Texas Department of Mental Health & Mental Retardation v. Rodriguez

HARDBERGER, Chief Justice,

dissents.

To prove causation, Rodriguez was required to demonstrate that after she re*484ported Starr County’s violations of the Mental Health Code, she suffered adverse personnel actions that would not have occurred when they did if she had not reported the illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000). I agree with the majority that the Thurston letter and the performance evaluation were adverse personnel actions. However, I disagree that there was no evidence to support the jury’s finding that Rodriguez suffered these adverse personnel actions because she reported the illegal conduct.

Circumstantial evidence may be sufficient to establish a causal link between the adverse employment action and the reporting of illegal conduct. Id. 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. Id.

(1)Knowledge of the Report

The majority concedes that “the timing of the events is such that Ramirez might have seen [Rodriguez’s] report before preparing the Thurston letter.” However, the majority rejects this possible inference because Ramirez testified that he did not see the report before he prepared the Thur-ston letter. In doing so, the majority ignores the applicable standard of review.

When considering a legal sufficiency complaint, we consider only the evidence and inferences that tend to support the jury’s finding, disregarding all evidence and inferences to the contrary. Lewelling v. Leioelling, 796 S.W.2d 164, 166 (Tex.1990). “The court of appeals is not a fact finder. Accordingly, the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment for that of the jury.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998).

The jury could have disbelieved Ramirez’s testimony that he had not seen the report when he prepared the Thurston letter. In any event, our standard of review requires us to disregard Ramirez’s testimony because it is contrary to the jury’s finding. Considering only the evidence and inferences that tend to support the jury’s finding, as we are required to do, the jury could have inferred from the timing of the events that Ramirez had seen the report before preparing the Thurston letter. The evidence is undisputed that Ramirez had knowledge of the report before the performance evaluation.

(2) Expression of a Negative Attitude Toward the Employee’s Report

Although Ramirez had praised a previous report by Rodriguez and others regarding the Starr County violations, that report did not circulate to staff outside the LSC. During the performance evaluation, Ramirez instructed Rodriguez that she was to report directly to her immediate supervisor, Dickinson. Ramirez rejected Rodriguez’s reply that she was precluded from reporting to Dickinson regarding certain matters, instructing Rodriguez that her unit was not an island. From this evidence, the jury could infer that Ramirez had a negative attitude toward Rodriguez’s report because she sent it to supervisors outside the LSC.

(3) Failure to Adhere to Established Company Policies Regarding Employment Decisions

Under the established policies, Rodriguez’s immediate supervisor, Dickinson, should have written the Thurston letter and conducted the performance counseling. Ramirez failed to adhere to those policies by taking those employment actions him*485self. Ramirez even told Dickinson that he was in charge of the performance counseling when she attempted to interject a comment at the meeting, precluding her from any participation. The majority discounts this evidence based on Ramirez’s testimony that he took the actions because he was directly involved and Dickinson had only been Rodriguez’s supervisor for a short period of time. However, as an appellate court, we are not to reconsider the credibility of the witnesses who testify. See id. Whether Ramirez’s excuses were credible was an issue for the jury, and the jury chose to disbelieve him.

(4) Discriminatory Treatment in Comparison to Similarly Situated Employees

Rodriguez testified that another supervisor who was absent from the training session was not disciplined. Rodriguez further testified that the Thurston letter was issued despite her explanation that she was preparing a report for TPRS and despite Ramirez’s admission that the LSC was required to cooperate with TPRS by law. The majority discounts the evidence that the other supervisor was not disciplined based on Ramirez’s testimony that the other supervisor was a department head and not required to attend. However, whether Ramirez’s explanation was credible was a decision to be made by the jury not by this court on appellate review. See id.

(5) Evidence that the Stated Reason for the Adverse Employment Action was False

Ramirez refused to consider Rodriguez’s explanation regarding the lack of advance notice of the training and her need to work with the TPRS. However, Wilson, Ramirez’s supervisor, decided that Ramirez had overreacted and that the Thurston letter should be removed from Rodriguez’s file. The jury could infer from Ramirez’s refusal to consider what Wilson determined to be a reasonable explanation that the reason Ramirez gave for issuing the Thurston letter was a pretense and that the letter was really issued in response to Rodriguez’s report of the illegal conduct. In addition, Rodriguez subsequently was ranked below standards on her performance evaluation for failing to attend the training; however, Wilson had determined that the reason she gave for refusing to attend the training was valid in requiring the Thurston letter to be removed. As a result, the jury also could infer that the reason given for the below standards performance evaluations was a pretense.

Rodriguez introduced sufficient circumstantial evidence to support the jury’s finding that the Thurston letter and the below standards performance evaluation would not have occurred when they did if she had not reported the illegal conduct. Because the majority holds to the contrary, I respectfully dissent.