         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00752-CV



                                   Ramesh Gudur, Appellant

                                                 v.

                             Texas Department of Health, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
           NO. GN001593, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This case arises from a summary judgment against Ramesh Gudar in a suit he brought

under the Texas Whistleblower Act against the Texas Department of Health (the Department). See

Tex. Gov’t Code Ann. § 554.001-.010 (West 2004). We will affirm the judgment of the district

court.


                                        BACKGROUND

               Gudur worked for the Department for over sixteen years, both in Austin and in

Houston.    According to Gudur’s pleadings, during the course of his employment with the

Department, he “was subjected to retaliation in terms of repeated non-promotion to higher jobs,

hostile and unsafe working conditions, pretextual disciplining, down grading of professional status,
being given clerical assignments though a professional employee, negative references, lost

opportunities and finally termination.” In particular, he alleged that, in August 1998, he expressed

his concern to Department managers that his supervisor, Sheryl Guilbeaux, and Peggy Gulledge,

another Department supervisor, were traveling at government expense for personal pleasure. As an

example, he had mentioned an upcoming trip to Harlingen that the two supervisors had allegedly

scheduled.1 This scheduled trip was cancelled after Gudur questioned its legitimacy. At that time,

he believed that Guilbeaux threatened to “get rid of him if he pursued this matter.” He asserted that,

in retaliation, Guilbeaux “tried to make [Gudur] look bad to the higher manager” and that she

cancelled a presentation he organized and had previously received permission to give.

                    Gudur stated further that Guilbeaux voted against him when serving as a member of

committees considering his applications for higher positions with the department and that she

advocated to other members of the committees against his applications. She also “made up or

distorted events” concerning him. Although he received a positive review from a new program

director, Judy Morris, he believed that Morris began engaging in similar behavior toward him after

he complained to her about Guilbeaux’s actions. He alleged that she also refused to give him major

assignments and “marginalized his work and efforts to take on major responsibilities.” Later, Gudur

applied for a position as Operations Manager; according to Gudur’s pleadings, Guilbeaux helped

in the eventual hiring of Raymond Turner, a friend of hers, for the position. Gudur asserted that

Turner then joined with Guilbeaux and Morris in “harassing” him, “raising trivial objections




          1
              He thought this trip was suspicious because the airport in Harlingen is close to South Padre
Island.

                                                      2
regarding paperwork and ‘creating’ incidents to discipline and reprimand” him. He also asserts that,

after he informed the Department that he had filed a complaint with the federal Equal Employment

Opportunity Commission, some Department managers and employees attempted to “entrap and

frame” him in order to develop reasons to support his termination.

               On January 24, 2000, Gudur filed a letter with the investigations section of the

Department’s “Office of General Counsel,” alleging various acts of “potential fraud/abuse engaged

in” by Guilbeaux, Gulledge, and other employees. In particular, he noted a trip to Laredo taken by

Guilbeaux and Gulledge in July 1998, the cancelled trip to Harlingen in August 1998, various details

about alleged retaliatory actions taken against him, and questions concerning whether proper leave

forms were submitted by Guilbeaux, Gulledge, and other employees during periods he described as

unexplained absences. On February 2, the Department notified Gudur of its intent to dismiss him

from employment because of failure “to maintain effective working relationships” and failure “to

communicate with respect.” In particular, the Department noted behavior toward other employees

and supervisors, screaming, loud disagreements, accusations of lying and use of profanity.2 On

February 24, Charles Pankey, the Department’s director of its Office of Equal Opportunity,

responded by letter to Gudur’s complaints that the Department would be investigating his claims and

encouraged him to also seek assistance from the Equal Employment Opportunity Commission and




       2
         On February 25, the Department amended its notice of intent to dismiss, adding the charge
that Gudur used work computers to download sexually explicit material from the internet. In his
response to the Department’s no-evidence motion for summary judgment, Gudur attached, as
evidence of inappropriate usage of the internet by other employees who were not disciplined, an
email from a Department employee concerning the availability of tickets to a theater performance
in Austin that another Department employee would not be using and was offering for sale.

                                                 3
the Texas Commission on Human Rights. The Department terminated him from his position on

March 3, 2000.

