      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00766-CV



                                 Jacqueline Tomhave, Appellant

                                                  v.

                            The Oaks Psychiatric Hospital, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
       NO. 97-11117, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING



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                                     DISSENTING OPINION
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               Tomhave asked the following question in a telephone call to appellee’s program

administrator: “What if [an employee] was having a sexual relationship with [the juvenile resident]?”

As the therapist in charge of the juvenile, Tomhave was aware that the administration, after receiving

information that an employee was allegedly having inappropriate relations with a juvenile resident,

was conducting an investigation. 1 Following the investigation into the care of the juvenile, which

disclosed numerous deficiencies in his treatment and discharge, appellee terminated Tomhave for




       1
          In her original petition, Tomhave asserted that she learned of the alleged violation when she
returned from a vacation and that the matter had already been brought to the attention of the
administration. Nevertheless, the next day, because she feared “that nothing further was apparently
going to be said or done about the situation,” she, too, called an administrator to “report” the
incident.
violating its policies and procedures. The telephone call,2 Tomhave claims, entitles her to the whistle-

blower protection of section 161.134. See Tex. Health & Safety Code Ann. § 161.134 (West 2001).

                Appellee moved for summary judgment on the ground, among others, that Tomhave

failed to show a causal link between the alleged report of a violation of law and her termination.

Having carried its burden to establish that it terminated Tomhave for a legitimate, non-retaliatory

reason, appellee was entitled to summary judgment unless Tomhave presented summary judgment

evidence raising a genuine issue of material fact on this challenged element. See Texas Division-

Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam). Because Tomhave failed

to raise a material issue of fact that the reasons for her termination were pretextual, I respectfully

dissent.

                Rule 166a(i) authorizes summary judgment if, after adequate discovery time, there is

no evidence of one or more essential elements of a claim or defense on which the adverse party would

have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The party with the burden of proof at trial

has the burden of proof in the summary judgment proceeding. Once the movant specifies the

elements on which there is no evidence, the non-movant has the burden to produce evidence raising

a fact issue on them. Id. A no-evidence summary judgment is improperly granted if the non-movant

brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the

challenged elements. Id. cmt (1997 amendment); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997).


           2
           This is the only whistle-blowing statement Tomhave alleges in her petition. Tomhave does
not claim her termination resulted from her report to the Texas Department of Regulatory Services,
which did not occur until August 3, 1997, two months after her termination and shortly before she
filed this lawsuit.

                                                   2
                Here, appellee identified causation as an essential element of Tomhave’s claim and one

upon which she has the burden of proof. The health-care Whistleblower Act prohibits a mental health

facility from terminating an employee who reports illegal activity. Tex. Health & Safety Code Ann.

§ 161.134. The employee must demonstrate that the termination was “for reporting” a violation, and

that without the report, the alleged retaliatory conduct would not have occurred when it did.3

                The statute further requires us to presume the causal nexus exists if the retaliatory

conduct occurs within sixty days of reporting a violation. Id. This presumption is rebuttable; it does

not shift the burden of proof, which remains at all times with the employee. Id. § 161.134(f);

Department of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (1995); Texas Natural Res.

Conservation Comm’n v. McDill, 914 S.W.2d 718, 723 (Tex. App.—Austin 1996, no writ); Garza

v. City of Mission, 684 S.W.2d 148, 151-52 (Tex. App.—Corpus Christi 1984, writ dism’d).

Importantly, the presumption stands only in the absence of evidence to the contrary. Temple Indep.

Sch. Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995) (“A presumption is simply a rule of law

requiring the trier of fact to reach a particular conclusion in the absence of evidence to the

contrary.”); Texas Water Rights Comm’n v. Wright, 464 S.W.2d 642, 646 (Tex. 1971); Combined

Am. Ins. Co. v. Blanton, 353 S.W.2d 847, 849 (Tex. 1962) (“[A] presumption is an artificial thing,

a mere house of cards, which one moment stands with sufficient force to determine an issue, but at

the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier


        3
          The requirement of a causal link is explicit in the statute at issue here. In Department of
Human Services v. Hinds, the supreme court concluded that the Whistleblower Act, section
554.003(a), which contains a prohibition for termination of an employee “who in good faith reports
a violation of law,” requires proof of a causal link between a report of illegal conduct and the
employer’s alleged retaliatory conduct even though that element is not explicit in the statute. 904
S.W.2d 629, 633 (1995).

