Crampton v. Weizenbaum et al

Filing 34

ORDER GRANTING 17 Motion for Summary Judgment; DENYING 28 Motion for Leave to File. Signed by Judge Sam Sparks. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTINDIVISION

2OI1NOV I+

P?1

JENNIFER CRAMPTON,
Plaintiff,
CAUSE NO.:
A-16-CA-00959-SS

-vs-

JON WEIZENBAUM, IN HIS
INDIVIDUAL CAPACITY AND IN HIS
OFFICIAL CAPACITY AS
ADMINISTRATIVE HEAD OF THE
TEXAS DEPARTMENT OF AGING
AND DISABILITY SERVICES;
SYLVIA RODRIGUEZ, IN HER
INDIVIDUAL AND OFFICIAL
CAPACITY; AND TEXAS
DEPARTMENT OF AGING AND
DISABILITY SERVICES,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Defendants Jon Weizenbaum, Sylvia Rodriguez, and Texas Department of

Aging and Disability Services (collectively, Defendants)' Motion for Summary Judgment [#17],

Plaintiff Jennifer Crampton's Response [#26] in opposition, and Defendants' Reply [#27] in
support; as well as Crampton's Motion for Leave to File Supplement Summary Judgment

Response with Newly Obtained Evidence [#28], and Defendants' Response [#29] in opposition.
Having considered the case file and the applicable law, the Court enters the following opinion
and orders.

Background
This case relates to Plaintiff Jennifer Crampton's employment termination from the
Defendant Texas Department of Aging and Disability Services (DADS). Crampton was hired by

2:21

the Home and Community Support Service Agencies (HCSSA) Licensing and Certification Unit

of DADS on January 5, 2015, where she worked as a Licensing and Permit Specialist II. Mot.
Sunim. J. [#17-6] Ex. E (Rodriguez Deci.) at APPX-0122.

On April 16, 2015, Crampton was counseled by her then manager, Mary J0 Grassmuck,

regarding interactions with her co-worker, Olivia Williams, who had complained of disrespectful
and unprofessional conduct by Crampton.

See

Mot. Sunim. J. [#17-8] Ex. G (Bourland Deci.) at

APPX-0218-19; Mot. Sunim. J. [#17-2] Ex. A [#17-2] (Crampton Dep. Tr.) at APPX-0020.
Sylvia Rodriguez became manager of the HCSSA group on June 1, 2015, after
Grassmuck retired.

See

Rodriguez Dee!. at APPX-0122. Shortly thereafter, on July 22, 2015,

Crampton was again counseled by Rodriguez and Director Cindy Bourland regarding her

interactions Williams along with other work-related issues. Bourland Dccl. at APPX-0220.
On September 14, 2015, Rodriguez informed Crampton she had not been selected to

interview for the position of Licensing and Permit Specialist IV. Rodriguez DecI. at APPX0131. That same day, Rodriguez sent an email instructing her team that Management Change

Requests would no longer require resumes.

See

Mot. Sunim. J. [#17-3] Ex. B (Crampton Report)

at APPX-0048. Crampton considered this policy change to be unlawful, and subsequently in

September or October 2015 began reporting the change to 40 or 50 different officials, including

the Governor, the Office of Attorney General (OAG), and several congressmen.

See

Resp. [#26]

at 2. On October 12, 2015 Crampton also filed an employment discrimination complaint with
the Civil Rights Office in which she alleged Rodriquez unlawfully denied her an interview for
the Licensing and Permit Specialist IV job because of her race, sex, and disability.
[#26-2] Exs. at 52.

2

See

Resp.

Crampton was issued a Second Level Reminder on November 9, 2015. Rodriguez Dccl.

at APPX-0131-34.

This reminder documented Crampton's disciplinary history, including

complaints from other DADS employees and management. See id. Rodriguez and Bourland met

with Crampton in person to discuss the Second Level Reminder, and both found Crampton's
behavior in the meeting to be inappropriate and consistent with that for which she was being
disciplined. See Id. at APPX-0 124; Bourland Dccl. at APPX-0220-2 1.
The Office of Inspector General (OIG) initiated an investigation on December 31, 2015
based on a complaint submitted by Crampton. See Mot. Summ. J. [#17-5] Ex. D (OIG Records)
at APPX-0118. The OIG originally referred Crampton's complaint to the Civil Rights Office

and closed the investigation on January 28, 2106. See id. at APPX-0120; see also [#17-13] Ex. L
(OIG Report) at 3.

