City of Forth Worth v. Johnson, 10-00-359-CV.
| Decision Date | 09 April 2003 |
| Docket Number | No. 10-00-359-CV.,10-00-359-CV. |
| Parties | CITY OF FORT WORTH, Appellant, v. Emmitt JOHNSON, Appellee. |
| Court | Texas Court of Appeals |
Theodore P. Gorski, Jr., Elizabeth T. Dierdorf, Asst. City Attorneys, Ft. Worth, for Appellant/Relator.
Jason C.N. Smith, Law Office of Art Brender, Ft. Worth, for Appellee/Respondent.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
The City of Fort Worth terminated the employment of Emmitt Johnson. After an appeals board recommendation to reinstate him was overruled by the City manager, Johnson filed a lawsuit under the Whistleblower Act. TEX. GOV'T CODE ANN. § 554.001 et seq. (Vernon Supp.2003). A bench trial on the issue took place. Johnson obtained a favorable judgment, and the City appealed. We reverse and remand the cause for a new trial.
Johnson was allegedly terminated from employment with the City over the use of a City tractor and the dumping of rough material on another employee's private property located outside the city limits.
Those involved in Johnson's road to termination are listed below in descending order of rank within the City.
Bob Terrell — City manager. He had the ultimate authority to terminate or reinstate Johnson once Johnson filed an appeal.
Ramon Guajardo — assistant City manager. Terrell assigned him the duty to review the appeals board recommendation to reinstate Johnson and conduct his own investigation into the tractor/dumping incident.
Pete Nelson — a Human Resources manager over personnel. He sat in on Johnson's pre-termination hearing.
Stanley Scott — Street Services superintendent. He was in charge of the street department. He had the initial authority to terminate Johnson's employment.
Harold Jolly — assistant Street Services superintendent. He was the immediate supervisor of Willis Stafford. Jolly was also initially terminated in the tractor/dumping incident but was reinstated after his first appeal.
Willis Stafford — General Foreman, Street Services. At one time, he had been Johnson's immediate supervisor. He was not Johnson's immediate supervisor at the time Johnson's employment was initially terminated. Stafford was also terminated as a result of the tractor/dumping incident. It was Stafford's property on which the materials were dumped and where the tractor was left for his use.
Emmitt Johnson — assistant field operations supervisor, Street Services. Johnson was also an employee representative. An employee representative assists employees who have been disciplined by the City investigate the charges against them or file and pursue an appeal of the action taken by the City. Johnson was terminated in the tractor/dumping issue and is the subject of this appeal.
Roscoe Dixson — equipment operator, Street Services. Johnson was his immediate supervisor. He was terminated, but ultimately reinstated, in the tractor/dumping incident.
Willis Stafford was eligible for retirement and bought some property. The mailing address for the property listed the city as Fort Worth. But Stafford admitted that part of it was not in the city limits and that he was not a resident of Fort Worth. Stafford knew of the City's practice of dumping material on private property. Doing so saved time for the City.
Roscoe Dixson also knew of City crews dumping material on private property outside the city limits as long as a "dump release" was obtained. A dump release had to be signed by the property owner, management, and a witness.
According to Johnson, Stafford informed Johnson that he had requested to have dirt dumped by the City on his property. Stafford said he obtained a dump release from Harold Jolly, Stafford's supervisor. The dump release was admitted into evidence. The release did not give Stafford permission to use the City tractor. Johnson believed Stafford had permission from the City to dump dirt on his property once the release had been signed. The City had done this before for private citizens. This type of dumping benefitted the City because it would be near the work site and would save time. The trucks would not have to go out of their way to the landfills or other dump sites.