                Appearing pro se, Gudur filed this suit on June 1, 2000. The Department filed a no-

evidence motion for summary judgment, asserting only that Gudur could produce no evidence that

he reported any violation of the law or that he reported a violation to “an appropriate law

enforcement authority.” See Tex. Gov’t Code Ann. § 554.002(b); Tex. R. Civ. P. 166a(i). Gudur

filed a response, in which he argued that the court could not grant no-evidence summary judgment

because there had not been an adequate opportunity for discovery. See Tex. R. Civ. P. 166a(i); see

also Dickson Constr. v. Fidelity & Deposit Co., 5 S.W.3d 353, 356-57 (Tex. App.—Texarkana 1999,

pet. denied). He attached pages of alleged evidence in support of his claim but without any

authentication. In addition, he filed a motion to compel discovery, claiming that the Department did

not provide answers or documents in response to his discovery.

                The district court denied Gudur’s motion to compel discovery, granted the

Department’s no-evidence motion for summary judgment, and taxed all court costs against Gudur.

This appeal followed.


                                           DISCUSSION

                Gudur brings three issues on appeal, claiming that the district court erred in denying

his motion to compel discovery, in granting the no-evidence motion for summary judgment because

there had not been adequate time for discovery, and in taxing costs against him. We will address

each in turn.




                                                  4
Discovery issues

               In his first issue, Gudur argues that the trial court abused its discretion in denying his

motion to compel discovery because the Department’s responses to his request for production and

interrogatories were “inadequate, evasive, intended to mislead and were an abuse of the discovery

process.”3

               The scope of discovery rests within the discretion of the trial court. Ginsberg v. Fifth

Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). An abuse of discretion occurs when the trial

court’s action is arbitrary, unreasonable, or based upon a gross and prejudicial error of law, Johnson

v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985), or is without reference to any guiding

rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

With respect to the resolution of factual issues or matters committed to the trial court’s discretion,

we may not substitute our judgment for that of the trial court unless Gudur establishes that the trial

court could reasonably have reached only one decision and that the trial court’s decision is arbitrary

and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). This

burden is a heavy one. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig.

proceeding). Our review is much less deferential with respect to a trial court’s determination of the

legal principles controlling its ruling because a trial court has no discretion in determining what the

law is or in applying the law to the facts. Walker, 827 S.W.2d at 840. Thus, a clear failure by the

trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id. By




       3
          Gudur complains of the district court’s ruling concerning thirty requests for production and
ten interrogatories.

                                                   5
attacking the trial court’s order on the abuse-of-discretion ground, Gudur has assumed the heavy

burden of establishing that the trial court lacked the discretion to make the decision entered because

the facts and law required a different decision. See Johnson, 700 S.W.2d at 917-18; Midkiff v.

Shaver, 788 S.W.2d 399, 402 (Tex. App.—Amarillo 1990, no writ).

               In this case, the Department produced a list of documents it was making available to

Gudur in response to his requests for production.4 It answered some interrogatories and objected to

others on the bases that they were overly broad, not reasonably calculated to lead to the discovery

of admissible evidence, and not related to Gudur’s cause of action. The district court denied Gudur’s

motion to compel regarding each request for production. It also found some of the interrogatories

had been answered and sustained the Department’s objections on others. On appeal, Gudur argues

that the district court abused its discretion because the Department’s objections were general and not

specific and that his requests and interrogatories were not overbroad and were reasonably calculated

to lead to the discovery of admissible evidence. See Tex. R. Civ. P. 193.2(a). He also complains

that the district court had no legal basis on which to deny his motion on thirty of his requests for

production.

               Gudur’s request for production contained 58 requests concerning the Department’s

practices, records concerning his activities while employed by the Department, and records

concerning the activities of other employees from 1996 until 2003. For example, he requested

witness statements from Morris and Guilbeaux concerning all communications regarding any




       4
         In its brief, the Department states that the documents amounted to over 1000 pages. Gudur
has not made those documents part of the appellate record.

