Texas Department of Criminal Justice v. McElyea

239 S.W.3d 842, 2007 Tex. App. LEXIS 5961, 2007 WL 2141259
CourtCourt of Appeals of Texas
DecidedJuly 26, 2007
Docket03-06-00244-CV
StatusPublished
Cited by44 cases

This text of 239 S.W.3d 842 (Texas Department of Criminal Justice v. McElyea) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Department of Criminal Justice v. McElyea, 239 S.W.3d 842, 2007 Tex. App. LEXIS 5961, 2007 WL 2141259 (Tex. Ct. App. 2007).

Opinions

OPINION

DIANE HENSON, Justice.

The Texas Department of Criminal Justice appeals a judgment entered pursuant to a jury verdict finding the Department liable to Edward McElyea for violations of the Texas whistleblower statute and awarding McElyea actual damages and attorney’s fees. See Tex. Gov’t Code Ann. § 554.002 (West 2004). In its sole issue on appeal,1 the Department contends that legally and factually insufficient evidence was presented at trial to support findings that McElyea reported a violation of law in good faith and that his report was causally linked to the decision not to rehire him after a reduction in force eliminated his position at the Department. We will affirm the trial court’s judgment.

BACKGROUND

McElyea began working for the Department in 1984 as an investigator in the Internal Affairs Division.2 The Internal Affairs Division investigated the conduct of Department employees, including complaints of excessive use of force by prison employees against inmates. During his tenure with the Internal Affairs Division, McElyea received a number of promotions: in 1985, he was promoted to assistant regional manager; in 1989, he was promoted to regional manager; and in 1994, he was promoted to multi-regional administrator, the position that he retained until its elimination in May 2001. McElyea was never disciplined as an employee of the Department. All the witnesses who expressed an opinion testified that McElyea was a good employee.

Around February 27, 2001, McElyea had a conversation with Fred Rhea, a peace officer for the Department, in which Rhea told McElyea that Terry Cobbs, another Department peace officer, “had called up Fred and given him an assignment to work” a job providing security for a wealthy Houston family that was visiting the central Texas area. Cobbs had been working for the family for some time, but was unavailable for that particular assign[845]*845ment. Rhea told MeElyea that he had been paid $500 for the job. MeElyea did not inquire further about the security job, and the conversation moved to another subject.

The following day, MeElyea decided that he needed to report Cobbs’s conduct to his superiors because the Department’s code of ethics required employees to “report any corrupt or unethical behavior which could affect employees, offenders, or the integrity of the TDCJ.” MeElyea testified that he believed that Cobbs had violated Department policies concerning approval of off-duty jobs and use of the Department commission in connection with off-duty jobs3 and also potentially violated the Private Security Act4 and state law governing the use of state vehicles.5 After a management conference, MeElyea approached the three people in his chain of command that were above him in the organization — John McAuliffe, the Inspector General for the Department,6 Leon Guinn, the director of the Internal Affairs Division, and Claude Williams, the deputy director of the Internal Affairs Division — to discuss his conversation with Rhea and McElyea’s concerns about Cobbs’s conduct violating state law and Department policies.

According to Guinn, “McAuliffe seemed to be very agitated and upset at the allegation.” Guinn stated that he had three conversations with McAuliffe about McE-lyea’s allegations and that each time McAuliffe seemed upset.7

McAuliffe testified that shortly after McElyea’s oral report, he asked John Moriarty, who supervised Cobbs and Rhea, to look into McElyea’s allegations. Cobbs authored two interoffice communications on March 5, 2001. In the first, Cobbs described contacting Rhea regarding a job for a family that required assistance with child care. In the second, Cobbs asked permission to hold outside employment. In it, he stated that “[t]he employment includes ‘house sitting’ at a private residence and assisting with child care on an as-needed basis.” At trial, Cobbs admitted that he was the head of security for the family and had coordinated the activities of a sizeable cadre of off-duty peace officers. Documents admitted into evidence at trial indicate that Cobbs had worked for the family as head of security for several years prior to March 2001 and often worked as much as 32 hours per week.

McAuliffe testified that during this inquiry, it came to his attention that fifteen to twenty Internal Affairs employees held unapproved off-duty jobs. McAuliffe stated that he instructed Moriarty to “find out who these people were, what their duties were and then to have them put the prop[846]*846er request through their supervisors for approval to see if it would be approved that they could work an extra job.” McAuliffe testified that he, Moriarty, and Guinn decided that this was the appropriate course of action to respond to McE-lyea’s allegations rather than to open a large investigation that would involve many Internal Affairs Division employees. McAuliffe testified that he had some questions about Cobbs’s two interoffice communications — McAuliffe’s handwritten notes on the documents indicate that he desired further information concerning whether the job involved security or childcare, how often Cobbs was working, and “whether or not [Cobbs was] required to be armed for childcare.” McAuliffe testified that Cobbs provided satisfactory answers to the questions, although he could not recall any details, and that he did not make any farther inquiries about Cobbs.

On March 12, 2001, in response to a request from McAuliffe, McElyea faxed to McAuliffe an interoffice communication that stated,

On or about February 27, 2001, Investigator Fred Rhea was in my office discussing various subjects of mutual interest. Investigator Rhea informed me that Investigator Terry Cobbs, who is assigned to the Gulf Coast Violent Offenders Fugitive Task Force, had contacted him regarding an off duty job. Investigator Rhea informed me ' that Cobbs was providing security to a wealthy individual who lived in Houston, Texas, and was being paid for it. Rhea further ‘ advised me that this unknown person had traveled to the San Antonio area and that Cobbs had requested that Rhea provide security for this person and Rhea did so. I informed you of this information on February 28, 2001, in the presence of Mr. Guinn. On March 12, 2001, you directed me to provide you with this information in writing, and this IOC fulfills that order.

The document went on to state that “[i]f these allegations are found to be true, Investigator Cobbs has violated IAD and TDCJ Policy. In addition Cobbs may have violated state laws governing peace officers that utilize their commission for off duty private security jobs.” McElyea included an internet summary of the Private Security Act with his interoffice communication.

Williams, who was McElyea’s direct supervisor at the time the allegations were made, testified that he spoke with both McAuliffe and Moriarty about McElyea’s allegations shortly after they were made. Williams stated that McAuliffe told him that McElyea “needs to back off of that, that Mr. Moriarty was going to be the next Inspector General and you’ve got to let it go at that.” Williams further testified, “Mr. Moriarty came to my office. He shut the door. And I could tell he was very angry. He was red in the face.

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Bluebook (online)
239 S.W.3d 842, 2007 Tex. App. LEXIS 5961, 2007 WL 2141259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-department-of-criminal-justice-v-mcelyea-texapp-2007.