Moore v. The City of Houston ( 2001 )


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  •                   UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 00-20151
    JEFFREY MOORE,
    Plaintiff-Appellee,
    VERSUS
    THE CITY OF HOUSTON, ET AL
    Defendants,
    THE CITY OF HOUSTON
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    (H-98-CV-773)
    July 2, 2001
    Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    The City of Houston (“the City”) lodged this appeal following
    the entry of judgment against it after a jury rendered a verdict in
    favor of Jeffrey Moore.     Moore filed this suit following his
    *
    Pursuant to 5th Cir. R. 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under
    the limited circumstances set forth in 5th Cir. R. 47.5.4.
    indefinite suspension from the Houston Fire Department. He sought
    relief on a number of grounds, but the only ground on which he
    recovered was under the Texas Whistleblower Act (“the Act”).                     The
    jury    rendered     a   verdict   in   favor   of   Moore   on   his    claim   of
    retaliatory discharge as a result of whistleblowing activity and
    awarded damages in the amount of $104,446. After fixing the amount
    of attorney’s fees and costs at $124,850, the district court
    entered judgment on the verdict as supplemented by the award for
    attorney’s fees.
    On appeal, the City raises the following issues: 1) whether
    Moore     satisfied       the   Act’s     requirement      of     initiating      an
    administrative grievance or appeal before filing suit; 2) whether
    Moore was a “reporter” under the Act; 3) whether Moore needed to
    demonstrate that he reported an actual violation of law; 4) whether
    Moore     produced       sufficient     evidence     to   establish     a   causal
    relationship between whistleblowing activity and his termination;
    5) the propriety of a jury instruction relating to whether the
    activity on which Moore reported was a violation of law; and 6)
    whether    the     district     court    awarded     an   excessive     amount    of
    attorney’s fees.
    1)
    The City argues first that Moore failed to satisfy the Act’s
    jurisdictional requirement of asserting an administrative claim.1
    1
    Interestingly, the City did not present this argument to the
    district court.
    2
    The only administrative claim requirement is set forth under Texas
    Gov’t Code Ann. § 554.006(a) (Vernon Supp. 2000), which provides
    that:    “[a]     public    employee      must   initiate     action     under    the
    grievance or appeal procedures of the employing state or local
    governmental     entity    relating       to   suspension    or   termination      of
    employment or adverse personnel action before suing under this
    chapter.”
    After Moore received notice that he had been indefinitely
    suspended, he timely filed a notice of appeal with the Civil
    Service Commission.        In the proceeding before the Civil Service
    Commission, Moore testified that he had been retaliated against for
    blowing the whistle on the fire department.                Thus, Moore initiated
    action under the City’s appeal procedures, and thereby satisfied
    the administrative claim requirements of the statute.
    2)
    The City next argues that Moore did not establish that he was
    a “reporter” of wrongdoing and that at most he established that he
    was a witness.      The record does not support the City’s argument.
    Moore testified that he reported the deletion of service requests
    on   equipment    to:      Sergeant    Fletcher     with    the   Houston   Police
    Department;      Tommy    Shelton,    a    master   mechanic      with   the     fire
    department; and Frank Gore, a shop foreman also with the fire
    department.       Moreover, Sergeant Fletcher’s testimony confirmed
    Moore’s report to him.
    3)
    3
    The City argues next that Moore only reported violations of
    internal fire department policy, not violations of law.         As a
    whistleblower, however, Moore only needed to have a good faith
    belief that the deletion of work orders constituted a violation of
    law, not that his belief was correct.   Texas Dep’t of Crim. Justice
    v. Terrell, 
    925 S.W.2d 44
    , 60 (Tex.App.–Tyler 1995, no writ).    The
    jury was entitled to find that Moore reasonably believed that the
    deletion of work orders, which could result in damaging public
    property and imperiling lives, was a violation of law.
    4)
    The City argues next that Moore failed to establish a causal
    connection between his whistleblowing activity and his indefinite
    suspension.    The City points to its evidence that it fired Moore
    because he made false statements in his employment application. It
    is uncontested that Moore falsely represented in his employment
    application that he held a MBA degree from the University of
    Houston.
    At the time of his indefinite suspension, Moore had been
    employed by the Houston Fire Department over two years.       Moore
    argued that after he reported the deletion of requests to repair
    fire department equipment, his immediate supervisor, Steve Dornak,
    looked through his personnel file searching for a reason to suspend
    him.     This search revealed that Moore’s original application
    indicated that he held a MBA degree, but a later application for
    promotion did not represent that he held such a degree.      Dornak
    4
    testified that it was “by sheer chance” that he reviewed Moore’s
    original application and discovered this discrepancy.               He sent
    these   conflicting   applications       on   to   human   resources,   which
    indefinitely suspended Moore for making a false statement in his
    employment application.
    The jury was entitled to conclude that Dornak searched Moore’s
    personnel file because of Moore’s whistleblowing activity, that
    this search led to the discovery of the false statement, which in
    turn led to Moore’s indefinite suspension. The Texas Supreme Court
    has established a generous standard for establishing causation in
    whistleblower cases.    In Texas Dep’t of Human Servs. v. Hinds, 
    904 S.W.2d 629
     (Tex. 1995), the court stated that: “[t]he standard of
    causation in whistleblower and similar cases should be that the
    employee’s protected conduct must be such that without it, the
    employer’s prohibited conduct would not have occurred when it did.”
    Id. at 636.
    Thus, the jury was entitled to conclude that, but for the
    whistleblowing activity, the false statement in the application
    would not have been discovered in 1997 and Moore would not have
    been indefinitely suspended at that early date.            We are satisfied,
    therefore, that the jury was entitled to find that, but for Moore’s
    whistleblowing activity, the City would not have indefinitely
    suspended Moore when it did.
    5)
    The City argues finally that the court erred in instructing
    5
    the jury that “the Houston Fire Department’s failure to follow its
    own   internal    policies    regarding      equipment    service     requests
    constitution [sic] a violation of law under the Whistleblower Act.”
    The City, however, did not object to this instruction and we
    therefore only review for plain error.            Given the nature of the
    misconduct Moore reported, namely, the intentional deletion of
    requests   to    service   vital    fire    department   equipment,    we   are
    satisfied that the court’s instruction that this conduct amounted
    to a violation of law is not plain error.
    6)
    Finally, the City challenges the amount of the district
    court’s award of attorney’s fees. Our review of the record reveals
    no abuse of discretion in the amount the court awarded.
    Conclusion
    For the reasons stated above, we AFFIRM the judgment of the
    district court.
    6
    

Document Info

Docket Number: 00-20151

Filed Date: 7/3/2001

Precedential Status: Non-Precedential

Modified Date: 4/18/2021