                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00664-CV

                                         Stephen TORRES,
                                             Appellant

                                                  v.

                                     CITY OF SAN ANTONIO,
                                            Appellee

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-13430
                           Honorable Stephani A. Walsh, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 7, 2016

REVERSED AND REMANDED

           Stephen Torres appeals the trial court’s order granting summary judgment in favor of the

City of San Antonio. Torres sued the City under the Texas Whistleblower Act after he was passed

over for a lieutenant position in the Arson department. He alleged the City retaliated against him

because he filed an internal report of wrongdoing two years before applying for the position. The

City moved for summary judgment, arguing it was entitled to judgment as a matter of law because

Torres failed to present a genuine issue of material fact establishing the alleged adverse

employment action would not have occurred “but for” his making a “good faith” report of the
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illegal activity.   We reverse the trial court’s judgment and remand the cause for further

proceedings.

                                          BACKGROUND

        Torres worked in various positions at the San Antonio Fire Department (SAFD) for more

than 17 years. On June 18, 2009, while assigned to the Arson division, Torres observed Joe Rios,

a former Arson Investigator, using Arson/peace officer credentials to access a secure area of the

San Antonio Police Department (SAPD) building. Upon investigating, Torres was told that

another former Arson investigator, Art Villarreal, also had active Arson/peace officer credentials.

Because Rios and Villarreal were supposed to turn in their Arson credentials when they transferred

out of the Arson department, Torres believed that Rios and Villarreal were purposely breaking the

law. Torres believed the improper use of credentials to be a violation of department policy as well

as a Texas Penal Code violation and immediately relayed his concerns to his supervising captain,

Christopher Casals, via text message.

        Five days later, Torres submitted a written memo to Deputy Chief Rodney Hitzfelder

detailing what he witnessed on June 18, 2009. In the memo, Torres stated he had been told that

Rios and Villarreal were allowed by Assistant Chief Noel Horan to maintain their peace officer

commissions to investigate firefighter fatalities as fire department safety officers. But Torres went

on to note that article 2.12 of the Code of Criminal Procedure, which defines “peace officers,”

does not include fire department safety officers. The memo also referenced Section 37.12 of the

Texas Penal Code, False Identification as Peace Officer. Believing that no action was being taken

in response to his complaints to Casals and Hitzfelder, Torres filed a report with the Office of

Municipal Integrity (OMI) two days after submitting the memo to Hitzfelder.

        After an investigation, OMI discovered that Rios held credentials that erroneously listed

him as being assigned to Arson and also listed a badge number that had already been assigned to
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his replacement in Arson. In addition, the OMI investigation revealed that SAFD Chief Charles

Hood was aware that the commissions on Villarreal and Rios were being maintained, because he

approved them; Chief Hood, however, was unaware that public law only allows Arson

investigators to be commissioned. Ultimately, OMI labeled Torres’s allegation as “unfounded.”

“Although OMI could not validate the presence of fraud, the existing process by which SAFD

personnel outside of the Arson unit are allowed to maintain their peace officer status was

reevaluated to establish a process that would not violate existing policy or penal code as suggested

in the complaint [filed by Torres].” Accordingly, the process changed by having Chief Hood,

rather than San Antonio Police Chief William McManus, sign the credentials. Two months later,

Torres requested that he be transferred out of Arson, citing health issues and a deteriorating

relationship with Casals.

       In 2012, Torres was working as a lieutenant in a fire suppression unit and applied for a

lateral transfer to Arson. Although the Arson lieutenant position would be a lateral transfer, it paid

$450 more per month than he was currently earning and included other benefits, such as a take

home vehicle, city phone, and city computer. Torres was one of two people to interview for the

position before a panel that would recommend a candidate to Assistant Chief Earl Crayton, who

would then pass the selection to Chief Hood for a final decision. The panel included Casals and

two other Arson supervisors, Lieutenant Kenneth Campbell and Acting-Lieutenant Anthony

Guerrero. The other candidate was James Bennett.

