Filed: Dec. 30, 1994
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals, Fifth Circuit. No. 93-8376. Jerry DAVIS, Plaintiff-Appellee, Appellant, v. ECTOR COUNTY, TEXAS, et al., Defendants, Ector County, Texas, and John Smith, District Attorney of Ector County, Texas, Defendants-Appellants, O.A. "Bob" Brookshire, Individually and in his capacity as Ector County Sheriff, Defendant-Appellee. Dec. 30, 1994. Appeal from the United States District Court for the Western District of Texas. Before WISDOM and JONES, Circuit Judges, and FITZWATER
Summary: United States Court of Appeals, Fifth Circuit. No. 93-8376. Jerry DAVIS, Plaintiff-Appellee, Appellant, v. ECTOR COUNTY, TEXAS, et al., Defendants, Ector County, Texas, and John Smith, District Attorney of Ector County, Texas, Defendants-Appellants, O.A. "Bob" Brookshire, Individually and in his capacity as Ector County Sheriff, Defendant-Appellee. Dec. 30, 1994. Appeal from the United States District Court for the Western District of Texas. Before WISDOM and JONES, Circuit Judges, and FITZWATER,..
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United States Court of Appeals,
Fifth Circuit.
No. 93-8376.
Jerry DAVIS, Plaintiff-Appellee, Appellant,
v.
ECTOR COUNTY, TEXAS, et al., Defendants,
Ector County, Texas, and John Smith, District Attorney of Ector
County, Texas, Defendants-Appellants,
O.A. "Bob" Brookshire, Individually and in his capacity as Ector
County Sheriff, Defendant-Appellee.
Dec. 30, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before WISDOM and JONES, Circuit Judges, and FITZWATER, District
Judge*.
WISDOM, Circuit Judge:
The plaintiff, Jerry Davis, seeks redress in federal court for
his loss of employment with the principal defendant, Ector County,
Texas. Our decision today will only partially satisfy him: In
part we affirm and in part we reverse the district court's
judgment.
In November 1991, Davis filed suit against Ector County,
Texas; Gary Garrison, individually and in his official capacity as
Ector County District Attorney; Sheriff O.A. "Bob" Brookshire;
and two deputy sheriffs, David Weaver and Eldon Blount. In his
complaint, Davis alleged that the defendants fired him in
*
District Judge of the Northern District of Texas, sitting
by designation.
1
retaliation for his sending a letter, the contents of which we
detail below. In so doing, he contends, they violated his First
Amendment rights and the Texas Whistle Blower Act1.
Davis began his tenure with Ector County as an investigator
for the Permian Basin Drug Task Force ("Task Force") in June 1990.
As a Task Force employee, Davis came under the supervision of the
District Attorney who at that time was Gary Garrison. In October
of 1991, his wife, Connie Davis, filed a sexual harassment claim
against her employer, the Ector County Sheriff's Office, in the
Ector County Commissioners' Court. At some point in this general
time frame, Garrison admonished the plaintiff not to involve the
Task Force or the District Attorney's office in his wife's lawsuit.
As part of that warning, Garrison told Davis to stay away from the
Sheriff's office and keep to a minimum his contacts with the
Sheriff's employees.
The defining moment of this action came when Davis sent a
letter to the Ector County Commissioners' Court. In that letter,
Davis set out in detail his wife's allegations of sexual harassment
at the Sheriff's office. Davis contends that he sought to
underscore the seriousness of his wife's allegations and, more,
squelch rumors that his wife's complaint was fabricated as a means
of causing the current Sheriff to resign, or suffer a weakened
1
Tex.Rev.Civ.Stat.Ann. art. 6252-16a, § 2 (Vernon
Supp.1993). The statute has been updated and now appears at
Tex.Gov't Code Ann. §§ 554.001 et seq. (Vernon Supp.1994).
2
public image.2 He asserts that he also sought to stave off a
potential official coverup of sexual harassment in the Sheriff's
Office.
When Garrison learned that Davis had written the letter to the
court, he felt that Davis had defied him and he promptly terminated
Davis's employment. Davis believes that he was terminated because
he exercised his First Amendment rights and because he reported a
violation of law to the Ector County Commissioners' Court.
Accordingly, he filed suit. The defendants answered with the
defense that Davis was discharged for insubordination and, in
particular, enmeshing the Task Force in the private affairs of his
wife.
Davis's suit touched off a meandering procedural journey that
dismissed and reinstated claims and parties alike. In his First
Amended Complaint, Davis alleged five causes of action, each
relating to specific defendants. He alleged that Ector County and
Garrison violated his First Amendment rights; that Ector County
violated his rights under the Texas Whistle Blower Act; that
Brookshire, Weaver, and Blount violated his liberty interest under
the Fourteenth Amendment; that Ector County and Brookshire
intentionally interfered with his business relationship; and that
Brookshire made slanderous statements which damaged his reputation.
