Enochs v. Lampasas County

Filing 47

ORDER GRANTING 24 Motion for Summary Judgment and 40 Second Motion for Summary Judgment; DISMISSING as Moot 34 Motion for Hearing; DISMISSING as Moot 30 Motion to Strike. Signed by Judge Sam Sparks. (mm5, )

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS A U S T I N DIVISION

C L A R E N C E ENOCHS, P la in tif f, -v sL A M P A S A S COUNTY, D ef en d a n t. __________________________________________ C a s e No. A-09-CA-054-SS

ORDER

B E IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and s p e c ific a ll y Defendant Lampasas County ("Defendant")'s Motion for Summary Judgment [#24], P l a i n t i ff Clarence Enoch ("Plaintiff")'s response thereto [#32], and Defendant's reply [#38]; P l a i n t iff's motion to strike Defendant's summary judgment evidence [#30], Defendant's response th e re to [#35], [#36]; Plaintiff's motion for a hearing regarding the motion for summary judgment [ # 3 4 ], and Defendant's Second Motion for Summary Judgment [#40] and Plaintiff's response thereto [# 4 2 ]. As an initial matter, because the Court held a hearing on the summary judgment motions on N o v e m b e r 17, 2009, Plaintiff's motion for a hearing [#34] is DISMISSED as moot. Thereafter, h a v in g reviewed the aforementioned documents, the applicable law, and the case file as a whole, the C o u rt enters the following opinion and orders. B A C K GR O U N D P l a i n t i ff originally filed this case on December 29, 2008 in the 27 th Judicial District Court, Lam p a s a s County, Texas. See Orig. Pet [#4]. The case was removed to this Court on January 26, 2 0 0 9 . In April 2009, Plaintiff filed an Amended Complaint, in which he asserts the following state

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la w claims against Defendant: (1) a Whistleblower claim under Chapter 554 of the Texas G o v e rn m e n t Code; (2) a claim based on a violation of Chapter 614 of the Texas Government Code; a n d (3) a defamation claim. T h e facts of this case are essentially as follows. Plaintiff was formerly a deputy sheriff with th e Lampasas County Sheriff's Department (the "Sheriff's Department"). Plaintiff was investigating a domestic disturbance on June 26, 2007 (the "June 26 incident"), when the victim told him she had d e a l t with one of Plaintiff's fellow deputies, Deputy Logsdon, the day before, as she had brought a s i m i la r complaint of domestic disturbance to him. Am. Compl. at 3. Plaintiff discovered Deputy Lo gs d o n had not filed a report of that incident, had not given the incident a cause number, had not p h o t o g r a p h e d the woman's injuries, and had not notified her of her right to have a protective order. Id . Deputy Logsdon had simply given the woman a personal business card for his massage business a n d told her to come and get a massage. Id. Plaintiff reported this information to his Sergeant, and detailed Deputy Logsdon's w r o n gd o i n g in his own written report on the June 26 incident. On the morning of June 27, 2007, P la in tiff alleges Deputy Logsdon spent "numerous hours" in Sheriff Gordon Morris' office. Id. at 5 . Afterwards, Plaintiff was notified Sheriff Morris wanted to talk with him. Without advance n o tic e , Plaintiff was told he was being terminated. Id. at 6. When he asked why, he was told he was " d is ru p tiv e ," and a liar and a thief, and that he would receive further explanation in writing. Id. The S h e riff apparently never gave him an explanation in writing. Id. However, the Sheriff was required b y statute to submit an "F-5" report to the Texas Commission on Law Enforcement Officers and S ta n d a rd s ("TCLEOSE") concerning the discharge, and he did so in July of 2007. The Sheriff c la s s ifie d the termination as "Dishonorable Discharge: Commission of a Criminal Offense," without p ro v id in g further details. Id.

