Date: 04-05-2012

Case Style: Hiram Kirkland v. City of Austin

Case Number: 03-10-00130-CV

Judge: Puryear

Court: Texas Court of Appeals, Third District on appeal from the 345th District Court, Travis County

Plaintiff's Attorney:

Defendant's Attorney:

Description: Hiram Kirkland appeals a summary judgment entered in favor of his former employer, the City of Austin (“the City”). While Kirkland still worked for the City, the City received an anonymous tip that Kirkland had violated the City’s conflict-of-interest policies.

The City’s Chief Financial Officer, Leslie Browder, placed Kirkland on administrative leave while the City investigated. The City eventually fired Kirkland. He sued the City under the Texas Whistleblower Act, Tex. Gov’t Code Ann. §§ 554.001-.010 (West 2004), alleging that the real reason he was placed on leave and fired was not that he had violated the City’s policies but that he had made reports of malfeasance by other City employees. The City moved for summary judgment, arguing among other things that there was no evidence that Browder knew Kirkland had made such reports when she placed him on administrative leave. The trial court granted the City’s motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kirkland began working for the City in 2003. He became the City’s Fleet Operations Manager in 2006. In that capacity he oversaw employees who serviced the City’s vehicle fleet. These employees performed some vehicle maintenance work themselves and sent some vehicle maintenance work to outside contractors. In October 2007, the Office of the City Auditor received an anonymous tip that Kirkland was violating the City’s conflict-of-interest policies by instructing his subordinates to send vehicle maintenance work to the Riata Ford car dealership, an outside contractor that employed his son. The Office of the City Auditor initiated an investigation.

Shortly thereafter, in January 2008, two of Kirkland’s subordinates informed him that certain City employees were stealing state automobile-inspection stickers. Kirkland asked one of the subordinates to contact the Department of Public Safety about the thefts. He also informed his supervisor and a City human resources manager about the thefts. The Department of Public Safety investigated the thefts and eventually arrested several people.

In March 2008, the Office of the City Auditor informed the City’s Chief Financial Officer, Leslie Browder, that it was investigating Kirkland’s alleged violation of the City’s conflict-ofinterest policies. 1 In accordance with the City’s standard practices, Browder placed Kirkland on paid administrative leave for the duration of the investigation.

In September 2008, the Office of the City Auditor finished its investigation and concluded that Kirkland had indeed violated the City’s conflict-of-interest policies. It tendered a report to Browder that stated:

1 As the City’s Chief Financial Officer, Browder directed the City’s Financial and Administrative Services Department. That Department housed the Fleet Services Division, where Kirkland worked, so Browder ultimately oversaw Kirkland’s employment.

The evidence gathered indicates that Kirkland’s discretionary authority over decisions related to Fleet transactions with Riata Ford, where his son was employed as a service center advisor, created a conflict of interest, which was not properly disclosed or managed. In addition, several Fleet Service Center employees reported that they felt directly or indirectly pressured by Kirkland to use Riata Ford for noncontractual repairs and services on City vehicles. We also found that Fleet accounts payable staff inappropriately coded and charged many non-alignment services performed by Riata Ford to the City’s wheel alignment contract with Riata.

The City eventually fired Kirkland on the basis of these findings.

Kirkland sued the City under the Texas Whistleblower Act, see id., alleging that the real reason he was placed on leave and eventually fired was not that he had violated the City’s policies but that he had reported the inspection-sticker theft. The City moved for traditional and no-evidence summary judgment. In support of the latter, it argued among other things that there was no evidence that Browder knew Kirkland had reported the inspection-sticker theft when she placed him on administrative leave. The trial court granted the City’s motion. Kirkland appeals.

STANDARD OF REVIEW

To prevail on a no-evidence summary-judgment motion, the movant must show that “there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). A defendant’s no-evidence summary-judgment motion asserts that the plaintiff has produced no evidence of one or more essential elements of its claim. Duvall v. Texas Dep’t of Human Servs., 82 S.W.3d 474, 477 (Tex. App.—Austin 2002, no pet.). In response to a defendant’s no-evidence motion, the plaintiff must produce summary-judgment evidence raising a genuine issue of material fact on each challenged element. If the plaintiff fails to produce more than a scintilla of such evidence, the motion must be granted. Tex. R. Civ. P. 166a(i); see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). If a trial court grants a summary-judgment motion without specifying its grounds for doing so, we affirm the judgment if the movant advanced any meritorious theory in the trial court. State Farm Fire & Gas Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

DISCUSSION

Kirkland raises two issues on appeal. First, he argues that no-evidence summary judgment was improper because he presented more than a scintilla of evidence that the City violated the Texas Whistleblower Act. Second, he argues that traditional summary judgment was improper because there were material questions of fact relating to an affirmative defense raised by the City. We address only the former issue because it is dispositive of this appeal.

