Jefferson Cnty. v. Nguyen

Decision Date31 July 2015
Docket NumberNO. 09-13-00505-CV,09-13-00505-CV
PartiesJEFFERSON COUNTY, TEXAS, Appellant v. HA PENNY NGUYEN, Appellee
CourtTexas Court of Appeals

On Appeal from the 60th District Court Jefferson County, Texas

Trial Cause No. B-177,132

MEMORANDUM OPINION

This appeal concerns an employment dispute between Appellant, Jefferson County (the "County"), and Appellee, Ha Penny Nguyen (Nguyen), a former County employee. The County appeals from a Judgment rendered in favor of Nguyen, following a jury trial wherein the jury found that Nguyen was subjected to adverse employment actions, retaliation for protected speech, and a violation of herdue process rights while she was employed by the County as a clerk in the offices of the Justices of the Peace for Precinct 8 and Precinct 1. Nguyen alleged claims under 42 U.S.C. § 1983 for adverse employment actions she contends were taken in violation of her First Amendment rights to free speech and freedom of association, and then also for a denial of due process. The County contends that there is no evidence or insufficient evidence to support the jury's findings related to each of Nguyen's claims, and the County contends the trial court erred in awarding attorney's fees and in calculating prejudgment interest. We affirm in part, reverse and render in part, and remand in part.

UNDERLYING FACTS

From 1991 to 2011, Nguyen was employed with the County in different county offices. Her claims in this suit pertain solely to her employment with the Justices of the Peace for Precinct 8 and Precinct 1.

Employment at Precinct 8

Nguyen initially began working in the County tax office in 1991. She transferred from the tax office to work in the office of the Justice of the Peace for Precinct 8 in 2001, where she worked as a clerk for Justice of the Peace Thurman Bartie (Bartie or Judge Bartie). In 2002, Nguyen and Dana Graham (Graham),another County employee who worked as an associate court administrator, were interviewed by and subpoenaed to testify before the Commission on Judicial Conduct concerning complaints made against Bartie. Bartie then resigned, and former Justice of the Peace Barbara Dorman (Dorman or Judge Dorman) replaced Bartie on an interim basis until a new Justice of the Peace for Precinct 8 could be elected. Tom Gillam (Gillam or Judge Gillam) won the election over several challengers. Gillam began his service as the Justice of the Peace in Precinct 8 in April of 2004.

At trial, Rick Bienvenue (Bienvenue), one of the candidates who lost the election to Gillam, testified that, prior to the election, he overheard Bartie tell an assemblage of the candidates that "[Bartie] thought that the staff that's in the J.P. office really stabbed him in the back[,]"and that "[n]o matter what you should get rid of these people." Bienvenue testified that he was alarmed by what he heard, thinking that if he won the election, he might not have anyone to work with him, and he later spoke with Judge Dorman about his concerns. Graham testified that Bienvenue came to the Precinct 8 office and informed them that "Judge Bartie was on the sidewalk . . . stating that -- to some of the candidates, whoever won, that Penny and Dana had to go." Nguyen testified that after Bienvenue spoke to JudgeDorman, Nguyen was afraid that she might lose her job. Bartie denied making the statement. Judge Gillam testified that he had not heard such a statement, nor did he know that Bienvenue had met with members of the Precinct 8 staff regarding the comments Bartie allegedly made. Bartie and Gillam both testified that they were not friends or political allies.

Gillam stated that although he knew his employees were "at-will," he told his employees (including Nguyen and Graham) that he would not take action against an employee except upon established good cause. Graham also testified that Judge Gillam told the Precinct 8 employees that they need not worry and that their jobs were safe.

According to Graham, on or about the second day after Gillam took office, a copy of Graham's testimony from Bartie's Judicial Conduct Commission hearing was delivered by mail to Gillam. A few weeks later, on or about June 1, 2004, Gillam terminated Graham's employment as chief clerk. Gillam then asked Nguyen to apply to fill the position vacated by Graham, but Gillam hired Antoinette Henry for the position in July 2004. After Graham was terminated by Gillam, Nguyen started keeping a diary of events occurring in Judge Gillam's office.