Crampton continued reporting alleged unlawful conduct to the OIG and

others. Resp. [#26] at 3-6. On March 29, 2016, the OIG reopened its investigation based on

new information submitted by Crampton.

See

010 Report at

3.

After performing a full

investigation, the OIG again closed the investigation finding Crampton's allegations to be
unsubstantiated. See Id. at 1-25.

On March 28, 2016, Rodriguez issued Crampton a Decision-Making Leave (DML) letter

documenting Crampton's continued behavior problems at work. See Rodriguez Dccl. at APPX0137-39. The DML letter required Crampton take paid time off to make a decision on her job
performance and continued employment. Rodriguez Dccl. at APPX-0137-39. Rodriguez and

Robbi Craig met with Crampton on April 1, 2016 to discuss the DML letter. See Id. at APPX0124; see also Mot. Sumni. J. [#17-7] Ex. F (Craig Decl.) at 154. Audio

of the meeting was

recorded, and both Rodriguez and Craig documented Crampton's behavior as inappropriate and

disrespectful. Id; see also Mot. Summ. J. [#17-4] Ex. C (Meeting Tr.). Later that day, DADS

3

management decided Crampton should be issued a Notice of Possible Disciplinary Action
(NOPDA). Rodriguez Deci. at APPX-0 124. Notes from the meeting indicate Crampton's report

the OIG was discussed.

See

Resp. [#26-2] Exs. at 94 (listing "OIG, Civil Rights, Fraud" in

meeting notes).
The NOPDA letter was sent to Crampton on April 7, 2016, and she responded to

Rodriguez by email on April 15, 2016.

See

id.

at APPX-0142-49. After reviewing Crampton's

response, Rodriguez issued a Notice of Final Disciplinary Action to Crampton on April 15, 2016,
effectively terminating Crampton's employment with DADS.

See

Id.

at APPX-0150-51.

On July 8, 2016, Crampton filed this lawsuit against Defendants in the 200th Judicial

District Court of Travis County, Texas.

See

Notice Removal [#1-4] (Pet.). Defendants removed

the case to this Court on August 10, 2016, invoking the Court's jurisdiction under 28 U.S.C.
§ 144 1(b).

See

Notice Removal [#1].

Crampton contends Defendants violated the Texas

Whistleblower Act, the First Amendment of the United States Constitution, and Article 1,
Section 8 of the Texas Constitution in terminating her employment. Pet. at ¶f 68-85.

Defendants filed the instant motion for summary judgment on July 7, 2017, and
Crampton responded on July 25, 2017.

After summary judgment briefing was completed,

Crampton filed a motion for leave to amend her summary judgment response and to supplement

the record with a declaration from Mary Jo Grassmuck. Both motions are fully briefed and ripe
for consideration.

Analysis
I.

Plaintiff's Motion for Leave
Plaintiff Crampton seeks leave to amend her summary judgment response and to

supplement the record with newly obtained declaration from Mary J0 Grassmuck, her former

4

manager at DADS. See Mot. Leave [#28]. Crampton explains she received the declaration on
August 4, 2017, after the summary judgment response deadline. Id. at 1. Defendants oppose the

motion for a lack of good cause and also challenge the admissibility of the statements in the
declaration. See Resp. [#29].
The Court entered its scheduling order in this case on September 9, 2016. See Order of
Sep. 9, 2016 [#6]. According to the scheduling order, the parties were to complete discovery

before May 1, 2016, and submit dispositive motions by June 2, 2017. Id.' Crampton describes

that she obtained Grassmuck's declaration after these deadlines, but offers no explanation or

justification for the delay. Crampton was in communication with Grassmuck months before the
summary judgment briefing deadline in this case and thus had ample opportunity to obtain this

declaration before the Court's deadline. Resp. [29-1] Ex. A (Crampton Dep. Tr.) at 3. The
Court finds no basis for allowing Crampton to supplement the record under these circumstances.

Accordingly, Crampton's motion for leave to amend her summary judgment response and
supplement the record with newly obtained evidence is DENIED.

II.

Defendants' Motion for Summary Judgment

A.

