                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS



  SECURITY SERVICE FEDERAL                        '               No. 08-19-00154-CV
  CREDIT UNION,
                                                  '                  Appeal from the
                    Appellant,
                                                  '                168th District Court
  v.
                                                  '             of El Paso County, Texas
  MICHELLE RODRIGUEZ,
                                                  '
                                                                  (TC# 2018DCV3979)
                    Appellee.

                                          OPINION

       In this interlocutory appeal, Appellant Security Service Federal Credit Union (“SSFCU”)

appeals the trial court’s denial by operation of law of its Motion to Dismiss Pursuant to the Texas

Citizens Participation Act (the “Act”). Appellee Michelle Rodriguez sued SSFCU for wrongful

termination based on age discrimination. SSFCU filed a motion to dismiss under the Act, asserting

that Rodriguez’s claims were based on or related to SSFCU’s exercise of free speech as defined

under the Act.

       Because we find SSFCU failed to show by preponderance of the evidence that Rodriguez’s

suit is based on, related to, or in response to its exercise of free speech, we affirm the denial of

Appellant’s Motion to Dismiss.

                                        BACKGROUND
       Appellee Michelle Rodriguez is a fifty-four-year-old woman who was terminated from her

employment of twenty-three years with Security Service Federal Credit Union after allegedly

leaving the door of the cash vault open at her branch location. In her Original Petition, Appellee

asserts the alleged vault incident is pretext for the actual reason she was terminated, which she

claims to be age discrimination.

       The parties include lengthy conflicting factual recitations in their briefs that are not

necessary to recount in full here. Suffice to say Rodriguez asserts SSFCU’s account of the cash

vault incident is false and SSFCU is using the incident as an excuse to fire her and replace her with

a younger employee. SSFCU posits Rodriguez’s actions of leaving the cash vault unsecured for

several hours and failing to be forthright about the situation when confronted by her manager

constituted offenses egregious enough to warrant termination for cause. However, the critical

issue here is the applicability of the Act to Rodriguez’s lawsuit, which necessitates our review of

this case. For context, we provide some additional factual background below.

                                        The Vault Incident

       Rodriguez was an assistant branch manager with SSFCU in early 2017. On January 31,

2017, shortly before lunch, a battery failure on the cash recycler (which we refer to generally in

this opinion as the “vault” or “cash vault”) at the branch where Rodriguez worked caused the door

to remain open and not close. At the time, the vault contained $75,000 in cash. According to

SSFCU, Rodriguez first attempted to contact a locksmith approximately four hours after she

learned of the malfunction, and despite receiving training on the proper vendor to contact, failed

to contact that vendor for another hour after contacting the locksmith. SSFCU also accuses

Rodriguez of leaving the vault open and unsecured when she went off the premises for lunch that

day.



                                                 2
          When confronted approximately two weeks later about the incident by her branch manager,

Jesus Garcia, SSFCU claims Rodriguez denied the occurrence happened and, when pressed, was

untruthful about her efforts to get the vault closed again. SSFCU argues Rodriguez’s actions

involving the vault, and, in particular, her lack of veracity in coming forward about the incident

initially or when confronted, violates SSFCU’s policies and procedures. SSFCU’s brief states

after Garcia investigated and discussed the incident with several of his superiors, SSFCU made

the decision to terminate Rodriguez on February 17, 2017.              Rodriguez later filed for

unemployment.

                                        Procedural History

   A. Plaintiff’s Original Petition

          Rodriguez filed her lawsuit on October 24, 2018. Initially, the case was assigned to the

346th Judicial District Court of El Paso County. In her pleading, she claims that she “was informed

that she was terminated by Mr. Jesus Garcia for allegedly leaving the vault door open,” but “denies

violating any company policy and denie[s] any conduct that could have resulted in disciplinary

action, including termination.” Her petition asserts a claim for employment discrimination based

on age.

          SSFCU filed its original answer on November 26, 2018. Among its affirmative defenses,

SSFCU pleads that Plaintiff was terminated “for lawful and legitimate, non-discriminatory

business reasons unrelated to her age or other protected employment status.”