The Texas Whistleblower Act provides: “A state or local 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) (West 2004). Kirkland argues that he produced more than a scintilla of evidence to satisfy each element of this statute, so no-evidence summary judgment was improper. Beyond satisfying each element of the statute, however, a whistleblower plaintiff must also produce evidence that his report of a legal violation caused the adverse personnel action. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). While “circumstantial evidence may be sufficient to establish a causal link between the adverse employment action and the reporting of illegal conduct,” such evidence must, at a minimum, “show that the person who took the adverse employment action knew of the employee’s report of illegal conduct.” Harris County v. Vernagallo, 181 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). “This is because the decision-maker could not fire an employee because of the employee’s report of alleged illegal conduct if the decisionmaker did not even know the employee made such a report.” Id.

The parties agree that Browder is the “decision-maker” who took adverse personnel action against Kirkland. Thus, in response to the City’s no-evidence summary-judgment motion, Kirkland had the burden to present some evidence that Browder knew about his whistleblowing when she took adverse personnel action against him. See id. He presented no such evidence. Indeed, the only evidence that pertained to Browder’s knowledge was an affidavit that Browder submitted in support of the City’s summary-judgment motion, which states: “At the time I made the decision to place Kirkland on administrative leave, I had no knowledge that . . . he had made any reports of violations of the law to his managers or to law enforcement authorities.”

Kirkland attempts to overcome his lack of evidence by relying on the rule that “if the . . . adverse personnel action against . . . a public employee occurs not later than the 90th day after the date on which the employee reports a violation of law, the . . . adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report.” Tex. Gov’t Code Ann. § 554.004(a). Kirkland claims that he reported the inspection-sticker theft to the Texas Department of Public Safety on January 10, 2008, to the City on February 26, 2008, and to other State lawenforcement authorities on May 22, 2008. Assuming that these dates are accurate, an “adverse personnel action” had to occur by August 20, 2008 to qualify for the statutory presumption of causation. See id. Kirkland was not fired until March of 2009, so his firing cannot be presumed to have resulted from his reports. See id.

Kirkland argues that he suffered two other “adverse personnel actions” that did qualify for the statutory presumption of causation: (1) when he was placed on temporary administrative leave in March of 2008, and (2) when his administrative leave changed from “temporary” to “indefinite” in August of 2008. It is true that these events were not time-barred from generating a statutory presumption of causation, but the state of the evidence precluded either event from doing so.

With regard to Kirkland initially being placed on administrative leave, Browder’s affidavit—which, again, stated that Browder did not know of Kirkland’s reports when she decided to place him on administrative leave—rebutted any presumption of causation that might have attached. See id. (presumption of causation subject to rebuttal); City of Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex. App.—Waco 2003, no pet.) (“Once sufficient evidence is produced to support a finding of the non-existence of the causal connection between the termination or suspension and the reported violation of law, the case then proceeds as if no presumption ever existed. There is no presumption aiding the employee after the presumption is rebutted by positive evidence to the contrary.”) (citations omitted); see also Tex. R. Civ. P. 166a(c) (affidavits are competent summary-judgment evidence). Thus, Kirkland could not avail himself of a presumption of causation, but rather had to produce some evidence that Browder knew of his reports when she initially placed him on administrative leave. He did not do so.

With regard to Kirkland’s leave changing from “temporary” to “indefinite,” Kirkland presented no evidence that this change involved any sort of official alteration to his employment status or any sort of concrete “personnel action,” let alone an “adverse” one. That is to say, Kirkland cites no evidence that in August of 2008 the City made an affirmative decision or took any specific action to extend his administrative leave. Furthermore, Kirkland cites no evidence that in August of 2008 his circumstances changed in any tangible way. See Tex. Gov’t Code Ann. § 554.001(3) (“‘Personnel action’ means an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.”). On the other hand, Kirkland does not dispute that he continued to hold his title, receive his salary, and accrue benefits at an unchanged rate through August of 2008. Given this state of affairs, we conclude that Kirkland presented no evidence that he was subject to an “adverse personnel action” in August of 2008, let alone one that would trigger a presumption of retaliation. See Serna v. City of San Antonio, 244 F.3d 479, 483 (Tex. 2007) (to qualify as “adverse personnel action,” employer’s action must cause “serious, objective, and tangible harm”).

In sum, to defeat the City’s no-evidence summary-judgment motion, Kirkland had to present some evidence that Browder knew of his whistleblowing when she took adverse personnel actions against him. He did not do so. Furthermore, for the reasons just explained, Kirkland cannot rely on a presumption that his whistleblowing caused the adverse personnel actions. See Tex. Gov’t Code Ann. § 554.004(a). It follows that the trial court did not err by granting the City’s no-evidence summary-judgment motion. See Tex. R. Civ. P. 166a(i) (defendant’s no-evidence summary-judgment motion must be granted if plaintiff fails to produce evidence in response to it). In light of this fact, we need not consider other arguments raised by the City below or by Kirkland on appeal. See State Farm Fire & Gas Co., 858 S.W.2d at 380 (when trial court grants summary-judgment motion without specifying grounds, we affirm if movant advanced any meritorious theory below).

* * *

See: http://www.3rdcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=20933

Outcome: We affirm the judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments: