Upton County, Tex. v. Brown, No. 08-96-00378-CV

CourtCourt of Appeals of Texas
Writing for the CourtBefore BARAJAS; BARAJAS
Citation960 S.W.2d 808
PartiesUPTON COUNTY, Texas, Appellant, v. Larry Joe BROWN, Appellee.
Decision Date04 September 1997
Docket NumberNo. 08-96-00378-CV

Page 808

960 S.W.2d 808
UPTON COUNTY, Texas, Appellant,
v.
Larry Joe BROWN, Appellee.
No. 08-96-00378-CV.
Court of Appeals of Texas,
El Paso.
Sept. 4, 1997.
Rehearing Overruled Oct. 8, 1997.

Page 811

C. Rex Hall, Jr., Allison & Associates, Austin, for appellant.

Andrew Trusevich, Ford, Yungblut, White & Salazar, P.C., Dallas, David J. Guillory, Nacogdoches, for appellee.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a finding by a jury that Appellant, Upton County, violated both the Texas Whistleblower Act and Appellee's, Larry Joe Brown, First Amendment rights. We affirm.

I. SUMMARY OF THE EVIDENCE

Appellee, Larry Joe Brown, an employee of Upton County, was terminated from employment on November 20, 1992. He filed suit on February 19, 1993 and subsequently died on March 22, 1995. On June 1, 1995, pleadings were amended alleging a violation of 42 U.S.C. § 1983. At the time of his termination, Appellee was advised that the reasons for such termination were: (1) abusing County equipment; (2) talking too much and wasting time; (3) not working well with other employees; and (4) threatening his supervisor. The record in the instant case shows that prior to his termination, Appellee was openly vocal about alleged OSHA violations. After taking ill, Appellee complained that the County was not providing proper safety equipment regarding the spreading of a new liquid fertilizer. In response, the County issued "safety equipment" which consisted of a paper mask and was further advised that such paper mask was "plenty good." Within two days after spraying the fertilizer, Appellee began vomiting, contracted diarrhea, whelps, rashes, and was further unable to eat. 1 He went to the doctor who gave him a note saying that he was not to be exposed to the fertilizer. He gave the doctor's note to his supervisor, Jug Strieglar. The record shows that in spite of the specific note from the physician, Appellee was subsequently sent to work in an area that had been sprayed with the identical fertilizer a few days earlier. Upon learning of Appellee's work assignment, his physician called the county judge and advised her not to permit Appellee to exposure to any more fertilizer.

Appellee and his wife visited the county judge and expressed their concerns regarding the lack of safety equipment. The Browns feared that their discussions with the county judge would affect the relationship between Appellee and his supervisors. Soon after he spoke with the county judge, he was sent to an old county yard which was storing the identical fertilizer which made him sick on the previous two occasions. As expected, he once again developed whelps, diarrhea, vomiting, headaches, and again was unable eat. Appellee also reported OSHA violations to the city judge, his supervisor, and a county commissioner on instructions from OSHA.

In addition to complaining about his exposure to the fertilizer, Appellee also observed and reported the use of county equipment for personal use, and the use of county equipment at a private country club. He reported that county employees were working at the private country club during county time, and was himself told by two Upton County Commissioners to likewise go and do work at the club. 2 In addition to all of the above, Appellee observed that approximately 500 gallons of Upton County gasoline was missing from the county gasoline tank. The record demonstrates that the missing gasoline was reported to County Commissioner Kluthe who simply told Appellee to keep his mouth shut and mind his own business. Appellee additionally reported this misuse and theft of gasoline to the city judge as well as a local officer of the Texas Department of Public Safety. Appellee was ultimately fired from his employment with Upton County. The

Page 812

day of his termination, both Appellee and his wife believed the termination was in retaliation for reporting the above violations of law.

The record shows that on the evening of his termination, Appellee invoked the only appeal procedure he knew of, i.e., contacting Upton County Commissioner Kelton. 3 Commissioner Kelton arrived at Appellee's home after work at which time Appellee sought to appeal his termination directly to him. Commissioner Kelton stated that "he would check into it."