                                                    3
of facts.”). Once sufficient evidence is produced to support a finding of the non-existence of the

presumed fact, the case then proceeds as if no presumption ever existed. Texas A&M Univ. v.

Chambers, 31 S.W.3d 780, 784-85 (Tex. App.—Austin 2000, pet. denied); Garza at 152.4 Because

rule 166a(i) does not prohibit the movant from meeting its burden of production to rebut a

presumption, the trial court properly allowed appellee to present proof to rebut the presumption of

retaliation created by section 161.134. See Gold v. City of College Station, 40 S.W.3d 637, 645

(Tex. App.—Houston [1st Dist.] 2001, pet granted, judgm’t vacated w.r.m.); see also Jackson v.

Fiesta Mart, 979 S.W.2d 68, 70 (Tex. App.—Austin 1998, no pet.) (comparing no-evidence

summary judgment to directed verdict).

               In moving for summary judgment, appellee argues that Tomhave cannot prove a causal

link between her report and her termination. Appellee contends that it discharged Tomhave because

she violated various policies and therapeutic practices—not because she reported a violation. In

support of its assertion that Tomhave was terminated for legitimate, non-retaliatory reasons—and to


       4
           In her response to the motion, Tomhave argues that appellee may not challenge the
statutory presumption by way of a no-evidence summary judgment motion and is prohibited from
presenting evidence in support of its motion. She contends that, because the presumption requires
appellee to show that she was terminated for a non-retaliatory reason, appellee was required to
challenge the causation element in a traditional summary judgment motion.

          That Rule 166a(i) permits a motion for summary judgment to be filed “without presenting
summary judgment evidence” does not mean that supporting evidence may not be filed. A no-
evidence motion does not contemplate or require supporting evidence; neither does it prohibit
consideration of evidence. See Tex. R. Civ. P. 166a(i). To prohibit a movant from attaching
evidence to a no-evidence motion to rebut a presumption would exempt plaintiffs from no-evidence
summary judgments in cases involving presumptions. Tomhave cites no authority for this
proposition. At most, in cases where a moving party includes summary judgment evidence, we simply
conduct the review as though the motion for summary judgment were a traditional one. See Grimes
v. Andrews, 997 S.W.2d 877, 880 n.1 (Tex. App.—Waco 1999, no pet.).

                                                4
rebut the statutory presumption—appellee offered extensive affidavits, deposition excerpts, and a

statement of facts with record references. Appellee filed affidavits of its chief operations officer, the

facility’s executive medical director, and chief executive officer, establishing that Tomhave’s

termination resulted from deficiencies in her care and clinical practices relating to the juvenile.

                In addition, various witnesses testified to the reasons for Tomhave’s termination.

Terry Lipp, director of clinical services, testified in deposition that in May 1997 she discussed the

conditions of the juvenile’s impending discharge with Tomhave: he had to (i) receive and hold a

permanent job and participate in after-care therapy funded by the State of Montana for a minimum

of six months; (ii) be registered as a sex offender in Texas; and (iii) have his probation transferred

from Montana to Texas and remain on probation in Texas. When Lipp reviewed the juvenile’s

medical chart for treatment notes, she discovered discrepancies, omissions and documentation errors.

A subsequent audit of medical and treatment records revealed that Tomhave had either departed from

or ignored the instructions regarding the discharge conditions: she failed to transfer the juvenile’s

probation; she failed to document any after-care treatments; she discharged the juvenile without a

permanent job; and she failed to secure after-care payment arrangements with Montana. Lipp also

testified that Tomhave allowed the juvenile to leave campus without supervision or approval and to

stop attending group therapy. Lipp reported her findings to the chief operations officer and program

administrator Kat Neuberry, who both testified by deposition to the reasons for Tomhave’s

termination.

