City of Fort Worth v. William Birchett ( 2021 )

AFFIRMED and Opinion Filed July 29, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00265-CV
CITY OF FORT WORTH, Appellant
V.
WILLIAM BIRCHETT, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-06941
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Nowell
Opinion by Justice Molberg
The City of Fort Worth appeals the trial court’s order denying its plea to the
jurisdiction on whistleblower claims brought by William Birchett, its former Senior
Information Technology Solutions Manager. See TEX. GOV’T CODE §§ 554.001–
.010. The City argues the trial court erred in denying its plea because Birchett did
not initiate its grievance policy before filing suit, did not make a good faith report of
the City’s violations of law to appropriate law enforcement authorities, and was not
terminated because of any such report. For the reasons discussed below, we affirm
in this memorandum opinion. See TEX. R. APP. P. 47.4.
BACKGROUND1
Birchett is the City’s former Senior Information Technology Solutions
Manager – Cybersecurity. He began working for the City on May 15, 2017, and was
terminated February 15, 2019. In this lawsuit, Birchett claims that, less than ninety
days after he made good faith reports of the City’s violation of law to appropriate
law enforcement authorities, the City suspended him on January 2, 2019, and
terminated him on February 15, 2019, in violation of the Texas Whistleblower Act
(the Act). See TEX. GOV’T CODE §§ 554.001–.010.
The record includes a January 2, 2019 memorandum and a February 15, 2019
letter informing Birchett of these actions. Both communications were signed by
Kevin Gunn, the City’s Information Technology Solutions Director, who the City
identifies as the person who made the decision to terminate Birchett. In addition to
Gunn, the January 2, 2019 memorandum was also signed by Roger Wright, the
Acting Department Director. The record also includes a December 20, 2018 report
by the City’s police chief, Joel Fitzgerald, Sr., Ph.D., which was issued shortly
before the City placed Birchett on administrative leave and terminated him.
Fitzgerald’s report concerned a recent Criminal Justice Information Services (CJIS)
compliance audit conducted by the Texas Department of Public Safety (DPS). The
January 2, 2019 memorandum placing Birchett on administrative leave refers to
1
The facts are well-known to the parties, and we do not recite them here except as necessary “to advise
the parties of the court's decision and the basic reasons for it.” TEX. R. APP. P. 47.4.
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Fitzgerald’s report. Birchett claims Fitzgerald’s report includes information he
shared with Fitzgerald and other law enforcement officials in a December 19, 2018
meeting regarding the audit.
Generally, Birchett alleges that, less than ninety days before the City placed
him on administrative leave and terminated him, he reported to Fitzgerald and to a
DPS auditor, Oswald Enriquez, that the City was in violation of CJIS regulations
promulgated under 28 U.S.C. § 534, including 28 C.F.R. § 20.21(f).2
2
Among other things, 28 U.S.C. § 534 requires the United States Attorney General to “acquire, collect,
classify, and preserve identification, criminal identification, crime, and other records” and “exchange such
records and information with, and for the official use of, authorized officials of the Federal Government,
including . . . the States . . . and penal and other institutions.” The regulations contained at 28 C.F.R. part
20 require that, “Wherever criminal history record information is collected, stored, or disseminated, each
State shall insure that [various] requirements are satisfied by security standards established by State
legislation, or in the absence of such legislation, by regulations approved or issued by the Governor of the
State [including that] [p]rocedures [be] instituted to assure that an individual or agency authorized direct
access is responsible for (1) the physical security of criminal history record information under its control
or in its custody and (2) the protection of such information from unauthorized access, disclosure or
dissemination.” 28 C.F.R. § 20.21(f). Any agency or individual violating subpart B of the regulations
“shall be subject to a civil penalty . . . not to exceed $11,000[.]” The record indicates that the Texas
Department of Public Safety “shall establish a system to, at least triennially audit all criminal justice and
noncriminal justice agencies which have direct access to the state system in order to ensure compliance
with agency and FBI CJIS policy and regulations.”
As to Birchett’s specific claims regarding these provisions, Birchett’s original petition states, in part:
31. The Criminal Justice Information Act, codified as part of 28 U.S.C. § 534, is
intended to “assure that criminal history record information wherever it appears is collated,
stored, and disseminated in a manner to ensure the accuracy, completeness, currency,
integrity, and security of such information and to protect individual privacy.” 28 C.F.R. §
20.
32. Federal CJIS regulations require that computerized data must be properly secured
to “prevent unauthorized access to such information.” 28 C.F.R. § 20.21(f)(1).
33. Federal CJIS regulations further require that access to criminal history record
information system facilities must be “restricted to authorized organizations and
personnel,” and that direct access to criminal history record information shall be available
only to “authorized officers or employees of a criminal justice agency.” 28 C.F.R.
§ 20.21(f). See Criminal Justice Information Act, codified as part of 28 U.S.C. § 534.
34. Birchett was aware that the City had previously failed CJIS audits by the State of
Texas Department of Public Safety (“DPS”) and by the FBI.
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35. In 2013, the FBI found that the Fort Worth Police Department (“FWPD”) was out
of compliance with Federal CJIS regulations because the City used public facilities to
transmit encrypted CJIS data. Alan Girton, one of Birchett’s predecessors, was responsible
for resolving the deficiency, and reported that the deficiency was resolved.
36. In 2015, the DPS found that the FWPD was in compliance with Federal CJIS
regulations for “data at rest” and “data in motion.” Girton was primarily responsible for
presenting information regarding the City’s compliance. Based on representations from
Girton and other City officials, DPS approved the City’s CJIS encryption techniques. As
indicated more fully below, the City was not in compliance in 2015 because the City was
required to have network architecture that included point-to-point encryption between
network devices. It is unclear whether Girton knew that the City was not in compliance or
simply did not understand the technological requirements. Regardless, the City represented
to DPS that it was in compliance with Federal CJIS regulations when it was not.
37. In 2016, the FBI found that the Fort Worth Municipal Court was not in compliance
with Federal CJIS regulations because the City did not use a secure connection between
the City jail and the Southwest Municipal Court. The City was also cited for failure to have
secure remote access. Girton reported that the City resolved the issues.
38. In 2016 and 2017, on information and belief, the City misrepresented to DPS that
the City met all of the Federal CJIS regulations in response to DPS questionnaires when it
did not.
39. In late November, 2018, Birchett was required to begin completing a DPS audit
questionnaire used to determine whether the City was in compliance with 28 U.S.C. § 534and 28 C.F.R. § 20.21. Birchett knew that if he responded truthfully to the DPS
questionnaire, the City would fail the audit.