Appellee's supervisor, Strieglar testified that if his employees did not like his policy, they would have to go and talk with a county commissioner. Another former Upton County employee, testified that he was fired by Strieglar, but in order to get his job back, he had to likewise go and talk with a county commissioner. The former employee testified at trial that in all the time he was working for Upton County, he did not know of a single individual that had been fired that had gone to talk to a county commissioner, and who did not get their job back. Upton County contends that although two Upton County personnel policy manuals were introduced into evidence, the issue of which one was in force at the time of the termination was not clearly resolved and that neither contains a provision for a formal grievance procedure.

In January 1993, after hearing nothing from Commissioner Kelton, or any other Upton County personnel, Appellee concluded that he was not going to get his job back. 4 Suit was filed on February 19, 1993. Appellee died shortly thereafter. The case proceeded to trial with a jury returning a verdict against Upton County in the amount of $150,000 in compensatory damages and an additional $10,000 in punitive damages for violations of both the Whistleblower Act and the Appellee's First Amendment rights. Upton County now brings this appeal.

II. DISCUSSION

A. Statute of Limitations

In Point of Error No. One, Upton County contends that the trial court erred in finding that Appellee's claims are not barred by limitations. We disagree.

1. The Whistleblower Act

Appellee alleges that Upton County violated both the Whistleblower Act 5 and Appellee's First Amendment rights. The pertinent provisions which Appellee relied upon, and which the jury found Upton County violated, are:

Sec. 2. A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith.

Sec. 3. (a) A public employee who alleges a violation of this Act may sue for injunctive relief, damages, or both. Except as provided by Subsection (d) of this section, an employee who seeks relief under this Act must sue not later than the 90th day after the day the alleged violation occurred or was discovered by the employee through the use of reasonable diligence....

(d) Before bringing an action under this section, an employee of a local governmental body must exhaust any applicable grievance or appeal procedures adopted by the employing local governmental body to resolve disputes concerning the suspension or termination of an employee's employment or an allegation of unlawful discrimination. Time used by the employee in following those procedures may not be included in the determination of the running of the limitations period established by Subsection (a) of this section. The employee must invoke the grievance or appeal procedure not later than the 90th day after

Page 813

the date the alleged violation occurred or was discovered by the employee through the use of reasonable diligence.

(e) If a final decision is not rendered within 30 days of initiation, the provisions of Subsection (d) do not apply.

TEX.REV.CIV.STAT.ANN. art. 6252-16a; Beiser v. Tomball Hosp. Authority, 902 S.W.2d 721, 725 (Tex.App.--Houston [1st Dist.] 1995, writ denied). The Act prohibits a local government from terminating an employee for reporting "a violation of law to an appropriate law enforcement authority if the employee report is made in good faith." City of Houston v. Leach, 819 S.W.2d 185, 193 (Tex.App.--Houston [14th Dist.] 1991, no writ), citing Lastor v. City of Hearne, 810 S.W.2d 742, 743 (Tex.App.--Waco 1991, writ denied); TEX.REV.CIV.STAT.ANN. art. 6252-16a, § 2. An employee has the burden of proving that he was terminated for reporting a violation of law. Leach, 819 S.W.2d at 193; TEX.REV.CIV.STAT.ANN. art. 6252-16a, § 3(b). The Act gives a public employee, whose employment is terminated under such circumstances, the right to sue for damages and other relief. Texas Dep't of Human Services v. Hinds, 904 S.W.2d 629, 631 (Tex.1995); City of Alamo v. Holton, 934 S.W.2d 833, 836 (Tex.App.--Corpus Christi 1996, no writ). While the Act does not specifically waive sovereign immunity, it does specifically authorize a suit against a governmental body. Texas Dept. of Criminal Justice v. Terrell, 925 S.W.2d 44, 47 (Tex.App.--Tyler 1995, no writ). Courts have found that it is clear from the language of the statute that the Legislature intended to provide a public employee with a cause of action in which he would be entitled to recover damages and other remedies against the State. Terrell, 925 S.W.2d at 47; Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172 (5th Cir.1992); Texas Dept. of Human Serv. v. Green, 855 S.W.2d 136 (Tex.App.--Austin 1993, writ denied).

