                                                                                            ACCEPTED
                                                                                        03-14-00384-CV
                                                                                                7884013
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                 11/18/2015 12:11:13 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK


                            In the Court of Appeals
                                                                        FILED IN
                         For the Third Judicial District         3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                             Sitting at Austin, TX              11/18/2015 12:11:13 PM
                                                                   JEFFREY D. KYLE
                             No. 03-14-00384-CV                          Clerk




                               City of Killeen
                                  Appellant
                                     v.
                              Barbara Gonzales
                                  Appellee


                     Appealed From Cause No. 262,602-B
                   146th District Court of Bell County, Texas
                        Honorable Jack Jones Presiding


                        Appellee’s Motion for Rehearing



To the Honorable Court of Appeals

       Comes now Mrs. Barbara Gonzales, Appellee, in this case and files her

Motion for Rehearing in support of affirming the trial court’s ruling below, and

withdrawing this Court’s opinion issued on November 3, 2015.




Page 1 of 14
                                                    CONTENTS

INDEX OF AUTHORITIES ...................................................................................2

ISSUES PRESENTED .............................................................................................4

ARGUMENT ............................................................................................................4

   Issue 1: The Court used an incorrect standard in assessing the circumstantial

   evidence of causation presented by Gonzales. .......................................................4

      A.      The Court applied an incorrect standard regarding similarly situated

      employees. ...........................................................................................................7

      B.      The Court improperly discounted the finding of the Personnel Review

      Board. ................................................................................................................10

CONCLUSION.......................................................................................................12

CERTIFICATE OF SERVICE ............................................................................13

CERTIFICATE OF COMPLIANCE ..................................................................14



                                        INDEX OF AUTHORITIES

Federal Cases

Abugalyon v. City of El Paso, No. E0-03-CA-0515-FM, 2005, U.S. Dist,. Lexis

   16168, *20, 2005 WL 1884804 (W. D. Tex. Aug. 5, 2005) ................................11



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Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 600 (5th Cir. 2001) ...................6

Click v. Copeland, 970 F.2d 106, 113-14 (5th Cir. 1992) .........................................6

Haverda v. Hays County, 723 F.3d, 586, 595 (5th Cir. 2013)...............................5, 6

Tolan v. Cotton, 134 S. Ct. 1861, 1866-88 (2014) (per curium) ...............................6

Texas State Cases

Booker v. City of Austin, No. 03-09-00088-CV, 2013 WL 1149559, at * 12 (Tex.

  App.—Austin Mar. 13, 13, 2013 no pet.) (mem. op.) ............................................9

City of Fort Worth v. Johnson, 105 S.W.3d 154, 166 (Tex. App.—Waco 2003, no

  pet.) .......................................................................................................................10

City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000).......................... 4, 6, 7

Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) .........4

Gold v. City of College Station, 40 S.W.3d 637, 646 (Tex. App.—Houston [1st

  Dist.] 2001, no pet.) ..............................................................................................10

Tex. Dep’t of Assistive and Rehabilitative Services. v. Howard, 182 S.W.3d 393,

  396 (Tex. App.–Austin 2005, pet. denied). ........................................................7, 9

Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) .....6

Texas Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex. 1995) ..............5

Town of Flower Mound v. Teague, 111 S.W.3d 742, 757 (Tex. App.—Fort Worth

  2003, pet denied) ..................................................................................................10

Yselta Indep. Sch. Dist. V. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) .................9


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Treatises

Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure §

  2732.2 (3d ed. 2013) ...............................................................................................6

                                         ISSUES PRESENTED

        Issue 1: The Court used an incorrect standard in assessing the

        circumstantial evidence of causation presented by Gonzales.

                 A. The Court used an incorrect standard in assessing when
                    someone is similarly situated for the purpose of
                    circumstantial evidence.

                 B. The Court improperly discounted the finding of the
                    Personnel Review Board.

                                                ARGUMENT

        Issue 1: The Court used an incorrect standard in assessing the

        circumstantial evidence of causation presented by Gonzales.


        The Court correctly held that circumstantial evidence may be sufficient to

establish a causal link between the adverse employment action and the reporting of

illegal conduct. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex. 2000)

(citing Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.

