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Bates v. Pecos County

Court of Appeals of Texas, Eighth District, El Paso

March 29, 2017

MONIKA BATES, Appellant,

         Appeal from 83rd District Court of Pecos County, Texas (TC # P-7026-83-CV)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice

         Monika Bates sued Pecos County for wrongful termination under three common law theories, and the Texas Whistleblower statute. The case comes to us after the trial court granted Pecos County's motion for summary judgment, or alternative plea to the jurisdiction. For the reasons explained below, we affirm.


         Bates was employed as an emergency medical technician with Pecos County from October 2008 until she was terminated on April 4, 2011. She acknowledged being hired as an "at will" employee. While employed, Bates was paid twice a month. In mid-March 2011, she was told on receipt of her regular paycheck that there was some problem with payroll, and that she would not get overtime pay until her next paycheck. At the end of the month, and while at her workplace, she concluded that the County shorted her overtime pay on the end of the month paycheck. She became upset--in her words "livid"-as this was at least the third time she believed it had happened. While walking into a make shift room that lacked any ceiling, she uttered out loud an expletive laden statement.[1] Her supervisor, Frank Rodriquez, overheard the statement and quickly confronted her, contending that her use of vulgarities violated the department's policy against insubordination. In response to her contention that she was shorted overtime pay, Rodriquez called the county treasurer's office to inquire about the overtime issue. Following that call, he told Bates that because she had taken a sick day off, she was not entitled to overtime in that pay period. That same day he placed her on suspension, and the County then terminated her on April 4, 2011 for violation of policy.

         Bates then filed a discrimination claim with the EEOC. She complained about how overtime was compensated, or more specifically as she claimed, not compensated. She also contended that she was discriminated against on the basis of her gender and national origin.

         Following receipt of her right to sue letter from the EEOC, Bates filed suit against Pecos County and her former supervisor, Frank Rodriquez, asserting four theories related to her termination of employment: breach of contract; negligence; infliction of emotional distress; and a whistleblower claim under Tex.Gov't Code Ann. § 554.002 (West 2012). The alleged gender and national origin discrimination is not part of her suit. Frank Rodriquez was dismissed on his motion for summary judgment, and no issue is raised on appeal with respect to that dismissal. Pecos County later moved for its own summary judgment under traditional and no evidence grounds, and it asserted an alternative plea to the jurisdiction. The trial court granted the County's motion.


         Bates brings four issues on appeal which in varying ways attack the trial court's decision to grant summary judgment, or the alternate plea to the jurisdiction. We review the trial court's decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). The County filed a hybrid motion including both traditional and no-evidence grounds. The trial court granted the motion without specifying the grounds. In this situation, we review the no-evidence motion first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

         A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review as we would for a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Under this standard, we review the evidence in the light most favorable to the non-movant, crediting evidence favorable to that party if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A genuine issue of material fact is raised if the non-movant produces more than a scintilla of evidence regarding the challenged element. King Ranch, 118 S.W.3d at 751. More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Id. at 751. There is not a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex.App.--El Paso 2013, no pet.). Evidence that fails to constitute more than a mere scintilla is, in legal effect, no evidence at all. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001); Wade Oil & Gas, 417 S.W.3d at 540.

         The County also asserted a traditional summary judgment under Tex.R.Civ.P. 166a(c). Under a traditional motion, the moving party carries the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Fort Worth Osteopathic Hospital, 148 S.W.3d at 99. Once the movant establishes its right to summary judgment, the burden then shifts to the non-movant to present evidence which raises a genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).

         The summary judgment motion here is overlaid onto the County's alternate plea to the jurisdiction. Sovereign immunity (from suit) denies a trial court subject matter jurisdiction over the suit unless the State expressly consents to suit. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental immunity operates like sovereign immunity and affords similar protection to subdivisions of the State, including its counties. Id. Pecos County is entitled to immunity unless Bates pleads facts invoking a waiver of governmental immunity. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A governmental entity may challenge the existence of that prima facie case through a plea to the jurisdiction, or it may also include jurisdictional evidence which thereby places into issue the existence of a jurisdictional fact. Miranda, 133 S.W.3d at 225-26; Univ. of Texas at El Paso v. Ochoa, 410 S.W.3d 327, 330 (Tex.App.--El Paso 2013, pet. denied). The Texas Supreme Court has recognized that "[t]he absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment." State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). Whether a trial court has jurisdiction is a question of law subject to de novo review. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).


         A governmental entity "may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." Tex.Gov't Code Ann. § 554.002(a). The Act is intended to "enhance openness in government and compel the State's compliance with law by protecting those who inform authorities of wrongdoing." Tex. Dep 't of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d 393, 399 (Tex.App.--Austin 2005, pet. denied). Governmental immunity is expressly waived under the Act. See Tex.Gov't Code Ann. § 554.0035 (West 2012); County of El Paso v. Latimer, 431 S.W.3d 844, 848 (Tex.App.--El Paso 2014, no pet.).

         Among other requirements, the good faith report must be the cause of the adverse action. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)("To show causation, a public employee must demonstrate that after he or she reported a violation of the law in good faith to an appropriate law enforcement authority, the employee suffered discriminatory conduct by his or her employer that would not have occurred when it did if the employee had not reported the illegal conduct.")[Emphasis added]. The motion for summary judgment here focused in part on this element, arguing that the only "report" occurred after the termination when Bates told the EEOC about the overtime pay issue. Thus the report could not have been the cause of her termination. See Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656 (Tex. 2013) (plaintiff who made report to law enforcement after the adverse personnel action failed to meet causation burden); Texas Dept. of Aging and Disability Services v. Loya, 491 S.W.3d 920 (Tex.App.--El Paso 2016, no pet.)(same, in context of retaliation claim).

         The County believed it had corralled Bates on her deposition into admitting that the only report she made was to the EEOC, and that report was made after she was terminated.[2] Bates summary judgment response, however, contained her own affidavit which mainly details to whom she reported the overtime pay issue:

'I have maintained from the time this lawsuit was filed until the present time that prior to my termination I went to the following individuals who I believe to be the appropriate individuals. I was taught that I was to go through the chain of command.'
'Before I was terminated I went to my Shift Captain whose name was Renny Spencer and indicated that we were being paid improperly and we were not being paid according to the law of the United States and /or Texas.'
'I also went to other members of the Emergency Medical Service (EMS) and voiced my opinion.'
'Before my termination on April 4, 2011, I personally went to the Treasurer's Office of Pecos County, Texas and indicated we were not being paid properly and being shorted money. I voiced my opinion and indicated to the Treasure's Office [sic]. The Treasurer at that time was Barry McCalester.'
'On or before April 4, 2011, I called Judge Joe Shuster and indicated to him personally over the telephone what was happening and that I should receive monies that was [sic] being withheld and was not being paid to me. I do not know whether Judge Joe Shuster did anything or not. Judge Joe Shuster is the presiding officer of the Commissioner's Court of Pecos County, Texas.' She also claims her husband contacted 'various authorities as well as Federal authorities' to complain on both his and her behalf. Bates affidavit brings us to a subpart of her first issue on appeal addressing the admissibility of her affidavit.

         Objections ...

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