                In its summary judgment evidence, then, appellee established that Tomhave (i) failed

to follow the requisite discharge plan for the juvenile; (ii) failed to document the arrangements or



                                                   5
payment for post-discharge therapy which was a condition of the juvenile’s discharge; (iii) allowed

the juvenile to stop attending group sessions in violation of appellee’s policies and procedures; and

(iv) failed to maintain supporting records and documentation in connection with the juvenile’s

diagnosis, treatment, and preparation for discharge.       Thus, appellee produced abundant and

uncontroverted evidence that Tomhave was terminated for legitimate, non-retaliatory reasons.

               To defeat appellee’s no-evidence summary judgment motion, Tomhave bore the

burden of presenting evidence that appellee’s reasons for terminating her were pretextual. See M.

D. Anderson v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142-43 (2000)). In her response to the motion, Tomhave acknowledges

that appellee successfully rebutted the presumption and that she must raise a fact question as to the

challenged element, i.e., whether she was terminated for a legitimate, non-retaliatory reason, or

whether the proffered reason was a pretext. Tomhave had to produce more than a scintilla of

evidence on this element. This she failed to do. Tomhave’s response to the motion for summary

judgment did not address the evidence in her summary judgment proof as it related to causation—the

challenged element.

               A plaintiff must often prove retaliatory discharge by circumstantial evidence.5

Circumstantial evidence may be used to establish a material fact, but the circumstantial evidence must

transcend mere suspicion; the material fact must be a reasonable inference from the known




       5
          The Texas Supreme Court’s Continental Coffee opinion does not specifically endorse the
use of the factors set forth in the majority opinion. Rather, the court noted that the court of appeals
relied upon those factors and the court did not disapprove. Continental Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).

                                                  6
circumstances. Lozano v. Lozano, 52 S.W.2d 141, 149 (Tex. 2001). When circumstantial evidence

is so slight that any plausible inference is purely a guess, it is in effect no evidence. Id. at 148. To

be more than a mere scintilla, evidence must rise “to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711 (citing Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Less than a scintilla of evidence exists

when the evidence is “so weak as to do no more than create a surmise or suspicion of a fact.”

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (quoting Havner, 953 S.W.2d at 711).

                As evidence of appellee’s retaliatory motive, Tomhave presented the following

circumstantial evidence:6 (i) that appellee terminated Tomhave within sixty days of her report of the

violation; (ii) a “negative attitude” displayed by Neuberry and Lipp when she made the report; (iii)

the fact that appellee’s reasons for suspending Tomhave were different than its reasons for

terminating her; and (iv) the fact that she had never before been suspended, reprimanded or counseled

about any negative job performance. Although Tomhave relies primarily on the temporal proximity

between her telephone call to Neuberry and the date of her termination, she cites no authority for the

proposition that temporal proximity by itself is sufficient to raise a fact issue on retaliatory motive.


       6
          Tomhave did not submit an affidavit but supported her response with excerpts from four
depositions. In addition to excerpts from her own deposition, Tomhave attached brief excerpts from
the deposition of the juvenile, two pages of Lipp’s deposition, and six pages of the deposition of
appellee’s personnel director. The deposition excerpts relied upon by Tomhave do not controvert
appellee’s proof that Tomhave’s termination was for legitimate, non-retaliatory reasons. Her own
deposition focused on her suspicions of a relationship between the juvenile and the direct-care
employee and the steps she took to report her suspicions. She testified to her belief that her
termination was “perhaps” due to her report. The juvenile’s deposition addressed whether Tomhave
gave him any gifts or special favors. Neither the two pages of Lipp’s deposition or the six pages of
the personnel director’s deposition that Tomhave attached to her response controvert appellee’s
legitimate, non-retaliatory reasons for the termination.