   B. SSFCU’s Motion to Dismiss

          On January 4, 2019, SSFCU filed its first motion to dismiss under the Texas Citizens

Participation Act. On January 15, 2019, SSFCU filed an amended motion to dismiss. In its motion,

SSFCU argued that Rodriguez’s lawsuit was “based on, related to, or in response to SSFCU’s



                                                 3
exercise of its right of free speech on a matter of public concern,” and thus, under the Act,

warranted dismissal.    Specifically, according to SSFCU, because Rodriguez’s suit involved

discussions among SSFCU employees regarding the vault incident and Rodriguez’s behavior, the

Act was implicated. SSFCU’s motion also contends Rodriguez is unable to make a prima facie

showing of each essential element of her employment discrimination claim, which is required to

avoid dismissal under the Act. In its argument on this point, SSFCU’s motion argues Rodriguez

failed to timely file her lawsuit in the case and failed to exhaust her administrative remedies, which

it posits preclude her from being able to maintain a case for discrimination.

   C. Discovery Pursuant to the Act and Case Transfer

        In early 2019, both sides moved to conduct written discovery related to SSFCU’s motion

to dismiss. Ultimately, the trial court only allowed Rodriguez to conduct discovery during the stay

period mandated by the Act. The trial court set SSFCU’s motion to dismiss for hearing on May 1,

2019.

        On March 12, 2019, Rodriguez filed a motion for protective order and motion to quash

cross-notices of deposition filed by SSFCU for depositions originally noticed by Rodriguez. At a

scheduled hearing on the parties’ discovery motions, the trial court met with attorneys for both

parties in chambers and apparently disclosed counsel for Rodriguez had previously represented

the trial judge’s brother in a legal proceeding a few years prior. In light of the trial court’s

disclosure, at the request of SSFCU, the case was transferred out of the 346th District Court. It

was assigned to the 168th District Court on March 13, 2019.

   D. SSFCU’s Supplement to its Motion to Dismiss, and Plaintiff’s Response

        SSFCU supplemented its amended motion to dismiss on April 19, 2019, to include an

additional affidavit and deposition transcripts of four witnesses, all SSFCU employees, that had



                                                  4
been noticed for deposition by Rodriguez. Approximately an hour before the hearing, Rodriguez

filed her Objections to SSFCU’s motion to dismiss evidence, objections to what she alleges to be

an untimely supplement to SSFCU’s motion to dismiss, and her response to SSFCU’s motion.

SSFCU filed a reply and an objection to Rodriguez’s response after the hearing, with the trial

court’s permission.

   E. SSFCU’s Motion Pursuant to the Act Denied by Operation of Law

       Based on deadlines imposed by the Act, the trial court had until May 23, 2019, to rule on

SSFCU’s motion. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.008(a). The trial court failed to

rule, and SSFCU’s motion was therefore denied by operation of law. Id. SSFCU timely filed its

appeal in this case.

                                         DISCUSSION

       SSFCU presents four issues for review:

       1. Whether SSFCU met is burden showing Rodriguez’s claim was a legal action based
          on, related to, or in response to SSFCU’s exercise of its right of free speech on a
          matter of public concern pursuant to the Act;

       2. Whether Rodriguez established by clear and specific evidence, a prima facie showing
          of, each essential element of her employment discrimination claim as required by the
          Act;

       3. Whether SSFCU satisfied its burden of proof on a valid defense to Rodriguez’s claim;
          and

       4. Whether the trial court erred by not sustaining SSFCU’s objections to Rodriguez’s
          evidence.

                                    Dismissal under the Act

   A. Standard of Review

       A trial court’s ruling on a motion to dismiss under the Act is reviewed de novo, as is the

court’s determination on the statutory interpretation of the Act. See Darnell v. Rogers, 588 S.W.3d

295, 300 (Tex.App.—El Paso 2019, no pet.)(citing Dallas Morning News, Inc. v. Hall, 579 S.W.3d

                                                5
370, 377 (Tex. 2019)); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). “The court first

examines whether the defendant invoked the [Act] by showing, by a preponderance of the

evidence, that the plaintiff's claim ‘is based on, relates to, or is in response to the [Defendant's]

exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.’”

