties agree that Crampton was a public employee who was
terminated. We assume arguendo that Crampton reported a violation of the
law in good faith to an appropriate authority. But we agree with the district
court that Crampton cannot establish that she would not have been terminated
if she had not reported Rodriguez’s perceived wrongdoing.
Whistleblowers may rely on circumstantial evidence to show causation.
See Houston v. Levingston, 221 S.W.3d 204, 226 (Tex. App.—Houston [1st
Dist.] 2006, no pet.).
Such evidence includes: (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, and (5) evidence that the stated reason for the adverse
employment action was false.
City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000). “But evidence that
an adverse employment action was preceded by a superior’s negative attitude
toward an employee’s report of illegal conduct is not enough, standing alone,
to show a causal connection between the two events. There must be more.” Id.
Crampton points to three pieces of evidence that, she says, would allow
a reasonable jury to infer that Rodriguez terminated her because of her
protected activity. First, Crampton argues that Craig’s handwritten notes
show that DADS officials discussed Crampton’s whistleblowing during the
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April 1 meeting at which Rodriguez decided to terminate Crampton.
Specifically, Craig wrote “OIG, civil rights,” “Michael McCall’s [sic] office –
letter,” and “fraud” in apparent references to Crampton’s complaints to the
OIG and U.S. Representative Michael McCaul and her allegation that
Rodriguez fraudulently recreated missing letters. Crampton insists that these
notes support an inference that her protected activity factored into Rodriguez’s
decision to terminate her. We disagree. Without further context, these notes
establish, at most, that Rodriguez knew about Crampton’s protected activity.
The cases Crampton cites do not add any significance to Craig’s notes.
Crampton argues that Torres v. City of San Antonio, No. 04-15-00664-CV, 2016
WL 7119056 (Tex. App.—San Antonio Dec. 7, 2016, no pet.) (mem. op.), “is
directly on point.” The plaintiff in that case—a firefighter—was passed over
for a promotion after complaining that an assistant fire chief was granting
certain firefighters improper credentials, which allowed them to access an
arson-investigation facility. Id. at *1. The evidence showed that two
decisionmakers “both stated Torres’s credential complaint was the reason
Torres was not selected for the Arson lieutenant position.” Id. at *5. Indeed,
the fire chief “acknowledged that the interview panel considered Torres’s
[Office of Municipal Integrity] report as a factor in its decision-making process”
and “testified that Torres’s complaint ‘should never have gone to OMI.’” Id.
This is direct evidence of causation, and it is about as strong as it gets. Craig’s
notes are incomparable.
Crampton’s reliance on Glorioso v. Mississippi Department of
Corrections, 193 F.3d 517, 1999 WL 706173 (5th Cir. 1999) (unpublished table
decision) (per curiam), is similarly unavailing. One of the decisionmakers in
Glorioso recommended terminating the plaintiff because of her negative
attitude towards a superior. Id. at *4. But, akin to Torres, the decisionmaker
expressly cited the plaintiff’s protected activity—a grievance alleging sexual
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harassment—as the sole example of her negative attitude. See id. at *4.
Likewise, in Gardner v. CLC of Pascagoula, L.L.C., 894 F.3d 654 (5th Cir.
2018), this court found direct evidence of a causal link between the plaintiff’s
protected conduct and termination. The plaintiff in that case, a certified
nursing assistant, alleged that a patient sexually harassed her, so she refused
to treat that patient. In terminating the plaintiff, the plaintiff’s supervisor
cited her “refusal to provide [the patient] care.” Id. at 664. We explained: “That
refusal to continue treating [the patient] is what Gardner alleges is the
protected activity of opposing an unlawful employment practice.” Id.
Ion v. Chevron USA, Inc., 731 F.3d 379 (5th Cir. 2013), is slightly more
helpful to Crampton’s case, but it too fails to carry her argument. The plaintiff
in that case took time off under the Family and Medical Leave Act (“FMLA”)
following a suspension. In the plaintiff’s subsequent termination letter, the
employer wrote, “[Y]ou haven’t returned to work since your suspension.” Ion,
731 F.3d at 391. The employer argued that this was “merely a factual
statement,” but we held that a reasonable jury could conclude it showed that
the employer impermissibly took the plaintiff’s FMLA leave into account. See
id. at 391-92.
