Lubbock County v. Strube

• Decision Date: 25 September 1997
• Docket Number: No. 03-96-00510-CV,03-96-00510-CV
• Parties: 13 IER Cases 628 LUBBOCK COUNTY, Texas, Appellant, v. Karen K. STRUBE, Appellee.
• Court: Texas Court of Appeals

Page 847

953 S.W.2d 847

13 IER Cases 628

LUBBOCK COUNTY, Texas, Appellant, v. Karen K. STRUBE, Appellee.

No. 03-96-00510-CV.

Court of Appeals of Texas Austin.

Sept. 25, 1997.

Ann Clarke Snell, Valerie P. Kirk, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Austin, for Appellant.

Donald M. Hunt, Carr, Fouts, Hunt & Wolfe, L.L.P., Lubbock, for Appellee.

Before B.A. SMITH, ABOUSSIE and KIDD, JJ.

ON MOTION FOR REHEARING

BEA ANN SMITH, Justice.

To address certain concerns raised in the motions for rehearing, we withdraw our opinion and judgment of August 14, 1997, and substitute the following in its place.

Karen Strube sued Lubbock County, her employer, alleging retaliatory discrimination and retaliatory termination in violation of the Whistleblower Act. ¹ The trial court rendered judgment on a jury verdict, awarding Strube $630,000 in actual damages, $1,250,000 in exemplary damages, and 40% of total damages as reasonable attorneys' fees. The County appeals. We will reverse and render the judgment in part, remand a portion for further proceedings, and affirm the remainder of the trial court's judgment.

PROCEDURAL BACKGROUND

In 1994, Strube sued Lubbock County contending she was wrongfully suspended for ten days without pay and wrongfully placed on probation for a year. The sheriff's department said she was disciplined for engaging in horseplay with other employees; Strube alleges the discipline was in fact retaliation for her report to the Texas Department of Health that the sheriff's department improperly used certain chemical cleaners. There were several other incidents, and the sheriff's department terminated Strube's employment in 1995. After exhausting her administrative remedies, Strube brought this Whistleblower cause of action. The jury found that: (1) the County retaliated against Strube for reporting conditions she believed to be violations of law to the Texas Department In five points of error, the County challenges the legal and factual sufficiency of the evidence supporting the jury findings of retaliation, future mental anguish, attorneys' fees, and malice, and contends the trial court erred by allowing Strube's expert on loss of future earning capacity to testify contrary to his report submitted during discovery.

of Health; (2) she suffered damages of $20,000 for lost wages, $260,000 for loss of future earning capacity, $300,000 for past mental anguish, and $50,000 for future mental anguish; (3) the County acted with malice in its retaliation; and (4) Strube's reasonable attorneys' fees, stated as a percentage of damages, were 40%. In a bifurcated proceeding, based upon the finding of retaliation with malice, the jury also determined that the County was liable for exemplary damages in the amount of $1,250,000. The trial court rendered judgment on the jury verdict in favor of Strube.

FACTUAL BACKGROUND

In 1988, Strube began her employment as a Lubbock County jailer serving under Sheriff Sonny Keesee. Strube completed a two-week course at jail school and a two-week training period before becoming an officer. Generally, she worked the night shift.

The cleaning assignment

In February 1994, Lieutenant Dumas gave Strube a cleaning assignment that required her to use some new cleaning products that were highly corrosive. The County provided no training or safety equipment to protect against the dangerous chemicals. When Strube applied the cleaners to a day-room table, white fumes filled the room, causing her respiratory problems and making her eyes water. Additionally, Strube noticed a burning sensation on her hands, legs, and feet, all areas directly exposed to the cleaners. Later blisters appeared on Strube's face, hands, and feet.

Strube complains

When Strube reported to work for her next shift, she showed the blisters to her immediate supervisor, Sergeant Gentry, who dismissed her complaint, saying she was always fussing about something. Next Strube complained about the cleaning products to Lieutenant Dumas, who responded, "[W]hatever the front office wants is what we're going to do. So quit your bitching and just go back to work." Neither Sergeant Gentry nor Lieutenant Dumas suggested that Strube report her injuries.

