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Texas Health and Human Services Commission v. Carrizal

Court of Appeals of Texas, Third District, Austin

September 10, 2019

Texas Health and Human Services Commission, Appellant
v.
Jose "Joe" Antonio Carrizal, Jr., Appellee

          FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-14-004803, THE HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Justices Baker, Kelly, and Shannon [*]

          MEMORANDUM OPINION

          BOB E. SHANNON, JUSTICE.

         This is an appeal from the order of the district court of Travis County denying a plea to the jurisdiction in a whistleblower case. See Tex. Gov't Code §§ 554.001-.010 (Texas Whistleblower Act). Appellant is the Texas Health and Human Services Commission (the Commission); appellee is Jose "Joe" Antonio Carrizal, Jr. This Court will reverse the order of the district court and render judgment dismissing Carrizal's lawsuit.

         In 2010, the Commission hired Carrizal, who has a law-enforcement background, as a special investigator for Child Protective Services, then a program subject to the Commission's authority. In that office, he conducted investigations into cases of abuse or neglect of children. In 2012, he joined the Commission's Office of Inspector General Internal Affairs where he investigated child-death cases.

         On February 20, 2013, Carrizal sent a letter titled "Management Concerns," followed by a fifty-page brief, to Adrian Abrams, the Deputy Inspector General, his departmental superior. The letter and brief referenced concerns Carrizal had about poor case management in the Internal Affairs Division.

         In the seventeen months following service of the letter and brief, Carrizal was promoted (to police lieutenant in charge of the Vital Statistics Fraud Unit) and received two pay raises. According to Carrizal, however, all was not well at work during this time. In an affidavit filed in support of his response to the plea to the jurisdiction Carrizal asserted generally:

Almost immediately following my submission [of the letter and brief to Abrams], I began to experience negative attitudes and retaliation, which included being ridiculed for filing the brief; having my reports scrutinized and rejected by management for allegedly not completing them appropriately (for the first time since I began working for [the Commission]); not receiving work credit for the child death investigations I completed; initially being passed over for a merit raise; receiving an inaccurate evaluation, which I contested via e-mail; being passed over for promotions.

         In May 2014, Carrizal met with Captain Causey and Lieutenant Mazur concerning the transfer of one of Carrizal's cases. After the meeting commenced, Abrams appeared unannounced. Causey testified on deposition that upon Abrams's appearance, Carrizal stopped his presentation and began shouting that he would not be intimidated by Abrams. Causey was "taken aback" by Carrizal's behavior towards a "higher up." He had never seen anything like it. In Causey's view, Carrizal's action was very disrespectful and "borderline insubordination," conduct which would justify termination.

         On the same day as the encounter between Abrams and him, Carrizal forwarded a copy of the February 20, 2013 letter and brief (previously sent to Abrams) to Doug Wilson, the Inspector General. About two months later, in July 2014, the Commission terminated Carrizal, allegedly for his inappropriate conduct at the May 2014 meeting.

         Carrizal filed suit charging that his termination resulted from his reporting a violation of law in the February 20, 2013 letter and brief. See Tex. Gov't Code § 554.002(a) (creating standard for violation of Whistleblower Act). The Commission filed a plea to the jurisdiction asserting that Carrizal failed to establish causation between the claimed protected activity and his termination, and that, in any event, it terminated Carrizal for a legitimate non-retaliatory reason. Carrizal responded, asserting that the Commission's affirmative defense was pretextual. Upon hearing, the district court denied the plea.

         To recover pursuant to the Whistleblower Act, as construed by the Texas Supreme Court, a plaintiff must establish that: (1) he is a public employee; (2) he made a report of a violation of law by the agency or a public employee; (3) he acted in good faith in making a report; (4) the report was made to an appropriate law-enforcement authority; and (5) he suffered retaliation because he made the report. Texas Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 633 (Tex. 1995). To establish causation, a plaintiff must prove "but for" causation between the protected activity and the claimed adverse employment action. Id. at 635-36.

         The Commission argues on appeal, as it did in district court, that Carrizal failed to establish causation between the claimed protected activity and his termination. In support of its argument, the Commission maintains that the seventeen-month gap between Carrizal's letter and brief to Abrams and his termination negates causation. We agree.

         In other termination contexts, courts have concluded that time lapses shorter than seventeen months are insufficient to establish a causal link. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 790 (Tex. 2018) ("Temporal proximity is relevant to causation when it is 'very close.' [An eight-month] gap is so long as to be of little, if any, probative value."); see also Jackson v. Honeywell Int'l Inc., 601 Fed.Appx. 280, 287 (5th Cir. 2015) ("We have found a five month period between the protected activity and the adverse employment ...


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