Ion is distinguishable from the case at hand. The jury in that case could
read the statement about the plaintiff’s FMLA leave in the context of the rest
of the termination letter to reach its own conclusions about the statement’s
significance. The jury here does not have that luxury with Craig’s out-of-
context scribblings. Any conclusion that attendees at the April 1 meeting
discussed Crampton’s protected activity as a reason for her termination would
be improperly speculative. See, e.g., Lawrence v. Fed. Home Loan Mortg. Corp.,
808 F.3d 670, 673 (5th Cir. 2015) (“A non-movant will not avoid summary
judgment by presenting ‘speculation, improbable inferences, or
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unsubstantiated assertions.’” (quoting Likens v. Hartford Life & Accident Ins.
Co., 688 F.3d 197, 202 (5th Cir. 2012))).
Indeed, another part of Ion demonstrates the flaw in Crampton’s
argument. The plaintiff separately argued that the term “insubordination” in
his termination letter was a reference to his alleged protected activity—
refusing to sign a medical release form. Ion, 731 F.3d at 391. We explained
that, even when interpreting all facts and drawing all inferences in the
plaintiff’s favor, the meaning of “insubordination” in the termination letter did
“not rise above speculation.” Id. The same is true here: even with the benefit
of the doubt owed to Crampton on summary judgment, we can only speculate
about whether the references in Craig’s notes to the OIG, Representative
McCaul, and fraud mean Rodriguez considered Crampton’s protected activity
in deciding to terminate her.
Next, Crampton argues that the timing of her termination creates an
inference of causation. Under the Whistleblower Act, if a public employee is
terminated within 90 days of reporting the violation, the employee is entitled
to a rebuttable presumption of causation. See § 554.004(a). This presumption
shifts the burden to the employer to produce sufficient evidence of a
permissible reason for the employee’s termination. See Levingston, 221 S.W.3d
at 226. Once the employer meets this burden, “the case proceeds as if no
presumption had ever existed.” Id.
Here, Crampton was terminated within weeks of reopening her
complaint to the OIG. But to the extent that this triggers § 554.004(a)’s
presumption of causation, the defendants sufficiently rebut that presumption
by producing a plethora of evidence that Rodriguez terminated Crampton for
her continual and unrepented unprofessional behavior. See Levingston, 221
S.W.3d at 226. Therefore, “this case proceeds as if no presumption had ever
existed.” Id.
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Without the presumption, we agree with the district court that “[t]he
timing of Crampton’s termination is less suspect than suggested.” Crampton
provided new information to the OIG on March 29, 2016, the day after
Rodriguez presented Crampton with the third-level reminder. Accordingly,
Crampton cannot credibly argue that the third-level reminder came in
response to her complaint to the OIG. Further, Crampton’s supervisors—first
Grassmuck and then Rodriguez and Bourland—began counseling Crampton
about her unprofessional behavior well before Crampton engaged in any
protected activity. 6 And lastly, given the prolificacy of Crampton’s complaints,
it is entirely unsurprising that Crampton’s termination came in close
proximity to one of her complaints. Inferring causation from proximity under
these circumstances would allow a whistleblower to permanently protect her
job as long as she continually complains about illegal behavior. We doubt the
Texas legislature or courts would endorse such a result. Cf. Hinds, 904 S.W.2d
at 633 (declining to follow literal language of Whistleblower Act because doing
so “would give public employees life tenure for reporting activity believed in
good faith to be unlawful”).