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P l a in t iff was not sent a copy of the F-5, but saw it in February of 2009 after his counsel re q u e s te d his personnel file from the Sheriff's Department. Id. at 7. Plaintiff thereafter filed a p e t itio n for correction of the F-5 report, as he was not aware of any criminal offense he had c o m m i t t e d , and Defendant offered to change it to "General Discharge-Termination for an A d m in is tra tiv e Violation," which is what it now reads. Id. The issue is pending at the State Office o f Administrative Hearings. Id. The present lawsuit arises out of Plaintiff's termination. He claims because the termination o c c u rre d after he in reported "violations of the law" by one of his fellow deputies that took place on J u n e 26, 2007, it constituted unlawful retaliation under the Whistleblower Act. See Am. Compl. at 7 - 8 . He also claims, in the alternative, "to the extent the Defendant argues Plaintiff was terminated d u e to any complaint filed against him," his rights were violated under § 614 of the Texas G o v e rn m e n t Code because he was never given a signed copy of any complaint against him. Id. at 8 - 9 . Finally, he brings a defamation claim arising out of the fact Sheriff Morris filed an F-5 Report o f Separation upon Plaintiff's termination, which he provided to TCLEOSE, indicating Plaintiff was d i s h o n o ra b l y discharged for a "criminal offense." Id. at 9-11. Plaintiff claims the F-5 report was p u b l is h e d to third-party potential employers (due to its filing with TCLEOSE), was viewed by those p o te n tia l employers, and injured his reputation. Id. Defendant has filed two motions for summary judgment in which it argues: (1) the W h i s t le b l o w e r claim is time-barred; (2) the Whistleblower claim is improper because Plaintiff did n o t report a "violation of the law"; (3) Plaintiff does not have a cognizable claim under TEX. GOV. C ODE § 614; and (4) Plaintiff's defamation claim is barred by sovereign immunity and the statute of lim ita tio n s .

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A N A L Y SIS I. S u m m a r y Judgment Standard S u m m a ry judgment may be granted if the moving party shows there is no genuine issue of m a te ria l fact, and it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In deciding s u m m a ry judgment, the Court construes all facts and inferences in the light most favorable to the n o n m o v in g party. Richter v. Merchs. Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). The s t a n d a r d for determining whether to grant summary judgment "is not merely whether there is a s u ffi c i e n t factual dispute to permit the case to go forward, but whether a rational trier of fact could fin d for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F .2 d 834, 837 (5th Cir. 1990). B o th parties bear burdens of production in the summary judgment process. Celotex Corp. v . Catrett, 477 U.S. 317 (1986). The moving party has the initial burden of showing there is no gen u in e issue of any material fact and judgment should be entered as a matter of law. FED. R. CIV. P . 56(c); Celotex, 477 U.S. at 322­23; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247­48 ( 1 9 8 6 ) . The nonmoving party must then come forward with competent evidentiary materials e s ta b lis h in g a genuine fact issue for trial, and may not rest upon mere allegations or denials of its p l e a d i n gs . Anderson, 477 U.S. at 256­57; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 4 7 5 U.S. 574, 586­87 (1986). Neither "conclusory allegations" nor "unsubstantiated assertions" will s a tis fy the non-movant's burden. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). II. W h is tle b lo w e r Claim The Court agrees with Defendant the Whistleblower claim is time-barred. The Texas W h i s t le b l o w e r statute provides, "[a] state or local governmental entity may not suspend or terminate th e employment of, or take other adverse personnel action against, a public employee who in good

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fa i t h reports a violation of law by the employing governmental entity or another public employee to a n appropriate law enforcement authority." TEX. GOV. CODE § 554.002(a). A public employee who s e e k s relief under the Whistleblower Act must sue no later than 90 days after the date on which the a lle ged violation occurred, or was discovered by the employee through reasonable diligence. Id. § 5 5 4 .0 0 5 . The time used by the employee in acting under grievance or appeal procedures is generally e x c lu d e d from this limitation period.1 Id. § 554.006. In the present case, Plaintiff's termination date was undisputedly June 27, 2007; thus, his suit s h o u l d have been filed no later than September 25, 2007. But it was not actually filed until D e ce m b e r of 2008--more than a year and a half after Plaintiff was fired. Plaintiff correctly notes the re le v a n t act for limitations purposes is the date upon which the plaintiff "discovered, through re a s o n a b le diligence, that he was terminated for whistleblowing, if that discovery occurred after the a c tu a l date of termination." Texas A & M Univ. at Corpus Christi v. Hamann, 3 S.W.3d 215, 218 (T e x .A p p .­ C o rp u s Christi,1999). He claims he did not know he was terminated for whistleblowing p rio r to October 2008 because he was not provided any "specific details" about his firing. He claims it was not until October of 2008 that he learned the written incident report he made regarding the J u n e 26 incident had been altered to delete the reference to Deputy Logsdon's alleged misconduct, a n d it was with this discovery that he finally understand why he had been fired. H o w e v e r , this allegation--which is not supported by the facts of the case as Plaintiff alleges

