Vela v. Rocha

• Citation: 52 S.W.3d 398
• Decision Date: 12 July 2001
• Docket Number: No. 13-00-635-CV,13-00-635-CV
• Parties: (Tex.App.-Corpus Christi 2001) LEONEL VELA, KAREN HOLLINGSWORTH, DERRIC TREVINO, DORA DEL TORO, AND ENEDINA MAGANA, Appellants, v. SIMON ROCHA, Appellee.
• Court: Court of Appeals of Texas

Page 398

52 S.W.3d 398 (Tex.App.-Corpus Christi 2001)

LEONEL VELA, KAREN HOLLINGSWORTH, DERRIC TREVINO, DORA DEL TORO, AND ENEDINA MAGANA, Appellants, v. SIMON ROCHA, Appellee.

No. 13-00-635-CV

Court of Appeals of Texas, Corpus Christi.

July 12, 2001.

On appeal from the 107th District Court of Cameron County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Hinojosa, Yanez, and Castillo

OPINION

Hinojosa, Justice.

This is an interlocutory appeal of the trial court's order denying a motion for summary judgment based on the affirmative defense of official immunity.¹ Appellants, Leonel Vela, Karen Hollingsworth, Derric Trevino, Dora Del Toro, and Enedina Magana, all employees of the Texas Department of Health ("TDH"), contend the trial court erred in denying their motion for summary judgment. We affirm in part and reverse and render in part.

A. Standard of Review

When reviewing a traditional summary judgment brought under rule 166a, an appellate court must follow these well-established rules:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a. A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When a defendant moves for summary judgment on an affirmative defense, he must prove each element of his defense as a matter of law, leaving no issues of material fact. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). The plaintiff, as the non-movant, has no burden of proof unless the defendant proves conclusively all elements of its affirmative defense. Id.

Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.-Corpus Christi 1995, writ denied); Benavides v. Moore, 848 S.W.2d 190, 192 (Tex. App.-Corpus Christi 1992, writ denied).

B. Background

It is undisputed that TDH has a personnel policy requiring all employees to report incidents of sexual harassment they have experienced or witnessed. On September 30, 1996, Derric Trevino reported to Enedina Sosa, chief of staff for the TDH Region 11 office in Harlingen, that his direct supervisor, Simon Rocha, the appellee in this case, had engaged in inappropriate behavior with female subordinates and co-workers, and that Rocha's conduct was negatively impacting TDH operations.

The next day, Rocha's secretary, Enedina Magana, reported to Sosa that Rocha had engaged in inappropriate behavior toward her: that Rocha had made inappropriate remarks to her, played with her hair, touched her with his body, and asked for kisses in return for time off. Magana submitted a written employee grievance, in which she reported that Karen Hollingsworth had witnessed Rocha's inappropriate behavior toward her. When Sosa spoke with Hollingsworth, she confirmed that Rocha had engaged in inappropriate behavior toward Magana. Hollingsworth told Sosa that Rocha had also engaged in inappropriate behavior toward her: that Rocha had made inappropriate remarks to her and had played with her hair during a business meeting. Sosa then spoke with Dora Del Toro, who disclosed that Rocha had also made inappropriate remarks toward her. Hollingsworth and Del Toro also filed written employee complaints.

Sosa forwarded the complaints to TDH's Office of Civil Rights in Austin. A few days later, TDH investigator Jose Tabares arrived to conduct an on-site investigation of the complaints. Tabares interviewed Magana, Del Toro, Hollingsworth, Trevino and Rocha. After the investigation, Leonel Vela, the TDH Regional Medical Director for Region 11, terminated Rocha.