40. On November 19, 2018, Birchett provided responses to the DPS questionnaire, told
the truth, and reported that the City was in violation of 28 U.S.C. § 534 and 28 C.F.R.
§ 20.21.
41. In his DPS questionnaire responses, Birchett reported that the City did not meet
Federal CJIS regulations for keeping event logs for a minimum of one year; did not meet
Federal CJIS regulations concerning the personnel who accessed CJIS data; did not have
network architecture that allowed for point-to-point encryption from one network device
to another network device as required by Federal regulations; did not have a policy
addressing personally owned or publicly accessible computers as required by Federal
regulations; did not employ personal identification numbers that met CJIS standards as
required by Federal regulations; did not meet CJIS requirements for mobile devices as
required by Federal regulations; did not meet Federal CJIS regulations for wireless
protocols; did not meet Federal CJIS regulations that require mobile devices employ
personal firewalls; and did not meet Federal CJIS regulations that require a written plan
with special reporting procedures for mobile devices.
42. One of the most egregious violations that Birchett included in his whistleblower
report was that the City knowingly and deliberately failed to comply with 28 C.F.R. §
20.21(f)(1) and Tex. Gov’t Code Ann. § 552.108, which prohibited convicted felons and
persons with other disqualifying criminal convictions from accessing CJIS data. Birchett
had earlier reported to Gunn and Wright that the City permitted employees known to have
felony convictions and other disqualifying criminal convictions to access confidential CJIS
data. The City knowingly and deliberately allowed employees who were disqualified due
to criminal convictions to have access to CJIS. Examples of employees who had either
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temporary or permanent disqualifiers prohibiting access included Bret Belsher (Class B
misdemeanor), Courtney Chadwick (Class B misdemeanor), Mark Deboer (Class A
misdemeanor), Stephen Doss (Class A misdemeanor), Neaita Franklin (felony conviction),
Virginia Gomez (felony conviction), Wyatt Smith (Class A misdemeanor), and Grant
Stellmaker (felony conviction). Even though these employees had either temporary or
permanent disqualifiers, the City improperly allowed them access to CJIS. When Birchett
initially reported the unauthorized access to the City, CJIS access permissions were initially
removed and the disqualified employees were physically moved such that they did not have
access to CJIS computers. Within less than six months, however, DeBoer and Doss had
their CJIS access restored. Birchett again reported the unauthorized access to the City, and
permissions for DeBoer and Doss were again removed. DeBoer, however, retained access
to CJIS due to so-called “nested permissions groups” that gave DeBoer, and possibly
others, unauthorized access to CJIS records. Birchett presented a remediation plan to his
immediate supervisor, Burke, that included automated tools to disentangle the nested
permission groups. Birchett and Burke presented the plan to Gunn, who rejected it.
Birchett and Burke then presented the plan to director Wright, who also rejected it. By
refusing to revoke CJIS access privileges for DeBoer during a time that he was disqualified,
the City intentionally violated 28 U.S.C. § 534, 28 C.F.R. § 20.21(f)(1) and Tex. Gov’t
Code Ann. § 552.108.
43. Another egregious violation that Birchett included in his whistleblower report was
that the City did not comply with Federal CJIS regulations that the City maintain one year
of log data identifying access to CJIS records. Federal CJIS regulations require that the
City maintain log records that “clearly identify both the operator and the authorized
receiving agency, clearly identify the requester and the secondary recipient and take the
form of a unique identifier that shall remain unique to the individual requester and to the
secondary recipient throughout the minimum one (1) year retention period.” 28 C.F.R. §
20.21(f)(1). The City’s Computer Aided Dispatch System complied with this requirement,
but other City systems that also store CJIS data do not, such as the Police Department’s
Gang Operations Unit, Sex Offender Operations Unit, and other unit systems.
44. Another egregious violation that Birchett included in his whistleblower report was
that the City used HTTPS website encryption instead of using point-to-point encryption for
devices that access CJIS data. Federal CJIS Regulations require point-to-point encryption.
28 C.F.R. § 20.21(f)(1).
....
73. On January 2, 2019, within 90 days of Birchett’s November 19, 2018 whistleblower
report, and the December 19, 2018, whistleblower report, Gunn and Wright made the
executive decision to place Birchett on administrative leave.
....
80. On February 15, 2019, within 90 days of Birchett’s various whistleblower reports,
Gunn, acting within the scope of his employment, and on behalf of the City, made the
executive decision to terminate Birchett in retaliation for Birchett reporting the
cybersecurity deficiencies and violations of law. This conduct violates the Texas
Whistleblower Act, codified at Tex. Gov’t Code § 554.001 Ann., et seq.
81. Because Birchett was first suspended and later terminated within 90 days of his
whistleblower reports, the burden is on the City of Fort Worth to prove that Birchett was
not suspended and terminated in retaliation for his reporting violations of law including,
by way of example, and not limitation, 28 C.F.R. §20.21(f)(1), 45 C.F.R. § 164.502, Tex.
Gov’t Code Ann. § 552.108 and Tex. Bus. & Com. Code Ann. § 521.051 et seq.
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The City denies this and generally maintains that Birchett was fired for poor
performance,3 which Birchett disputes.
Birchett filed this lawsuit on May 15, 2019, alleging the whistleblower claims
discussed above. Shortly after doing so, he filed an emergency application for a
temporary restraining order to prevent spoliation of evidence, and the trial court
denied it. He sought relief in our court, which we denied.4
On June 21, 2019, the City filed its answer, denying Birchett’s claims,
asserting certain defenses, and raising two special exceptions not at issue here.
Roughly six months later, the City filed its plea to the jurisdiction. In its plea,
the City argued that the court lacked subject matter jurisdiction because the
jurisdictional facts established Birchett did not make good-faith reports of a violation
of law to an appropriate law enforcement authority, was terminated for performance
shortcomings, not reporting violations of law, and, after his termination, failed to
properly initiate the City’s whistleblower grievance procedure.
3
The termination letter is signed by Gunn and begins with references to a meeting between Birchett,
Gunn, and Roger Wright on January 2, 2019, placing Birchett on administrative leave and a meeting
between Birchett, Gunn, Wright, and another individual on February 7, 2019, to discuss investigation
findings. The letter concludes by stating, in part, “After carefully reviewing your comments and the
information you presented during the meeting, the decision has been made to terminate your employment
effective February 15, 2019.”