Darnell, 588 S.W.3d at 300 (citing TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(b)). If the movant

meets its burden, the court must then look to whether the plaintiff has “establishe[d] by clear and

specific evidence a prima facie case for each essential element of the claim in question.”

TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(c); see Darnell, 588 S.W.3d at 300-01. If the non-

movant fails to meet its burden under the second step, its claim[s] must be dismissed.

TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(b). If the non-movant meets its burden under the

second step, the third step still requires dismissal if the movant demonstrates by a preponderance

of evidence “each essential element of a valid defense to the nonmovant’s claim.”

TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(d).

       In deciding the applicability of the Act and, if necessary, whether the plaintiff has met its

burden of producing clear and specific evidence of each essential element of its claim, a court is

required to look to the pleadings and all affidavits, both supportive and opposing, which state the

facts supporting the liability or defense at issue. TEX.CIV.PRAC.&REM.CODE ANN. § 27.006(a).

Further, if available, a court may consider evidence produced by either party in support of its

position, although neither party is required to produce evidence beyond its pleadings and affidavits

if doing so can satisfy its burden under the statute. See In re Lipsky, 460 S.W.3d 579, 590-91 (Tex.

2015); S&S Emergency Training Solutions, Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).

    B. Does the Act apply to Rodriguez’s claim of age discrimination?




                                                   6
        In its first issue, SSFCU asserts that Rodriguez’s claim is a legal action based on, related

to, or in response to SSFCU’s exercise of its right of free speech on a matter of public concern, and

thus falls within the purview of the Act. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.003(a). Under

the Act, a “legal action” can be a lawsuit or a single cause of action, among other things.

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(6); see Adams v. Starside Custom Builders, LLC, 547

S.W.3d 890, 892 (Tex. 2018). It is apparent Rodriguez’s lawsuit constitutes a “legal action” as

defined by the Act. The primary question we must address is whether that legal action is based on,

related to, or in response to SSFCU’s exercise of their right of free speech.

        Whether a claim is based on, related to, or in response to a party’s exercise of the right of

free speech requires analysis of two components: (1) whether the party makes a communication,

and (2) whether such communication is made in connection with a matter of public concern.

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(3).

        1. Communication

        A communication under the Act is “the making or submitting of a statement or document

in any form or medium, including oral, visual, written, audiovisual, or electronic.”

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(1).                Texas law explains that the definition of

“communication” under the Act is very broad, encompassing “[a]lmost every imaginable form of

communication, in any medium[.]” Adams, 547 S.W.3d at 894. It likewise includes “statements”

and “conduct.” See Castleman v. Internet Money, Ltd., 546 S.W.3d 684, 690 n.4 (Tex. 2018).

        SSFCU asserts Rodriguez’s pleadings alone show by a preponderance of the evidence her

lawsuit is based on, related to, or in response to its exercise of the right of free speech. It is unclear

exactly which allegations SSFCU references, but we surmise it is referring to the sentence in

Rodriguez’s Original Petition that states, “On or about February 17, 2017, Plaintiff was informed



                                                    7
that she was terminated by [Bank Manager] Garcia for allegedly leaving the vault door open.” She

goes on to state that she “denies violating any company policy and denie[s] any conduct that could

have resulted in disciplinary action, including termination.”

       In support of its argument that these allegations are sufficient to meet its burden of proof

under the Act, SSFCU directs us to several cases in which at least one of the plaintiff’s claims was

clearly a speech-based claim. See Adams, 547 S.W.3d at 890 (analyzing whether speech was

“matter of public concern” where plaintiff raised defamation claim involving plaintiff’s business

services); ExxonMobile Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017)(analyzing whether

speech was “matter of public concern” where plaintiff raised defamation claim involving

defamatory statements in internal business documents); Camp v. Patterson, No. 03-16-00733-CV,

2017 WL 3378904 (Tex.App.—Austin Aug. 3, 2017, no pet.)(analyzing “matter of public

concern” where plaintiff raised defamation claim involving defamatory statements made in texts

and emails sent to plaintiff’s vendors); Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex.