1996). Such circumstantial evidence includes:

    Knowledge of the report of the illegal conduct;

    Expression of a negative attitude toward the report;



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    Failure to adhere to established company policies regarding employment

       decisions;

    Discriminatory treatment in comparison to similarly situated employees; and

    Evidence that the stated reason for termination was false. Id.

Gonzales presented circumstantial evidence towards all five areas. The Court,

however, incorrectly discounted and weighed the evidence presented.

       The circumstantial evidence factors in Zimlich point to a key consideration.

The smoking gun evidence from a mustache twirling villain, laughing maniacally

while telling the helpless whistleblower “I’m firing you because of your

whistleblower reports” will essentially never happen. Instead, in real life, and in

this case, evidence of “causation” is built on circumstantial evidence.

       Federal First Amendment employment retaliation cases apply the same

causation standard as the Texas Whistleblower Act and involve similarly important

issues of protected rights and public policy. Texas Dep't of Human Servs. v. Hinds,

904 S.W.2d 629, 634 (Tex. 1995) applying the Mt. Healthy First Amendment

standard in Whistleblower Act cases).        In such cases, the Fifth Circuit has

specifically held that “Summary disposition of the causation issue in First

Amendment retaliation claims is generally inappropriate.” Haverda v. Hays

County, 723 F.3d, 586, 595 (5th Cir. 2013).. “Summary judgment should be used

most sparingly in . . . First Amendment cases . . . involving delicate constitutional


Page 5 of 14
rights, complex fact situations, disputed testimony, and questionable credibilities.”

Id. at 592, citing Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 600 (5th Cir.

2001). “Claims requiring a determination regarding intentions or motives are

particularly unsuitable for summary adjudication. . . . summary judgment may be

precluded because questions concerning defendant’s motives or knowledge must

be determined.” Haverda, 723 F.3d at 592, citing 10B Charles Alan Wright &

Arthur R. Miller et al., Federal Practice and Procedure § 2732.2 (3d ed. 2013).

See Click v. Copeland, 970 F.2d 106, 113-14 (5th Cir. 1992) (finding that

defendant’s evidence of motivation for adverse employment action, along with

plaintiff's evidence supporting a contrary inference, is “fodder for the jury”).

       The Texas Supreme Court has held that circumstantial evidence is sufficient

to establish causation. Zimlich, 29 S.W.3d at 69. Couple this with the favorable

evidentiary standards in a plea to the jurisdiction, including that all evidence

favorable to the nonmovant must be believed as true and every reasonable

inference and any doubts must be indulged in the nonmovant’s favor. Tex. Dept. of

Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).1 Pleadings are

construed liberally in favor of the non-movant in a plea to the jurisdiction, Id., and

the Texas Whistleblower Act itself is to be construed liberally in favor of


1
 See also Tolan v. Cotton, 134 S. Ct. 1861, 1866-88 (2014) (per curium) (emphasizing that all
evidence must be viewed in the light most favorable to the non-movant at every step in ruling on
a motion for summary judgment).


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enforcement. Tex. Dep’t of Assistive and Rehabilitative Services. v. Howard, 182

S.W.3d 393, 396 (Tex. App.–Austin 2005, pet. denied). Together, these standards

present a low hurdle to jump. This plea to the jurisdiction does not decide the

contested issues, but merely allows a jury of Mrs. Gonzales’ peers to consider all

of the contested evidence and make a determination for themselves. Because the

evidence, viewed in the light most favorable to Gonzales raises issues of fact, this

Court should withdraw its opinion and reaffirm the opinion of the trial court.

   A. The Court applied an incorrect standard regarding similarly situated
      employees.

       Gonzales presented evidence that other managerial staff were involved in

more egregious acts than Gonzales, but unlike Gonzales, were not terminated for

their actions. This evidence showing that others were treated more favorably, in

spite of more serious alleged offenses, supports that Gonzales was treated

differently because of her whistleblower reports and is circumstantial evidence of

Morrison’s knowledge of the reports. Zimlich, 29 S.W.3d at 67. The Court did not

consider this evidence, suggesting that the evidence was insufficient to determine

if the others who received more favorable treatment were “similarly situated.” In

doing so the Court misapplied the standard for pleas to the jurisdiction and

“similarly situated” employees in a whistleblower case.