In the present case, Plaintiff filed a letter attempting to invoke the grievance procedures of the Sheriff's D e p a r t m e n t in October 2008, shortly before he filed this case. The Court assumes this was a proper attempt to in v o k e the grievance procedures. Defendant claims, however, that Plaintiff did not timely invoke the grievance p r o c e d u r e s . Section 554.006(b) requires the grievance procedures to be instituted not later than 90 days after the a lle g e d violation of the W h is tle b l o w e r Act "occurred" or "was discovered by the employee by reasonable diligence." Thus, whether Plaintiff did or did not timely invoke the procedures depends on whether he reasonably knew the basis fo r his W h is tle b lo w e r claim on the date he was terminated, which is the same issue on which the rest of the statute of lim ita t io n s question turns. Accordingly, the Court does not consider the timeliness of Plaintiff's filing of the g r i e v a n c e procedures separately, but decides it along with the rest of the statute of limitations issue.

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t h e m -- i s not enough to show October 2008 (more than a year after Plaintiff's termination) is the date o n which he "discovered" the violation "through reasonable diligence." Based on his own Amended C o m p l a i n t , Plaintiff knew at the time he was fired (or shortly thereafter): (1) he had made a report th e day before regarding Deputy Logsdon's allegedly illegal activity; (2) Deputy Logsdon had been ta lk in g with the Sheriff that morning for "numerous hours", (3) the Sheriff would not give Plaintiff a satisfactory reason for his termination, instead calling him a "liar" and telling him he was d is ru p ti v e ; and (4) there was no other conceivable basis for Plaintiff's termination, or for the Sheriff to call him a liar or disruptive, as Plaintiff had never been disciplined for any matter and had " c o n s is te n tly received strong praise and approval for his work." See Am. Compl. at 6. These c i r c u m s t a n c e s , taken together, were more than sufficient to put Plaintiff on notice of a possible W h i s t le b l o w e r claim if he truly believed he was terminated for whistleblowing in connection with th e June 26 incident. The only thing that changed in October 2008, even according to Plaintiff, was that he saw the re fe re n c e he made to Deputy Logsdon had been deleted from the incident report he filed about the J u n e 26 incident. This is hardly evidence of an improper termination based on retaliation; in fact, it d i d not add anything Plaintiff did not already know or could have reasonably discovered about his te rm i n a tio n . In Sheriff Morris's deposition (filed by Plaintiff), Morris specifically testified a c o m p la in t about another officer's conduct does not fit in an incident report if it does not have a n yth in g to do with the underlying incident. Morris Depo. at 85-86. He testified the information a b o u t Deputy Logsdon had nothing to do with resolving the domestic assault at issue in the report, a n d thus was inappropriate to include in the report. Id. at 86. Therefore, Plaintiff is not able to avoid t h e limitations period simply by making the implausible and unsubstantiated claim he suddenly s u s p e c te d for the first time his termination may have been in retaliation for his "whistleblowing"

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a c tiv i ty simply because he noticed the incident report had been redacted and no longer included in fo rm a tio n about the conduct of Deputy Logsdon. Deputy Logsdon's conduct undisputedly was not r e l e v a n t to the domestic assault incident that was the subject of the report in question. The Court fin d s it abundantly clear Plaintiff had more than enough information at the time of his termination (o r shortly thereafter) to form the basis of his Whistleblower claim. His claim he could not have re a s o n a b ly known the basis for the claim until he saw the redacted incident report in October 2008 is in direct conflict with all the other facts in this case, and defies common sense. He knew all of the re le v a n t facts giving rise to the Whistleblower claim immediately or shortly after he was terminated a n d , under the express terms of the Whistleblower Act, the limitations period began at that time. C r e d i ti n g all the favorable evidence reasonable jurors could believe and disregarding all contrary e v i d e n c e except that which they could not ignore, the Court finds the record simply does not contain a n y evidence to support Plaintiff's claim he did not discover the alleged Whistleblower violation u n til October of 2008. Of course, it is possible Plaintiff sincerely believes he did not discover the Whistleblower v io la tio n until October 2008. But the Whistleblower Act mandates an employee must bring suit "not la te r than the 90th day after the date on which the alleged violation...was discovered by the employee th r o u g h reasonable diligence." Tex. Gov. Code § 554.005 (emphasis added). Plaintiff did not use r e a s o n a b l e diligence (or anything close to it) in investigating his claim. As an excuse for his in a c tiv ity, Plaintiff claims he was waiting for a written statement from the Sheriff regarding the re a s o n s for his termination, which he never received. But the written F-5 report filed by the Sheriff w i th TCLEOSE, which must by law be filed and state the reason for the termination, is a matter of p u b lic record. Thus, Plaintiff could have requested and received it as soon as it was filed in July of 2 0 0 7 . At the hearing, Plaintiff's counsel admitted Plaintiff is an experienced law enforcement officer