Legal

StandardSummary Judgment

Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact

and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

(5th Cir. 2007). A dispute regarding a material fact is "genuine"

v.

Harvey, 504 F.3d 505, 508

if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

By agreement of the parties, the Court extended the dispositive motion deadline to July 7, 2017. Order of

May31, 2017 [#15].

5

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable

to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support

the nonmoving party's case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner
476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The

Id.

party

opposing summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his claim. Adams

v.

Travelers

Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to

the motion for summary judgment. Id.
"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in
ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to its case and on which it will bear

the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B.

Application
As indicated above, Plaintiff asserts a claim under the Texas Whistleblower Act, as well

as claims for retaliatory discharge under the United States and Texas constitutions. The Court

will address each claim in turn.
1.

Texas Whistleblower Act Claim

Crampton alleges Defendants violated the Texas Whistleblower Act by terminating her
employment within 90 days of her reports of "falsification of government records and violations

of Chapter 142 in the Health and Safety Code and Chapter 97 of the Texas Administrative Code,
Title 40" to the OAG and 01G. Pet, at ¶f 68-77.
To prevail on a Texas Whistleblower Act claim, a plaintiff must show she was a public

employee who in good faith reported a violation of law to an appropriate law enforcement
authority, and that her report was the cause of the employer's discriminatory conduct. See
Bosque v. Starr County, Tex., 630 F. App'x 300, 306 (5th Cir. 2015) (referencing TEX. GOV'T
CODE

§

554.002). A plaintiff may rely on circumstantial evidence to establish a causal link,

including (1) knowledge of the report of illegal conduct, (2) expression of a negative attitude

toward the employee's report of the conduct, (3) failure to adhere to established company
policies regarding employment decisions, (4) discriminatory treatment in comparison to other
similarly situated employees, and (5) evidence that the stated reason for the adverse employment
action was false. See City ofFort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000).

Defendants have moved for summary judgment, arguing Crampton did not report certain
alleged wrongdoings to the appropriate government authorities, did not make a good faith report

7

of a violation of law, and cannot establish but-for causation between her reports and her
termination. Mot. Summ. J. [#26] at 13-17. Crampton responds she has shown substantial
evidence of each challenged element, thereby precluding summary judgment of her Texas

Whistleblower Act claim. Resp. [#26] at 21.
The Court finds Crampton has failed to carry her burden of showing but-for causation.

Crampton contends a jury could find her reports to the OIG and OAG caused her termination
because these reports were considered in her termination meeting and she was terminated within
90 days of a report to the 01G. See Resp. [#26] at 25-26. The Court disagrees.

The cited evidence merely establishes knowledge of Crampton's complaints of alleged

wrongdoing. As Crampton suggests, notes from the April 1, 2016 DADS management meeting

list "OIG, Civil Rights, Fraud." See Resp. [#26-2] Exs. at 94. However, the listing of these
reports in meeting notes does not indicate the reports factored into management's disciplinary
decision. That is, there is no indication Crampton' s report motivated Defendants to terminate her

employment. Moreover, these notes are for a meeting to discuss sending Crampton the NPDA
letter, not the later discussions on April 15, 2016 in which Defendants considered Crampton's

response to the NPDA letter and ultimately decided to terminate her employment.

See

Rodriguez Decl. at 124-25; Mot. Summ. J. [#17-10] Ex. I (Craig Dep. Tr.) at APPX-0249.
Crampton has submitted no evidence that her reports to the OIG or OAG factored into the later
decision to terminate her employment or any other DADS disciplinary decision. Crampton's
reliance on Torres is unpersuasive. Unlike here, the employer in Torres made statements that the

employee's complaint was the reason for the adverse employment decision. See Torres v. City of
San Antonio, 04-15-00664-CV, 2016 WL 7119056, at *5 (Tex.
2016, no pet.)

8

App.San

Antonio Dec. 7,

The timing of Crampton' s termination is less suspect than suggested. It is unclear which

report Crampton is referring to in her briefing when she alleges termination "within 90 days of a
report to 010." See Resp. [#261 at 26.

Crampton submitted reports to 40 or 50 different

officials, starting in September or October 2015, at least six months before her April 15, 2016

termination. See Resp. [#26] at 2, 22. The OIG initiated an investigation on December 31, 2015
based on Crampton' s complaint. See

010 Report at 3. Any of these reports were more than 90

days before Crampton's termination.

