Moore v. The City of Houston

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 3, 2001
• Docket: 00-20151
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-20151

JEFFREY MOORE,

Plaintiff-Appellee,

VERSUS

THE CITY OF HOUSTON, ET AL

Defendants,

THE CITY OF HOUSTON

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-98-CV-773)

July 2, 2001

Before HIGGINBOTHAM, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

The City of Houston (“the City”) lodged this appeal following

the entry of judgment against it after a jury rendered a verdict in

favor of Jeffrey Moore. Moore filed this suit following his

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. indefinite suspension from the Houston Fire Department. He sought

relief on a number of grounds, but the only ground on which he

recovered was under the Texas Whistleblower Act (“the Act”). The

jury rendered a verdict in favor of Moore on his claim of

retaliatory discharge as a result of whistleblowing activity and

awarded damages in the amount of $104,446. After fixing the amount

of attorney’s fees and costs at $124,850, the district court

entered judgment on the verdict as supplemented by the award for

attorney’s fees.

On appeal, the City raises the following issues: 1) whether

Moore satisfied the Act’s requirement of initiating an

administrative grievance or appeal before filing suit; 2) whether

Moore was a “reporter” under the Act; 3) whether Moore needed to

demonstrate that he reported an actual violation of law; 4) whether

Moore produced sufficient evidence to establish a causal

relationship between whistleblowing activity and his termination;

5) the propriety of a jury instruction relating to whether the

activity on which Moore reported was a violation of law; and 6)

whether the district court awarded an excessive amount of

1)

The City argues first that Moore failed to satisfy the Act’s

jurisdictional requirement of asserting an administrative claim.1

1 Interestingly, the City did not present this argument to the district court.

2 The only administrative claim requirement is set forth under Texas

Gov’t Code Ann. § 554.006(a) (Vernon Supp. 2000), which provides

that: “[a] public employee must initiate action under the

grievance or appeal procedures of the employing state or local

governmental entity relating to suspension or termination of

employment or adverse personnel action before suing under this

chapter.”

After Moore received notice that he had been indefinitely

suspended, he timely filed a notice of appeal with the Civil

Service Commission. In the proceeding before the Civil Service

Commission, Moore testified that he had been retaliated against for

blowing the whistle on the fire department. Thus, Moore initiated

action under the City’s appeal procedures, and thereby satisfied

the administrative claim requirements of the statute.

2)

The City next argues that Moore did not establish that he was

a “reporter” of wrongdoing and that at most he established that he

was a witness. The record does not support the City’s argument.

Moore testified that he reported the deletion of service requests

on equipment to: Sergeant Fletcher with the Houston Police

Department; Tommy Shelton, a master mechanic with the fire

department; and Frank Gore, a shop foreman also with the fire

department. Moreover, Sergeant Fletcher’s testimony confirmed

Moore’s report to him.

3)

3 The City argues next that Moore only reported violations of

internal fire department policy, not violations of law. As a

whistleblower, however, Moore only needed to have a good faith

belief that the deletion of work orders constituted a violation of

law, not that his belief was correct. Texas Dep’t of Crim. Justice

v. Terrell, 925 S.W.2d 44, 60 (Tex.App.–Tyler 1995, no writ). The

jury was entitled to find that Moore reasonably believed that the

deletion of work orders, which could result in damaging public

property and imperiling lives, was a violation of law.

4)

The City argues next that Moore failed to establish a causal

connection between his whistleblowing activity and his indefinite

suspension. The City points to its evidence that it fired Moore

because he made false statements in his employment application. It

is uncontested that Moore falsely represented in his employment

application that he held a MBA degree from the University of

Houston.

At the time of his indefinite suspension, Moore had been

employed by the Houston Fire Department over two years. Moore

argued that after he reported the deletion of requests to repair

fire department equipment, his immediate supervisor, Steve Dornak,

looked through his personnel file searching for a reason to suspend

him. This search revealed that Moore’s original application

indicated that he held a MBA degree, but a later application for

promotion did not represent that he held such a degree. Dornak

4 testified that it was “by sheer chance” that he reviewed Moore’s

original application and discovered this discrepancy. He sent

these conflicting applications on to human resources, which

indefinitely suspended Moore for making a false statement in his

employment application.

The jury was entitled to conclude that Dornak searched Moore’s

personnel file because of Moore’s whistleblowing activity, that

this search led to the discovery of the false statement, which in

turn led to Moore’s indefinite suspension. The Texas Supreme Court

has established a generous standard for establishing causation in

whistleblower cases. In Texas Dep’t of Human Servs. v. Hinds, 904

S.W.2d 629 (Tex. 1995), the court stated that: “[t]he standard of

causation in whistleblower and similar cases should be that the

employee’s protected conduct must be such that without it, the

employer’s prohibited conduct would not have occurred when it did.”

Id. at 636.

Thus, the jury was entitled to conclude that, but for the

whistleblowing activity, the false statement in the application

would not have been discovered in 1997 and Moore would not have

been indefinitely suspended at that early date. We are satisfied,

therefore, that the jury was entitled to find that, but for Moore’s

whistleblowing activity, the City would not have indefinitely

suspended Moore when it did.

5)

The City argues finally that the court erred in instructing

5 the jury that “the Houston Fire Department’s failure to follow its

own internal policies regarding equipment service requests

constitution [sic] a violation of law under the Whistleblower Act.”

The City, however, did not object to this instruction and we

therefore only review for plain error. Given the nature of the

misconduct Moore reported, namely, the intentional deletion of

requests to service vital fire department equipment, we are

satisfied that the court’s instruction that this conduct amounted

to a violation of law is not plain error.

6)

Finally, the City challenges the amount of the district

court’s award of attorney’s fees. Our review of the record reveals

no abuse of discretion in the amount the court awarded.

Conclusion

For the reasons stated above, we AFFIRM the judgment of the

district court.