2
These rumors theorized that Davis himself was plotting a
run for Sheriff. As a means of putting an end to that talk,
Davis attached to his letter two other letters he had written to
the Republican and Democratic party chairmen disavowing any
intention of running for Sheriff as a representative of either
party.
3
Garrison was the first defendant to file a summary judgment
motion. The district court denied Garrison's motion on Davis's
First Amendment claim but granted summary judgment on the Whistle
Blower claim. Ector County filed a separate motion for summary
judgment, which the district court similarly granted as to Davis's
Whistle Blower claim. At that point, the court dismissed the
Whistle Blower claim in its entirety. The district court similarly
dismissed Davis's Fourteenth Amendment claim against Brookshire,
Weaver, and Blount.3
In March 1993, however, the district court granted Davis's
motion to reinstate his Whistle Blower claim. In the interim, on
January 1, 1993, John Smith began his term as District Attorney of
Ector and, as such, replaced Garrison as the named defendant in the
suit against the District Attorney in his official capacity.
Eventually a jury trial was held. The jury found against
Smith, in his official capacity as District Attorney, and against
Ector County on both the First Amendment and Whistle Blower claims.
The jury awarded Davis $90,800 in compensatory damages and $200,000
in punitive damages. In accordance with the jury's verdict, the
district court held that Davis take nothing from Brookshire in his
individual or official capacities and that Ector County and Smith
were liable jointly and severally. In addition, the court ordered
that Davis be reinstated to his old job within ten days. Finally,
3
In that claim, Davis charged that the defendants violated
his Fourteenth Amendment liberty interest by falsely identifying
him as a police officer who raped a female inmate two years
previously.
4
the court denied the defendants's motion for a new trial.4
Everybody appeals.5
I. The First Amendment
The defendants assign three distinct errors to the trial
court's judgment against them on Davis's First Amendment claim.
First, they contend that the court erred in instructing the jury
that Davis's speech was on a matter of public concern. Second,
they contend that the court should have granted their motion for
judgment on the grounds that the state's interest in promoting the
efficiency of public services outweighed Davis's and the public's
interest in the speech in question. Last, the defendants contend
that the district court failed to identify the District Attorney as
a policy maker of Ector County, a predicate to a finding of
liability; accordingly, they assert, the court should have granted
their motion for a new trial. We take these arguments in turn.
A.
The first question presented is whether the district court
erred when it instructed the jury that the plaintiff's speech was
on a matter of public concern. Davis's letter focused on the
alleged sexual harassment of assaults on employees of the Ector
County Sheriff's Department. It hinted at a possible coverup at
4
From this point in the opinion forward, "defendants" refers
only to Ector County and District Attorney Smith.
5
Davis originally raised a point of cross-appeal against
Brookshire as well, but later dropped it. Hence, the present
appeal concerns only Ector County and Smith in his official
capacity and only the issues of whether those defendants violated
Davis's First Amendment rights and the Texas Whistle Blower Act.
5
the Sheriff's office which would prevent the matter from being
fully investigated.6 After a de novo review,7 we conclude that the
letter addresses matters of public concern.
The United States Supreme Court set the parameters for our
inquiry in Connick v. Myers.8 In Connick, the Court observed that
speech concerning matters of public interest "is more than
self-expression; it is the essence of self-government".
Accordingly, speech by public employees on public issues "occupies
the "highest rung of the hierarchy of First Amendment values' ".9
We note that, were we to find that the subject matter of Davis's
letter is not a matter of public concern, our inquiry would end.10
There is perhaps no subset of "matters of public concern"
more important than bringing official misconduct to light.11 In
6
Although not the subject of this appeal, Davis alluded in
his affidavit to a previous instance in which the Sheriff's
department knew of, but covered up, the sexual harassment of some
department employees. By that reference, Davis intends to place
the letter here at issue into a larger context. He contends that
he wrote the letter to forestall any similar attempt to interfere
with a proper investigation into his wife's allegations.
7
See Rankin v. McPherson, 483 U.S. 378, 386 n. 9,
107 S. Ct.
2891, 2898 n. 9,
97 L. Ed. 2d 315 (1987); Dodds v. Childers,
933
F.2d 271, 273 (5th Cir.1991).