                                                  6
employment references requested about him, computer use history of thirty-four employees over the

course of almost eight years, records concerning non-work related faxes sent by any employee during

the same eight-year period, all documents concerning Gudur’s applications for promotions during

a four-year period, personnel files of any other employee who had filed a whistleblower suit against

the Department during a nine-year period, personnel documents of other employees who received

jobs for which Gudur applied, whistleblower complaints filed by other employees during a twelve-

year period, and other similar documents. The record also contains the Department’s response, in

which it lists documents it made available to Gudur in response to the requests for production,

documents not made part of record. Gudur’s first set of interrogatories contained twenty-five

questions, asking for similar information.

               We have reviewed the record carefully and are unable to conclude that the district

court abused its discretion in denying Gudur’s motion to compel. We overrule Gudur’s first issue.


No-evidence motion for summary judgment

               In his second issue, Gudur asserts that the district court erred in granting the

Department’s no-evidence motion for summary judgment. In particular, he argues that he presented

evidence raising a fact issue concerning damages, that he was prevented from providing evidence

on other elements because he did not have adequate time for discovery, that the burden of proof had

shifted to the Department, see Tex. Gov’t Code Ann. § 554.004 (West 2004), and that he raised

genuine issues of material fact concerning the reason for his termination.

               A no-evidence summary judgment is essentially a pretrial directed verdict; thus, we

apply the same legal sufficiency standard in reviewing the no-evidence summary judgment as we

                                                 7
apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.

App.—Austin 1998, no pet.). A no-evidence summary judgment is improperly granted if the

non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material

fact. See Fort Worth Osteopathic Hosp. v. Reese, Inc., 148 S.W.3d 94, 99 (Tex. 2004); Cantu v.

Texas Workforce Comm’n, 145 S.W.3d 236, 239 (Tex. App.—Austin 2004, no pet.). A no-evidence

point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court

is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists if it would allow

reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

               We note at the outset that the Department’s no-evidence motion for summary

judgment attacked only two elements of Gudur’s claim—that he reported a violation of the law or

that he reported a violation to an appropriate law enforcement agency. See Tex. Gov’t Code Ann.

§ 554.002. The issue of damages was not within the scope of the motion. Therefore, we will not

consider damages when reviewing the district court’s judgment. See Cincinnati Life Ins. Co. v.

Cates, 927 S.W.2d 623, 625 (Tex. 1996).

               We now consider Gudur’s argument that he was prevented from providing evidence

because he did not have adequate time for discovery. When a party contends that it has not had an

adequate opportunity for discovery before a summary-judgment hearing, it must file either an



                                                  8
affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco Inc.

v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); TemPay, Inc. v. TNT Concrete &

Constr., Inc., 37 S.W.3d 517, 521 (Tex. App.—Austin 2001, pet. denied). The record in this case

indicates that Gudur did not seek either form of relief.5 Therefore, his contention concerning

adequate time for discovery is waived.

               We next turn to Gudur’s assertion that the burden of proof on summary judgment

rested on the Department because he was terminated within 90 days of making a report of a violation

of the law. See Tex. Gov’t Code Ann. § 554.004. The essential elements of a whistleblower claim

are: (1) a public employee acting in good faith makes a report; (2) the report involves conduct

violating a law by the agency or a public employee; (3) the report is made to an appropriate law

enforcement authority; and (4) the public employee suffers retaliation for making the report. Id.

§ 554.002; Duvall v. Texas Dep’t of Human Servs., 82 S.W.3d 474, 478 (Tex. App.—Austin 2002,

no pet.). In its no-evidence motion for summary judgment, the Department asserted that Gudur


       5
          The record contains a letter requesting a continuance, but it was not verified and is attached
to Gudur’s response to the motion for summary judgment. The record also contains an unsigned,
unnotarized “affidavit” attached to Gudur’s motion to compel discovery. In this document, Gudur
asserts that a separate, signed document was “faxed separately since it could not be faxed via
computer.” We have examined the record but have not found the referenced affidavit. In any event,
the “affidavit” in the record does not explain the need for further discovery. See Tenneco Inc. v.
Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); TemPay, Inc. v. TNT Concrete & Constr.,
Inc., 37 S.W.3d 517, 521 (Tex. App.—Austin 2001, pet. denied). Pro se representation does not
excuse an appellant from complying with applicable rules of procedure: “Neither is [the right of
self-representation] a license not to comply with the relevant rules of procedural and substantive
law.” Faretta v. California, 422 U.S. 806, 834 n.46 (1975). “Litigants who represent themselves
must comply with the applicable procedural rules, or else they would be given an unfair advantage
over litigants represented by counsel.” Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.
1978); see also Laubach v. Chunn, 2003 Tex. App. LEXIS 5319, at *2 n.2 (Tex. App.—Austin June
26, 2003, no pet.).

