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Hackbarth v. University of Texas at Dallas

Court of Appeals of Texas, Fifth District, Dallas

January 4, 2018


         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-06745.

          Before Justices Francis, Evans, and Boatright.



         Michael Hackbarth appeals the trial court's order granting the University of Texas at Dallas's motion for summary judgment and dismissing his retaliation claim under the Texas Whistleblower Act. In two issues, he contends there are genuine issues of material fact as to whether he (1) made a good-faith report of a violation of law and (2) would have been discharged but for the report. For reasons set out below, we affirm the trial court's order.

         Appellant was hired as a UTD police officer in January 2012 after retiring as a senior corporal from the Dallas Police Department with twenty-eight years of service. Appellant had extensive training and was considered a "master peace officer, " which he said is the highest level officer recognized by the Texas Commission on Law Enforcement. Once hired by UTD, he completed the UT System's ten-week academy.

         In September 2012, UTD student N.B. reported that her boyfriend, Pritesh Rana, also a student, had physically and sexually assaulted her multiple times over the previous seven months, both on and off campus. N.B. was accompanied by some of her sorority sisters, who believed the violence was affecting her behavior. Sgt. Karl Zuber, supervised by Lt. Kenneth MacKenzie, investigated the case and interviewed N.B., her sorority sisters, and Rana. Rana admitted he had bruised N.B. and grabbed her by the throat during an argument. But Rana told police he and N.B. had consensual sex. He described one instance where she told him to stop, and he did, but afterwards she called him a "rapist." N.B. refused to give a written statement and did not want to press charges.

         Given these circumstances, as well as the lack of physical evidence because the reports were not near in time to the alleged offenses, MacKenzie closed the case by allowing N.B. to sign a statement of nonprosecution. N.B. was given information on the UTD counseling center and women's center and "victim information." Rana was instructed to have no further contact with N.B. In addition, the Department issued a BOLO to alert officers to the escalating violence between the couple and that both had refused to prosecute. The BOLO contained the students' names, their photographs, and the make and model of their vehicles. It stated the couple normally met in school parking lots and advised officers to "take appropriate action" if they made contact and an offense had occurred. The BOLO was emailed to all officers and posted on a bulletin board.

         On February 3, 2013, appellant was dispatched to a disturbance call at the UTD library, where a man was reportedly holding a female against her will. Appellant's shift supervisor, Sgt. Mark Brushwiller, also responded. On arrival, they found N.B. and Rana seated in the lobby. Appellant said both were "calm, " but Brushwiller said N.B. was "upset" and "maybe crying." Brushwiller recognized the couple from a disturbance the previous week in which the two were arguing and N.B. was crying. In that incident, both students denied any physical contact.

         Appellant interviewed Rana, and Brushwiller interviewed N.B. N.B. said she and Rana were having an argument on the fourth floor of the library. When she tried to leave, Rana came from behind and wrapped his arms around her torso to keep her from leaving. N.B. yelled, and Rana released her. She denied any assault. Rana admitted to "wrongful contact, " saying he held on to N.B. and would not let her go. Appellant determined no offense occurred, and Brushwiller relied on appellant's "experience and guidance" in determining the outcome. Brushwiller warned Rana that this was the "second time" he had responded to a disturbance involving them and advised Rana "of the consequences of his aggressive actions." Rana was allowed to leave. Both officers then spoke to N.B. briefly and gave her a UTD statement of nonprosecution, which she signed. The officers did not talk to the librarian or any witnesses nor did they check to see if any video of the incident was available. Neither was aware of the previously issued BOLO regarding the couple.

         MacKenzie reviewed appellant's report and immediately recognized the parties as the subjects of the BOLO. MacKenzie had another officer pull the library's security video, which showed Rana restrain N.B. and put her in a headlock. After discussing the case with a Collin County prosecutor, MacKenzie decided, given the prior history, to proceed with an arrest of Rana on a Class C assault charge even though N.B. was an uncooperative witness. At some point, he told appellant he was going to have Rana arrested, and appellant disagreed that any offense occurred. Appellant voiced concern that an arrest would "ruin the kid's life."