       First, the evidence provided by Gonzales establishes that Gonzales was

treated differently than others who were similarly situated. Although the Court

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stated that the evidence Gonzales presented of disparate treated consisted solely of

conclusory statements from Gonzales and another city employee, this is not

accurate. Gonzales presented sworn testimony from the City Auditor, Amanda

Wallace, who investigated Gonzales and other situations of alleged misconduct,

and who testified that no other executive level employee was treated in the same

manner as Gonzales – specifically that an executive level employee was terminated

for the actions of a lower level employee.         C.R. 313.     This included an

investigation and audit that uncovered the theft by City employees of

approximately $25,000 (far more than was at issue in Gonzales’ situation) from the

Killeen Civic and Conference Center, during the same period of time as Gonzales

was being investigated and disciplined, and under the same decision-maker, Glenn

Morrison. C.R. 313-15. Additionally, City Auditor Wallace herself also had

authority over the Fleet Services department but was not similarly terminated. C.R.

305-306.

       Gonzales also provided her own sworn testimony that an IT Department

employee during the same time period (May 2012) was paid for work he did not do

and no executive level employee was terminated. C.R. 273. This evidence was

from Gonzales’ personal knowledge as an employee at the City for eight years

(C.R. 267), was supported by additional sources (C.R. 273), and was not merely a

conclusory statement. Similarly, the sworn statement of Kim Randall was based



Page 8 of 14
on her personal knowledge as a 24 year employee and particularly in light of other

evidence, alleged sufficient detail to raise a fact issue whether Gonzales was

singled out and treated differently than other employees. C.R. 276-279. Together

with evidence from the City Auditor that City employees stole $25,000 in funds

from the Killeen Civic and Concert Center, under the direction of the same

decision-maker Glen Morrison, and yet who were not terminated as was Gonzales,

Gonzales raised at least enough evidence for a fact finder to consider whether she

was treated differently because of her whistleblower reports about Morrison, and

for the district judge in this case to find that fact issues were raised.

       Additionally, the cases cited by the Court in construing “similarly situated”

as meaning “nearly identical” are related to employment discrimination claims

rather than whistleblower claims. Yselta Indep. Sch. Dist. V. Monarrez, 177

S.W.3d 915, 917 (Tex. 2005) (gender discrimination); Booker v. City of Austin,

No. 03-09-00088-CV, 2013 WL 1149559, at * 12 (Tex. App.—Austin Mar. 13, 13,

2013 no pet.) (mem. op.). “‘Similarly situated’ in the context of a job

discrimination claim based on disparate discipline entails ‘situations and

conduct of the employees in question’ that are ‘nearly identical.’” Booker, 2013

WL at *12 (emphasis added). This Court previously was not so restrictive in

whistleblower claims. Texas Dep’t of Assistive and Rehabilitate Servs. v. Howard,

182 S.W.3d 393, 405 (Tex. App.—Austin, 2005 pet denied) (considering prior bad



Page 9 of 14
acts of a director and unit manager from a different department rather than just

those ‘nearly identical.”). Other courts have similarly used a broader standard.

Gold v. City of College Station, 40 S.W.3d 637, 646 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (considering other employees rather than just those nearly

identical.). City of Fort Worth v. Johnson, 105 S.W.3d 154, 166 (Tex. App.—

Waco 2003, no pet.) (considering employees with different management roles in

rather than just those nearly identical); Town of Flower Mound v. Teague, 111

S.W.3d 742, 757 (Tex. App.—Fort Worth 2003, pet denied) (considering not just

managers but others in the department as similarly situated employees). While

Gonzales has presented sufficient evidence showing she was treated differently

than others who were nearly identical to her, as in Howard, and other

Whistleblower cases, the Court should not view the evidence in such a restricted,

artificially compartmentalized manor.

   B. The Court improperly discounted the finding of the Personnel Review
      Board.

       To support Gonzales’s claim that she was treated differently than other

employees and that her termination was motivated by reports of illegal activity,

Gonzales presented evidence that the City’s Civilian Personnel Hearing Board

considered her termination in a hearing and recommended that Appellant’s

termination of Gonzales be reversed because it was a disproportionate penalty.

C.R. 392. The Court discounted this evidence and ruled it had no weight, based

Page 10 of 14
apparently on the assumption that no other parts of the hearing were included in

the record. This is an improper standard, disregards the significance of this

evidence, and is factually incorrect.