8
Connick v. Myers, 461 U.S. 138, 145,
103 S. Ct. 1684, 1689,
75 L. Ed. 2d 708 (1983).
9
Id. (quoting N.A.A.C.P. v. Claiborne Hardware Co.,
458 U.S.
886, 913,
102 S. Ct. 3409, 3425,
73 L. Ed. 2d 1215 (1982)).
10
Id. at 146, 103 S.Ct. at 1689-90 (a finding that employee
expression is not on a matter of public concern pretermits
judicial inquiry into other reasons for discharge).
11
Thompson v. City of Starkville, Miss., 901 F.2d 456, 463
(5th Cir.1990).
6
Brawner v. City of Richardson, Tex.12, we stated that "the
disclosure of misbehavior by public officials is a matter of public
interest and therefore deserves constitutional protection,
especially when it concerns the operation of a [law enforcement
agency]".13 Davis's letter is squarely within Brawner 's ambit:
it addresses the misbehavior of public officials (the sexual
harassment of public employees) and discloses the possibility of an
official coverup.
The defendants urge that we view Davis's letter differently by
looking to his purpose in writing it. They contend that Davis's
motivation in writing the letter was to dispel the rumors then
circulating that his wife fabricated the sexual harassment charges
so that Davis would have a clear path to the Sheriff's office.
This is a purely private motive, they contend, outside the
constitutional protection accorded to matters of public concern.
For support they rely on Dodds v. Childers14.
In Dodds, we held that a speaker's primary motivation may be
considered when evaluating whether the letter addresses a matter of
public concern.15 In that particular case, we concluded that the
12
855 F.2d 187, 192 (5th Cir.1988).
13
See also Thompson, 901 F.2d at 463 (the exposure of
misconduct in a police department "should be classified as speech
addressing a matter of public concern"); Conaway v. Smith,
853
F.2d 789, 796 (10th Cir.1988) (per curiam) ("Speech which
discloses any evidence of corruption, impropriety, or other
malfeasance on the part of city officials, in terms of content,
clearly concerns matters of public import.").
14
933 F.2d 271 (5th Cir.1991).
15
Id. at 273.
7
letter-writer was more concerned with her job security and working
conditions than with any issue in the public interest.16 Hence, we
held that Dodd's speech failed to constitute a matter of public
concern. We were explicit, however, that a proper inquiry does not
elevate motive to a determinative factor; instead, we are to
examine the form, content, and context of the statement.17
A review of the content, form, and context of Davis's letter
reveals that, although Davis may have had mixed motives, his letter
unquestionably addressed a matter of public concern.18 As to
content, the test is whether the information in the letter was
"relevan[t] to the public's evaluation of the performance of
governmental agencies".19 "[R]eports of sexual harassment
perpetrated" on public employees is of serious public import.20 The
fact that he also sought to strengthen the credibility of his wife
does nothing to dilute the public interest inherent in the letter's
16
Id. at 273-74.
17
Id. at 274;
Connick, 461 U.S. at 147-48, 103 S.Ct. at
1690-91.
18
The defendants have confused the catalyst for prompting
Davis to write the letter with his purpose in doing so. The
catalyst was Davis's realization that many believed that his
wife's allegations of sexual harassment were fabricated. His
purpose, however, was to dispel those rumors by detailing the
seriousness of his wife's allegations. He hoped his letter would
attest to the veracity of his wife's charges.
19
Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991)
(footnotes and internal quotations omitted).
20
See Wilson v. UT Health Center, 973 F.2d 1263, 1269 (5th
Cir.1992), cert. denied, --- U.S. ----,
113 S. Ct. 1644,
123
L. Ed. 2d 266 (1993).
8
contents.21
The form and context of Davis's letter lend further support
to our conclusion. First, Davis wrote the letter in his capacity
as a citizen, not as a public employee.22 He signed the letter,
"Jerry Davis, 1601 E. Century, Odessa, Texas 79762".23 Moreover,
he has never been an employee of the Sheriff's office—the subject
of the letter. Davis's additional letters to the Democratic and
Republican parties further underscore the public nature of the
letter in question, as does his decision to write to the court,
instead of to his supervisor.24
B.
21
See Dodds, 933 F.2d at 273 ("an element of personal
interest on the part of an employee in the speech does not
prevent a finding that the speech as a whole raises issues of
public concern"). It is important to note, however, that a
private issue does not transmogrify into a matter of public
concern merely because the topic might have been of interest to
the public under other circumstances. Id.; Connick, 461 U.S. at
149 & n.
8, 103 S. Ct. at 1691 & n. 8.
22
See Thompson, 901 F.2d at 461.
23
This should clear up a misconception pressed by the
defendants. They contend that Davis signed his letters "Jerry
Davis, Permian Basin Task Force"—that is, as a public employee,
not as a private citizen. It is true that his letters to the
Democrat and Republican parties contained that signature. Those
letters, however, merely disavowed his intention to run for
Sheriff's office. The letter at issue, the one sent to the
Commissioners' Court, contained his signature as a private
citizen.
