The following are some recent Texas appellate court cases that are important to consider.
Safeshred, Inc. v. Martinez, 310 S.W.3d 649 (Tex.App.-Austin 2010, pet. filed)
Sabine Pilot Cause of Action-Damages- An employee of Safeshred was fired when he refused to drive a commercial vehicle he found to be unsafe and noncompliant with federal and state regulations. The employee sued alleging he had been terminated for refusing to commit an illegal act in violation of the cause of action created by the Texas Supreme Court in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985). After a jury trial, the trial court entered a judgment awarding the employee economic damages and damages for mental anguish, as well as $200,000 in punitive damages. The employer appealed contending that punitive damages are not authorized among other points of appeal. The evidence showed that the truck violated several safety laws and that the employee told the employer to drive it or he was fired. When he refused, the employer fired him. During the trial, the employee testified that the actions of his employer subjected him to stress and caused him to lose a lot of sleep. The Court of Appeals upheld the economic damages for loss of pay and found that punitive damages were available for this cause of action provided evidence of malice or gross negligence is shown. The Court found that evidence existed that the employer showed a consistent pattern of requesting or ordering him to perform illegal acts and had misrepresented that the employee had abandoned his job instead of the truth-that he had been fired. The Court found that this was evidence of specific intent to harm the employee (citing Bennett v. Reynolds, 242 S.W.3d 866,895 (Tex.App.–Austin 2007) for the principle that falsity and fabrication concerning relevant events may evidence malice). Further, the evidence showed that the employer knew that the truck was illegal that the employee was being asked to drive, which was further evidence that he was being forced to choose between his livelihood or risking criminal behavior. However, the Court held that the evidence of mental anguish did not rise to the level of being compensable. The Court cited Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) for the principle that the record must show direct evidence of the nature, duration, and severity of the mental anguish for it to survive a challenge to its compensability. If a claimant fails to show this direct evidence, the court must conduct a traditional no evidence review. In this review, the court determines whether the record contains any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. The court noted that the absence of evidence of the nature, duration and severity of mental anguish, particularly when it can be readily supplied or procured by the plaintiff, justifies close judicial scrutiny of other evidence offered on this element of damage. In the Martinez case, the plaintiff testified that the that the ordeal was “very stressful” and caused him to lose “a lot” of sleep. However, the court stated that he did not present direct evidence of the precise duration or severity of the mental anguish he suffered. Therefore, the court then examined the record under a traditional no evidence analysis for other proof of a high degree of mental pain and anguish. The court said that a plaintiff may recover for mental anguish after providing evidence of “a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair or public humiliation or a combination of any of these.” Wal-Mart Stores v. Odem, 929 S.W.2d 513, 528 (Tex.App.–San Antonio 1996, writ denied). However, evidence that a plaintiff was “unable to sleep, was depressed, and suffered from anxiety…does not rise to the level of compensable mental anguish under Texas law. Lefton v. Griffith, 136 S.W.3de 271, 279 (Tex.App.-San Antonio 2004, no pet.). Based on this law the court held that the employee’s evidence of mental anguish did not rise to the level of being compensable. Editor’s Note: This opinion does not consider the real world of a trial and a plaintiff having to say all of these “magic words” in front of a jury, nor does it account for the non-verbal aspect of a jury’s examination of the plaintiff’s demeanor and unspoken emotions, which can demonstrate mental anguish as fully as words. Also, the plaintiff walks a fine line of spending too much time talking about his mental anguish and risk alienating a jury in appearing to be a cry baby or greedy. Also, it fails to account for those individuals who are not very expressive in their ability to communicate their genuine feelings and emotions. For these reasons, it would seem best to leave the determination of mental anguish to the jury and not engage in these mental games of “magic words” and trying to tell a jury about the “precise duration” or “severity” of the mental anguish. How does anyone express the “precise duration” and know whether it would ever survive appellate review (second guessing)? Also, this opinion should be suspect as to causes of action under the Texas Commission on Human Rights Act because the compensatory damages allowed are broader than just mental anguish. The Act allows damages for “emotional pain, loss of enjoyment of life, and inconvenience” in addition to mental anguish.