                                                   9
lacked evidence that he had reported a violation of the law and that he lacked evidence that he had

reported such a violation to an appropriate law-enforcement authority. Both claims concern Gudur’s

burden to prove elements under section 554.002; the burden would not shift to the Department until

Gudur satisfied this initial burden. See id. § 554.004(a). In other words, a plaintiff’s showing that

he reported a violation of the law to an appropriate law-enforcement authority is the means by which

a plaintiff establishes the right to the statutory presumption that the retaliation occurred “because the

employee made the report” if terminated within 90 days of making the report. See id. We thus reject

Gudur’s argument that the burden had shifted to the Department for purposes of this summary

judgment.

                Finally, Gudur argues that he submitted sufficient evidence to raise a genuine issue

of material fact whether the Department “retaliated against the Plaintiff when it dismissed and

terminated him from his job after his whistle blowing.”6 In response, the Department states that

Gudur failed to properly authenticate the evidence attached to his response to the no-evidence motion

for summary judgment. Thus, it asserts that Gudur presented no evidence in response to the motion.

                “Defects in the form of affidavits or attachments will not be grounds for reversal

unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to

amend.” Tex. R. Civ. P. 166a(f). On the other hand, a defect in substance cannot be waived by

failing to object or obtain a written order. Bauer v. Jasso, 946 S.W.2d 552, 557 (Tex. App.—Corpus

Christi 1997, no writ); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex. App.—Waco




        6
        We will construe this challenge to be narrowly focused on the points raised in the
Department’s motion.

                                                   10
1995, no writ); Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex. App.—Corpus Christi 1990, no writ);

Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex. App.—Houston [1st Dist.] 1987,

no writ). Unauthenticated or unsworn documents, or documents not supported by any affidavit, are

not entitled to consideration as summary-judgment evidence. Llopa, Inc. v. Nagel, 956 S.W.2d 82,

87 (Tex. App.—San Antonio 1997, pet. denied) (citing St. Paul Cos. v. Chevron, U.S.A., Inc., 798

S.W.2d 4, 5 (Tex. App.—Houston [1st Dist.] 1990, writ dism’d by agr.)). A complete absence of

authentication is a defect of substance that is not waived by a party failing to object and may be

urged for the first time on appeal. Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451

(Tex. App.—Dallas 2002, no pet.); Medford v. Medford, 68 S.W.3d 242, 246 (Tex. App.—Fort

Worth 2002, no pet.).

               To prevail on his whistleblower claim, Gudur must show that he is a public employee,

he acted in good faith in making a report, the report involved a violation of law by his employing

governmental entity or a public employee, the report was made to an appropriate law enforcement

authority, and he suffered retaliation for making the report. See Tex. Gov’t Code Ann. § 554.002(a);

Duvall, 82 S.W.3d at 478. The “good faith” component in sections 554.002(a) (good faith report

of legal violation) and (b) (good faith belief that report is made to an appropriate law enforcement

authority) has subjective and objective prongs. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314,

320-21 (Tex. 2002).

