Hockaday v. TDCJ

Decision Date31 January 1996
Docket NumberCivil Action No. H-94-3619.
Citation914 F. Supp. 1439
PartiesJessie Joe HOCKADAY, Plaintiff, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, PARDONS AND PAROLES DIVISION, Defendant.
CourtU.S. District Court — Southern District of Texas

COPYRIGHT MATERIAL OMITTED

Steven R. Rosen, Houston, Texas, for Plaintiff.

Chris Lemens, Office of the Attorney General, Austin, Texas, for Defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant Texas Department of Criminal Justice, Pardons and Paroles Division's ("TDCJ") motion for summary judgment (# 27). Defendant seeks summary judgment on Jessie Joe Hockaday's ("Hockaday") claims of violation of TEX.GOV'T CODE ANN. § 554, the "Whistleblower Act," violation of her civil rights, breach of contract, gross negligence, and intentional infliction of emotional distress.

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that TDCJ's motion for summary judgment should be granted.

I. Background

On July 1, 1991, Hockaday was hired by TDCJ as a parole officer at its Houston I District Parole Office. One of Hockaday's supervisors was Veronica S. Ballard ("Ballard"). Ballard's immediate supervisor was Melinda Bozarth ("Bozarth"), the interim division director for TDCJ.

On February 11, 1994, TDCJ sent Hockaday notification that there would be a hearing to consider allegations that Hockaday had violated TDCJ Personnel Directive PD22, Rule 33, which prohibits the release of confidential information. On February 23, 1994, Ballard conducted a hearing, after which she wrote an interoffice memorandum summarizing the evidence presented and recommending that Bozarth terminate Hockaday. Hockaday received notice of her termination on April 21, 1994. Hockaday filed an employee grievance, which Bozarth received on May 16, 1994. Soon afterward, a grievance hearing was held, and Hockaday's grievance was denied on June 21, 1994. Hockaday received notice of this decision on June 24, 1994. On September 22, 1994, Hockaday filed suit in the 11th Judicial District Court of Harris County, Texas. Bozarth, who is no longer a party to this action, removed the case to this court.

Hockaday alleges that, during the course of her employment with TDCJ, she had become involved in a variety of different victims' rights groups, including Parents of Murdered Children, Mothers Against Drunk Driving, and Zero Accidental Killings. Hockaday asserts that C.A. Pressler, another one of her supervisors, began pressuring all parole officers in 1992 to "... overlook violations, except assaultive offenses, to the end of not placing felons in the Harris County Jail." Hockaday further claims that the Pre-Revocation Task Unit was formed in 1992 to "... remove felons from ... jail and place them in society." Hockaday criticized these actions in memoranda and meetings with her supervisors. She also alleged and reported various other incidents, such as perjury by a parole officer, the practice of inducing mentally ill parolees to waive hearings without advice of counsel, fabrications by parole officers on work verification sheets, and a parole officer selling drugs to parolees. She later contacted an internal affairs division officer, who made a report. According to Hockaday, no corrective action was taken by TDCJ.

Hockaday alleges that she received a call from Paula Reyes ("Reyes") of Zero Accidental Killings in November 1993. Apparently, a parolee had been suspected of molesting a child, and Reyes wanted to know what prior offenses the parolee had committed. Hockaday asserts that she told Reyes to contact the parole officer in charge of the parolee or the parole officer's supervisor. After being told that these two options had been attempted, Hockaday released "certain information." This conversation was tape recorded. Later, Hockaday was accused of releasing "confidential information" in violation of a TDCJ written policy to Reyes and others, including Andy Kahan, Houston Mayor Bob Lanier's victims' rights advocate, and Mike McMahan, the purported leader of Victims of Crime Alliance. Hockaday maintains that Reyes was coerced by employees of TDCJ to "set up" Hockaday for this policy violation due to the complaints she had made to her supervisors.

II. Analysis
A. The Applicable Standard

Rule 56(c) provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir.1988). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The controverted evidence must be viewed in the light most favorable to the non-movant and all reasonable doubts must be resolved against the moving party. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552. "In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2552.

B. The Whistleblower Act

Hockaday alleges that TDCJ violated the Whistleblower Act when it terminated her employment. She contends that by discharging her, TDCJ retaliated against her for voicing concerns about certain actions taken by TDCJ officials. At the time of her termination, the Whistleblower Act, TEX.GOV'T CODE ANN. § 554.002, provided:

A state agency or local government may not suspend or terminate the employment of or discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority.

The Whistleblower Act is remedial in nature and should be liberally construed. Davis v. Ector County, Tex., 40 F.3d 777, 785 (5th Cir.1994); Stinnett v. Williamson County Sheriff's Dept., 858 S.W.2d 573, 575 (Tex. App. — Austin 1993, writ denied); Castaneda v. Texas Dept. of Agric., 831 S.W.2d 501, 503 (Tex.App. — Corpus Christi 1992, writ denied). Traditionally, the Whistleblower Act has been applied to public employees who are fired in retaliation for reporting their employer's violations of law that are detrimental to the public good or society in general. Stinnett, 858 S.W.2d at 575. It is designed to enhance openness in government and compel the government's compliance with the law by protecting those who inform authorities of wrongdoing. Castaneda, 831 S.W.2d at 503. Here, Hockaday contends that she was "set up" by TDCJ essentially because she had criticized and reported her employer's method of alleviating crowded jail cells.

In response, TDCJ asserts that Hockaday's claim is barred by the statute of limitations applicable to the Whistleblower Act. TDCJ claims that Hockaday failed to comply with the ninety-day limitation period set forth in TEX.GOV'T CODE ANN. § 554.005, which states:

Except as provided by Section 554.006, a public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence.

TDCJ reasons that since Hockaday "... knew she had been fired by April 28 ... she would have had to file suit by July 27, 1994, at the latest. She filed suit ... on September 22, 1994." Hockaday, however, argues that TDCJ ignored the provisions of TEX. GOV'T CODE ANN. § 554.006, which tolls the running of the statute of limitations while grievance or appeals procedures are pending. During the time period at issue, § 554.006 provided:

(a) An employee of a local government must exhaust that government's grievance or appeal procedures relating to suspension or termination of employment or unlawful discrimination before suing under this chapter.
(b) The employee must invoke the grievance or appeal procedures not later than the 90th day after the date on which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable diligence.
(c) Time used by the employee in exhausting the grievance or appeal procedures is excluded from the period established by Section 554.005.
(d) This section does not apply if a final decision is not rendered before the 31st day after the date on which the employee initiated the grievance or appeal.

Contrary to Hockaday's assertions, § 554.006 is not applicable in this situation. First, Hockaday was not an employee of a local government, but of a state agency, and therefore, was not included under the express terms of § 554.006 in...

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