Crampton also submitted additional information to the

OIG that led to its reopening the investigation on March 29, 2016 as well as an email on April 7,

2016 alleging Ms. Rodriguez committed fraud. Resp. [#26] at 6-7. While the later contacts with

the OIG may have been within 90 days of Crampton's termination, she is only entitled to a
rebuttable presumption of causation. See TEX. Gov. CODE ANN.

§

554.004(a). Defendants have

offered ample evidence of a non-retaliatory basis for Crampton' s termination to rebut this

presumption. See Wyman

v.

City ofDallas, CIV.A.3 :02-CV-2496-D, 2004 WL 2100257, at *15

(N.D. Tex. Sept. 21, 2004) ("The statutory presumption is rebutted and becomes a nullity once a

defendant produces sufficient evidence to suggest that it did not take the adverse employment
decision against the employee because of his reports.").
Cases in which circumstantial evidence has survived summary judgment usually involve
evidence tying the employer's discrimination to the employee's report. See e.g., Bosque

v.

County, Tex., 630 Fed. App'x 300, 307 (5th Cir. 2015) (citing employer's knowledge

Starr

of the

report, "substantial and powerftil evidence of pretext," and temporal proximity); City of El Paso
v.

Parsons, 353 S.W.3d 215, 226 (Tex.

App.El

Paso 2011, no pet.) (citing employer's

knowledge, temporal proximity, and evidence employer's non-retaliatory explanations were

"pretextual and false");

Torres, 2016 WL 7119056, at *5 (citing employer's statement that

employee's complaint was the reason for the adverse employment decision, and evidence of
employer's resentment of the employee's complaint). By contrast, the evidence here suggests a
continued pattern of behavioral issues that started before Crampton submitted any reports of
alleged wrongdoing.

See

Rodriguez Deci. at APPX-0130-34; Id at APPX-0137-146; Id. at

APPX-0150-51.
Finally, Crampton's own statements undermine any causal connection between her

termination and her reports to the OIG and OAG. Crampton testified in her deposition that she
believed race was the cause of her termination.

See

Crampton Dep. Tr. at APPX-0041 ("Q. Do

you think you would've been fired if you were Hispanic? A. No. I don't."). The OIG Report
reflects that Crampton told the investigator her Second Level Reminder discipline was retaliation
for finding errors on applications.

See

OIG Report at 1, 5, 23. In response to her NPDA letter,

Crampon suggested her complaints to the EEOC and the Civil Rights Office were the reasons for
her discipline and pending termination.

See

Rodriguez Dccl. at APPX-O 147 (stating these

reports caused hostility that "ha[s] already determined the outcome of this soap opera that our
department is famous for.").
For these reasons, the Court concludes no reasonable jury could determine Crampton's

reporting to the OIG and OAG were the but-for cause for her termination.

Accordingly,

Defendants are entitled to summary judgment on this claim.
B. Retaliatory discharge Claims

Crampton alleges she engaged in protected free speech as a citizen when she reported
official misconduct occurring at DADS. Pet. at ¶IJ 78-85. According to Crampton, Defendants
were motivated by her protected speech in terminating her employment in violation of the First

10

Amendment of the United States Constitution and Article 1, Section 8 of the Texas constitution.
Id.

To establish a retaliatory discharge claim, a plaintiff must show (1) an adverse

employment decision; (2) plaintiff's speech involved a matter of public concern; (3) plaintiff's
interest in commenting on matters of public concern outweighs the defendant's interest in
promoting workplace efficiency; and (4) plaintiffs speech motivated the defendant's action.

Modica

v.

Taylor, 465 F.3d 174, 179-80 (5th Cir. 2006); see also Bentley v. Bunton, 94 S.W.3d

561, 579 (Tex. 2002) (analyzing Texas Constitution claim pursuant to First Amendment

jurisprudence).

If the plaintiff can establish these elements, the burden shifts to defendants to

show "that they would have come to the same conclusion in the absence of the protected

conduct." Beattie

v.

Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001). Whether a

public employee spoke on a matter of public concern is a question of law. Modica, 465 F.3d at
180.

Defendants have moved for summary judgment, asserting Crampton does not have a
triable claim for retaliation.