Strube's report

When her supervisors dismissed her complaints, Strube took matters into her own hands; she retrieved the empty containers from the trash. The labels warned that the cleaners were extremely corrosive and should only be used with protective equipment. To document her concerns, Strube removed the warning, "because they're making us use this stuff without telling us about the dangers that are involved with it or providing us with any protective gear." On her way home, Strube stopped at her father's house and showed him her blisters and the warning. Her father called the Texas Department of Health, the state agency responsible for enforcing the Texas Hazard Communications Act. See Tex. Health & Safety Code Ann. §§ 502.001, .012 (West 1992).

Strube discussed her use of the cleaning products with Perry Williams, an inspector at the Department of Health. Williams told Strube that he would investigate the County's use of the cleaners and assured her the report would be confidential. A few days after Strube spoke with Williams, he met with the county judge and the sheriff and inspected the jail. On his inspection he found labeling violations that failed to notify the user of chemical hazards. The Department of Health proposed a fine unless the safety violations were corrected. Williams refused to disclose the name of the complainant.

Strube also told the union lawyer, Floyd Holder, about the blisters she received from the cleaning products. In a letter to the County, Holder identified Strube as his client and asked the County to provide its employees with protective gear. Don Addington, the jail administrator, commented, "I guess when all this is over that we're going to have to fire her." One of Strube's fellow officers thanked her for contacting the Department of Health. Strube was alarmed and said she After the sheriff called Strube at home, Captain Holcomb asked her to complete an injury report. Both Strube and her fellow officers sensed that senior officials in the sheriff's department were upset with her. Lieutenant Dumas uncharacteristically refused to let Strube off work at 7:00 a.m. to pick up her son. When he finally let her off an hour late, Dumas said mysteriously, "Oh, well. Couldn't help it, could we?" Strube also noticed she was no longer given voluntary overtime opportunities. Strube recalled an incident when she asked Lieutenant Dumas to not schedule her for any overtime for the week of her son's birthday. Dumas told her he did not care, and put her name on the mandatory overtime list. He told her "maybe they won't want you." Dumas also did not allow her any time off when her daughter was hospitalized. When Strube suffered a shoulder injury her doctor prescribed only light duty work for four weeks. Nevertheless, Lieutenant Dumas assigned her to tasks that were not light duty. When she complained, Captain Holcomb rejected her appeal from Dumas's decision.

                did not want anyone to know she made the report;  the other officer said everyone already knew.  Strube became more alarmed when Sheriff Keesee telephoned her at home to discuss the complaint to the Department of Health and to question her loyalty.  When Strube asked if she would get in trouble for her actions, the sheriff assured her, "[t]here won't be any retaliation taken against you.  Just next time come talk to me."   The next night, Sergeant Gentry again relayed the sheriff's assurances that there would be no retaliation against her for the report.  Strube testified that this merely raised her suspicions
                

The slapping incident

In May 1994, several officers were teasing Sergeant Yeates because he drew a "whiner" as his partner in the department's golf tournament. In jest, Strube and others dared Yeates to slap the partner if he started whining during the game. Yeates decided to feign a slap to the whiner but accidentally struck him on the face. The unintended victim reported the incident.

At the disciplinary proceeding against Yeates, Strube was called as a witness. At the hearing, Chief Bartley threatened to file criminal conspiracy charges against Strube. Chief Bartley also threatened to ruin Strube's career and family by making sure she went to prison if the slapped officer filed charges. Strube became very upset and told Chief Bartley she would accept any punishment because she did not want to go to prison. The disciplinary board suspended Strube for ten days and placed her on probation for one year; it also demoted Yeates, sanctioned him, and placed him on probation for one year. None of the other officers engaged in this incident were punished.

Strube complained to Sheriff Keesee about the suspension. He replied that "examples had to be set to show others that that kind of conduct would not be tolerated in his jail." He instructed her to conduct herself as a professional and to avoid embarrassing the department when she returned to work. As she was leaving his office, the sheriff gave Strube a pamphlet discussing inmates' privileges in Texas prisons and suggested that she think about the pamphlet while she was on suspension.

Strube returns to work

When Strube returned to work, she was assigned for four months to a remote area of the jail to guard sex offenders, known to routinely taunt female jailers. Typically when a jailer reported such behavior, the inmates were disciplined; however, none of Strube's hecklers received any disciplinary action.

In July 1994, two months after the disciplinary hearing, Strube sued the County alleging that the slapping incident had been merely a pretext when in truth she had been disciplined in retaliation for her report to the Department of Health.

Second disciplinary hearing

In January 1995, the department reduced Sergeant...