4
Birchett filed an original proceeding and an interlocutory appeal in this Court. We construed
Birchett’s original proceeding as a petition for writ of mandamus and a petition for writ of injunction and
denied both petitions. See In re Birchett, No. 05-19-00600-CV, 2019 WL 2353450, at *1 (Tex. App.—
Dallas June 4, 2019, no pet.) (mem. op.). We denied his interlocutory appeal for want of jurisdiction. See
Birchett v. City of Fort Worth, No. 05-19-00626-CV, 2019 WL 2575049, at *1 (Tex. App.—Dallas June
24, 2019, no pet.) (mem. op.).
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The City challenged the existence of jurisdictional facts, not Birchett’s
pleadings, and submitted an appendix with over 2,600 pages of evidence. The
appendix included, but was not limited to, transcripts and exhibits from the
depositions of Birchett and two other witnesses, Oswald Enriquez and Larry
Lockley, Birchett’s original petition, emails between the parties’ counsel, an excerpt
from the City’s municipal code, the February 15, 2019 termination letter, and a
March 15, 2019 letter from Birchett’s counsel to the City’s attorney. The March 15,
2019 letter was seven pages long, provided information about the City’s alleged
whistleblower violations at issue here, and stated the letter was to “serve as
[Birchett’s] administrative appeal under § 554.006 of the Texas Whistleblower Act.”
Birchett opposed the City’s plea and submitted a written response and
appendix with over 700 pages of evidence of his own. Included in his appendix were
the same March 15, 2019 letter mentioned above; a similar letter dated March 22,
2019, concerning another City employee, Ronald Burke;5 affidavits from Birchett,
Burke, and another witness, Rabiah Memon; excerpts from deposition transcripts of
Birchett and Lockley; excerpts from a transcribed audio recording by Enriquez on
December 19, 2018; various emails; and other correspondence, including
Fitzgerald’s December 20, 2018 memo and the January 2, 2019 memo placing
Birchett on administrative leave.
5
Burke was Birchett’s direct supervisor.
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On January 15, 2020, the trial court conducted a non-evidentiary hearing on
the City’s plea. After the hearing, both parties submitted additional briefing, and
Birchett’s post-hearing brief included additional evidence: an affidavit by his
counsel, a May 15, 2019 letter from his counsel to the City’s counsel, and various
emails exchanged between the parties’ counsel in April 2019.
The trial court denied the City’s plea on February 5, 2020. This interlocutory
appeal followed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
GENERAL LEGAL STANDARDS
Pleas to the Jurisdiction and Governmental Immunity
A plea to the jurisdiction is a dilatory plea by which a party challenges the
trial court’s jurisdiction to determine the subject matter of the action. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2006). The purpose of the plea is to
defeat a claim without regard to whether it has merit. Id.We review a trial court’s disposition of a party’s plea to the jurisdiction de
novo. City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575
(Tex. 2018) (citation omitted); Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002).
“Sovereign immunity—usually called governmental immunity when referring
to political subdivisions—protects governmental entities against suits and legal
liabilities.” Hillman v. Nueces Cty., 579 S.W.3d 354, 357 (Tex. 2019) (citation
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omitted).6 Governmental “immunity from suit defeats a trial court’s subject matter
jurisdiction.” Id. at 364 (quoting Miranda, 133 S.W.3d at 225). Governmental units
are immune from suit unless the state consents. Alamo Heights Indep. Sch. Dist. v.
Clark, 544 S.W.3d 755, 770 n.15 (Tex. 2018) (citing Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012); Miranda, 133 S.W.2d at 224).
Immunity from suit may be asserted through a plea to the jurisdiction that
challenges the pleadings, the existence of jurisdictional facts, or both. Alamo
Heights, 544 S.W.3d at 770. Where a governmental unit challenges the existence of
jurisdictional facts with supporting evidence, our standard of review mirrors that of
a traditional summary judgment. See Alamo Heights, 544 S.W.3d at 771. Under this
standard, a trial court must deny a plea to the jurisdiction if genuine issues of material
fact exist on the issues raised in the plea. Id. Also, in deciding whether such fact
issues exist, we take as true all evidence favorable to the non-movant and indulge
every reasonable inference and resolve any doubts in his favor. Id. However, we
cannot disregard evidence necessary to show context or evidence and inferences
unfavorable to the non-movant if reasonable jurors could not. Id.
Texas Whistleblower Act
The Texas Whistleblower Act contains an immunity waiver which states that
“[a] public employee who alleges a violation of this chapter may sue the employing
6
Only immunity from suit, not immunity from liability, implicates a trial court’s jurisdiction. See
Hillman, 579 S.W.3d at 357 (citing State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009)).
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state or local governmental entity for the relief provided by this chapter,” and
“[s]overeign immunity is waived and abolished to the extent of liability for the relief
allowed under this chapter.” TEX. GOV’T CODE § 554.0035.
The Act “provides a general remedy for retaliation based on the report of any
violation of law” and “is a broad remedial measure intended to encourage disclosure
of governmental malfeasance and corruption.” City of Waco v. Lopez, 259 S.W.3d
147, 154 (Tex. 2008) (citing TEX. GOV’T CODE § 554.002; Stinnett v. Williamson
Cty. Sheriff’s Dep’t, 858 S.W.2d 573, 575 (Tex. App.—Austin 1993, writ denied)).
Its underlying purposes are twofold: (1) to enhance open government by protecting
public employees from retaliation by their employers when an employee reports a
violation of the law in good faith, and (2) to secure lawful conduct by those who
direct and conduct the affairs of government. Herrera v. Dallas Indep. Sch. Dist.,
609 S.W.3d 579, 588 n.15 (Tex. App.—Dallas 2020, pet. filed) (citation omitted).
Under the Act, state or local governmental entities “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.” Id. § 554.002(a). Whether the conduct a public employee reports
constitutes a violation of law is a question of law. See Guillaume v. City of
Greenville, 247 S.W.3d 457, 461–62 (Tex. App.—Dallas 2008, no pet.) (citation
omitted).
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The Act defines “law” as a state or federal statute, an ordinance of a local
governmental entity, or a rule adopted under a statute or ordinance. Id. § 554.001(1).
The phrase “reports a violation of the law” has been interpreted as including “any
disclosure of information regarding a public servant’s employer tending to directly
or circumstantially prove the substance of a violation of criminal or civil law, the
State or Federal Constitution, statutes, administrative rules or regulations.” Llanes
v. Corpus Christi Indep. Sch. Dist., 64 S.W.3d 638, 642 (Tex. App.—Corpus
Christi–Edinburg 2001, pet. denied) (citation omitted); see Galveston Cty. v.