Michael v. City of Dallas, 314 S.W.3d 687 (Tex.App.– Dallas 2010, pet. denied)
Employment Discrimination- Race and Disability.
Former employee of the city brought suit for disability and race discrimination and the city was granted summary judgment on the basis that employee failed to prove a prima facie case. The court stated that a prima facie case is shown by plaintiff showing (1) he was a member of a protected class, (2) he was qualified for his employment position, (3) he was subject to an adverse employment decision, and (4) he was replaced by someone outside his protected class, or he was treated less favorably than a similarly situated member of the opposite class. Number 4 of the prima facie case requirement is the one that can give many plaintiffs a problem; therefore, the court recognized that the federal courts have relaxed the requirements of proof of a prima facie case. The fourth requirement can be satisfied by generally showing that he was discharged “because of discrimination”. See, Palasota v. Haggar Clothing Co., 342 F3d. 569, 576 (5th Cir. 2003) and Nieto v. L & H Packing Co., 108 F3d 621, 624 (5th Cir. 1997).
Texas Department of Human Services v. Okoli, 317 S.W.3d 800 (Tex.App.-Houston 2010, pet. filed).
A former employee brought suit against the Texas Department of Human Services (DHS) under the Texas Whistleblower Act and the DHS filed a plea to the jurisdiction. The basis of the plea was that the employee did not report a violation of law to an appropriate law enforcement authority. It should be noted at this point that the Whistleblower Act protects a state employee’s report of a violation of civil or criminal law, as long as the report is in “good faith”, which is defined as an employee believing that the conduct reported was a violation of law and the employee’s belief was reasonable in light of the employee’s training and experience. The belief is tested as to whether it was subjectively believed by the employee to be a violation and objectively as to whether a reasonable employee in similar circumstances would believe it was a violation of law. In this case, the employee reported the violation of the law (misuse of funds in the DHS) to his supervisors in the DHS. The evidence showed that the DHS is authorized to investigate allegations of fraud and unlawful use of funds associated with its programs administered by its employees. The plaintiff proved that he was required by DHS policy the criminal matters up the chain of command and that the command had the duty to investigate reported violations and to file charges.
Plea to the Jurisdiction- Proper Notice of a Whistleblower’s Claim
This case involves a Plea to the Jurisdiction in a Whistleblower case. Considering the fact that these pleas to the jurisdiction seem to be increasing rapidly, it would be good to review the standards for review of these cases by the appellate courts as set out in this case. A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s subject matter jurisdiction. Bland, 34 S.W.3d 554. Whether the trial court had subject matter jurisdiction is a question of law that is reviewed de novo. Tex. Natural Res. Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Tex. Association of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The pleading are to be construed liberally in favor of the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Tex. Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a plea challenges the existence of jurisdictional facts, the court may consider relevant evidence submitted by the parties, that is necessary to resolve the jurisdictional issues. The pleadings relevant to a review of a plea to the jurisdiction include amended petitions, the plea to the jurisdiction, and responses filed in connection with a defendant’s plea to the jurisdiction. City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex.App.-Austin 2000, no pet.). A trial court’s review of a plea to jurisdiction mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228. The defendant is required to meet the summary judgment standard of proof for its assertions that the court lacks jurisdiction. The plaintiff is then required to show that there is a disputed material fact regarding the jurisdictional issue. Shilling, 266 S.W.3d 101. If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact finder. But, if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Id.
In this case the court of appeals considered whether the plaintiff’s notice to the county was sufficient in making a Whistleblower Act claim. In this case, the plaintiff never mentioned in her notice to the county of her complaint that she was making a Whistleblower Act claim, nor did she allege a violation of any law. The only complaint she made in her email to her supervisor was that she had not received any evaluations as required by her job description. Simply requesting an employer to reconsider termination is not sufficient notice of a claim either. An employee does not have to specifically mention that she is making a claim under the Whistleblower’s Act. However, the employee must in some reasonable manner communicate to her employer that she believes her termination was in retaliation for reporting illegal activity or that a potential Whistleblower claim exists. Therefore, the court ruled that the employee’s Whistleblower claim failed.