       At the time of the interview, Torres was a certified firefighter advanced, fire officer II, fire

service instructor II, field examiner, and Arson investigator advanced. He was also an intermediate

peace officer. Torres had been a lieutenant for 11 years; Bennett had been a lieutenant for less

than one year and still needed to complete the police academy.



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       Guerrero and Casals recommended Bennett for the position, while Campbell recommended

Torres due to his law enforcement experience and the fact that he was already certified. Though

the panel was impressed with Torres’s resume and experience, Chief Hood testified that based on

his knowledge of Torres’s time in Arson, he would not have assigned Torres the position even if

the panel had recommended it. Casals also testified that he did not recommend Torres, in part,

because of the way Torres handled the complaint about unauthorized credentials.

       After learning that he had not been selected for the Arson lieutenant position, Torres filed

a complaint with the City alleging that he was discriminated against by Casals due to his

race/national origin. The City’s investigation did not find discrimination against Torres. Two

weeks later, Torres filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) alleging that he was passed over for the position due to his national origin.

Torres also filed a complaint with the Texas Commission on Law Enforcement Officer Standards

and Education (TCLEOSE) again alleging that Villarreal and Rios were inappropriately

maintaining peace officer credentials, though TCLEOSE declined to investigate further.

       Thereafter, Torres filed the underlying suit claiming that the City retaliated against him for

filing the OMI complaint in violation of the Texas Whistleblower Act. The City moved for

summary judgment and Torres filed a response. The trial court granted the City’s summary

judgment motion. Torres timely appealed.

                                      STANDARD OF REVIEW

       Summary judgment is proper when the summary-judgment evidence shows that there are

no disputed issues of material fact and that the movant is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c). To obtain traditional summary judgment on an opposing party’s claims,

the movant must conclusively negate at least one essential element of each of the plaintiff’s claims.

See Lakey v. Taylor, 435 S.W.3d 309, 316 (Tex. App.—Austin 2014, no pet.) (citing Centeq
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Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). This court reviews a grant of summary

judgment de novo. Bank of America, N.A. v. Prize Energy Resources, L.P., No. 04-13-00201-CV,

2014 WL 4257865, at *4 (Tex. App.—San Antonio Aug. 29, 2014, pet. denied). In reviewing

entry of summary judgment, this court considers the evidence presented in the motion and response

in the light most favorable to the non-moving party, “crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d

557, 566 (Tex. App.—San Antonio 2014, pet. denied) (quoting Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)).

                                  TEXAS WHISTLEBLOWER ACT

       The Texas Whistleblower Act provides that a public employee may not be retaliated against

for reporting a violation of the law:

       A state or local governmental entity may not suspend or terminate the employment
       of, or take other adverse personnel action against, a public employee who in good
       faith reports a violation of law by the employing governmental entity or another
       public employee to an appropriate law enforcement authority.

TEX. GOV’T CODE ANN. § 554.002(a) (West 2012). Thus, to establish a violation of the Texas

Whistleblower Act, a plaintiff must allege the following elements: (1) she was a public employee;

(2) she made a good faith report of a violation of law by her employing governmental entity or

another public employee; (3) she made the report to an appropriate law-enforcement authority; and

(4) she suffered retaliation as a result of making the report. Tex. Comm’n on Envt’l. Quality v.

Resendez, 450 S.W.3d 520, 522 (Tex. 2014) (per curiam).

                                           DISCUSSION

       In its motion for summary judgment, the City challenged the elements of “good faith”

(second element) and causation (fourth element).


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Good Faith

         “‘Good faith’ means that (1) the employee believed that the conduct reported was a

violation of law and (2) the employee’s belief was reasonable in light of the employee’s training

and experience.” Bexar County v. Lopez, 94 S.W.3d 711, 714 (Tex. App.—San Antonio 2002, no

pet.) (quoting Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex. 1996)). Whether a public

employee believes that conduct he reports is a violation of law is subjective, while the second

element, i.e., the reasonableness of that belief in light of the employee’s training and experience,

is objective and ensures that the claimant receives the Act’s protection only if a reasonably prudent

employee in similar circumstances would have believed that the facts as reported were a violation

of the law. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 682–83 (Tex.