24
The fact that he wrote his principal letter to the court
rather than, say, posting a bill in a public square does not
affect the public importance of the speech in question. See
Wilson, 973 F.2d at 1270 (speaker did not forfeit protection by
choosing an internal forum); Johnston v. Harris County Flood
Control Dist.,
869 F.2d 1565, 1577 (5th Cir.1989) (employee's
testimony in a closed meeting was protected speech), cert.
denied,
493 U.S. 1019,
110 S. Ct. 718,
107 L. Ed. 2d 738 (1990).
9
Not all matters of public concern are ripe for comment by
public employees in all circumstances. The Supreme Court has
instructed that we must consider the state's interest in promoting
the efficiency of the public services it provides through its
employees.25 Although we weigh a number of factors, our inquiry
centers on three: (1) whether the speech was likely to generate
controversy and disruption; (2) whether the speech impeded the
general operation of the department; and (3) whether the speech
affected the working relationships necessary to the proper
functioning of Ector County administration.26 Our review of these
factors supports the district court's judgment that the value of
the speech outweighed the threat that the speech posed to
efficiency.
Our review of the record discloses no impairment to the
efficiency of Ector County administration or any County offices as
a result of Davis's letter. No evidence exists that the letter
Davis wrote defied Garrison's instruction to give the Sheriff's
office a wide berth, let alone handicapped the communication
between the two offices or their working relationship.27 In fact,
25
Pickering v. Board of Education of Township High School
District 205, 391 U.S. 563, 568,
88 S. Ct. 1731, 1734-35,
20
L. Ed. 2d 811, 817 (1968).
26
See Brawner, 855 F.2d at 192. Other factors we have
considered include the time, place, and manner of the employee's
speech and whether the employee's conduct could be considered
hostile, abusive, or insubordinate. Click v. Copeland,
970 F.2d
106, 112 (5th Cir.1992).
27
Davis never mentioned the District Attorney's office in
his letter nor intimated in any way that the scope of his
concerns went beyond underscoring the gravity of his wife's
10
the Sheriff himself testified that Davis's letter did not upset him
nor did it cause any appreciable change in the tenor of the
departments' communication.28
C.
The defendants next assign error to the district court's
finding that Garrison, as District Attorney, was a "policy maker"
for Ector County.29 The defendants argue that the District Attorney
is an officer of the state and, thus, incapable of being a policy
maker for Ector County.
We rejected this very contention in Crane v. Texas.30 In
Crane, we acknowledged that there are "numerous, if relatively
minor, attributes of a State official" possessed by a Texas
allegations.
28
That is not surprising. This case is distinct from the
typical scenario in which an employee complains about his job or
his superiors and, in so doing, stirs up the smooth workings of
the office. Here, Davis complained about a problem in another
branch of the County where he has never worked.
29
As a preliminary step toward holding a governmental entity
liable for the acts of its agents, the court must identify the
policy makers, that is:
those officials or governmental bodies who speak with
final policy making authority for the local
governmental actor concerning the action alleged to
have caused the particular constitutional or statutory
violation at issue.
Jett v. Dallas Indep. School District, 491 U.S. 701, 737,
109 S. Ct. 2702, 2724,
105 L. Ed. 2d 598 (1989).
30
766 F.2d 193 (5th Cir.), denying reh.,
759 F.2d 412 (5th
Cir.), cert. denied,
474 U.S. 1020,
106 S. Ct. 570,
88 L. Ed. 2d 555
(1985). We acknowledged there that "[t]he point is a nice one
and fairly debatable".
Id. at 194. That concession did not
affect our conclusion, however, that the District Attorney is a
county official.
Id. at 195.
11
district attorney.31 Still, none of those attributes displaces the
"[o]ther and more significant factors" that militate in favor of
viewing the district attorney as a county official.32 The district
attorney's office is limited to exercising its powers in Ector
County, it is elected by Ector County voters, and it is supported
with Ector County funds.33 In sum, although the office (like Ector
County itself) is a creation of the state, all of its functioning
is county-based.
The present matter is a case in point. Garrison enjoyed free
reign over the District Attorney's office and set department policy
without oversight. His decision to fire Davis is but one example.
As such, when he fired Davis, Garrison was acting as the policy
maker for Ector County and was exercising official policy.34
31
Id. at 194.
32
Id. at 195.
33
See id.
34
This case is readily distinguishable from Echols v.