                                                   7
Contrary to the majority’s opinion, proximity alone is insufficient to rebut an employer’s proffered

non-retaliatory explanation for its adverse employment decision. E.g., Swanson v. General Servs.

Admin. 110 F.3d 1180, 1188 (5th Cir. 1997) (stating that if timing alone were enough, any action

taken, no matter how justified, could be sustained as retaliatory); Johnson v. University of Wisconsin-

Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995). Moreover, appellee’s summary judgment evidence

amply rebutted the statutory presumption.

               Likewise, Tomhave’s evidence of a “negative attitude” by Neuberry and Lipp is

insufficient to establish the causal connection. She speculates that, because Neuberry and Lipp

instructed her not to investigate the allegations, they were hostile toward the report itself. It is as

likely that Neuberry and Lipp, who were responsible for investigating the circumstances of the

treatment and discharge of a juvenile sex offender, sought to conduct their investigation without

interference from those who were the subject of their inquiry. See generally Texas Farm Bureau Ins.

Cos. v. Sears, 54 S.W.3d 361 (Tex. App.—Waco 2001, no pet.) (discussing duty of care in

conducting an investigation). Appellee had a duty to conduct the investigation in a proper manner

and the fact that it did not include Tomhave, who was on vacation when the investigation

commenced, is no evidence. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000)

(evidence that adverse employment action was preceded by a supervisor’s negative attitude toward

an employee’s report of illegal conduct is not enough to show causal connection); Continental Coffee

Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996) (company’s legally justified conduct of

investigating workers’ compensation claims and contesting cause of alleged on-the-job injuries not

evidence of a negative attitude toward employee or retaliation).



                                                  8
               Although Tomhave argues in her brief that the stated reasons for her termination were

false, she offers no evidence for that proposition. Instead, she urges that conclusion from evidence

that she was terminated for a reason different than the reason for which she was initially suspended.

The evidence adduced establishes that Tomhave’s termination resulted from clinical mismanagement

of the treatment and discharge of the juvenile, but her initial suspension was for allegations of

“inappropriate boundaries” with the resident. In the absence of evidence that appellee’s reasons for

terminating or suspending Tomhave were pretextual, the fact that the termination turned on a broader

pattern of deficiencies is not proof of retaliatory conduct. Further, the fact that Tomhave had never

before been reprimanded, suspended, or terminated does not constitute evidence that, on this

occasion, her termination was improper.

               While Tomhave vigorously disputed appellee’s motivations in her response to the

motion, she failed to point to any competent evidence to controvert the grounds established by

appellee, including on the issue of exemplary damages discussed summarily in the majority’s opinion.

Viewed together or alone, the factors cited by Tomhave and relied upon by the majority do not

transcend mere suspicion or surmise or constitute sufficient proof to controvert appellee’s summary

judgment proof. Tomhave’s subjective belief is insufficient for a jury to reasonably infer that appellee

terminated her for reporting the violation. Texas Division-Tranter, Inc., 876 S.W.2d at 314;

Anderson v. Snider, 808 S.W.2d 54, 55 (1991); Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833

(Tex. App.—Dallas 2000, no pet.); Jenkins v. Guardian Indus., 16 S.W.3d 431, 435-36 (Tex.

App.—Waco 2000, pet. denied). Thus, I would hold that Tomhave has not produced the requisite

scintilla of evidence necessary to defeat appellee’s motion.



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                                          CONCLUSION

                Tomhave mistakes her burden in responding to appellee’s summary judgment motion.

Because she bears the burden of proof on the issue at trial, it is up to her to come forward with

specific evidence on the challenged element. Her belief that appellee’s actions were retaliatory does

not suffice to establish a genuine issue of material fact. No reasonable jury could conclude, based on

the scant evidence cited here, that appellee retaliated against Tomhave for her report. Under these

circumstances, I do not believe the trial court erred in granting summary judgment in appellee’s favor.

I respectfully dissent.




                                               Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Filed: February 28, 2002

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