2013).

         In his Original Petition and Request for Disclosure, Torres alleged that at the time he

reported Rios badging in with his Arson/peace officer credentials, he believed such activity was

unlawful and his belief was reasonable. In its motion for summary judgment, the City argued

Torres’s OMI report was not made in good faith, but rather, was made “to shield Torres from the

consequences of unilaterally causing the credentials of Villarreal and Rios to be cancelled, and

then lying about it when directed to provide a statement to his superiors about his activities.” In

his affidavit, Villarreal averred that after Torres sent the text message to Casals, Casals called

Villarreal to determine why he and Rios still had their Arson credentials. Villarreal told Casals

they were maintaining their credentials at the direction of Chief Hood and Deputy Chief Neil

Horan so that they could investigate on-duty deaths of SAFD personnel. Villarreal then contacted

TCLEOSE and the Texas Commission on Fire Protection, which informed him that Rios and

Villarreal could keep their credentials with Chief Hood’s approval. A week after the phone call

from Casals, Villarreal discovered his and Rios’s identification cards no longer worked. Villarreal
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spoke with a civilian employee at the SAPD main building, who informed him that Torres had told

her to shut off Rios’s and Villarreal’s access cards because they were not in Arson and should not

have them. Villarreal reported the incident to Horan and Hitzfelder. In light of these facts, the

City claims that at the time Torres made his report, SAFD was already investigating the matter and

Torres knew Chief Hood had approved Villarreal and Rios maintaining their Arson credentials.

Thus, the City argues Torres had no subjective basis on which to believe fraud was occurring. The

City also argues Torres’s belief could not have been objectively reasonable because another

firefighter in Torres’s position with the same training, background, and personal relationships with

Villarreal and Rios would have contacted the two well-respected men to inquire about the facts

before reporting to Casals.

       In Torres’s response to the motion for summary judgment, he contends his OMI report was

made in good faith: he personally witnessed the fraudulent conduct and cited the statute he believed

to be violated. Attached to Torres’s response were numerous exhibits, including excerpts from the

depositions of Torres, Casals, Campbell, Guerrero, and Chief Hood, as well as Torres’s affidavit.

In his deposition, Torres testified he did not confront Villarreal and Rios directly because he would

have had to arrest the men, it would have been outside his chain of command, and would require

reporting in any case. Additionally, OMI policy prohibits discussing facts or suspicions with

others. Torres further testified he never deactivated Rios’s and Villarreal’s identification cards

and was never told or made aware he was being investigated over the supposed deactivation

incident. Torres also testified that he went to OMI because Casals and Hitzfelder did not follow

up after he reported. “When I wrote that report to Hitzfelder, nothing happened. . . . We never

heard anything. We never heard that Chief Horan and Chief Hood said that it was okay for them

to have these credentials.” Because Torres had heard nothing more than “rumors” that Villarreal

and Rios were authorized to carry their Arson credentials, he decided to contact OMI.
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        Torres’s summary judgment response cites to evidence showing that other employees

within the Arson department would have made a similar complaint had they witnessed the activity

in question. Campbell testified that Torres had a good-faith belief about the OMI complaint and

that he “handled it the way he thought best at the time.” Campbell confirmed that “when somebody

left Arson, you turned in your credentials. . . . Everybody knew that.” Guerrero likewise testified

that it was routine to turn in your credentials upon leaving Arson. When asked if he believed

Torres had a good-faith belief in making the complaint, Guerrero answered, “I can’t answer to why

his reasoning was, but he knew that up to that point, you couldn’t keep your credentials. The only

way that you were allowed to keep your credentials in the Arson office was because you were

assigned to Arson.” Guerrero further explained that had he witnessed Villarreal and Rios using

their Arson credentials, he would have told his captain. He would have also asked Rios and

Villarreal directly, and even if they had given him a valid reason for their keeping their credentials,

he probably would have gone back to his captain and said, “I don’t agree with it. You might want

to look into it.”

