Duvall v. Texas Dept. of Human Services
| Decision Date | 18 April 2002 |
| Docket Number | No. 03-01-00136-CV.,03-01-00136-CV. |
| Citation | 82 S.W.3d 474 |
| Parties | William DUVALL, Appellant, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee. |
| Court | Texas Court of Appeals |
Clint Alfred Harbour, Law Office of Mark Crampton, Austin, for appellant.
David E. Jenkins, James C. Todd, Assistant Attorneys General, Austin, for appellee.
Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PURYEAR.
William Duvall sued the Texas Department of Human Services ("Department") pursuant to the Whistleblower Act ("Act") and appeals a summary judgment the trial court granted in favor of the Department. See Tex. Gov't Code Ann. §§ 554.001-.010 (West 1994 & Supp.2002). We will affirm the judgment.
Duvall joined the Department in 1988 as a systems analyst in the Management Information Systems division ("MIS"). In 1994, Duvall received the first in a series of subpar performance evaluations that ended with his termination in 1998.1 During this period, he had varying job assignments, working under several different supervisors within the Department. At the time his whistleblower claim arose, Duvall was working as a cooperative performance standards compliance analyst. In this position, Duvall's primary task was to compile data for the Customer Service Response Time Report, also referred to as the 95th Percentile Report.2 The parties dispute the significance of the report. The Department claims the report was simply an internal measurement tool developed by MIS to identify trends and improve the response time of requests for information that go through the computer network. According to the Department, the reports provide MIS with an estimate of how long it takes for certain data retrieval transactions to occur, an example being a request for information concerning welfare benefits. Duvall claims that the report was not only for internal use, but was also sent to outside agencies.
In the spring of 1997, Duvall became concerned about what he believed were inaccuracies in the statistical methods used by one of the Department's divisions to compile the response time report. Duvall alleges that the division was "throwing out" response times that fell outside an expected, acceptable range. The Department contends that Duvall's real complaint is essentially that the response time figures were being reported to one decimal place instead of two, an insignificant difference given the internal nature of the report and its use as simply a general gauge of network performance. Duvall first noted his concerns with the response times to his supervisor David Larsen in the spring of 1997. In September 1997, Duvall was transferred to a new supervisor, Joyce English. Shortly after the transfer, Duvall received a written reprimand from English for violating departmental work rules.3 On October 8, Duvall met with English to discuss his performance. At the meeting, Duvall conveyed his belief that the response times were not being accurately calculated. After English instructed him to stop pursuing the issue, Duvall accused her of trying to cover up "illegal activity" by the Department. In November, Duvall was placed on probation and, in January 1998, he was dismissed. He subsequently initiated grievance procedures, and in June 1998, an administrative law judge ruled in favor of the Department.
Duvall then filed his whistleblower action alleging that the Department had retaliated against him for reporting inaccuracies in the response times. The Department claims it fired Duvall based on his poor job performance. Duvall argues that the fact that the Department did not take corrective action against him earlier shows that the Department's demotion and subsequent firing of him were in retaliation for reporting a violation of law to English. In his first amended petition, Duvall identified section 37.10 of the Texas Penal Code, which creates a criminal offense for tampering with a governmental record, as the law he believes the Department violated.4
In response, the Department filed a plea to the jurisdiction that Duvall failed to timely invoke the Department's grievance procedures as required by the Act. Tex. Gov't Code Ann. § 554.006. The district court denied the plea after a hearing in which Duvall judicially admitted that the only report of an alleged violation of law he would rely on was his October 8, 1997 report. The Department then moved for summary judgment on both traditional and no-evidence grounds that Duvall failed to prove the elements of a whistleblower claim. The court granted the Department's motion without specifying the grounds in its order.
On appeal, Duvall asserts that the trial court erred in granting summary judgment to the Department because (1) he made a good faith report; (2) he reported a violation of law; (3) he reported to an appropriate law enforcement authority; (4) he timely initiated grievance procedures in accordance with the Act; and (5) he prevailed on causation because the Department failed to rebut the statutory presumption that its actions were retaliatory.
The Department moved for summary judgment on both traditional and no-evidence grounds. The standards for reviewing a traditional summary judgment motion are well established: (1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgement, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d M6, 548-49 (Tex.1985). A defendant who moves for summary judgment must disprove at least one essential element of the plaintiffs causes of action. Domizio v. Progressive County Mnt. Co., 54 S.W.3d 867 (Tex.App.-Austin 2001, pet. denied).
A party may also move for a "no-evidence" summary judgment. Tex.R. Civ. P. 166a(i). Such a motion asserts that there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Id.; McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258 (Tex.App.-Texarkana 1999, pet. denied). Unlike a movant for traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. McCombs, 1 S.W.3d at 258. A no-evidence summary judgment is properly granted if the nonmovant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element, of a claim on which the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Flameout Design v. Pennzoil Caspian, 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist].1999, no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). Evidence is more than a scintilla when it "rises to the level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." Fiesta Mart, 979 S.W.2d at 71 (quoting Kindred v. Con/ Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). As with a traditional summary judgment motion, we must construe the evidence in favor of the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id at 70. In the present case, we find the Department's no-evidence summary judgment motion dispositive of Duvall's whistleblower claim.
The purpose of the Texas Whistleblower Act is twofold: (1) to enhance open government by protecting public employees from retaliation by their employer when an employee reports a violation of the law in good faith; and (2) to secure lawful conduct by those who "direct and conduct the affairs of government." See City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex.App.-Austin 1996, writ denied). The Act is remedial in nature and must be liberally construed. Stinnett v. Williamson County Sheriff's Dep't, 858 S.W.2d 573 (Tex.App.-Austin 1993, writ denied).
To prevail on his whistleblower claim, Duvall must allege that: (1) he is a public employee; (2) he acted in good faith in making a report; (3) the report involved a violation of law by the agency or a public employee; (4) the report was made to an appropriate law enforcement authority; and (5) he suffered retaliation for making the report. See Tex. Gov't Code Ann. § 554.002 (West 1994 & Supp.2002);5 Heim, 932 S.W.2d at 290.
In his fourth issue, Duvall argues that his report of a violation of law was made to an appropriate law enforcement authority, relying primarily on the October 8 report he made to his supervisor, English. We agree with the Department that Duvall has produced no evidence he reported to an appropriate law enforcement authority as currently defined by the Act.6
Duvall relies on pre 1995 case law for a broad definition of "appropriate law enforcement authority." See Castaneda v. Texas Dep't of Agriculture, 831 S.W.2d 501, 504 (Tex.App.-Corpus Christi 1992, writ denied) (); Travis County v. Colunga, 753 S.W.2d 716, 719-20 (Tex.App.-Austin 1988, writ denied) (); see also City of Dallas v. Moreau, 697 S.W.2d 472, 474 (Tex.App.-Dallas 1985, no writ).
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