       In Abugalyon v. City of El Paso, No. E0-03-CA-0515-FM, 2005, U.S. Dist,.

Lexis 16168, *20, 2005 WL 1884804 (W. D. Tex. Aug. 5, 2005), the court

reasoned that the finding itself, not the specific evidence considered by the City’s

personnel hearing board, supported an inference of pretext. Id. Here, the City’s

personnel hearing board decision is compelling evidence to at least raise a fact

issue that the City’s reason for termination was mere pretext and supports a finding

of causation. The personnel hearing board decision reflects that it was made “after

hearing testimony from witness,”2 that both Gonzales and the City were present

and were represented by legal counsel, that the board concluded that the

termination decision “shall be reversed” and was a “disproportionate penalty,” and

was unanimously supported by all four members of the personnel hearing board.

C.R. 392.       If the Court views the facts in the light most favorable to Gonzales,

indulging all reasonable inferences in Gonzales favor, as is it required to do, it is

not an unreasonable inference that a jury would make the same finding as the

personnel review board. The civilian review board consisting of four individuals,
2
 Witnesses who testified before the personnel hearing board included Lt. Jeff Donohue. C.R.
292. Lt. Donohue had conducted the police department’s investigation into the alleged employee
theft and testified that Gonzalez’s conversations did not have an impact on his investigation.
C.R. 292. Testimony before the board was under oath and also included witnesses Gonzales,
City Manager Morrison, Police Chief Baldwin, City Auditor Wallace.


Page 11 of 14
which heard all the evidence, found in favor of Gonzales. Similarly, the honorable

trial court judge, who heard all the relevant evidence, at least found that evidence

presented raised a question of fact for a jury. Gonzales respectfully requests this

Court reconsider its opinion and allow the full evidence to be heard by a jury of her

peers.

                                   CONCLUSION

         Imagine a situation in which a governmental body’s decision-makers decide

to lie and claim they had no knowledge of an employee’s whistleblower report. Is

that simply the end of the case? A plea to the jurisdiction (or summary judgment)

cannot simply always be granted in favor of the government when it claims no

knowledge of an employee’s whistleblower report unless the employee can

produce direct evidence to refute the claim. Justice and common sense dictate that

self-serving statements from an interested decision-maker cannot automatically be

the end. Circumstantial evidence can and does raise a fact issue on knowledge and

causation in this case. For the reasons stated in this motion, Mrs. Gonzales asks

the Court to grant this motion for rehearing, withdraw its opinion, uphold the trial

court’s dismissal of appellant’s plea to the jurisdiction and for any and all other

relief to which she is entitled.




Page 12 of 14
                Respectfully submitted,



                By:__/s/ L. Todd Kelly

                L. Todd Kelly
                SBN: 24035049
                Tkelly@carlsonattorneys.com
                Roberto Flores
                SBN: 24074211
                Rflores@carlsonattorneys.com
                THE CARLSON LAW FIRM, P.C.
                11606 N. IH-35
                Austin, Texas 78753
                Telephone: (512) 346-5688
                Fax: (512) 719-4362

                Robert W. Schmidt
                SBN: 17775429
                Schmidt@crewsfirm.com
                CREWS LAW FIRM, P.C.
                701Brazos Suite, 900
                Austin, TX 78753
                (512) 346-7077
                Fax: (512) 342-0007
                ATTORNEYS FOR APPELLEE




Page 13 of 14
                         CERTIFICATE OF SERVICE

       I certify that on this, the 18 day of October, 2015, I served the document
attached hereto on the counsel below, via the court’s electronic filing system and
email:

Roy L. Barrett, Esq.
NAMAN HOWELL SMITH & LEE, PLLC
400 Austin Avenue, Suite 800
P.O. Box 1470
Waco, Texas 76703
barrett@namanhowell.com
COUNSEL FOR THE CITY OF KILLEEN

                                            _/s/ L. Todd Kelly
                                            L. Todd Kelly


                      CERTIFICATE OF COMPLIANCE

       I certify that using the word count feature on Word, the word count of the

above motion, as provided by Tex. R. App. P. 9.4(i)(2)(D) contains 1995 words,

including all portions countable towards the word limit, including footnotes.


                                       /s/ L. Todd Kelly
                                       L. Todd Kelly




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