Parker,
909 F.2d 795 (5th Cir.1990), upon which the defendants
rely. Echols involved a district attorney's attempt to enforce
an unconstitutional state statute. Specifically, the district
attorney instituted a criminal action against Lonnie Echols and
four others for participating in a peaceful protest and boycott
of a Sunflower, Mississippi pharmacy.
Id. at 797. The district
attorney acted expressly pursuant to Miss.Code Ann. § 97-23-85
(1972), an anti-boycott statute. That state statute later was
declared unconstitutional.
Id. No question of the district
attorney as policy maker was presented.
Instead, the case at hand bears a stronger resemblance
to Van Ooteghem v. Gray, 584 F. Supp. 897 (S.D.Tex.1984),
aff'd, 774 F.2d 1332 (5th Cir.1985). In Gray, we affirmed
the district court judgment that the district attorney
derives his policy making authority from the electorate and
"need not be connected to a council or other governing
body". Id. at 898. As an elected official who represents
12
II. The Texas Whistle Blower Act
We turn now to Davis's claim under the Texas Whistle Blower
Act.35 The statute provides, in pertinent part:
A state or local governmental body may not suspend or
terminate the employment of, or otherwise discriminate
against, a public employee who reports a violation of law to
appropriate law enforcement authority if the employee report
is made in good faith.36
The defendants assign a number of errors to the court's handling of
the Whistle Blower claim. Because we hold that the district
court's instructions to the jury were impermissibly vague regarding
the causation element, we must reverse.
A.
The Texas Whistle Blower Act "is designed to enhance openness
in government and compel the government's compliance with the law
by protecting those who inform authorities of wrongdoing".37 As a
the final authority in his office, his "action must
necessarily be considered to represent official policy".
Id.; cf. Turner v. Upton County, Texas, 915 F.2d 133 (5th
Cir.1990), cert. denied, 498 U.S. 1069,
111 S. Ct. 788,
112
L. Ed. 2d 850 (1991) ("Because of the unique structure of
county government in Texas ... elected county officials ...
hold virtually absolute sway over the particular tasks or
areas of responsibility entrusted to him by state statute
and is accountable to no one other than the voters for his
conduct therein.") (quoting Familias Unidas v. Briscoe, 619
F.2d 391, 404 (5th Cir.1980)).
35
Tex.Rev.Civ.Stat.Ann. art. 6252-16a, § 2 (Vernon
Supp.1993).
36
In the present matter, we refer to Davis's letter as the
"report" at issue.
37
Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501,
503 (Tex.App.—Corpus Christi 1992).
13
remedial statute, we construe it liberally.38
The defendants raise both substantive and technical
objections. As to the former, the defendants argue that the
purpose of the Whistle Blower Act is to encourage employees to come
forward with knowledge of the misdeeds of public officials without
fear of reprisal,39 but assert that the purpose is not furthered by
the facts of this case. Castaneda, the most helpful recent
construction of art. 6252-16a, clarified some ambiguities in the
statute and, in so doing, expressly rejected much of the
defendants' argument.40
For example, the Castaneda court rejected the assertion that
the plaintiff must "initiate" a report. Instead, the court
reasoned, the statute requires only that the plaintiff report a
violation of the law; that he be an initiator is not required.
The court stated that the phrase "reports a violation of the law"
includes
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
38
See Id.; Fuchs v. Lifetime Doors, Inc., 939 F.2d 1275
(5th Cir.1991).
39
See Lastor v. City of Hearne, 810 S.W.2d 742, 744
(Tex.Civ.App.—Waco 1991, writ denied).
40
The defendants rely almost exclusively on Winters v.
Houston Chronicle Pub. Co., 795 S.W.2d 723 (Tex.1990) and, in
particular, on Justice Doggett's concurring opinion for almost
all of their Whistle Blower arguments. But Winters did not
address the statute at issue. Instead, the Winters court
addressed whether a whistle blower in the private sector could
state a cause of action in spite of Texas's recognition of the
employment-at-will doctrine. Justice Doggett, in his oft-cited
concurrence, outlined what that cause of action might look like.
14
or Federal Constitution, statutes, administrative rules or
regulations.
In the instant case, the defendants contend, Davis brought no new
facts to light; he merely attempted to purify the speculation as
to his wife's motives in filing the sexual harassment suit.
The letter itself, underscored by our First Amendment analysis
of its contents, renders that charge unpersuasive. Davis detailed
for the Commissioners' Court the sexual harassment allegations and
the possibility of an official coverup, plainly satisfying the
requirement that the plaintiff report a violation of the law. We
thus reject, as did the district court upon reinstating Davis's
Whistle Blower claim, the contention that "the whistle had already
blown" and, therefore, that the statute did not protect Davis.41
The defendants' more technical or, perhaps, textual
objections also are easily dispatched. They assert, for instance,
that Davis has not met the "in the workplace" requirement: Davis
reported violations alleged to have occurred in the Sheriff's
department, by whom he has never been employed. Using that logic,
they similarly charge that Davis's report did not concern his
"employer".
