Court of Appeals of Texas, Eighth District, El Paso
from 83rd District Court of Pecos County, Texas (TC #
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice
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
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. 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.
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.
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
STANDARD OF REVIEW
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).
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.
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).
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).
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.).
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).
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. 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
'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
'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.