City of Brownsville v. Pena

• Citation: 716 S.W.2d 677
• Decision Date: 29 August 1986
• Docket Number: No. 13-85-439-CV,13-85-439-CV
• Parties: CITY OF BROWNSVILLE and Ernesto Avalos, Appellants, v. Alfonso PENA, Appellee.
• Court: Court of Appeals of Texas

Page 677

716 S.W.2d 677

CITY OF BROWNSVILLE and Ernesto Avalos, Appellants, v. Alfonso PENA, Appellee.

No. 13-85-439-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 29, 1986.

John E. Chosy and William L. Morrow, Carinhas & Morrow, Juan Jose Martinez, Brownsville, for appellants.

Noe Robles, Harlingen, for appellee.

Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

OPINION

KENNEDY, Justice.

Appellee brought suit against appellants under TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (Vernon 1986) for libel, and under TEX. REV. CIV. STAT. ANN. art. 6252-16a (Vernon Supp.1986), "the Whistleblower Act." The jury found against appellants and awarded appellee damages under both causes of action. Appellee recovered $15,000.00 from the city as damages for the article 6252-16a violation, plus $5,000.00 in exemplary damages. Appellee recovered $10,000.00 as damages for the libel and $20,000.00 in exemplary damages. Further, appellee recovered attorney's fees pursuant to article 6252-16a. The city brings twelve points of error and Avalos raises one point of error on appeal. We affirm the judgment of the trial court.

Pena began working for the Brownsville Urban System (BUS) in 1978 as a bus driver. In May of 1983, Pena was promoted to a dispatcher. On August 11, 1984, Pena and Eduardo Gomez, a driver for BUS, reported to the city manager's office that Avalos, Director of BUS, and Nick Montano, Operations Manager for BUS, entered the bus compound in an intoxicated state, accompanied by two women, to fill up Avalos' car with gas. The car was issued to him by the city. Pena gathered statements from witnesses to the incident, and on August 20, 1984, Pena delivered those statements to the city manager. Pena contacted Gary Thornburg of the Cameron County Good Government League on August 28, 1984. The Good Government League is a political watchdog that investigates allegations of misuse of public funds. Dissatisfied with the results from the city manager's office, Pena released a statement to the news media on September 6. The statement to the news media not only included the August 11 incident involving Avalos and Montano, but included reports of the use of BUS employees to service the mayor's car during business hours and the pilfering of public funds by selling city property.

On September 10, Montano, Avalos' right-hand man, organized a meeting of the bus drivers willing to make a statement against Pena. The majority of the bus drivers at that meeting were legal residents, but not U.S. citizens. The gist of those statements collected by Montano was that Pena was a racist and continuously discriminated against legal residents from Mexico. Avalos was present at the meeting. Many of the legal residents were not fluent in English, and therefore their statements had to be translated. Although the statements purport to be translated by George Gonzales, a personnel clerk at BUS, Mr. Gonzales was unable to translate at trial. Gonzales testified that he had help from his family in translating the statements. Mrs. Sanchez, Avalos' secretary, testified that she witnessed Avalos preparing the translations the morning of September 11.

Upon arriving at work on September 11, Avalos informed Pena that he was suspended without pay for three days. Avalos cited insubordination as the reason for the suspension. The purported insubordination occurred a few days prior when Pena refused to park his car in the bus compound, as required of all bus employees. Pena's car was legally parked on the street in front of the bus compound and Pena was not instructed to move his car until 20 minutes prior to the end of his shift. Upon returning to work on September 14, following the three-day suspension, Avalos informed Pena that he was being demoted from his dispatcher position to the position of bus driver. Avalos cited discrimination against fellow workers and the inability to comply with supervisor's orders as the reason for the demotion.