               In response to the Department’s no-evidence motion for summary judgment, Gudur

submitted a letter he submitted to the Department’s “Office of General Counsel,” in which he

asserted that among “some unlawful acts and acts of potential fraud/abuse” were the Laredo trip



                                                11
taken by Guilbeaux and Gulledge in July 1998 and unreported leave time taken by Gulledge and

“friends” of Gulledge and Guilbeaux. He also reported what he believed to be retaliatory measures

taken against him by Guilbeaux. In that letter, he asserted that he drafted the letter in response to

a conversation he had with an investigator, Lonzo Kerr. In addition, Gudur submitted documentation

from the Department’s Office of Criminal Investigation7 that it has responsibility for investigating

alleged Department “employee misconduct which may be violations of [Department] policies and

procedures or violations of law” and fraud or “other unlawful conduct involving [Department]

resources, funds, property or programs.” He also submitted emails, employee calendars, Guilbeaux’s

notes concerning his work performance, his termination letters and responses, employment

evaluations, and a complaint form he claims he submitted to the EEOC. These documents were not

authenticated in any way and thus do not constitute competent summary-judgment evidence.8

       7
         The address for the Office of Criminal Investigations is the same one to which Gudur
addressed his letter to the “Office of General Counsel.”
       8
           Gudur attempted to cure this defect by attaching to his motion for new trial an affidavit
stating that “my attachments to my response to Defendant’s motion for no-evidence summary
judgment are within my personal knowledge and true and correct.” On appeal, he argues that this
attempt rendered the district court’s judgment in error. As a general rule, the trial court considers
the record only as it properly appears when the motion for summary judgment is heard. Marek v.
Tomoco Equipment Co., 738 S.W.2d 710, 713 (Tex. App.—Houston [14th Dist.] 1987, no writ).
However, it is within the trial court’s discretion whether to consider pleadings and affidavits filed
after the motion for summary judgment is heard but before the summary judgment is entered. Id.;
see also Boston Sea Party of Houston, Inc. v. Argovitz, 583 S.W.2d 465 (Tex. Civ. App.—Houston
[1st Dist.] 1979, no writ); Aztec Pipe & Supply Co., Inc. v. Sundance Oil Co., 568 S.W.2d 401, 403
(Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). Summary judgment evidence may be
filed late, but only with leave of court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.
1996). A party must obtain an order from the court granting leave to file, or the evidence will not
be considered as part of the record. Id.; see also O’Connor’s Texas Rules: Civil Trials, ch. 7-B,
§ 10.9.5 (2003). Assuming that Gudur’s affidavit represents an attempt to enter competent evidence
into the record, the court did not enter any order granting Gudur leave to file such evidence. In
addition, he attempted to enter the evidence after the district court entered judgment, not just after

                                                 12
                 Finally, Gudur’s response includes a document purported to be a copy of the

Department’s interrogatory responses but with Gudur’s typewritten comments. This document is

not signed by an attorney or an employee of the Department. As a result, we are unable to consider

the substance of the statements within that document as well.

                 As a result, Gudur failed to submit any competent evidence in response to the

Department’s motion for no-evidence summary judgment. We have rejected all his arguments

concerning the grant of summary judgment in favor of the Department, and we overrule his second

issue.


Costs of court

                 In his third issue, Gudur argues that the district court erred in granting costs to the

Department. In particular, he argues that he is not able to pay costs because he has been unemployed

for over three years and that he should not be taxed costs because the district court erred in denying

his motion to compel discovery.

                 “The successful party to a suit shall recover of his adversary all costs incurred therein,

except where otherwise provided.” Tex. R. Civ. P. 131. “The court may, for good cause, to be

stated on the record, adjudge the costs otherwise than as provided by law or these rules.” Tex. R.

Civ. P. 141. Rule 141 has two requirements—that there be good cause and that it be stated on the

record. Typically, “good cause” has meant that the prevailing party unnecessarily prolonged the

proceedings, unreasonably increased costs, or otherwise did something that should be penalized.




the hearing. We therefore still may not consider that evidence on appeal.

                                                    13
Furr’s Supermkts. v. Bethune, 53 S.W.3d 375, 376-77 (Tex. 2001). A party’s inability to pay court

costs is not “good cause” as a matter of law. Id. at 378.

               In its final order granting summary judgment in favor of the Department, the district

court taxed costs of court against Gudur. Nothing in the record supports a finding of good cause to

deviate from the requirements of Rule 131. We overrule Gudur’s third issue.


                                         CONCLUSION

               We have overruled Gudur’s issues on appeal. We affirm the district court’s grant of

summary judgment in favor of the Department.




                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: October 21, 2005




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