Harold Jolly said he signed the dump release because Stanley Scott instructed him to do so. Stafford came to Jolly requesting rough material to be dumped on his property outside the city limits. Jolly refused since Stafford was an employee. Stafford requested Jolly to ask Scott for his permission. Jolly agreed and relayed the same information to Scott that Stafford had relayed to him. Jolly told Scott why he was reluctant to give his permission for the dumping. Scott said he would ask someone at city hall. After lunch, Stafford and Scott discussed the request. Stafford told Jolly that Scott approved the dumping. Scott then also told Jolly he approved the dumping. Jolly ultimately signed the release.
According to Scott, he authorized the dumping on Stafford's property, but only if the property was in Fort Worth. He did not know Stafford's property was outside the city limits. It was against City policy to dump outside the city limits.
Stafford also had Johnson ask Scott for authorization to use a City tractor on Stafford's property. Stafford did not ask Scott because Johnson had a better relationship with Scott than he did. When Scott agreed, Johnson had him repeat his approval with Dixson present. Johnson told Dixson to deliver the tractor to Stafford's property. Dixson admitted to also using the tractor on Stafford's property to push away dirt so the trucks could dump more. He believed he was authorized to perform this work because he heard Scott tell Johnson that it was okay to take the tractor to Stafford's property. Stafford understood that Scott authorized Stafford's use of the tractor on his property as well. Stafford admitted he used the city tractor on evenings and weekends to spread the material dumped on his property. He did the work himself so that no one from the City would have to spread the material on City time.
The dumping began in January and ended in March. After a month on Stafford's property, the tractor was returned when a supervisor asked where it was. At the time of the inquiry, Johnson could not remember where the tractor was located. Dixson interjected over the radio and said it was at Stafford's property. Johnson had Dixson pick it up and take it back to the City.
Johnson, Stafford, and Dixson knew it was not unusual to leave equipment on the property of private citizens to level out the dirt and rough material dumped on private property. This would make room for more material to be dumped. Johnson calculated that some equipment had been left on private property for as long as eight months to a year. However, neither Stafford nor Johnson knew of an instance where a private citizen then used the equipment for their personal benefit.
Scott denied authorizing the use of the tractor.
Johnson knew Stafford wanted soil to be dumped on his personal property. Johnson recalled a previous situation where soil was dumped on an employee's private property. He also knew Stafford intended to use the City tractor on his property on nights and weekends.
In late June, Johnson was suspended from work. After a pre-termination hearing, Johnson's employment was terminated on July 1. Scott, along with Pete Nelson, a human resources manager, and others were present for the pre-termination hearing. Nelson agreed that it was not customary for him to be present at a pre-termination hearing. He said he was asked to fill in at Johnson's hearing. Johnson filed a grievance and appeal alleging that he had been terminated for reporting improper employment practices as an employee representative.
The City alleged that Johnson, Stafford, and Dixson violated City policy by dumping soil on Stafford's property outside the city limits and by using City equipment to spread the material. The City also alleged that the violated policy had been circulated only a few months before the dumping began. Stafford, Dixson, and Jolly were also terminated. At Jolly's pre-termination hearing, Scott denied giving him permission to sign the dump release for Stafford.
Stanley Scott was not disciplined by the City.
Ultimately, Johnson's and Stafford's terminations were upheld. Jolly and Dixson were reinstated. Johnson filed a lawsuit alleging he was retaliated against by the City for reporting violations of city ordinances as an employee representative. The City asserted that it took the action against Johnson based only on evidence not related to the alleged reports of violations of city policies. The trial court found in favor of Johnson.
On appeal, the City brings twelve issues challenging the legal and factual sufficiency of the evidence to support various findings of fact made by the trial court. When both legal and factual sufficiency issues are raised, we must first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). When considering the legal sufficiency of evidence supporting a finding, we only consider evidence and inferences tending to support the finding and we disregard all contrary evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); see also Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). Anything more than a scintilla of evidence is legally sufficient to support the finding. Zimlich, 29 S.W.3d at 69; see also Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593-94 (Tex.1986).
In reviewing a factual sufficiency issue, we must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). Findings may be overturned only if they are so against the great weight and...
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