Lastly, Rodriguez’s deposition testimony that she considered
“[e]verything that’s happened so far” in deciding to terminate Crampton is too
vague to create a reasonable inference of causation. Cf. Gardner, 894 F.3d at
664 (finding jury could infer causation because specific reason decisionmaker
cited for plaintiff’s termination was exactly “what Gardner allege[d] [was] the
protected activity of opposing an unlawful employment practice”); Torres, 2016
WL 7119056, at *5 (concluding jury could infer causation because
decisionmaker “acknowledged that the interview panel considered Torres’s
6 We do not find it relevant that DADS did not consider this initial counseling to be
formal discipline. Either way, it is undisputed that Crampton’s supervisors were unhappy
with her workplace demeanor prior to any of her protected activity.
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[Office of Municipal Integrity] report as a factor in its decision-making
process”).
Taken together, Crampton’s evidence does not create a reasonable
inference of causation. The “scintilla of evidence” of causation that Crampton
does present is insufficient to carry her burden on summary judgment.
Anderson, 477 U.S. at 252; cf. City of El Paso v. Parsons, 353 S.W.3d 215, 226-
27 (Tex. App.—El Paso 2011, no pet.) (concluding jury could infer causation
because decisionmaker knew about protected activity and evidence suggested
stated reason for termination was pretextual); Levingston, 221 S.W.3d at 227-
29 (finding jury could infer causation because (1) decisionmaker knew about
protected activity; (2) decisionmaker expressed annoyance with protected
activity; (3) decisionmaker departed from normal city procedure in terminating
plaintiff; and (4) plaintiff presented “ample evidence” of pretext).
2.
Alternatively, we conclude that the defendants are entitled to summary
judgment because the unrebutted summary-judgment “evidence conclusively
establishes that any possible consideration by [Rodriguez] of the fact that
[Crampton] 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.” Steele v. City of Southlake, 370 S.W.3d 105, 118-19 (Tex. App.—Fort
Worth 2012, no pet.) (citing § 554.004(b)). 7 Although an affirmative defense,
Texas courts routinely will grant summary judgment to a Whistleblower Act
defendant that produces sufficient unrebutted evidence that it would have
7 Crampton argues that the defendants waived their § 554.004(b) argument by failing
to raise it below. Although the defendants primarily argued they had an identical affirmative
defense to Crampton’s First Amendment retaliation claim (discussed further, infra), they
noted in their reply below that the defense also applies to Crampton’s Whistleblower Act
claim. We may thus consider it. See, e.g., Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014)
(explaining we may affirm on any ground, “so long as the argument was raised below”).
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terminated the plaintiff regardless of the plaintiff’s protected activity. For
example, the Texas Court of Appeals suggested that the plaintiff in Steele, a
police officer, produced sufficient evidence for a jury to conclude he was
terminated in part because he reported a pattern of wrongdoing by senior
officers. See id. at 118. Nevertheless, the court affirmed summary judgment
for the defendants because the defendants produced unrebutted evidence that
the plaintiff had used another officer’s identity to send an email to city officials.
Id. at 120. The court found it undisputed that such dishonesty is a terminable
offense for a police officer. Id. at 121-25. It accordingly concluded that “based
upon the summary judgment evidence that appellees presented and upon the
lack of evidence by appellant to raise a genuine issue of material fact that he
would not have been fired based on his untruthfulness, . . . appellees
conclusively proved their entitlement to summary judgment on the affirmative
defense of section 554.004(b).” Id. at 125-26.
The same court reached a similar decision in Lopez v. Tarrant County,
No. 02-13-194-CV, 2015 WL 5025233 (Tex. App.—Fort Worth 2015, pet.
denied) (mem. op.). The plaintiff in Lopez, an executive assistant to a county
commissioner, sued the county alleging she was fired for reporting that
another county employee had assaulted her. Id. at *1, *3. The court affirmed
summary judgment for the county because it determined the county
conclusively established § 554.004(b)’s affirmative defense. Id. *5. Specifically,
the court pointed to the mostly unrebutted evidence that the plaintiff was
terminated for her behavior in a meeting with her supervisor, which “included
‘shouting, being insubordinate, disrespectful, confrontational and making
accusations which [the plaintiff] later admitted were untrue.’” Id. at *6; see
also Vela v. City of Houston, 186 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (affirming summary judgment for defendant because plaintiff
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had “not presented a scintilla of evidence to refute the City’s reason for his
termination”).