Judge Gillam testified that he observed what he regarded as certain problems with Nguyen's work in his office, and on or about August 26, 2004, he presented Nguyen with a "Disciplinary Memo" outlining various performance deficiencies he had noted. The deficiencies included challenging his decisions in open court, releasing information in contravention to his instructions, making certain errors in her work, and spending an excessive amount of time "in other offices on non job-related issues[.]" The memo also stated that

[t]his memo is intended to serve as notice to you that your continued employment with Justice Precinct 8 is in jeopardy based on your continued inability/unwillingness to follow directions and meet performance expectations. . . .
. . . .
These kinds of errors, challenges to my authority and disrespect will not be tolerated. . . . I believe that you have the ability to work in the manner that I expect. Should any conduct of the type described in this memo reoccur, it will lead to further disciplinary action, up to and including termination of your employment with Justice Precinct 8.

Nguyen testified that she refused to sign the memo because she did not agree with it.

According to the record, on or about September 3, 2004, Nguyen presented a grievance to Cary Erickson (Erickson), Director of Human Resources for the County. Her grievance stated:

I am Vietnamese of origin, American by choice and a citizen by law. I am a friend and former co-worker of Dana Graham. I testified against Thurman Bartie. Tom Gillam got even and fired Dana Graham and replace [sic] her with a black person, and now Gillam is harassing me. He has given a warning letter/memo to me on August 27, 2004, which is undeserved and hurts my career. I am denied breaktime. I have asked Gillam and he refers me to Antoinette Henry. But I have been training her on procedures and policies and she doesn't know about polices or law on breaktime.

On or about September 8, 2004, Nguyen met with Erickson to discuss the matter, and she covertly recorded their conversation.1 Nguyen told Erickson she thought "the whole thing started when Bartie . . . got suspended[,]" and she also told him she had heard a rumor that Bartie and Gillam had "made a deal . . . to get rid of" Graham and Nguyen because they had testified against Bartie; however, she declined to tell Erickson where she heard that rumor. Erickson testified that, prior to Graham's termination, Graham also told Erickson she thought her job was in jeopardy because of her testimony against Bartie. On October 1, 2004, Gillam wrote a warning letter to Nguyen, advising her that her performance "has to improve." Nguyen's husband, who worked for County Commissioner Mark Domingue (Domingue), told Domingue that his wife was worried about her job.

Domingue testified that he worked with Human Resources "to try to save [Nguyen's] job and get her moved to a different department." Erickson testified that he wrote Nguyen a letter on October 19, 2004, regarding a job offer to work in Mosquito Control. That same day, Nguyen gave Gillam a resignation letter, in which she wrote:

Cary Erickson had stated that you are likely to fire me in the near future because of the harassment which I have suffered as a result of Judge Bartie. I resign to save my career and reputation. I understand that my last official day is Friday, October 22, 2004.
Employment at Mosquito Control and Precinct 1

Nguyen started working for Mosquito Control on October 20, 2004, at a reduced salary. Her starting salary at Mosquito Control was $3,617 less per year than what she made while working at Precinct 8. Nguyen worked for Mosquito Control for about two years, from October of 2004 until sometime in 2006, when Graham told her there was a job opening to work for Justice of the Peace Vi McGinnis (McGinnis or Judge McGinnis) in Precinct 1, where Graham was already working. Nguyen interviewed and she was hired to work as a clerk in Precinct 1.

Nguyen testified that she had a good experience working in Judge McGinnis's office from 2006 through 2009. However, near the end of 2009,Annette Reedy (Reedy), McGinnis's chief clerk, noticed an envelope on Nguyen's credenza, which was pre-stamped, and it had Nguyen's own address label placed over the Court's return address. The envelope was addressed to Nguyen's brother in Hawaii. Reedy made a copy of the envelope, but did nothing further at that time. According to a statement from Reedy that was in Nguyen's personnel file, Reedy did not tell Judge McGinnis about the envelope because at that time Reedy felt everyone in the office had turned against Reedy.

About one year later, Reedy told McGinnis about the envelope Reedy had found on Nguyen's credenza, and McGinnis instructed Reedy to go through Nguyen's desk to see if there were any other pre-stamped envelopes that were being used by Nguyen for Nguyen's personal use. When Reedy looked through Nguyen's desk, Reedy discovered a note from the nurse practitioner with the Jefferson County Employee Health Department, and it appeared that Nguyen had altered the note to create an excused absence slip for Nguyen's son; Reedy also found a fax transmittal sheet indicating Nguyen had faxed the excuse to her son's school in 2007. Nguyen testified that neither Erickson nor McGinnis ever discussed with Nguyen what Reedy found, and Nguyen did not learn about Reedy's statement until a week before the trial.

At trial, Nguyen admitted that she used...

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