The workplace and employer in this case, however, is Ector
County, not merely Davis's immediate supervisor. If we gave the
statute the narrow construction that the defendants urge, a whistle
41
Implicit in this conclusion is a rejection of the
defendants' charge that the trial court erred when it
incorporated the holding in Castaneda in the jury instructions.
In fact, the district court, in reinstating the claim, was guided
by the holding in Castaneda. Moreover, the appellants concede
that the plaintiff did initiate a report.
15
blower's protection would extend only so far as his departmental
assignment. Such would contravene the purpose of the statute. We
conclude that Davis reported violations concerning his employer and
addressed issues concerning his workplace.42
B.
Although we conclude that Davis stated a proper cause of
action under the Texas Whistle Blower Act, we nonetheless must
reverse the judgment of the district court because the instructions
tendered to the jury were sufficiently vague as to permit
uncertainty as to the correctness of the verdict.
"The function of the reviewing court with respect to
instructions is to satisfy itself that the instructions show no
tendency to confuse or mislead the jury with respect to the
applicable principles of law."43 The district court has wide
latitude in instructing the jury on the law and we will thus
42
Davis also satisfied the requirement that the report be
made to the appropriate law enforcement authorities. The
Castaneda court defined an appropriate law enforcement authority
as "any entity with the capacity through legal processes or
otherwise to take remedial action with respect to the alleged
violation". Castaneda, 831 S.W.2d at 504. Accord Knowlton v.
Greenwood Independent School Dist.,
957 F.2d 1172, 1181 (5th
Cir.1992); see also Travis County v. Colunga,
753 S.W.2d 716,
719 (Tex.App.—Austin 1988, writ denied) (legislature intended
term "appropriate" to be "sufficiently elastic" to include any
civil authorities having power to compel obedience to the law in
a particular case); City of Dallas v. Moreau,
697 S.W.2d 472,
474 (Tex.App.—Dallas 1985, no writ) (authority must have the
power and duty to change the problem reported). The letter to
the Commissioners' Court is well within that definition.
43
Roberts v. Wal-mart Stores, Inc., 7 F.3d 1256, 1258 (5th
Cir.1993).
16
"ignore technical imperfections".44 In spite of that deference, we
will reverse if we conclude that the trial court erred with respect
to the instructions proffered to the jury and that, based upon the
record, the error affected the outcome of the case. In other
words, does the charge "as a whole leave[ ] us with substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations"?45 We have that doubt here.
Although he was addressing a whistle blower cause of action in
the private sector, Justice Doggett understood the need for a
strong causation element: "The reporting of these activities must
have been the principal reason for the employer's retaliation."46
Significantly, Justice Doggett added, "The employer may refute the
causation element by proving dismissal for reasons other than the
act of whistle blowing."47 The instructions should have
communicated this to the jury.
The court's instructions provided, in part:
You are instructed that, in order to recover under this
statute, the Plaintiff must prove by a preponderance of the
evidence that:
1. He was discharged;
2. He was discharged after reporting violations of the law and
because he made such a report;
44
Bender v. Brumley, 1 F.3d 271, 277 (5th Cir.1993).
45
Id. (quoting Kyzar v. Vale Do Ri Doce Navegacai, S.A.,
464
F.2d 285, 290 (5th Cir.1972), cert. denied,
410 U.S. 929,
93
S. Ct. 1367,
35 L. Ed. 2d 591 (1973)).
46
Winters, 795 S.W.2d at 732 (Doggett, J. concurring).
47
Id. at 733.
17
3. His report was made in good faith;
4. The acts of the District Attorney of Ector County were a
proximate cause of any damages sustained by the Plaintiff;
and
5. The plaintiff suffered actual damages.
The second element focusses on causation (i.e., why Davis was
fired). The defendants charge that the court erred when it failed
to give an instruction that, if the District Attorney fired Davis
for insubordination, the jury must find for the defendants.48 We
agree.
The phrase "He was discharged ... because he made such a
report" is susceptible of two meanings. First, it could mean that
Davis was fired because he brought facts to light in a report—facts
that the District Attorney would have preferred to keep from the
public. Under that construction, a jury properly could find that
the Whistle Blower Act had been violated.
