Office of the Attorney Gen. of Tex. v. Rodriguez

• Decision Date: 16 October 2017
• Docket Number: No. 08-14-00054-CV,08-14-00054-CV
• Citation: 535 S.W.3d 54
• Parties: OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellant, v. Laura G. RODRIGUEZ, Appellee.
• Court: Texas Court of Appeals

535 S.W.3d 54

OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellant,

v.Laura G. RODRIGUEZ, Appellee.

No. 08-14-00054-CV

Court of Appeals of Texas, El Paso.

October 16, 2017

ATTORNEYS FOR APPELLANT: Hon. Beth Klusmann, Office of the Attorney General, P.O. Box 12548, MC 059, Austin, TX 78711, Hon. William T Deane, Assistant Attorney General, General Litigation Division, P.O. Box 12548, Capitol Station, Austin, TX 78711-2548.

ATTORNEYS FOR APPELLEE: Hon. Henry J. Paoli, Scott Hulse PC, 201 E. Main Street, 11th St., El Paso, TX 79901, Hon. Rosemary Morales Marin, Scott Hulse, P.C., 1100 Chase Tower, 201 East Main, El Paso, TX 79901.

Before Rodriguez, J., Hughes, J., and Larsen, J. (Senior Judge)

OPINION

YVONNE T. RODRIGUEZ, Justice

Laura G. Rodriguez sued her former employer, the Office of the Attorney General of Texas (OAG), for retaliatory discharge under the Texas Whistleblower Act. See TEX. GOV'T CODE ANN. §§ 554.001 -.010 (West 2012). The trial court rendered judgment on the jury's verdict and awarded Rodriguez actual damages and attorney's fees. The OAG appeals, contending that (1) the evidence was legally and factually insufficient to support the finding that Rodriguez' whistleblower report was a "but for" cause of her termination, and (2) Rodriguez failed to mitigate her damages and was therefore not entitled to an award of "front pay" damages. We affirm.

BACKGROUND

Rodriguez began her career with the OAG Child Support Division (CSD) in El Paso, beginning in 1982. Over the years, Rodriguez held a variety of positions with the CSD, and was ultimately promoted in March of 2005 to become the CSD Regional Administrator (RA) over the entire El Paso Region, known as Region 8. As the RA, Rodriguez was responsible for managing all 145 employees who worked in the seven offices in the Region, which included offices in El Paso, Midland, and Odessa. Each office performed a different function and had an office manager for whom Rodriguez was responsible for directly supervising.

Rodriguez was hired for the RA position by Charles Smith, who at the time was the Deputy Director of the Child Support Division, working in the OAG's headquarters office in Austin; as the Deputy Director, Smith was responsible for overseeing all nine CSD Regions in the State and was Rodriguez's immediate supervisor. During her tenure as RA, Smith evaluated Rodriguez's performance annually, beginning in September of 2005, and gave her outstanding evaluations for her performance, until she received her final evaluation in December of 2009. In addition, under her leadership, Region 8 performed exceptionally well, and was recognized as one of the leading regions in the State of Texas for output.

The Whistleblower Report

Rodriguez's whistleblower report centered on an email that her executive assistant, and long-time friend, Debbie Galindo had sent to Carol King, an OAG benefits specialist, in December of 2008, requesting that Annika Macias be placed on her insurance as her dependent, stating that Annika was her then 24-year-old niece who had recently moved into her home. When Rodriguez, who explained that she and Galindo shared access to each other's email accounts, viewed the email, she became concerned that Galindo might be committing insurance fraud, as she had personal knowledge that Annika was not Galindo's niece, and that she was instead the girlfriend of Galindo's son, Christopher Galindo.¹ Moreover, Rodriguez was also personally aware that Annika and Galindo's son had signed a six-month lease on a house owned by Rodriguez's sister in August of 2008, and she therefore did not believe that Annika was residing with Galindo at the time she sent the email.