        Based on Torres’s response, and viewing the evidence as a whole in the light most

favorable to Torres, we conclude a fact issue exists on the element of “good faith.” Taking as true

Torres’s testimony that he was unaware of what became of his initial internal complaints to Casals

and Hitzfelder, as well as the testimony from Campbell and Guerrero indicating that they would

have also reported the incident in question to OMI, we hold a disputed fact issue exists as to

whether Torres’s decision to report to OMI was reasonable. Accordingly, the City did not

conclusively negate the “good faith” element as a matter of law.

“But For” Causation

        A necessary element of a whistleblower claim is causation: that the employee suffered an

adverse employment action because she reported a violation of the law in good faith to an
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appropriate law-enforcement agency, although the employee’s report need not be the sole reason

for the adverse employment action. Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633-

34 (Tex. 1995). To show causation, the employee must demonstrate that after she reported a

violation of the law in good faith to an appropriate law-enforcement agency, the employee suffered

discriminatory conduct by her employer that would not have occurred when it did if the employee

had not reported the illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000).

In Department of Human Services v. Hinds, the Texas Supreme Court established a but-for

causation standard in whistleblower actions: “[T]he employee’s protected conduct must be such

that, without it, the employer’s prohibited conduct would not have occurred when it did.” 904

S.W.2d at 636. Under this standard, the City cannot negate the causation element merely by

showing that it had other reasons for not selecting Torres for the Arson lieutenant position. To the

contrary, the but-for standard requires conclusive proof that Torres’s OMI report did not play a

role, however small, in the City’s decision to not award the position to him. See Ender v. City of

Austin, No. 03-97-00329-CV, 1997 WL 658986, at *3 (Tex. App.—Austin Oct. 23, 1997, no pet.).

        In its motion for summary judgment, the City put forth a host of reasons why Torres

“cannot meet his burden to prove causation.” The City alleged: Torres provided no evidence

showing any retaliatory action in the over two years subsequent to his making the report and prior

to the non-selection; Bennett was legitimately selected for the position based on the merits of his

application and interview performance; 1 Casals legitimately preferred Bennett to Torres; the non-

selection was warranted based on Torres’s past misconduct; and Torres was not credible and

changed his story of non-selection from discrimination to whistleblowing.




1
 The City did not dispute that Torres was more qualified than Bennett in that Bennett lacked certain certifications
necessary to perform the job.

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       In his summary judgment response, Torres relied on evidence that Chief Hood and Casals

both stated Torres’s credential complaint was the reason Torres was not selected for the Arson

lieutenant position. The ultimate decision-maker regarding the position Torres applied for was

SAFD Chief Charles Hood. Although Chief Hood testified that Torres was not selected for the

position because of his “lack of leadership, his impulsiveness, his not understanding the chain of

command, his dealing with the media without authorization, his impulsivity to go to OMI without

going through the chain of command,” he also acknowledged that the interview panel considered

Torres’s OMI report as a factor in its decision-making process. Hood testified that Torres’s

complaint “should never have gone to OMI.”

       Similarly, Campbell testified that Casals brought up Torres’s OMI report during the

selection process. Campbell told Casals he “couldn’t use this against Steve.” In response, Casals

said, “Steve launched that investigation, he nearly cost me my job.” Campbell testified he believed

Torres and Casals had a “tense” relationship due to the OMI fraudulent credential investigation.

Campbell further testified that Torres was more qualified for the position than Bennett because he

was already certified and had law enforcement experience.

       Although the City offered several reasons why Torres was not selected for the position in

question, we are mindful of the fact that Torres was not required to prove that his reporting of the

fraudulent credentials was the sole reason for his non-selection. Based on the foregoing, there is

some evidence in the summary judgment record that both Chief Hood and Casals considered the

fact that Torres reported the misuse of credentials to OMI when considering whether to select him

for the Arson position. Thus, viewing the entire record in the light most favorable to Torres, we

conclude the City did not negate causation as a matter of law.




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                                         CONCLUSION

       Having sustained Torres’s issues on appeal, we reverse the trial court’s order granting

summary judgment and remand the cause to the trial court for further proceedings.


                                                Rebeca C. Martinez, Justice




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