It has been clearly established that the Whistleblower Act has two legislative purposes:

(1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of law; and

(2) in consequence, to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies.

Green, 855 S.W.2d at 142; Travis County v. Colunga, 753 S.W.2d 716, 718-19 (Tex.App.--Austin 1988, writ denied). The Act should be construed liberally and in accordance with its remedial purpose. Green, 855 S.W.2d at 142; Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501, 503 (Tex.App.-Corpus Christi 1992); see Burch...

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27 practice notes
  • Jefferson Cnty. v. Nguyen, NO. 09-13-00505-CV
    • United States
    • Court of Appeals of Texas
    • July 31, 2015
    ...is governed by the state statute of limitations that is most analogous to the federal claim being raised. See Upton Cnty. v. Brown, 960 S.W.2d 808, 815 (Tex. App.—El Paso 1997, no pet.). As a general rule, "constitutional claims that arise in Texas under the Texas Constitution and the Unite......
  • Haynes v. City of Beaumont, No. 06-00-00023-CV
    • United States
    • Court of Appeals of Texas
    • December 8, 2000
    ...and context of a given statement, as revealed by the whole record. Connick v. Myers, 461 U.S. at 147-48; Upton County, Texas v. Brown, 960 S.W.2d 808, 814 (Tex. App. El Paso 1997, no Appellees sought summary judgment on this claim based solely on Page 179 their position that Haynes' speech ......
  • Dallas County v. Gonzales, No. 05-04-01015-CV.
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    • Court of Appeals of Texas
    • January 23, 2006
    ...over a section 1983 claim. Patsy v. Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Upton County v. Brown, 960 S.W.2d 808, 820 (Tex. App.-El Paso 1997, no pet). Thus, a plaintiff bringing suit under section 1983 need not establish a waiver of immunity when bringing......
  • Turner v. Perry, No. 14-07-01060-CV.
    • United States
    • Court of Appeals of Texas
    • January 27, 2009
    ...Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex.App.-Fort Worth 2003, pet. denied) (op. on reh'g) (citing Upton County v. Brown, 960 S.W.2d 808, 817 (Tex.App.-El Paso 1997, no pet.) and Tarrant County v. Bivins, 936 S.W.2d 419, 421 (Tex.App.-Fort Worth 1996, no writ)). Law enforcem......
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27 cases
  • Jefferson Cnty. v. Nguyen, NO. 09-13-00505-CV
    • United States
    • Court of Appeals of Texas
    • July 31, 2015
    ...is governed by the state statute of limitations that is most analogous to the federal claim being raised. See Upton Cnty. v. Brown, 960 S.W.2d 808, 815 (Tex. App.—El Paso 1997, no pet.). As a general rule, "constitutional claims that arise in Texas under the Texas Constitution and the Unite......
  • Haynes v. City of Beaumont, No. 06-00-00023-CV
    • United States
    • Court of Appeals of Texas
    • December 8, 2000
    ...and context of a given statement, as revealed by the whole record. Connick v. Myers, 461 U.S. at 147-48; Upton County, Texas v. Brown, 960 S.W.2d 808, 814 (Tex. App. El Paso 1997, no Appellees sought summary judgment on this claim based solely on Page 179 their position that Haynes' speech ......
  • Dallas County v. Gonzales, No. 05-04-01015-CV.
    • United States
    • Court of Appeals of Texas
    • January 23, 2006
    ...over a section 1983 claim. Patsy v. Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Upton County v. Brown, 960 S.W.2d 808, 820 (Tex. App.-El Paso 1997, no pet). Thus, a plaintiff bringing suit under section 1983 need not establish a waiver of immunity when bringing......
  • Turner v. Perry, No. 14-07-01060-CV.
    • United States
    • Court of Appeals of Texas
    • January 27, 2009
    ...Town of Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex.App.-Fort Worth 2003, pet. denied) (op. on reh'g) (citing Upton County v. Brown, 960 S.W.2d 808, 817 (Tex.App.-El Paso 1997, no pet.) and Tarrant County v. Bivins, 936 S.W.2d 419, 421 (Tex.App.-Fort Worth 1996, no writ)). Law enforcem......
  • Request a trial to view additional results

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