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w h o was aware the Sheriff was required by statute to file a written report with TCLEOSE, and that th e report was therefore available to Plaintiff. The F-5, had Plaintiff requested it, would have c o n firm e d what he already knew: that the Sheriff (in Plaintiff's eyes) did not have adequate reasons fo r his termination, and was accusing Plaintiff of misconduct Plaintiff did not believe he had c o m m itte d . C o u rts have long recognized discovery of a whistleblower violation is not delayed until the tim e an employee confirms his belief his employer retaliated against him. See Univ. of Houston v. B a r t h , 265 S.W.3d 607, 613 (Tex. App.­Houston [1 st Dist.] 2008) (citing cases). Evidence Plaintiff d i s c o v e re d (in October 2008) part of his report on the June 26 incident had been deleted is not e v id e n c e he did not discover the Whistleblower violation until October 2008, nor is it evidence he c o u ld not have discovered the claim through reasonable diligence. At most, it is evidence he re c e iv e d some slight piece of information that confirmed what he had long known about the alleged v io la tio n , but had failed to act upon. Thus, because Plaintiff did not bring suit on his Whistleblower claim within 90 days after the d a t e on which the alleged violation occurred or was discovered by him through reasonable diligence, th e statute of limitations set forth in Texas Government Code § 554.005 properly bars his claim. D e fe n d a n t's motion for summary judgment is GRANTED on this ground.2 III . C h a p t e r 614 Claim In his Amended Complaint, Plaintiff claims"to the extent the Defendant argues Plaintiff was te rm in a t e d due to any complaint filed against him," his rights were violated under § 614 of the Texas

2 Defendant also claims Plaintiff did not in good faith report a "violation of the law," as is required for a W h is tle b lo w e r claim. But because the W h is tle b lo w e r claim is barred by the applicable statute of limitations, the C o u r t does not consider this additional argument.

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G o v e r n m e n t Code, as he was never given a signed copy of any complaint against him. Am. Compl. a t 8-9. He expressly brings this claim "in the alternative" to the Whistleblower claim. See Am. C o m p l . at 8 (emphasis added). Defendant states in its pleadings (and also stated in open court at the h e a rin g) it does not take the position Plaintiff's termination was based on any citizen complaint, and th e re fo re there is no basis for the Chapter 614 claim. Based on this representation, which is not u n c o n tra d ic te d , the Court finds summary judgment should be GRANTED on this ground. IV . Defamation Claim P la in tiff's defamation claim in this case arises from the publication of the statement in the i n i t i a l F-5 that he was terminated for committing a crime. The F-5 was undisputedly submitted to T C LE O S E by Sheriff Morris on July 12, 2007, although Plaintiff allegedly did not see it until F e b ru a ry of 2008, when his lawyer obtained a copy. Defendant argues summary judgment is appropriate on Plaintiff's defamation claim because d e fa m a tio n is an intentional tort, and thus there is no waiver of sovereign immunity under the Texas T o r t Claims Act ("TTCA") for a defamation claim against the Defendant (a governmental entity). S e e Def.'s 2nd Mot. Summ. J. [#40]. Defendant is correct intentional torts, such as defamation, do n o t fall within the scope of the waiver of immunity under the TTCA. See TEX. CIV. PRAC. & REM. C O D E § 101.057(2); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.­Houston [1 D i s t.], no writ). Accordingly, Defendant has sovereign immunity with respect to the defamation c la im and the claim should be dismissed with prejudice, unless Plaintiff can show it fits within one o f the three areas in the Act in which sovereign immunity is waived: use of publicly owned vehicles, p re m is e s defects, and injuries arising from conditions or use of property. TEX. CIV. PRAC. & R EM .C O D E § 101.021. Plaintiff expressly admits none of these areas is applicable to the present case. S e e Pl.'s Resp. [#42] at 4.