But the phrase has another meaning and, in the case at hand,
a likely one. It could mean that Davis was fired because he made
a report; i.e., for insubordination in defying the orders to stay
clear of the Sheriff's office. Under this probable construction,
a jury could not award damages under the Whistle Blower Act because
the District Attorney's objection would not have been to the
content of the letter (i.e., reporting a violation), but that, by
48
We note that the defendants properly objected to the trial
court's jury instructions and proffered a proposed instruction
which would have cured the assigned error. See F.D.I.C. v.
Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994) (defendants must show
"as a threshold matter that the proposed instruction correctly
stated the law").
18
writing a letter, Davis risked involving the District Attorney's
office in his wife's lawsuit. From the District Attorney's
perspective, it might be merely fortuitous that the letter reported
a violation of the law.49
In the Knowlton case, the district court gave jury
instructions that avoided this error. After instructing the jury
on the elements of a Whistle Blower claim, the court instructed the
jury:
The defendant may rebut this presumption by offering evidence
and proving the defendant fired such plaintiff for a
nondiscriminatory reason.50
That is precisely the instruction that should have been given
here.51
Davis makes the broad assertion that, if the speech in
49
For example, had Davis not referred to his wife's case
but, out of antagonism, written a derisive letter intending to
insult the Sheriff's office, the District Attorney might have
taken precisely the same course of action—discharging Davis—for
precisely the same reason, insubordination and disobedience to
departmental orders. The content of the report at all times
would have been immaterial, even if Davis by chance reported a
violation.
50
Knowlton, 957 F.2d at 1179.
51
We do not hold that this instruction need be given in
every Whistle Blower Act case. Where the facts of the case to
not compel the often fine distinctions between conduct that would
and conduct that would not support a cause of action, the court's
instruction would suffice. See Texas Dept. of Human Services v.
Green, 855 S.W.2d 136, 150 (Tex.App.—Austin 1993, error denied)
(the instruction "[D]id Defendants retaliate against Plaintiff
for reporting ... violations of law?" sufficiently instructed
jury on necessary causal link). Here, however, Garrison's
admonitions to Davis required that the jury knowingly distinguish
between permissible and impermissible reasons for the discharge.
The court should have given the Knowlton instruction or a similar
instruction.
19
question is protected by the First Amendment, it cannot be
insubordination to exercise the right to speak. The issue,
however, is whether the defendants's actions violated the Texas
Whistle Blower Act. If Davis was discharged for insubordination as
opposed to being discharged in retaliation for exercising his
protected right to speak, the cause of action would not lie.
Although it is impossible to say whether the jury properly
understood the law, we conclude that the instruction that was given
prejudiced the defense. It allowed the jury to answer the second
element in the affirmative under facts that would not have
supported a Whistle Blower Act claim. For that reason, we reverse
and remand.52
III.
In accordance with the foregoing, the trial court judgment is
AFFIRMED on the First Amendment issues and REVERSED and REMANDED on
the Texas Whistle Blower Act issues.53
FITZWATER, District Judge, concurring in part and dissenting
in part:
I join completely the majority's resolution of plaintiff's
First Amendment claim, and therefore concur in part I of its
opinion. I also agree with certain portions of the majority's
analysis of plaintiff's Texas Whistle Blower Act claim, and
52
In the light of our holding, we do not address the
defendants' remaining contention that the district court erred
when it submitted the issue of punitive damages to the jury.
53
We note that the compensatory damages were awarded for the
First Amendment violation as well as the Whistle Blower Act
claim. Hence, our holding affects only the punitive damages
award.
20
therefore join part II(A) of the opinion. Because I do not agree
that the trial court's instruction regarding the causation element
of plaintiff's Whistle Blower claim constitutes reversible error,
I respectfully dissent from part II(B). I would uphold the Whistle
Blower judgment insofar as it awards actual damages, and I would
address defendants' contention—unreached by the majority—that the
jury's award of punitive damages must be reversed because there is
no evidence of the malicious conduct that is necessary to support
such a recovery.
I
The majority correctly analyzes the jurisprudence that governs
our review of the trial court's instructions. I do not quarrel
with its discussion of the applicable law. I am unable, however,
to join the conclusion that the trial court's Whistle Blower
causation instruction constitutes reversible error.
A
I would hold as a threshold matter that defendants did not
comply with the requirement that they submit a proposed instruction
that correctly states the law. See FDIC v. Mijalis, 15 F.3d 1314,
1318 (5th Cir.1994).
Defendants requested that the trial court give the following
instruction "for both the First Amendment and Whistle Blower
action," see Appellants Br. at 28:
If you find that the Plaintiff has established each element of
his claim, you must then decide whether the Defendant has
shown by a preponderance of the evidence that he would have
dismissed the Plaintiff for other reasons even if the
Plaintiff had not exercised his protected speech activity. If
you find that the Defendant would have dismissed the Plaintiff
21
for insubordination, then your verdict should be for the
Defendant. If you find for the Plaintiff against the
Defendant on their defense, you must then decide the issue of
Plaintiff's damages.