Rodriguez, believing that she had a duty to report her suspicion of insurance fraud in accordance with the OAG's Fraud Waste and Abuse Prevention Program (FWAPP) policies, reported the matter to Smith.² Smith testified that his first reaction to the report was to question why Rodriguez had been viewing Galindo's email, advising her that he did not typically look at other employee's emails. Smith testified that he thereafter asked Rodriguez not to make a report, and asked her to instead contact Galindo to seek clarification of what had occurred, despite the fact that the FWAPP policy manual expressly provides that a reporting employee should not confront a suspected individual, or conduct any additional investigation on her own.³ Rodriguez advised Smith that she did not wish to confront Galindo, and that she instead wished to report her concerns anonymously, as was her right to do under the FWAPP policy manual, which provides that reporting employees are entitled to confidentiality and to have their identity "protected from disclosure to the extent possible." Smith, however, testified that he found her reluctance to not want to confront Galindo to be "odd," and admittedly questioned her about why she was refusing to do so. At the time, Rodriguez advised Smith that she did not want the report to interfere with her working relationship with Galindo, but failed to disclose to Smith that she had a long-time friendship with Galindo, and that Rodriguez's sister had been renting a home to Galindo's son and Annika.

Although the OAG's FWAPP policy manual provides that reports made to a division chief, such as Smith, must be "promptly referred to the [OAG's] Ethics Advisor," Smith admittedly did not report the matter to the Ethics Advisor; instead, on January 5, 2009, Rodriguez made an anonymous phone call to Henry De La Garza, the agency's Ethics Advisor, reporting her suspicions. When De La Garza first received the information, he believed that Galindo may have committed a crime when she sent her email to King, such as insurance fraud or providing false information on a government document, and he referred the matter to the OAG's Criminal Investigations Division (CID) for review.

The Galindo Investigation

For reasons that are unclear from the record, the CID did not begin its investigation until approximately three months later, in March of 2009, at which time a CID investigator interviewed Galindo about her email. During her interview, Galindo admitted that Annika was not her niece, but was instead her son's girlfriend. She informed the investigator, however, that she unintentionally named Annika as her niece, explaining that she had previously enrolled a niece on her insurance two years earlier when the niece had moved in with her while she was attending college in El Paso. Based on this information, the investigator concluded that Galindo had provided "false information" in her email to King regarding her relationship to Annika, and that Annika did "not meet the requirements to be a dependent eligible for enrollment." The investigator further noted that Annika had already made a claim on Galindo's insurance.

When De La Garza received that report in May of 2009, he believed it was "incomplete" for two reasons. First, he believed the report did not conclusively establish that Galindo was not entitled to enroll Annika as a dependent "child" on her insurance, correctly believing that if Annika was under 25 years of age, and had been living with Galindo as her dependent, Galindo could have enrolled Annika as a dependent child, regardless of whether Annika was her niece or not. Second, De La Garza believed that Galindo may have unintentionally described Annika as her niece, given the excuse she provided to the investigator. On May 18, 2009, De La Garza therefore made a "suggestion" that the CID investigators conduct a second investigation to determine where Annika had been residing during the relevant time periods, as well as Galindo's intent in sending her email to King.

Before that investigation began, however, while Rodriguez and Smith were meeting on an unrelated matter in late June of that year, the two discussed the status of the CID investigation. Smith did not, and he therefore made inquiries to De La Garza and to Jo Kirkel, an attorney in the OAG's HR division, about the matter, and learned of De La Garza'a concerns that Annika might have been living with Galindo and could therefore be claimed as her dependent. When Smith communicated that information to Rodriguez, she advised Smith that she did not believe Annika was residing with Galindo; Smith thereafter sent a follow-up email to Kirkel on June 30, 2009, to relay that information to her. On that same day, Kirkel spoke with De La Garza and a CID officer about the matter, and it was agreed that a second investigation would be initiated.

A second investigator thereafter interviewed Galindo, who again insisted that Annika had moved into her house in December of 2008 before she sent her email to King. During this interview, Galindo explained that although Annika and her son had been renting a house from Rodriguez's sister during the relevant time period, Annika had moved out of the house, and into her household with the couple's young child, because they were having health issues due to a mold issue in the house, while Christopher stayed behind in the rental house. Galindo also claimed that she provided Annika with living expenses, including food and gas money, while she was living with her. The investigator also interviewed Annika and Christopher, both of whom confirmed Galindo's version of the events. In addition, the investigator interviewed Rodriguez's brother-in-law, who was unable to confirm or deny that Annika had left the residence in December.

Rodriguez was also interviewed during the second investigation, and informed the investigator that she had no ownership in the house in which Annika and Christopher had been living, but that she had shown the couple the house on her sister's behalf in August of 2008 when they signed their lease, and that she and her husband had communicated with the couple thereafter about the plumbing problems in the house during the months of November and December of 2008, after which Rodriguez's sister and her husband took over...