City of Houston v. Levingston

• Decision Date: 27 July 2006
• Docket Number: No. 01-03-00678-CV.,01-03-00678-CV.
• Citation: 221 S.W.3d 204
• Parties: The CITY OF HOUSTON, Appellant, v. Sam LEVINGSTON, D.V.M., Appellee.
• Court: Texas Court of Appeals

221 S.W.3d 204

The CITY OF HOUSTON, Appellant, v. Sam LEVINGSTON, D.V.M., Appellee.

No. 01-03-00678-CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 27, 2006.

Cheryl G. Cash, Constance K. Acosta, Sr. Asst. City Attys., David W. Holman, The Holman Law Firm, P.C., Houston, for Appellant.

Martin A. Shellist, Shellist * Lararz, LLP, Michael David Lore, The Lore Law Firm, Houston, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION ON REHEARING

TERRY JENNINGS, Justice.

We grant appellant's motion for rehearing, withdraw our opinion dated February 2, 2006, and substitute this opinion in its place.

In this Texas Whistleblower Act¹ lawsuit, appellant, the City of Houston ("the City"), challenges the trial court's judgment, rendered after a jury verdict, awarding appellee, Dr. Sam Levingston, $116,500 in past lost wages, $235,000 as the value of reinstatement to Levingston's former position, fringe benefits and seniority rights, and $250,000 in capped compensatory damages, plus attorneys' fees, pre- and post-judgment interest, and court costs.

In three of its seven issues, the City contends that there is no evidence to support the jury's findings that Levingston, in good faith, reported a violation of law to an appropriate law enforcement authority, that the termination of Levingston's employment was caused by the report, and the jury's award of mental-anguish damages. In its remaining issues, the City contends that the trial court erred in awarding Levingston the monetary value of reinstatement to his former position without subjecting that award to the applicable statutory damages cap; awarding Levingston prejudgment interest on his capped compensatory damages; applying a "multiplier" to its award of Levingston's attorneys' fees; denying the City's request to include a separate question in the jury charge regarding the City's affirmative defense; and denying the City's pretrial motion to strike Levingston's untimely request for a jury trial.

We modify the trial court's judgment to provide for the award of prejudgment interest on the amount of $116,500 rather than on the amount of $365,500. We affirm the judgment of the trial court in all other respects.

Factual and Procedural Background

Dr. Levingston served the City as a senior veterinarian in its Bureau of Animal Regulation and Care ("BARC"), a division of the City's Department of Health and Human Services, from September 8, 1992 until his employment was terminated on March 23, 2000. Prior to his termination, Levingston had over 40 years of experience as a licensed veterinarian.

BARC, previously known as "the City of Houston Rabies Control Facility," has the responsibility for the control of rabies within the City.² The record reveals, moreover, that "BARC has law enforcement responsibilities in animal-related issues within the City." The BARC facility intakes approximately 28,000 to 30,000 animals in a given year. Out of these animals, approximately 25,000 are euthanized by BARC, and another 120 to 140 animals are dead on arrival or die of natural or unexplained causes while in BARC's care.

At trial, Levingston testified that during his employment with BARC, he saw "a number of things" occurring at BARC's facility that "rose to the level of animal abuse." Among other problems, he noted that individual pens in the BARC kennel were too small and overcrowded and that this caused animals to fight over food. He also noted that when the air conditioners on BARC trucks did not work, animals would arrive at the BARC facility heated, exhausted, and sometimes dead.

Levingston stated that BARC kennel attendants, in a cruel and inhumane manner, held animals in a dip tank with their heads under water "to teach them a lesson." He saw BARC kennel attendants jerk dogs off of BARC trucks onto a concrete floor, which would "create painful breaks." Levingston also saw BARC kennel attendants pitch puppies "like a baseball from the truck to the holding pen, which had a concrete floor." He explained that when mother dogs were brought into the BARC facility, their puppies, due to a "faulty floor," would often get stuck down into a four inch drain. On one occasion, BARC kennel attendants washed three puppies down the sewer line. Levingston also stated that cats were sometimes "euthanized in burlap sacks by throwing them under the back wheels of a truck."³ He also explained that BARC employees did not properly feed and water animals, that they would ration food for animals scheduled to be euthanized, and that "the attitude was, `Well, they're only going to be here three days, so they'll either go home or they'll be euthanized, so why waste the food on them?'"