Here, even assuming a jury could reasonably conclude that Crampton’s
protected activity partially motivated Rodriguez to terminate her, a jury could
not reasonably conclude that Rodriguez would have reached a different
decision in the absence of Crampton’s protected activity. The defendants
presented myriad evidence of Crampton’s workplace issues dating back almost
a year prior to her termination. This evidence includes declarations from
Rodriguez, Bourland, and Craig, their contemporaneous emails, Crampton’s
two reminder memoranda, Crampton’s notice of possible disciplinary action,
and the recording and transcript of the April 1 meeting. All this evidence
reveals a clear and unabated pattern of disrespectful, insubordinate, and
unprofessional workplace behavior from Crampton.
The defendants also presented the DADS human-resources policy, which
discusses DADS’ progressive-discipline system. The policy lists “failure to work
in harmony with others” as a “serious offense,” and it lists “insubordination”
as a “major offense.” First-time serious offenses generally warrant a second-
level reminder, while continued serious offenses and first-time major offenses
generally warrant a third-level reminder. The policy prescribes termination for
certain repeat violations, including “fail[ing] to meet written job performance
standards” and “fail[ing] to work in harmony with coworkers.” Rodriguez thus
acted according to the human-resources policy in disciplining and ultimately
terminating Crampton for her unharmonious and occasionally insubordinate
behavior.
We conclude this evidence is sufficient to show that Rodriguez would
have terminated Crampton regardless of her protected activity. Accordingly,
the defendants are entitled to summary judgment on their § 554.004(b)
affirmative defense unless Crampton can show a genuine factual dispute.
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Crampton seeks to create a fact question by arguing that Rodriguez
disciplined Becky Nelson, another DADS employee, less severely than
Crampton for similar conduct. But she does not present sufficient evidence of
Nelson’s conduct for a jury to conclude—at least absent speculation—that
Nelson’s conduct was at all comparable to Crampton’s. In her reply brief,
Crampton cites to Craig’s deposition, which reveals that Nelson received a
first-level reminder for (1) sending an argumentative email, (2) sending an
email outside of work hours, and (3) using an inappropriate tone of voice with
Rodriguez. No reasonable jury could conclude that this is comparable to the
dozens of incidents over a period of months for which Crampton was
disciplined. See Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex.
2005) (reversing jury verdict in disparate-treatment discrimination case
because “even though the female employees worked in the same department
and were subject to the same time clock rules, there is no evidence that their
respective misconduct was of ‘comparable seriousness’” (quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804 (1973))).
Crampton further points to Craig’s notes and Rodriguez’s testimony that
she considered “[e]verything” when she decided to terminate Crampton as
evidence that negates the defendants’ affirmative defense. But this evidence
cannot play double duty. The most this evidence could show is that Crampton’s
protected activity was a motivating factor in her termination; 8 it does not
negate the evidence that Rodriguez would have terminated Crampton
regardless of her protected activity. As the Texas Court of Appeals explained
in Steele, “circumstantial evidence of retaliation is immaterial when an
employer proves an independent basis for an adverse employment action.” 370
S.W.3d at 119; see also Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388
8 Although, as explained above, it does not even show this much.
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(Tex. 2005) (concluding circumstantial evidence may “support[] a causal link
between Hernandez’s termination and her filing a workers’ compensation
claim” but explaining such evidence was “immaterial if Hernandez’s
termination was required by the uniform enforcement of Haggar’s one-year
leave-of-absence policy”).
Crampton points to no evidence showing that (1) she did not engage in
the behavior for which she was purportedly terminated; (2) her behavior did
not constitute an objectively terminable offense; (3) her behavior did not
subjectively factor into Rodriguez’s decision; or (4) Rodriguez’s stated reason
for her termination was otherwise pretextual. Thus, the undisputed evidence
conclusively shows that Rodriguez would have terminated Crampton
regardless of her protected activity, and the defendants are entitled to
summary judgment on their § 554.004(b) affirmative defense.