Specifically, Defendants assert Crampton did not engage in

protected free speech because her speech was motivated by her own personal interests. Mot.
Summ. J. [#17] at 7-9. Defendants also contend Crampton cannot show a causal connection

between her speech and her termination because there were legitimate, non-retaliatory reasons
for Crampton's termination. Id. at 9-10. Finally, Defendants argue Crampton's claims against

Defendant Weizenbaum fail under the doctrine of respondeat superior liability, and Defendants

Weizenbaum and Rodriguez are entitled to qualified immunity against any claims for damages.
Id. at 10-12.

11

The Court finds Defendants are entitled to summary judgment for the following reasons.
First, Crampton has failed to identify the precise speech underlying her claims of retaliatory

discharge. Crampton's complaint refers to numerous communications made to various persons

and agencies at various times.

See

Pet. [#1-4] at ¶J36, 41, 43, 45, 46, 55-57, 59. Despite being

put on notice of her duty to identify the precise speech underlying her claims, Crampton's
response to Defendants' summary judgement refers generally her "whistleblowing activity

detailed above."

See

Resp. [#26] at 10 (referring back presumably to the eight pages of factual

background recounting numerous reports).

Crampton submitted initial reports of alleged

wrongdoing to "over 40, 50 people," and she admits being unable to recall who she complained
to and when.

See

Crampton Dep. Tr. at APPX-0012-14. Precise identification of protected

speech is necessary for the Court to consider Crampton's retaliatory discharge claims, and

Defendants are entitled to summary judgment because Crampton has failed to carry this burden.
See Foley

v.

Univ.

of Houston

Sys.,

355 F.3d 333, 341-42 (5th Cir. 2003) (dismissing claims

because plaintiff failed to offer "precise identification of the speech as to which First

Amendment protection is claimed, which would permit consideration of its content, context, and
form as required by the Supreme Court").
Second, the Court finds as a matter of law Crampton's speech was not directed to a

matter of public concern. Crampton contends her speech was a matter of public concern because
she spoke as a citizen and her speech described how DADS was not checking the qualifications

of management personnel; how DADS was potentially fraudulently fining agencies; and how her
supervisor may have forged signatures on documents.

See

Resp. [#26] at 10-12. Because most

anything that occurs within a public agency could be of concern to the public, courts must
examine the inherent interest of the matters discussed and the speaker's motivation.

12

See Harris

ex rel. Harris v. Pontotoc County Sch. Dist., 635 F.3d 685, 692 (5th Cir. 2011). A close review

of the record reflects Crampton was motivated primarily by her own private considerations.
Crampton described in her deposition sending reports to various agencies because "I wanted
help. I wanted help to save my job, to show what was happening to me." See Crampton Dep. Tr.

at APPX-0014. She also described following up with the OAG because "I wanted these people
to know that they had suspended me." Id. at Appx-00015. Interview summaries in the OIG

Report confirm Crampton's statements were primarily addressing personal considerations,

including her alleged retaliation for finding errors in reports, unfairness of her disciplinary
reminder, lack of compensation for working extra hours, isolation from coworkers, unfair hiring
practices, and inconsistent disciplinary within her group. See OIG Report at 3, 7-8. In addition,

Crampton's reports came after she was denied an opportunity to interview for the Licensing and
Permit Specialist IV position in September 2015 and her initial discipline by Rodriguez. See
Rodriguez Deci. at APPX-0130-34. Summary judgment is appropriate in this case because the
record reflects Crampton was speaking primarily on private matters, not as a citizen on matters

of public concern.

See Harris., 635 F.3d at 692 (granting summary judgment on First

Amendment claims because plaintiff "did not speak predominantly as a citizen," but instead to
personal matters).
In sum, the Court finds Crampton has failed to present a plausible claim retaliatory
discharge for violation of her rights United States or Texas Constitutions.

13

Conclusion
Accordingly,
IT IS ORDERED that Defendants Jon Weizenbaum, Sylvia Rodriguez, and Texas
Department of Aging and Disability Services Motion for Summary Judgment [#17] is
GRANTED; and
IT IS FURTHER ORDERED that Plaintiff Jennifer Crampton's Opposed

Motion for Leave to File Supplement Summary Judgment Response with

Newly Obtained Evidence [#28] is DENIED.
SIGNED this the

/'

day of November 2017.

UNITED STATES

14

ISTRICT JUDGE