Levingston further testified that he reported these matters to the attention of John Nix, the Division Manager of BARC, from the time that Nix became Division Manager in September 1996 until May 21, 1999. He normally communicated his complaints to Nix by periodically leaving Nix notes written on 5-inch by 8-inch index cards. Levingston would complete an index card when he "found the abuse," typically at the end of his workday between 4:00 and 7:00 p.m. He had to leave Nix written reports because Nix typically left the BARC facility at 2:00 p.m. on business days. Levingston explained that animal abuse at BARC grew worse after Nix became Division Manager because, unlike his predecessor, who "was in the kennel every single day," Nix was in the kennel only "twice a month" as he walked "through to pick up a city vehicle." Despite his complaints, Levingston "never saw a change" at BARC.

In May 1999, Levingston decided to handwrite a formal letter outlining his complaints to Nix because his complaints about animal abuse were being "ignored." Levingston was concerned that his written reports "probably had been thrown away without any action taken, so [he] wanted this letter typed and placed in [his] file and to show evidence of the inhumane treatment." When Levingston spoke with his direct supervisor, Dr. Adel Hanna, who was also a senior veterinarian at BARC, about Nix's failure to respond to his complaints, Hanna told him that "Nix was getting kind of irritated because [Levingston] was giving him so many cards and talking so much about the inhumane treatment of animals." On May 20, 1999, Levingston gave his handwritten letter, which was to be dated May 21, 1999, to the kennel's secretary.

In the letter, Levingston offered suggestions for improving the operation of the facility, proposed changes, and noted:

The animals are treated inhumanely including — by improper restraints, a lack of water and sometimes food, and rough handling by uncaring employees — this should be corrected before the SPCA or another humane organization finds out.

When asked why he made all of his reports to Nix at BARC and "not somewhere else," Levingston testified:

It's against the law to treat the animals inhumanely. This is the authority for which the inhumane treatment should be reported to. And it's the law.

He explained that, as a BARC senior veterinarian, he in fact "did go out a few times to investigate animal abuse with a team from BARC."

Nix testified that although he did not recall discussing animal abuse at BARC with Levingston before receiving Levingston's May 20 letter, his recollection could be wrong. Nevertheless, in a "confidential" memorandum to Levingston dated June 1, 1999, Nix stated that he had reviewed Levingston's handwritten memorandum, which was delivered to him on May 24, 1999, and was "greatly disturbed" by Levingston's allegations. Nix further stated that he had "initiated an investigation of these allegations" and requested "specific detail in order to initiate appropriate action against parties who participate in such mistreatment."

Levingston then replied to Nix's memorandum in a June 3, 1999 handwritten letter, noting, among other things, that during his daily observation walks in the kennel, he saw mother dogs and cats with their young without food and water almost daily. He also noted that he had previously advised Nix "many times" of problems with the performance of the Kennel Master, Robert Trottie, who supervised the kennel attendants, and that he had been doing Trottie's job "for the last two years." Although Levingston never heard back from Nix in regard to his June 3 letter, Levingston continued to supply Nix with his written complaints about the care of animals in the kennel and the treatment of specific animals. He did this until he received a September 1, 1999 letter from Dr. Margaret Kendrick, the Director of the City's Department of Health and Human Services, advising him that Nix had recommended that his employment be terminated.

In the letter, Kendrick notified Levingston that it was "alleged that [he] directly violated BARC's policy regarding negligence in the treatment of animals resulting in unwarranted suffering and death." Specifically, she cited "the deaths of a female Rottweiler from complications due to an uterine infection and hemorrhage on May 6, 1999 and a quarantined Great Dane on July 22, 1999." The letter noted that a meeting had been scheduled for later that month. Levingston testified that Hanna had received a similar letter and that they were "shocked and both ill at the same time" because the letters were unexpected. Nix had never disciplined or even spoken with Levingston about his treatment of either animal, and Levingston had received "strong" performance evaluations in regard to his service.

The record reveals that instead of initiating an investigation of Levingston's animal abuse allegations as represented by Nix in his June 1, 1999 memorandum to Levingston, Nix, who was not a veterinarian, wrote a memorandum on June 10, 1999 to Dr. Ardath Payne, the Assistant Director of the Department of Health and Human Services, recommending that both Levingston and Hanna be indefinitely suspended from BARC because they were "negligent in the...