Quiroga, No. 14-18-00648-CV, 2020 WL 62504, at *6 (Tex. App.—Houston [14th
Dist.] Jan. 7, 2020, no pet.) (mem. op.) (quoting Llanes). While it may not be
necessary to prove an actual violation or for a report to specify the law being
violated, there must be some law prohibiting the complained-of conduct to give rise
to a claim under the Act. Mullins v. Dallas Indep. Sch. Dist., 357 S.W.3d 182, 188
(Tex. App.—Dallas 2012, pet. denied) (citing Llanes, 64 S.W.3d at 642). “Other
complaints and grievances, including alleged violations of an agency’s internal
procedures and policies, will not support a claim.” Id. (citation omitted).
A report is made to an appropriate law enforcement authority “if the authority
is a part of a state or local governmental entity or of the federal government that the
employee in good faith believes is authorized to: (1) regulate or enforce the law
alleged to be violated in the report; or (2) investigate or prosecute a violation of
criminal law.” Id. § 554.002(b). The supreme court has explained this as follows:
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The Whistleblower Act speaks to an authority statutorily empowered to
regulate under or enforce the actual law allegedly violated—‘the
particular law the public employee reported violated is critical to the
determination’—or to investigate or prosecute a criminal violation.
The upshot of our prior decisions is that for an entity to constitute an
appropriate law-enforcement authority under the Act, it must have
authority to enforce, investigate, or prosecute violations of law against
third parties outside of the entity itself, or it must have authority to
promulgate regulations governing the conduct of such third parties.
Authority of the entity to enforce legal requirements or regulate conduct
within the entity itself is insufficient to confer law-enforcement
authority status.
Univ. of Tex. Sw. Med. Ctr. v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013) (citation
and internal footnote omitted); see McMillen v. Tex. Health & Human Servs.
Comm’n, 485 S.W.3d 427, 429 (Tex. 2016); Tex. Dep’t of Transp. v. Needham, 82
S.W.3d 314, 320 (Tex. 2002).
“Good faith” means that (1) the employee believed that the conduct reported
was a violation of law and (2) the employee’s belief was reasonable in light of the
employee’s training and experience.” Wichita Cty v. Hart, 917 S.W.2d 779, 784
(Tex. 1996); see McMillen, 485 S.W.3d at 429 (to be in “good faith,” employee’s
belief about the reported-to authority’s powers must be “reasonable in light of
employee's training and experience”) (quoting Needham, 82 S.W.3d at 321). The
second part ensures that “the reporting employee only receives Whistleblower Act
protection if a reasonably prudent employee in similar circumstances would have
believed that the facts as reported were a violation of law.” Needham, 82 S.W.3d at
320 (citing Hart, 917 S.W.2d at 785).
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The Act imposes liability on a state or local governmental entity if the
employee’s report causes an adverse employment action, but it preserves the
employing entity’s right to suspend, fire, or impose other adverse employment action
against the public employee when the employing entity has sufficient, sound reasons
or even harbors bad motives never acted upon. See id.; Office of Attorney Gen. v.
Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020) (citation omitted). The public
employee “need not prove the report was the ‘sole’ or the ‘substantial’ reason for the
adverse personnel action” but “must prove that the adverse action ‘would not have
occurred when it did’ if the employee had not reported the violation.” Id. (citation
omitted); see Apache Corp. v. Davis, No. 19-0410, 2021 WL 2603824, at *9 (Tex.
June 25, 2021). “An adverse employment action ‘based solely’ on reasons unrelated
to a good-faith report of a legal violation destroys the causal link.” Rodriguez, 605
S.W.3d at 192 (citations omitted); see Apache Corp., 2021 WL 2603824, at *1.
Because evidence of but-for causation is often circumstantial, we examine all
of the circumstances and consider a number of factors in determining whether the
standard has been met, such as temporal proximity between the protected activity
and the adverse action, knowledge of the protected activity, expression of a negative
attitude toward the employee’s protected activity, failure to adhere to relevant
established company policies, discriminatory treatment in comparison to similarly
situated employees, and evidence the employer’s stated reason is false. See id., at
*1 n.3; see also Alamo Heights, 544 S.W.3d at 790; City of Fort Worth v. Zimlich,
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29 S.W.3d 62, 69 (Tex. 2000) (listing same factors except for temporal proximity);
Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450–451 (Tex. 1996) (same).
However, if the basis for the suspension, termination or other adverse personnel
action is undisputed, these factors do not support an inference of the necessary but-
for causation. See Apache Corp., 2021 WL 2603824, at *10 (stating this in a non-
whistleblower case requiring but-for causation).
A public employee who sues under the Act has the burden of proof, except
that if the employee’s suspension, termination, or other adverse personnel action
against the employee occurs not later than the ninetieth day after the date on which
the employee reports a violation of law, the suspension, termination, or adverse
personnel action is presumed, subject to rebuttal, to be because the employee made
the report. TEX. GOV’T CODE § 554.004(a).
Before a public employee sues under the Act, the 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.” TEX. GOV’T CODE § 554.006(a). This must be done “not later
than the 90th day after” the date on which the alleged violation “occurred” or “was
discovered by the employee through reasonable diligence.” Id. § 554.006(b)
(requiring employee to “invoke the applicable grievance or appeal procedures” by
that time).
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These procedures are “comparatively simple,” and exhaustion of them is not
required. Lopez, 259 S.W.3d at 154 (describing procedures as “comparatively
simple” in discussion of whistleblower and other types of claims); Univ. of Tex. Med.
Branch v. Barrett, 159 S.W.3d 631, 632 (Tex. 2005) (per curiam) (exhaustion not
required).7 Their goal is to give the governmental entity the opportunity to
investigate and correct its errors and to resolve disputes before incurring the expense
of litigation. Herrera, 609 S.W.3d at 586 (citations omitted).
If the applicable procedures are not followed, the suit may be dismissed for
lack of jurisdiction. See City of Madisonville v. Sims, 620 S.W.3d 375, 378 (Tex.
2020).8 If a final decision is not rendered before the sixty-first day after the
procedures are initiated under section 554.006(a), a public employee may elect to
exhaust those procedures or terminate them and timely file suit. See TEX. GOV’T
CODE § 554.006(d).
7
Barrett states, “Section 554.006 does not require that grievance or appeal procedures be exhausted
before suit can be filed; rather, it requires that such procedures be timely initiated and that the grievance or
appeal authority have 60 days in which to render a final decision.” Barrett, 159 S.W.3d at 632.
