Blakey v. Texas Department of Health, No. 03-02-00682-CV (Tex. App. 2/12/2004)
| Decision Date | 12 February 2004 |
| Docket Number | No. 03-02-00682-CV.,03-02-00682-CV. |
| Parties | SHERRY L. BLAKEY, Appellant v. TEXAS DEPARTMENT OF HEALTH, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the District Court of Travis County, 353rd Judicial District, No. GN103950, Suzanne Covington, Judge Presiding
Before Chief Justice LAW, Justices B. A. SMITH and PURYEAR.
This is an appeal from a summary judgment in a case filed under the Texas Whistleblower Act. See Tex. Gov't Code Ann. §§ 554.001-.010 (West 1994 & Supp. 2004). Sherry Blakey sued her former employer, the Texas Department of Health, for allegedly terminating her employment based on her report of violations of law by the Department. Blakey's job at the Department entailed investigating and evaluating charges of illegal employment practices by the Department. Her lawsuit alleges that she was terminated because her reports substantiated two other employees' grievances against the Department. The district court granted the Department's no-evidence motion for summary judgment. Blakey complains on appeal that the district court erred in: (1) allowing the Department to urge an additional ground for summary judgment not contained in its motion; and (2) granting summary judgment when Blakey presented more than a scintilla of evidence on the only element of her cause of action raised in the summary judgment motion, i.e., whether she reported violations of law in objective good faith. We will reverse the summary judgment and remand to the district court.
Blakey holds a doctoral degree in psychology and a masters degree in legal studies. She was hired by the Department in May 1998, and in April 2000 she became a Civil Rights Specialist in the Department's Office of Equal Opportunity ("OEO"). The Department provided her with additional specialized training in the employment practices area. Her duties included investigating administrative complaints by Department employees of alleged violations of civil rights, nondiscrimination and other employment laws, and to monitor grievances filed outside the Department.
Civil Rights Specialists were to submit written reports on each investigation, including their findings, to the Director of the OEO. The Director would then submit each report, along with a recommendation for responsive action, to the senior officials of the Department, including the Commissioner and the general counsel, who then would make the final agency decision on each matter. Blakey was often assigned to investigate the more complicated discrimination and retaliation complaints in the Department. She avers that she received favorable performance assessments and recognition from her supervisors about her job performance up until the two matters in question. Both of the complaints which she alleges led to her termination involved investigations that other Department staff had been unable to complete.
The first was her report in August 2000 regarding a complaint by S.T.1 that her supervisor failed to promote her because of age discrimination. S.T.'s complaint was filed on August 13, 1999. Two other OEO investigators worked on the case before Blakey was assigned to it on May 1, 2000. After her investigation, Blakey concluded and reported that S.T.'s complaint was likely valid. Her written report is dated August 31, 2000.
In it, Blakey recommended that the supervisor be disciplined and the complainant be compensated. Her report was submitted to the OEO Director, the Department's general counsel, and the Deputy Commissioner, who were authorized to remedy the complaint. Blakey's recommendations were not followed; she was subsequently assigned to monitor the charge of discrimination filed by S.T. against the Department with the Equal Employment Opportunity Commission ("EEOC"). See 42 U.S.C. § 2000e-5(b) (2003) (amended 1972, 1991); Tex. Lab. Code Ann. §§ 21.003(a), .201 (West 1996). On February 21, 2001, the EEOC determined that there was reasonable cause to believe that S.T.'s supervisor had illegally discriminated against S.T. on the basis of age and retaliated against her for complaining about the discriminatory treatment. On March 21, 2001, the Department reached a settlement agreement with S.T., which Blakey alleges required payment of monetary damages and other relief.