On September 12, 1984, the Brownsville Herald reported Pena's suspension. ¹ This article includes a statement by Avalos that:

I have a total of eighteen statements from resident aliens.... The general concensus is that Pena is an agitator, a person with racist attitudes against Mexicans legally residing in the United States. The sworn statements also state that Pena has threatened to fire them as soon as he takes over....

On September 14, Pena gave copies of all the statements in his possession to the city personnel director, the city manager, and the district attorney.

The city, by its first point of error, complains that the trial court erred in submitting special issue number two because it was "overly broad and included no limiting instruction." Special issue number two inquired, "Did Avalos discriminate against Pena in retaliation for reporting the violation?"

Section 2 of article 6252-16a is entitled "Retaliation prohibited" and states:

A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith.

The word "discriminate" is not defined in this article. When statutory violations are the basis of the special issues, issues should be submitted in terms as close as possible to those actually used in the statute. Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 937 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); see TEX. R. CIV. P. 277. The submitted issue closely follows the wording of the statute. Therefore, the broad form submitted in the instant case was proper. We overrule the city's first point of error.

The city, in its second point of error, complains that the trial court erred in entering judgment against the city based upon the jury's findings in special issues three, seven, and thirteen because there was no evidence or, in the alternative, insufficient evidence to support the findings. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well-established test set forth in Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

Special issue number three inquires: "In discriminating against Pena was Avalos engaged in the service of the City and in furtherance of the City's business?" Avalos, as director of BUS, was responsible for hiring and firing employees, as well as promotions and demotions. The city manager also testified that it was Avalos' duty to implement and enforce policy involving discrimination at BUS. It is inconceivable that Avalos' disciplinary action of suspending and demoting Pena was not within his scope of employment as director of BUS. ² The city does not complain of the sufficiency of the evidence to support the jury's finding to special issue number two, that Avalos discriminated against Pena for reporting the violation. There is sufficient evidence that Avalos was engaged in the city's service and in furtherance of city business when the discrimination occurred.

Special issue number seven inquires: "In so acting with malice was Avalos engaged in the service of the City and in furtherance of the business of the City?" Again, the city does not complain of the sufficiency of the evidence to support the jury's finding to special issue number six, that Avalos acted with malice in discriminating against Pena. Therefore, the evidence which supports the jury's finding to special issue three also supports the jury's finding to this issue.

Special issue number thirteen inquires: "In publishing such defamatory statement was Avalos engaged in the service of the City and in furtherance of the City's business?" We will discuss this question in conjunction with the city's points of error involving the city's liability for the alleged libelous statement.

The city, by its tenth point of error, argues that the city is immune from liability due to sovereign immunity. However, governmental immunity is a defensive doctrine and the city has the burden of proving and submitting the defense. City of Houston v. Bush, 566 S.W.2d 33, 35 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.); see TEX. R. CIV. P. 94. The city did not plead, submit issues upon, or raise in its motion for judgment notwithstanding the verdict the governmental immunity defense. Cf. City of Dallas v. Moreau, 718 S.W.2d 776 (Tex.App.--Corpus Christi, 1986, no writ). The predicates for complaints on appeal must be preserved at the trial court level by motion, exception, objection, plea in abatement, or some other vehicle. O'Shea v. Coronado Transmission Co., 656 S.W.2d 557, 564 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). The city cannot now complain that the trial court erred when the city failed to present its defense at trial. We overrule the city's tenth point of error.

Absent the governmental immunity defense, Pena must prove that Avalos' defamatory statement was referable to the duty Avalos owed to the city, and was made while in the discharge of that duty. Wagner v. Caprock Beef Packers Co., 540 S.W.2d 303, 304 (Tex.1976); Smith v. M System Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957). The jury returned a finding favorable to Pena in special issue number thirteen. Avalos testified that, "All of the decisions pertaining to the BUS system were made at the time I was director by myself." When asked if any decisions had to be communicated to the city manager before he made them, Avalos responded, "There was only one thing and this was only if it was critical to news releases to the media." Avalos testified that his allegation that Pena was...