Rocha requested and received an administrative hearing. At the hearing, the four complainants testified about Rocha's behavior, and Rocha's termination was upheld. Rocha then filed a lawsuit in the District Court of Cameron County against TDH and appellants,² individually and in their official capacities as TDH employees. In the suit, Rocha alleged that Hollingsworth, Trevino, Del Toro, and Magana had conspired to fabricate incidents of inappropriate behavior to get him fired, and that he had been wrongfully terminated by TDH and Vela. Rocha asserted causes of action for libel, slander, and civil conspiracy against Hollingsworth, Trevino, Del Toro and Magana. He also asserted causes of action for intentional infliction of emotional distress against Hollingsworth, Trevino, and Magana. The only cause of action against Vela that can be construed from the pleadings is wrongful termination, apparently based on TDH's alleged failure to "protect the Plaintiff's constitutional rights of due process and equal protection by failing to notify Plaintiff of the specific charges against him [and] the names of the individuals who were making the accusations."

Appellants filed a motion for summary judgment asserting the affirmative defense of official immunity under state law. Rocha filed a very brief response in which he objected to the filing of the motion, and to appellants' affidavits,

especially in their claims of "good faith." The affidavits are of "interested witnesses" and as such are not susceptible of being readily controverted. Because the affidavits cannot meet this requirement it cannot support a summary judgment. . . . Plaintiff would further show that the deposition testimony of the Plaintiff attached to Defendants' Motion for Summary Judgment makes a fact issue for a jury as to the credibility of the defendant's [sic] affidavit.

Rocha did not file any summary judgment evidence. The trial court denied the motion, and this interlocutory appeal ensued.

C. Official Immunity

Claims against government employees in their individual capacities are separate and distinct from claims against them in their official capacities. Smith v. Davis, 999 S.W.2d 409, 413 (Tex. App.-Dallas 1999, no pet.). A suit against a government employee in his individual capacity seeks to impose personal liability on the employee for actions he takes under color of state law. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Smith, 999 S.W. 2d at 413. In contrast, a suit against an employee in his official capacity seeks to impose liability on the governmental entity that employs him. Graham, 473 U.S. at 166; Smith, 999 S.W.2d at 413. Each capacity involves a separate and distinct form of potential immunity; government employees sued in their individual capacity may claim the protections of official immunity. Smith, 999 S.W.2d at 413; Gross v. Innes, 930 S.W.2d 237, 239 (Tex. App.-Dallas 1996, writ dism'd w.o.j. at 988 S.W.2d 727 (Tex. 1998)). An individual sued in his official capacity, on the other hand, may in some cases enjoy the protections of sovereign immunity to the extent those protections are available to his employer. City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.-Houston [1st Dist.] 1995, no writ); Thomas v. Crow, 862 S.W.2d 719, 721 (Tex. App.-Tyler 1993, no writ). In this case, the appellants have asserted only the affirmative defense of official immunity.

Official immunity is an affirmative defense that protects government employees from personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials; the public would suffer if government officers, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994); see Cameron County v. Carrillo, 7 S.W.3d 706, 709 (Tex. App.-Corpus Christi 1999, no pet.). When official immunity shields a governmental employee from liability, sovereign immunity shields the governmental employer from vicarious liability. Clark, 38 S.W.3d at 580; DeWitt v. Harris Co., 904 S.W.2d 650, 653 (Tex. 1995).

Government employees are entitled to official immunity from suit arising from (1) the performance of their discretionary duties³ (2) in good faith (3) as long as they are acting within the scope of their authority.⁴ Clark, 38 S.W.3d at 580;Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Chambers, 883 S.W.2d at 653; Herr, 41 S.W.3d at 759. To obtain summary judgment on official immunity, the governmental employee must conclusively prove each element of the defense. Clark, 38 S.W.3d at 580; Kassen, 887 S.W.2d at 8-9; Chambers, 883 S.W.2d at 653. What is at issue in this case is whether appellants acted in good faith.

D. Good Faith

An appellate court must measure good faith in official immunity cases against a standard of objective reasonableness without regard to the official's subjective state of mind. Chambers, 883 S.W.2d at 656; Ramos v. Tex. Dept. of Public Safety, 35 S.W.3d 723, 729 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); ...