In January and February 2001, Blakey was assigned to investigate the second matter which she claims led to her discharge. It involved two whistleblower complaints filed by Rhonda Lane that her supervisor was retaliating against her, in violation of the Texas Whistleblower Act, for Lane's May 2000 reporting of accounting irregularities in the administration of federal grants within Lane's bureau. Blakey conducted an extensive investigation. Another OEO investigator, Athan Ogoh, assisted Blakey in the investigation of the Lane matter. In May 2001, when Blakey was finalizing her investigation of Lane's complaints and preparing her report, she shared with her supervisor, Herman Horn, her suspicion that Lane's supervisor was indeed retaliating for Lane's report of the accounting irregularities. This report to Horn in the Lane matter came on the heels of the Department's settlement with S.T. in the EEOC proceeding.
Lane was fired by the Department on May 17, 2001, while Blakey was still conducting her investigation. Lane subsequently revealed to Blakey that she had an audiotape recording of her supervisor terminating her employment. Blakey reviewed the audiotape and concluded that the supervisor's purported benign reason for Lane's termination was false and pretextual. Blakey advised Horn that her investigation uncovered information showing that Lane's supervisor's justification for the termination was false and that her written report would so reflect.
Four days later, on May 21, 2001, the Department received notification that Lane had retained legal counsel and was pursuing her complaints further. Horn instructed Blakey to wrap up her report without completing her investigation, specifically instructing her to cancel a scheduled interview with Lane's former supervisor and a meeting with the Department's human resources office. Horn also instructed Blakey not to review Lane's audiotape, which Blakey had already done. Blakey objected and voiced her concern about writing a report without completing her investigation. Blakey testified that Horn then told Blakey not to worry about finishing that report, but to finish other reports first.
On June 11, 2001, in an OEO staff meeting, Blakey reported to Horn that her written report in the Lane investigation would be completed by June 15. On June 13, Horn gave Blakey written notice of his intent to discharge her effective June 21. Blakey alleges that she had no prior warning or indication that Horn had a problem with her performance. Horn's basis for termination was alleged misconduct and negligent performance of duty. Blakey also testified that her summary termination was contrary to the Department's progressive discipline policy and procedures. Ogoh, the other OEO investigator working with Blakey on the Lane matter, was also notified on June 13 of his termination.
We review the propriety of a summary judgment de novo. Navitidad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Reviewing the granting of a no-evidence summary judgment is similar to that of a pretrial directed verdict. Parsons v. Ford Motor Co., 85 S.W.3d 323, 328 (Tex. App.-Austin 2002, pet. denied). We must determine whether Blakey presented evidence of probative force so as to raise a genuine issue of fact on the material elements of her claim. See id. at 329. The summary judgment must be affirmed if the nonmovant failed to bring forth more than a scintilla of probative evidence on the issues in question.Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 871 (Tex. App.-Austin 2001, pet. denied). More than a scintilla of evidence exists if it rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Parsons, 85 S.W.3d at 329.
The Texas Whistleblower Act protects public employees from adverse retaliatory employment actions when an employee "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 Supp. 2004). The purpose of the Act is to enhance openness in government and compel government's compliance with the law by protecting those who report wrongdoing. Hill v. Burnet County Sheriff's Dep't, 96 S.W.3d 436, 440 (Tex. App.-Austin 2002, pet. denied). The statute is remedial in nature and should be liberally construed to effect its purpose. Duvall v. Texas Dep't of Humans Servs., 82 S.W.3d 474, 478 (Tex. App.-Austin 2002, no pet.); Stinnett v. Williamson County Sheriff's Dep't, 858 S.W.2d 573, 575 (Tex. App.-Austin 1993, writ denied). The essential elements of a whistleblower claim are: (1) a public employee acting in good faith makes a report; (2) the report involves conduct violating a law by the agency or a public employee; (3) the report is made to an appropriate law enforcement authority; and (4) the public employee suffers retaliation for making the report. Tex. Gov't Code Ann. § 554.002;2 Duvall, 82 S.W.3d at 478.
Blakey's pleadings allege that she was wrongfully discharged as a result of her reporting to her superiors, at the highest ranks of the Department, the illegal conduct of Department employees in connection with both the S.T. and Lane matters. The Department's motion for summary judgment asserted that there was no competent evidence to support the first and second elements enumerated above in connection with the Lane matter. The motion was entirely silent as to Blakey's claims based on the S.T. matter.
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