Id. (quoting requested instruction).
This instruction did not apply uniformly to both claims.1 By
referring in the first sentence to "protected speech activity," the
instruction did not correctly state the law applicable to the
Whistle Blower claim.
Moreover, assuming that the second and third sentences can be
removed from the instruction as a whole and analyzed in isolation,
they likewise do not correctly state the law. The second sentence
instructs the jury that it should return a verdict for the
defendant if the jury finds "that the Defendant would have
dismissed the Plaintiff for insubordination." (emphasis added).
I would hold that this instruction is susceptible of either of
these two meanings: that defendant in fact dismissed plaintiff for
insubordination (the meaning defendants-appellants give it), or
that defendant intended at some point to dismiss plaintiff for
insubordination, but instead terminated him on some other basis.
Because the requested instruction is itself ambiguous,2 I
1
The majority opinion expressly differentiates between the
First Amendment and Whistle Blower claims. See --- F.3d at ----
[maj. slip op. at 1393].
2
This ambiguity apparently arises from defendants' misuse of
"would have" as an auxiliary verb form in place of the word "had"
in a conditional clause introduced by the word "if." For the
second sentence to read as defendants likely intended it, the
sentence should have stated, "If you find that the Defendant had
dismissed the Plaintiff for insubordination, then your verdict
should be for the Defendant."
22
would hold that the trial court did not commit reversible error
when it refused to give the instruction to the jury.
B
I also respectfully disagree with the majority's conclusion
that the jury could reasonably have interpreted the causation
instruction to allow it to find defendants liable merely for
reprimanding plaintiff for insubordination rather than for conduct
protected by the Texas Whistle Blower Act.
The majority quotes the causation element by inserting
ellipses in place of the words "after reporting violations of the
law and." See --- F.3d at ---- [maj. slip op. at ----]. It then
concludes that this edited form of the causation element, which
reads, "He was discharged ... because he made such a report," is
susceptible of two meanings. Id. I would hold that the causation
instruction, viewed as a whole, properly guided the jury. Stated
in its entirety, the instruction informed the jury that plaintiff
was obligated to prove that "He was discharged after reporting
violations of the law and because he made such a report." By my
light, this instruction correctly advised the jury that plaintiff
was required to establish that he was discharged because he
reported violations of the law, and not because of other factors,
such as insubordination. I would not reverse the jury verdict on
the basis of the causation instruction.
C
I likewise do not join the majority's conclusion that the
trial court should have given an instruction like the one in
23
Knowlton v. Greenwood Indep. Sch. Dist., 957 F.2d 1172, 1179 (5th
Cir.1992). See --- F.3d at ---- [maj. slip op. at 1393].
It bears noting, at the outset, that the causation instruction
that the majority rejects today is very similar to the one given in
Knowlton. See 957 F.2d at 1179 n. 10 (instructing jury that
plaintiff must prove inter alia that she was "discharged after
reporting a violation of the law and for the reason that she made
such a report"). But aside from that, the particular Knowlton
instruction that the majority would require was neither requested
by defendants nor shown to be applicable to the present case.
The majority holds that the trial court should have instructed
the jury that
The defendant may rebut this presumption by offering evidence
and proving the defendant fired such plaintiff for a
nondiscriminatory reason.
--- F.3d at ---- [maj. slip op. at 1393] (quoting Knowlton, 957
F.2d at 1179) (emphasis added) (footnote deleted). The words "may
rebut this presumption" are significant, because in Knowlton the
district court also instructed the jury that if the plaintiff met
her burden of proof as to all applicable elements, then the jury
must presume that the plaintiff was discharged or suspended in
violation of the Act. See
Knowlton, 957 F.2d at 1179 n. 10. The
instruction that the majority concludes "is precisely the
instruction that should have been given here," see --- F.3d at ----
[maj. slip op. at 1393], was required in Knowlton to counterbalance
the directive that the jury presume a violation of the Act. In the
present case, however, defendants have not shown that the trial
24
court gave a presumption instruction like the one in Knowlton.
Accordingly, I respectfully disagree with the conclusion that the
trial court committed reversible error in this respect.
II
I concur in parts I and II(A) of the majority opinion, and
respectfully dissent from part II(B) and the majority's failure to
reach the punitive damages question. Because I would not reverse
the finding of Whistle Blower Act liability, I would reach the
merits of defendants' contention that the Whistle Blower punitive
damages award is not supported by the necessary evidence of
malicious conduct.
25