8
In Sims, the court considered whether it was proper to dismiss for lack of jurisdiction a lawsuit filed
by an employee after the expiration of the Whistleblower Act’s ninety-day limitation period under section
554.005, not its grievance initiation requirement under section 554.006(a). Sims, 620 S.W.3d at 378; see
TEX. GOV’T CODE §§ 554.005, 554.006(a). In deciding that issue, the court stated, “When a statutory
prerequisite to suit is not met, ‘whether administrative (such as filing a charge of discrimination) or
procedural (such as timely filing a lawsuit),’ the suit may be properly dismissed for lack of jurisdiction.”
Sims, 620 S.W.3d at 378 (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012)).
Thus, based on Sims’ reasoning, it appears clear that section 554.006(a) creates a condition precedent to
suit and that a claim failing to meet section 554.006(a)’s requirement may properly be disposed of by a
jurisdictional plea. See Sims, 620 S.W.3d at 379 (noting, with respect to section 554.005’s language, that
use of the word “must” creates a condition precedent and that a claim that fails to satisfy section 554.005’s
ninety-day limitations deadline may properly be disposed of by a jurisdictional plea); TEX. GOV’T CODE
§ 554.006(a) (“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.”)
–15–
ISSUES AND ANALYSIS
The City raises three issues, arguing the trial court erred in denying its plea to
the jurisdiction because Birchett (1) did not initiate the City’s grievance policy
before filing suit as required under section 554.006(a), (2) did not make good faith
reports of the City’s violations of law to appropriate law enforcement authorities,
and (3) was not terminated because of any protected report.
Compliance with Government Code § 554.006
Birchett filed suit on May 15, 2019, the sixty-first day after his counsel sent
the March 15, 2019 letter. In his pleading, Birchett asserted that he “has fulfilled the
jurisdictional requirements under § 554.006 of the Texas Whistleblower Act” and
identified the March 15, 2019 letter in the same paragraph. His pleading also stated,
“Today is the 61st day since [he] began the grievance procedure and no final decision
has been rendered by the City in response to [that] letter. Accordingly, [Birchett]
hereby elects to terminate the grievance procedure and file suit under the Texas
Whistleblower Act, as permitted under § 554.006(d)(2) thereof.”9
In its answer, the City agreed that the March 15, 2019 letter initiated its
grievance procedure—at least as to Birchett’s termination claim—as it referred to
Birchett “initiating the grievance procedure on March 15, 2019, regarding his
9
Also on May 15, 2019, Birchett’s counsel sent a letter to the City’s attorney citing section 554.006(d)
and stating, in part, “Birchett hereby terminates the grievance and appeal procedure.”
–16–
termination.”10 But the City also stated Birchett refused to participate and cooperate
with its efforts to gather information in order to conduct its whistleblower grievance
process, and the City specifically denied that Birchett had satisfied the conditions
precedent to suit. The trial court disagreed, stating that Birchett “properly and timely
initiated a grievance” under section 554.006.11
In its first issue, the City argues, in essence, that Birchett failed to satisfy
section 554.006 when he created his own grievance process and refused to provide
requested information to the City about his grievance.12 More specifically, the City
argues that Birchett did not initiate its grievance policy when he did not submit a
written complaint to its Employee and Labor Relations Division [ELRD] and when
he did not provide information necessary to investigate the complaint.
Birchett, in contrast, argues he initiated and invoked the City’s applicable
grievance procedure through his counsel’s March 15, 2019 letter and provided the
10
Because neither party raises the issue, we need not decide whether this statement constitutes a judicial
admission. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (judicial
admission must be “clear, deliberate, and unequivocal statement” that “occurs when an assertion of fact is
conclusively established in live pleadings” and relieves an adversary from making proof of the fact admitted
and “also bars the party himself from disputing it.”); Restrepo v. All. Riggers & Constructors, Ltd., 538
S.W.3d 724, 740 (Tex. App.—El Paso Sept. 22, 2017, no pet.) (“A judicially admitted fact is established
as a matter of law, and the admitting party may not dispute it or introduce evidence contrary to it.” (citing
Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no pet.)).
11
The court stated the grievance was properly and timely filed under section 554.006(d), which allows
public employees to exhaust or terminate the applicable grievance procedures under subsection (a).
12
The City’s first issue states, “When Birchett created his own grievance process and refused to provide
requested information to his employer about the grievance, did he satisfy the Texas Whistleblower Act,
which required him to ‘initiate action under the grievance procedures of the local governmental entity’”?
–17–
City with ample evidence to investigate his claims and an opportunity to interview
him before he filed suit.
Both sides presented evidence in the trial court on this issue. The City’s
pertinent evidence generally included the March 15, 2019 letter from Birchett’s
counsel, deposition testimony from Birchett and the City’s ELRD manager, emails
between the parties’ counsel, and section 14.4 of the City’s Personnel Rules and
Regulations (PRRs).13 Birchett’s pertinent evidence generally included his affidavit
13
Section 14.4 of the City’s PRRs state, in pertinent part:
14.4 Whistleblower Complaints
....
An employee or former employee must file a complaint of retaliation for reporting a
violation of law by a public employee (“whistleblower” complaint) not later than the 90th
day after the date on which the alleged adverse employment action occurred or was
discovered by the employee through reasonable diligence. . . .
Filing and investigation of complaints
Complaints must be filed in writing with the Human Resources Department’s
Employee and Labor Relations Division [ELRD]. All reports must include the following
information:
• Contact information, including name, address, and telephone number for the
Complainant.
• The Complainant’s employee number and position (or former position) with the City.
• The nature of the alleged adverse employment action taken against the Complainant.
• The date of the alleged adverse action taken against the Complainant.
• The name of the employee’s supervisor.
• The name of the individual who allegedly caused an adverse employment action.
• The facts that are the basis of the complaint, including dates that incidents occurred
and names of individuals who may have knowledge of the facts.
Complainants must cooperate in the investigation and provide timely and accurate
information relevant to the complaint as requested by the investigators. Failure of the
complainant to cooperate or provide accurate information during the investigation process
impedes the ability of the investigators to conduct a thorough review and will be noted in
the findings as appropriate. It is the complainant’s responsibility to update contact
information, in the event of a change. This is a prerequisite to suit under the Texas
Whistleblower Act.
–18–
and deposition excerpts, an affidavit from his counsel, emails between the parties’
counsel, and two letters from his counsel—the same March 15, 2019 letter the City
relied on, and the May 15, 2019 letter terminating the grievance and appeal
procedure under section 554.006(d).
According to Birchett’s affidavit, on February 19, 2019, four days after his
termination, he visited ELRD, explained the circumstances, and was told by ELRD
personnel that he could not appeal his termination because he was a manager.
Considering that he might have a whistleblower claim, Birchett then hired counsel,
who then sent the March 15, 2019 letter to the City attorney regarding his claims.
In that March 15, 2019 letter, Birchett provided, among other things, his name
and his counsel’s name, address, and telephone number; his former position with the
City; the nature and dates of the alleged adverse actions taken against him; the name
of his supervisor; the name of the individual who allegedly caused an adverse
employment action; and names, event dates, and facts explaining the basis of his
complaints—in other words, the same information required under section 14.4 of the
City’s PRRs. After receiving the March 15, 2019 letter, the City attorney forwarded
it to ELRD and effectively treated the letter as if it had been sent to ELRD—the
entity designated to receive whistleblower complaints under the City’s grievance
–19–
policy. Both parties’ counsel then exchanged several emails, sixteen of which were
included as evidence in connection with the City’s plea.14
Both parties claim the evidence supports their position, and both rely on cases
from our sister courts as support. The City primarily relies on Fort Worth
Independent School District v. Palazzolo, No. 02-13-00006-CV, 2014 WL 69889(Tex. App.—Fort Worth Jan. 9, 2014, no pet.) (mem. op.), Aguilar v. Socorro
Independent School District, 296 S.W.3d 785 (Tex. App.—El Paso 2009, no pet.),
and Johnson v. The City of Dublin, 46 S.W.3d 401 (Tex. App.—Eastland 2001, pet.
denied). Birchett, on the other hand, primarily relies on Fort Bend Independent
School District v. Gayle, 371 S.W.3d 391, 395 (Tex. App.—Houston [1st Dist.]
2012, pet. denied).
Of those cases, we consider Gayle to be the most analogous. In Gayle, the
employee filed a lengthy, detailed complaint about her allegations, initiating a
grievance in the manner provided for under the grievance procedure. 371 S.W.3d at
397. Despite that, the employer later argued that she failed to initiate its grievance
14
These sixteen emails reflect that they were exchanged by counsel between April 11, 2019 and May
9, 2019. Half were sent by the City’s counsel; the other half, by Birchett’s counsel. In an April 15, 2019
email, the City’s attorney provided the PRRs to Birchett’s counsel, informed him that “Chapter 14 deals
with complaints,” and stated, “If your clients refuse to participate in this process, the investigator will be
forced to make a determination without their input.” Both counsel also discussed interviews of Birchett
and others in various emails, and in another, Birchett’s counsel provided a summary of what, in his view,
the evidence currently showed. On May 9, 2019—in the last of the emails in the record between parties’
counsel—the City’s attorney sent Birchett’s counsel a blank form and stated that the form “is part of the
internal grievance procedure” and that “completing it would help the investigator in conducting a thorough
investigation.” Also, as late as May 8 and 9, 2019, both parties’ counsel communicated about scheduling
an interview for Birchett and another of Birchett’s counsel’s clients, with suggested dates from the City
attorney ranging between May 22, 2019, and June 7, 2019.
–20–
procedure because she thwarted its efforts to have a hearing. Id. at 395. After noting
the legislature had changed section 554.006(a)’s prior requirement that employees
“exhaust” grievance procedures to the current requirement that they “initiate” them,
the court rejected the argument that an employee must meaningfully participate in
the employer’s grievance procedure and affirmed the trial court’s denial of the
employer’s plea to the jurisdiction based on the evidence in that case. Id. at 397–99.
While the employee in Gayle initiated a grievance in “precisely” the manner
provided for under the employer’s grievance procedure, see Gayle, 371 S.W.3d at
397, that Birchett’s was not is a distinction without a difference, when the City
treated the letter as if it had been sent to ELRD as its policy required and received
the information required under its policy, and when its pleading stated the March 15,
2019 letter initiated a grievance regarding his termination.
The cases primarily relied on by the City are distinguishable. In Johnson, the
earliest of those cases, the employee argued he was not required to submit a written
complaint to the city manager as required by the employer’s grievance policy
because other officials already knew he believed he was terminated because of the
criminal investigation he had commenced. Johnson, 46 S.W.3d at 404–05. Birchett
makes no similar argument here. Unlike the employee in Johnson, Birchett does not
argue that a written complaint was unnecessary; instead, he argues that he satisfied
the policy requirements through his counsel’s March 15, 2019 letter. We agree.
–21–
In Aguilar, an employee submitted a written grievance, but during the
arbitration process that followed, the employee’s counsel refused to tell the arbitrator
certain information, such as when or to whom the employee reported the violation
of law that formed the basis of the employee’s whistleblower claim, and contended
the arbitrator lacked authority to rule on the legal issues involved. Aguilar, 296
S.W.3d at 787, 790. Birchett made no such refusals or arguments here.
In Palazzolo, the employee argued he timely initiated a grievance but had no
obligation to then participate in the resulting grievance process, and during the
grievance hearing, he maintained that the issues that were the subject of his
grievance had been fully resolved—which, in turn, effectively led the employer to
believe there was no need to investigate or correct any potential misconduct
allegedly committed by its personnel. Palazzolo, 2014 WL 69889, at *2. In
construing Gayle and Aguilar, the court stated:
[A] claimant satisfies section 554.006’s initiation requirement by
timely invoking the governmental entity’s grievance or appeal
procedure before filing a whistleblower action; however, if a party who
invokes a grievance or appeal procedure goes on to actively circumvent
the governmental entity’s efforts to redress the complained-of conduct,
that party does not comply with section 554.006’s initiation
requirement.
Palazzolo, 2014 WL 69889, at *5. Based on that rule and the evidence in that case,
the court reversed the trial court’s denial of the school district’s plea to the
jurisdiction, holding that the school district met its burden to show as a matter of law
–22–
that Palazzolo did not properly initiate its grievance process and failed to come
forward with evidence raising a fact issue showing otherwise. Id. at *2–6.
Even if Palazzolo’s statement of the law is correct—a matter we need not and
do not decide—its ruling simply does not apply to the facts before us because there
is no evidence that Birchett made any such representations or actively circumvented
the City’s efforts to redress the conduct about which he complains.
While the City presented evidence regarding its grievance policy and other
evidence of its communications with Birchett’s counsel—including evidence that an
intake form was not returned after the March 15, 2019 letter was received and that
Birchett’s interview with an investigator was not scheduled before he filed suit—
there is also evidence that the March 15, 2019 letter provided the City with the same
information required by the City’s policy and that the City treated the letter as if it
was received by ELRD as the policy required. Additionally, the City communicated
its intention for its investigator to investigate and make a determination on Birchett’s
claims, regardless of any additional input from Birchett, and the City stated in its
pleading that Birchett “initiate[d] the grievance procedure on March 15, 2019
regarding his termination.” Moreover, despite the City’s suggestion that the
communications by Birchett’s counsel were meant to simply string the City along
until the sixty-first day after the May 15, 2019 letter, we find no evidence that
Birchett was unwilling to cooperate and participate in the City’s grievance procedure
or that he actively circumvented it.
–23–
Viewing the evidence as we must, see Alamo Heights, 544 S.W.3d at 771, we
conclude a fact question exists on whether Birchett initiated action under the City’s
grievance policy as required by section 554.006(a). See TEX. GOV’T CODE
§ 554.006(a); Herrera, 609 S.W.2d at 590 (reversing order granting plea to the
jurisdiction where employee’s grievance notified employer of the same allegations
in the lawsuit); City of Lubbock v. Walck, No. 07-15-00078-CV, 2015 WL 7231027,
at *6 (Tex. App.—Amarillo Nov. 16, 2015, pet. denied) (mem. op.) (distinguishing
Palazzolo and affirming denial of city’s plea to jurisdiction where employee neither
refused to fully participate in the process nor represented he was satisfied with the
relief he received); Gayle, 371 S.W.3d at 397–99. We overrule the City’s first issue.
Good Faith Reports Under Government Code § 554.002
In its second issue, the City argues that court erred in denying its plea because
Birchett did not make good faith reports of the City’s violations of law to appropriate
law enforcement authorities. In its order denying the City’s plea, the trial court
concluded Birchett had produced sufficient evidence to support his claim that he did.
We previously included the pertinent allegations in Birchett’s petition
regarding his whistleblower reports. See n.2, supra. In the affidavit he provided in
connection with his response to the City’s plea, he provided similar sworn
information about the information he reported, including information shared in
connection with the DPS audit through a questionnaire and in subsequent meetings
–24–
with Enriquez (the DPS auditor), Fitzgerald (the police chief), and other law
enforcement personnel.
As to Birchett’s reports to Enriquez, the City first argues his reports do not
constitute a good faith report for whistleblower purposes because Enriquez is not a
law enforcement officer. However, Birchett testified that he and Enriquez first met
at the police communications center and he believed Enriquez to be a police officer
because, during their first meeting, Enriquez stated he felt he had been lied to and
misled on previous audits and had the authority to arrest people he felt misled him.
As to Birchett’s reports to Enriquez and Fitzgerald, the City also argues the
reports do not constitute good faith reports for whistleblower purposes because they
amount to no more than reports of policy violations. As support, the City notes that
the CJIS Security Policy’s executive summary refers to the policy as a “policy,” not
a law, and argues that it is akin to the types of policy violations we found to be
insufficient for whistleblower purposes in Pulkabek v. University of Texas
Southwestern Medical Center, No. 05-14-01341-CV, 2016 WL 3004476 (Tex.
App.—Dallas May 25, 2016, pet. denied) (mem. op.) and Thobe v. University of
Texas Southwestern Medical Center, No. 05-14-01450-CV, 2016 WL 3007027(Tex. App.—Dallas May 25, 2016, pet. denied) (mem. op.).
Pulkabek and Thobe are distinguishable. In those two cases, the employees
reported UT Southwestern’s non-compliance with the federal guidelines pertaining
to the humane testing of animals to the National Institutes of Health Office of
–25–
Laboratory Animal Welfare (OLAW), and in both cases, there was no evidence in
the record to support the employees’ contention that OLAW derived its authority
from the law that the employees identified as the source of the establishment of the
guidelines alleged to have been violated, the Health Research Extension Act of 1985.
See Pulkabek, 2016 W 3004476, at *1; Thobe, 2016 WL 3007027, at *1. Moreover,
the record did not contain a copy of the policy, and nothing in the record showed
that the policy was equivalent to a rule adopted under a statute or ordinance. Thobe,
2016 WL 3007027, at *3–4. In both cases, we noted that the employees’ belief
regarding OLAW being an appropriate law enforcement authority had to be
objectively reasonable, and we concluded based on the record in those cases that the
employees had not made good faith reports of violations of law for whistleblower
purposes. See Pulkabek, 2016 W 3004476, at *3; Thobe, 2016 WL 3007027, at *4.
In this case, however, the record contains the CJIS Security Policy, which
“provides Criminal Justice Agencies (CJA) and Noncriminal Justice Agencies
(NCJA) with a minimum set of security requirements for access to Federal Bureau
of Investigation (FBI) Criminal Justice Information Services (CJIS) Division
systems and information and to protect and safeguard Criminal Justice Information
(CJI).” Among other things, the CJIS Security Policy “integrates presidential
directives, federal laws, [and] FBI directives,” “applies to all entities with access to,
or who operate in support of, FBI CJIS Division’s services and information,” and
–26–
provides “minimum security requirements associated with the creation, viewing,
modification, transmission, dissemination, storage, or destruction of CJI.”
Additionally, Fitzgerald’s December 20, 2018 memo indicates that certain
CJIS violations had occurred, including “the continued permission level of person(s)
with permanent CJIS disqualifiers who have access to FWPD facilities and servers.”
Fitzgerald’s memo stated that if those violations continued, “we shall strictly adhere
to the law,” including “filing charges against persons not authorized to access CJIS
info who are discovered in violation of the law.” The memo also stated that the
City’s violations could result in “serious administrative and criminal sanctions.”
Based on this record, and viewing the evidence as we must, see Alamo
Heights, 544 S.W.3d at 771, we conclude a fact question exists on whether Birchett
made good faith reports of the City’s violations of law to appropriate law
enforcement authorities. See Cucchi v. Kagel, Civil Action No. 17-01597, 2018 WL
1141255, at *5–6 (E.D. Pa. Mar. 2, 2018) (mem. op.) (in case brought under
Pennsylvania whistleblower statute15 based on reports of alleged CJIS violations,
court rejected argument that employee failed to make a whistleblower report and
denied employer’s motion to dismiss claim because court could not conclude at that
stage that the CJIS policy was not a regulation within the meaning of the law).