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H o w e v e r , Plaintiff argues as a reason to avoid summary judgment that "Plaintiff has never p l e d or alleged that the TTCA applies in this case." Id. (emphasis in original). Plaintiff claims there i s a different waiver of sovereign immunity which applies to its defamation claim, and is applicable o n l y when a law enforcement agency prepares an F-5 report in bad faith and the plaintiff suffers d a m a ges as a result. Id. The statute in question is Texas Occupation Code § 1701.456(b), which p r o v id e s in relevant part, "A law enforcement agency, agency head, or other law enforcement official is not liable for civil damages for a report made by that agency or person if the report is made in good fa i t h . " Plaintiff claims the statute's language also means the inverse true: that if a report is made in b a d faith, the law enforcement agency, agency head, or other law enforcement official may be liable fo r civil damages. This strained argument is without merit. First, the obvious purpose of the statute in question is to provide an immunity defense for law enforcement officers or agencies reporting to TCLEOSE, m a n y of whom are not affiliated with a governmental entity and are subject to suit for defamation. T h e statute does not on its face waive sovereign immunity, and would be a highly esoteric and ro u n d a b o u t means of doing so if such were the intent. It is well-settled a clear and unambiguous l e g i s l a tiv e waiver of immunity is required before a court will hold sovereign immunity has been w a iv e d . Kerrville State Hosp. v. Hernandez, 28 S.W.3d 1, 3 (Tex. 2000). Section 1701.456 is not a clear and unambiguous waiver of sovereign immunity, and no other court has ever construed it as such. Finally, even if the statute could be construed to provide a private cause of action for bad fa ith filing of F-5 reports, the cause of action would--according to the express terms of the s ta tu t e -- o n l y be appropriate against the "law enforcement agency, agency head, or other law e n fo rc e m e n t official" who had filed the F-5 report in bad faith. Plaintiff seems to have forgotten he

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h a s sued Lampasas County, which fits into none of the foregoing catergories. For all of the foregoing reasons, the Court finds Defendant, a governmental entity, is entitled to summary judgment on the defamation claim.3 V. P l a i n tif f 's Motion to Strike Evidence P l a i n t i f f objects to two of the affidavits used in support of Plaintiff's motion for summary ju d gm e n t, stating the affidavits do not state the facts are within the affiants' personal knowledge and a r e true and correct. Plaintiff is correct that under Texas law, "an affidavit must positively and u n q u a l i fi e d l y represent the facts as disclosed in the affidavit to be true and within the affiant's p e r s o n a l knowledge; otherwise, the affidavit is legally insufficient." Teal v. State, 230 S.W.3d 427, 4 3 1 (Tex. App.­San Antonio 2007) (citing Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1 9 9 4 )). Plaintiff specifically objects to the affidavits of Gordon Morris and Susie LaFuente (attached to Defendant's motion for summary judgment as Exhibits 1 and 2). Gordon Morris is the Sheriff who te rm i n a te d Plaintiff's employment, and he testifies in his affidavit the termination took place on June 2 7 , 2007, and he submitted the F-5 report on July 12, 2007. Morris Aff. at ¶ 3. Neither of these facts i s disputed. He also testifies Plaintiff did not take any steps to initiate a grievance after his te rm in a tio n . Id. at ¶ 4. However, the Court did not take this testimony into account in the foregoing o p in i o n , or rely upon it in any way. Susie LaFuente testifies similarly in her affidavit that Lampasas C o u n ty did not receive any notice Plaintiff was submitting a grievance concerning his termination. La F u e n t e Aff. at ¶ 4. Because the Court did not rely on any of the foregoing evidence or consider it in any way, Plaintiff's objections and motion to strike are DISMISSED as moot in their entirety.

Defendant argues in the alternative the defamation claim is barred by the applicable statute of limitations. T h e Court does not reach this issue, as the claim is barred by the doctrine of sovereign immunity.

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C O N C L U SIO N In accordance with the foregoing, IT IS ORDERED that Defendant Lampasas County's Motion for Summary Judgment [ # 2 4 ] and Second Motion for Summary Judgment [#40] are GRANTED, in accordance with t h e foregoing order. IT IS FURTHER ORDERED that Plaintiff Clarence Enochs' motion for a hearing re ga rd i n g the motion for summary judgment [#34] is DISMISSED as moot, as the Court has e ffe c tiv e ly granted the request. IT IS FINALLY ORDERED that Plaintiff's motion to strike Defendant's summary ju d gm e n t evidence [#30] is DISMISSED as moot. SIGNED this the 2 nd day of December 2009.

_ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _ S A M SPARKS U N IT ED STATES DISTRICT JUDGE

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