         MacKenzie directed Cpl. Robert Montgomery to draft an arrest warrant for Rana, which is the genesis of this dispute. Montgomery reviewed the dispatch audio recording of the 911 call and other documents associated with the case. When drafting the probable cause affidavit, Montgomery included a sentence that read, "While the library staff was on the phone with the UTD Dispatcher she heard the female scream." MacKenzie believed the usage of the pronoun "she" in the sentence was unclear, and he revised it to read, "While the caller was on the phone, the UTD Dispatcher heard a female scream." Montgomery said he twice told MacKenzie the statement was incorrect because the librarian, not the dispatcher, heard the scream. Nevertheless, MacKenzie said he had "more experience" and instructed Montgomery to prepare the affidavit to reflect the dispatcher heard the scream. Montgomery prepared the affidavit as instructed by MacKenzie.

         After the arrest warrant issued, appellant and Montgomery went to Police Chief Larry Zacharias and told him about the problem with the warrant. Appellant testified Zacharias immediately took a "defensive posture, " saying they were "dumping" on his lieutenant. Appellant believed the chief's reaction "had to do" with another complaint initiated against MacKenzie only two weeks earlier, and he told Zacharias, "I thought you might think that, but this is just a coincidence." According to appellant, Montgomery told the chief he twice told MacKenzie the statement was wrong, but MacKenzie insisted it stay in. Appellant told Zacharias he believed MacKenzie intentionally included the false statement about who heard the scream to "bolster the credibility" of the warrant. Appellant also mentioned he believed the warrant presented a "Brady" issue.[1] At the conclusion of the meeting, Zacharias said he would look into it.

         After speaking with MacKenzie and reviewing the drafts of the affidavits prepared by Montgomery as well as the revisions made by MacKenzie, Zacharias believed "pronoun confusion" caused the error. He directed MacKenzie to contact the judge who signed the warrant and tell her about the incorrect statement. MacKenzie reported back to Zacharias that he contacted the judge, who said if probable cause still existed absent the sentence, the police did not need to obtain another warrant and that it could be cleared up with testimony at trial. Zacharias met with appellant and Montgomery and told them what the judge said.

         Dissatisfied with Zacharias's response, appellant contacted the Collin County District Attorney's Office and the Texas Rangers with his complaint about the warrant. Neither had the resources to investigate the complaint. Then, in May 2013, appellant made a complaint to the University of Texas System's Office of Director of Police (ODOP) in Austin, alleging MacKenzie intentionally falsified a statement in a warrant affidavit that resulted in an innocent person being arrested and suspended from UTD. Appellant alleged the false arrest was then "covered up by withholding necessary and immediate 'Brady' disclosure, which resulted in Rana accepting a plea agreement he would otherwise not have taken." Rana pleaded no contest to Class C assault in municipal court. He was also suspended from UTD.

         The case was assigned to Ruben Puente, ODOP assistant director. Puente was assisted in the investigation by Inspector Larry Bloom and two sergeants from the UT-Austin and UT-Arlington police departments. Puente decided to "put everybody at UTDPD under the microscope" and notified Zacharias of the investigation. Investigators obtained statements from appellant and MacKenzie and interviewed several witnesses, including appellant, Montgomery, Zacharias, MacKenzie, the municipal judge who signed the warrant, the two Collin County prosecutors who met with appellant, and the Texas Ranger who appellant contacted.

         At the conclusion of the month-long investigation, ODOP issued a seventy-five-page report, determining appellant's allegations of false arrest, tampering with a government record, unlawful restraint, and official oppression were all unfounded. Among other things, ODOP found appellant and Brushwiller's investigation into the library incident was "flawed" and "should have been handled in a significantly different, more deliberate and thoughtful manner." As for the statement in the warrant affidavit, ODOP noted a "significant distinction between untruthfulness and error in fact both in terms of culpability and intent" and then found "no evidence that a falsehood was purposely propagated" as part of the warrant investigation. Further, ODOP found MacKenzie's "inadequate supervisory oversight" and Montgomery's reluctance to use the chain of command contributed to the "misunderstanding as to what occurred and why." Finally, ODOP determined no attempted ...

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