B.
We now turn to Crampton’s First Amendment and § 8 retaliation claims.
To state a First Amendment retaliation claim, 9 a public employee must show
that she “spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006). If the employee makes this showing, then the court
must weigh “whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of
the general public.” Id. Further, the employee must show that her protected
9 The parties treat Crampton’s First Amendment and § 8 claims as coterminous. The
district court followed this approach too. The Texas Supreme Court has explained that § 8’s
protections are not necessarily identical to the First Amendment’s protections. See Bentley v.
Bunton, 94 S.W.3d 561, 578-79 (Tex. 2002). But in cases “[w]here, as here, the parties have
not argued that differences in state and federal constitutional guarantees are material to the
case, and none is apparent, [the Texas Supreme Court] limit[s] [its] analysis to the First
Amendment and simply assume[s] that its concerns are congruent with those of article I,
section 8.” Id. at 579. Accordingly, we analyze Crampton’s First Amendment and § 8 claims
together, applying federal law.
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speech led to an adverse employment action against her. See Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977). In assessing
causation, the initial burden is on the employee to show that the protected
speech “was a ‘motivating factor’” in the public employer’s decision to discipline
the employee. Id. at 287 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 270 (1977)). The burden then shifts to the employer to
show that it would have taken the same action regardless of the employee’s
speech. See id.
As with Crampton’s Whistleblower Act claim, we assume without
deciding that Crampton engaged in protected activity by speaking as a citizen
on a matter of public concern. But Crampton’s First Amendment and § 8 claims
fail for the same reason as her Whistleblower Act claim: want of causation. 10
Crampton presents the same evidence of causation in support of her First
Amendment and § 8 claims. She asserts that a jury could infer that her
protected speech motivated her termination, at least in part, because of (1) the
references in Craig’s notes to the OIG, Representative McCaul, and fraud, (2)
the timing of her termination, and (3) Rodriguez’s comments that she
considered “[e]verything” when she decided to terminate Crampton. For the
reasons explained above, this “scintilla of evidence” cannot propel Crampton
beyond summary judgment. Anderson, 477 U.S. at 252.
Alternatively, the defendants prevail on the second prong of the Mt.
Healthy test because the undisputed evidence shows that Rodriguez would
have terminated Crampton regardless of whether she engaged in protected
activity. See 429 U.S. at 287. Crampton puts forth no evidence disputing that
she engaged in a long pattern of disrespectful, insubordinate, and
10 Notably, the Texas Supreme Court explicitly adopted the Mt. Healthy standard as
the standard for assessing causation under the Whistleblower Act. See Hinds, 904 S.W.2d at
635-36.
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unprofessional workplace behavior. Nor does she dispute that her continual
behavior arose to a terminable offense. Accordingly, even assuming
Crampton’s protected speech “was a ‘motivating factor’” in her termination, the
defendants are nevertheless entitled to summary judgment. Id. at 287 (quoting
Arlington Heights, 429 U.S. at 270).
III.
We also conclude the district court did not abuse its discretion in denying
Crampton’s motion to supplement the summary-judgment record with
Grassmuck’s declaration after discovery had closed and briefing on the
defendants’ motion was complete. See Meaux Surface Prot. v. Fogleman, 607
F.3d 161, 167 (5th Cir. 2010). Crampton protests that she “had been
attempting to obtain the declaration since July 17, 2017 in order to meet her
filing deadline of July 21, 2017, [but] Grassmuck did not sign the declaration
until August 1, 2017.” Discovery had been open for more than 10 months at
that point; Crampton offers no explanation for why she did not ask Grassmuck
to sign the declaration until four days prior to her deadline to respond to the
defendants’ summary-judgment motion. Without even attempting to justify
such a delay, Crampton cannot show the good cause needed to modify the
district court’s scheduling order. See Fed. R. Civ. P. 16(b)(4).
IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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