15
The court noted that the Pennsylvania whistleblower law “makes it unlawful for an employer to
‘discharge, threaten or otherwise discriminate or retaliate against an employee ... because the employee ...
makes a good faith report . . . to the employer or appropriate authority [of] an instance of wrongdoing or
waste by a public body[.]’” Cucchi, 2018 SL 1141255, at *5 (quoting 43 PA. CONS. STAT. § 1423(a)).
–27–
We overrule the City’s second issue.
Causation as to Termination Claim
In its order denying the City’s plea, the trial court stated, “[Birchett] has
produced sufficient evidence that he was placed on administrative leave and
terminated in retaliation for his report.”
In its third issue—which addresses Birchett’s termination claim, but not his
administrative leave claim16—the City argues, in essence, that the trial court erred
in denying the plea on the termination claim because Birchett was not terminated
because of any protected report.17 In other words, the City challenges causation.
Birchett argues that because he was terminated on February 15, 2019, less
than ninety days after his December 19, 2018 reports to Enriquez, Fitzgerald, and
others, his termination is presumed to be because of those reports. See TEX. GOV’T
CODE § 554.004(a) (stating, among other things, if termination occurs not later than
16
While the City’s principal brief includes a footnote suggesting the administrative leave claim fails
because it was not an adverse personnel action, we need not decide that issue because the question is not
properly before us, considering that the trial court made no ruling on that issue and the City did not raise it
as an issue on appeal. See TEX. R. APP. P. 33.1(a)(2); 38.1(f). Also, although the City specially excepted
to Birchett’s allegation that being placed on administrative leave was an adverse personnel action, based
on the record before us, the City obtained no ruling and thereby waived any objection on appeal as to the
alleged pleading deficiency. See Smith v. Grace, 919 S.W.2d 673, 678 (Tex. App.—Dallas 1996, writ
denied) (citations omitted) (concluding appellant waived any complaint concerning pleading deficiencies
where record contained no ruling on appellant’s special exceptions).
17
The City’s third issue states, “Where Birchett alleges that his supervisor learned details about the
audit from a memo stating that someone other than Birchett brought the cybersecurity issues to the auditor’s
attention, has he sufficiently alleged a causal connection between his alleged statements to the auditor and
his termination?”
–28–
ninetieth day after date employee reports a violation of law, the termination is
presumed, subject to rebuttal, to be because the employee made the report).
The City argues that any presumption was rebutted and, in its principal brief,
argues that Birchett was “terminated because he failed to do the job he was entrusted
with—ensuring compliance with various cybersecurity-related guidelines.” As
evidentiary support, the City cites only to certain portions of Birchett’s testimony,
specifically, pages 101 and 188 of Birchett’s deposition, and to the February 15,
2019 termination letter signed by Gunn.
The City also refers to the absence of evidence from Birchett showing that
Gunn—the person the City identifies as the decisionmaker—knew about Birchett’s
reports. However, the City does not direct us to—and the record does not contain—
any affidavit, declaration, or other testimony from Gunn about this issue or about
the reason or reasons Birchett was terminated. Contrary to the City’s suggestion
otherwise, the portions of Birchett’s testimony that the City directs us to do not
establish that what is in the termination letter is the reason Birchett was terminated,
and he disputes that it was.
As to the City’s argument that the causation presumption does not apply
because Birchett submitted no evidence that Gunn knew about Birchett’s reports, the
City relies on Kirkland v. City of Austin, No. 03-10-00130-CV, 2012 WL 1149288(Tex. App.—Austin Apr. 5, 2012, no pet.) (mem. op.). Kirkland is distinguishable.
First, Kirkland involved an employer’s no-evidence summary judgment motion, id.–29–
at *4, which does not impose the same burden on an employer as is imposed when
the employer files a plea to the jurisdiction challenging jurisdictional facts with
evidence. See Alamo Heights, 544 S.W.3d at 771 (when governmental unit does not
challenge the pleadings but instead challenges the existence of jurisdictional facts
with supporting evidence, standard of review mirrors that of a traditional summary
judgment); see also TEX. R. CIV. P. 166a(c), 166a(i) (outlining traditional and no-
evidence summary judgment burdens). Second, unlike the City here, the employer
in Kirkland presented sworn testimony from the decisionmaker that she did not know
of the employee’s reports when she decided to place the employee on administrative
leave.18 Id. at *3. In light of that evidence, the court concluded the employee could
not avail himself of the causation presumption and had to produce some evidence to
show that the decisionmaker knew of the employee’s report. Because he did not do
so, the court affirmed the trial court’s order granting the city’s no-evidence summary
judgment motion. Id. at *3–4. Here, the City presented no such evidence.
In Galveston County v. Quiroga, an employer challenging an employee’s
pleadings argued that the causation presumption was rebutted because the employee
had no evidence that the decisionmaker knew about her protected report.
Unpersuaded by that argument, the court noted the applicable review standards and
concluded that the employee had pleaded sufficient facts to support the presumption
18
In Kirkland, the employee’s placement on administrative leave was the only adverse action that was
not time-barred from generating a statutory presumption of causation. Id. at *3.
–30–
of causation under the Act. 2020 WL 62504, at *6 (noting employee alleged in her
pleadings that employment was terminated within ninety days of protected report).
We are equally unpersuaded here. In light of the absence of evidence from
the City that Gunn did not know about Birchett’s report, we conclude that the City
failed to meet its burden to rebut the presumption of causation under 554.004(a) as
to Birchett’s termination claim. Under such circumstances, Birchett was not
required to come forward with his own evidence that Gunn knew of Birchett’s
reports when he terminated him when Birchett responded to the City’s plea. See
TEX. GOV’T CODE § 554.004(a) (causation presumption); Alamo Heights, 544
S.W.3d at 771 (when governmental unit does not challenge the pleadings but instead
challenges the existence of jurisdictional facts with supporting evidence, standard of
review mirrors summary judgment standard).
We overrule the City’s third issue.
CONCLUSION
We affirm the trial court’s order denying the City’s plea to the jurisdiction.
/Ken Molberg/
KEN MOLBERG
JUSTICE
200265F.P05
–31–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF FORT WORTH, Appellant On Appeal from the 162nd Judicial
District Court, Dallas County, Texas
No. 05-20-00265-CV V. Trial Court Cause No. DC-19-06941.
Opinion delivered by Justice
WILLIAM BIRCHETT, Appellee Molberg. Justices Reichek and
Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee WILLIAM BIRCHETT recover his costs of
this appeal from appellant CITY OF FORT WORTH.
Judgment entered July 29, 2021.
–32–