       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00443-CV



                                       Gregory Ginn, Appellant

                                                     v.

                            Stephen F. Austin State University, Appellee




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 92-09807, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING




                              MEMORANDUM OPINION


                Gregory Ginn appeals from a summary judgment granted Stephen F. Austin State University

(ASFA@) by the district court. SFA terminated Ginn=s employment as an associate professor of

management. During his employment, Ginn made several complaints to SFA about its smoking policies.

Ginn sued, alleging that SFA had violated the AWhistleblower Act@ by basing Ginn=s termination on his

smoking-policy complaints. See Act of May 30, 1983, 68th Leg., 1st C.S., ch. 832, ' 2, 1983 Tex. Gen.

Laws 4751, 4752 (current version at Tex. Gov=t Code Ann. ' 554.002 (West Supp. 2003)). The district

court granted summary judgment for SFA. We hold that Ginn=s summary-judgment evidence, even when

viewed in the light most favorable to him, did not meet all of the elements of the Whistleblower Act. We

will, therefore, affirm the district court=s summary judgment.
                                      STANDARD OF REVIEW

                Because the propriety of a summary judgment is a question of law, we review the district-

court decision de novo. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The standards for

review of a traditional summary judgment are well-established: (1) the movant must show there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether

there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable

to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the

nonmovant and resolve any doubts in the nonmovant=s favor. Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548-49 (Tex. 1985). Here, the district court granted SFA=s motion for a traditional summary

judgment. A defendant who moves for a traditional summary judgment has the burden of disproving one

essential element of each pleaded cause of action or showing that the plaintiff cannot succeed, as a matter of

law, on any theory pleaded. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.

App.CSan Antonio 1996, no writ).


                                                  FACTS

                Ginn began working for SFA in 1989 as an associate professor of management. At that

time, SFA had no policy prohibiting smoking. Ginn contacted the Office of Smoking and Health at the

Texas Department of Health and consulted Occupational Safety and Health Administration (AOSHA@)

guidelines. Ginn determined through his research that SFA was violating OSHA guidelines by not having a

prohibitive smoking policy. Ginn notified officials at SFA of his conclusions. In response, SFA officials told

Ginn that although they were not technically violating any laws by not having a nonsmoking policy, they
would try to satisfy his need for a nonsmoking environment. SFA then established a nonsmoking policy that

allowed smoking only in certain campus areas and moved Ginn to an office further from those areas. Ginn

was not satisfied with these concessions and continued to complain. Ginn first complained in 1990 to SFA

officials, including the university president. His contract for employment was renewed that same year. He

again complained in 1991. Again, his employment contract was renewed. In 1992, SFA terminated Ginn=s

employment.


                                             DISCUSSION

                By his only issue, Ginn asserts that the district court erred by granting SFA summary

judgment. Ginn argues that he was terminated in violation of his rights under the version of the

Whistleblower Act that was in effect in 1992.1 The applicable version of the Whistleblower Act states: AA

state agency or local governmental body may not suspend or terminate the employment of, or otherwise

discriminate against, a public employee who reports a violation of law to an appropriate law enforcement

authority if the employee report is made in good faith.@ Act of May 30, 1983, 68th Leg., 1st C.S., ch. 832,

' 2, 1983 Tex. Gen. Laws 4751, 4752. In his brief, Ginn separates the three elements of the


        1
           Ginn sued SFA in 1992. The current version of the Whistleblower Act does not contain
retroactive provisions. See Tex. Gov=t Code Ann. ' 554 (West Supp. 2003). Therefore, the 1992 version
of the Whistleblower Act applies to Ginn=s case. Act of May 30,1983, 68th Leg., 1st C.S., ch. 832, ' 2,
1983 Tex. Gen. Laws 4751, 4752. Neither party asserts that there are any significant differences between
the two versions of the Act that bear upon this case.




                                                    3
Whistleblower Act. However, we need only discuss the causation element.

                In Texas Department of Human Services v. Hinds, the supreme court set forth the

causation standard to be applied in whistleblower cases: A[T]he standard of causation in whistle blower and

similar cases should be that the 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 629, 636 (Tex. 1995). Hinds

requires a Abut for@ causal-nexus requirement between the report of misconduct and the employer=s actions.

Texas Natural Res. Conservation Comm=n v. McDill, 914 S.W.2d 718, 723 (Tex. App.CAustin 1996,

no writ). This Court must determine, taking all of Ginn=s evidence as true and indulging every reasonable

inference in his favor, whether Ginn=s reporting of SFA=s smoking policies was the Abut for@ cause of his

termination. See Natividad, 875 S.W.2d at 699.

                Ginn=s evidence reflects that his contract for employment was renewed twice after his

smoking-policy complaints to SFA officials. However, his evidence also reflects that: (1) he cursed at a

student, using the most profane language; (2) to his class, he referred to a fellow professor by use of an

obscene name; (3) he engaged in a heated conversation with the same professor when she confronted Ginn

about the name-calling; (4) he banged his head against the wall Amany@ times in order to stretch his calf

while his students were taking exams; and finally, (5) he was charged with assault because Ginn shoved his

department chair, Warren Fisher, Aas hard as [Ginn] could@ then shoved him two more times while blocking

the exit, finally grabbing Fisher by the wrists to prevent him from leaving Ginn=s office.

                An employee suing under the Whistleblower Act must prove that without the reports of

violations of law, the retaliatory conduct would not have occurred when it did. See Hinds, 904 S.W.2d at


                                                      4
636. In light of Ginn=s own evidence, even with the benefit of every reasonable, positive inference, and

noting again that Ginn=s employment contract was renewed twice after his reports of smoking-policy

violations and that he was not terminated until he physically attacked Fisher in Ginn=s university office, we

cannot say that the district court erred in finding that there was no issue of material fact regarding the cause

of Ginn=s dismissal. We hold that Ginn=s evidence fails to raise an issue of a Abut for@ casual nexus between

his report of alleged OSHA violations and the termination of his employment. We overrule Ginn=s only

issue.


                                              CONCLUSION

                 We affirm the district court=s summary judgment in favor of SFA.




                                                   __________________________________________

                                                   Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: April 17, 2003




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