2015)(analyzing “matter of public concern” where plaintiff raised defamation claim involving

defamatory statements made in email). In each of those cases, the primary question was not

whether a non-speech-based claim was covered by the Act, it was whether a speech-based claim

was covered by the Act. To answer that question the courts looked at the applicable statutory

definitions and were able to conclude that the speech-based claim was indeed captured by the Act’s

“wide net.”

       SSFCU cites to Khalil v. Memorial Hermann Health System, No. H-17-1954, 2017 WL

5068157, at *5-6 (S.D. Tex. 2017) as an example of the dismissal of a state law employment

discrimination claim pursuant to the Act. The Southern District stated that because the Act is to

be broadly construed and the statute explicitly excludes certain causes of action, but is silent as to



                                                  8
discrimination claims, it was reasonable to conclude that the Act can apply to state-law

discrimination claims. Id. at *5. Khalil’s companion case in Texas’ state court, Memorial

Hermann Health System v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *5-6 (Tex.App.—

Houston [1st Dist.] Aug. 8, 2017, pet. denied), acknowledges, typically, whether an employee of

a privately-owned institution performs her job suitably is not a matter of public concern for First

Amendment analysis purposes. Mem. Hermann Health Sys., 2017 WL 3389645, at *5 (citing

Bates v. Dallas Indep. Sch. Dist., 952 S.W.2d 543, 550 (Tex.App.—Dallas 1997, writ denied)).

However, because the Act includes issues of health and safety in its definition of “matter of public

concern,” “statements concerning a healthcare professional’s competence” fall under the Act’s

purview. Id.

       The facts underlying the Khalil cases provide a specific, unique fact pattern in which the

Act applies to a claim of age discrimination. In those cases, certain written communications among

hospital personnel regarding Dr. Khalil’s competence to practice medicine formed the basis of

each of her claims, including age discrimination. See id. at *1-3 (“Based on the letter from

Memorial Hermann’s chief of staff as well as other communications, Khalil sued Memorial

Hermann for defamation and other claims.”). Importantly, those claims also included speech-

based claims of defamation and tortious interference with a contract. Id. at *1.

       Here, Rodriguez has not alleged any speech-based claim against SSFCU in her petition.

Rather, Rodriguez’s petition alleges only a non-speech claim for employment discrimination based

on age. Specifically, Rodriguez’s petition alleges that SSFCU “informed [Rodriguez] that she was

terminated by Mr. Jesus Garcia for allegedly leaving the vault door open,” despite allegedly having

never previously been disciplined for workplace conduct and denying she “violat[ed] any company

policy . . . that could have resulted in disciplinary action, including termination.” She claims



                                                 9
SSFCU failed to follow a non-discriminatory policy in deciding to terminate her employment,

replaced her with a younger employee, and treated her less favorably than employees younger than

her. She seeks damages for lost wages in the past and future and lost past and future benefits.

       It is not apparent from Rodriguez’s pleading that her claim is based on, related to, or in

response to SSFCU’s communications. Other than general allegations about Rodriguez being

“informed” she was terminated, there is no mention in her pleadings regarding any type of conduct

by SSFCU that could be inferred as constituting a “communication,” even under its broad

definition. Because the allegations in Rodriguez’s petition do not clearly establish the Act applies,

the Court must look elsewhere for proof that the action was brought in relation to SSFCU’s

exercise of its First Amendment rights.

       SSFCU provided affidavits from Denise Staudt and Savannah Mondragon in support of its

motion. While we are permitted to look at “supporting and opposing affidavits stating the facts on

which the liability or defense is based,” TEX.CIV.PRAC.&REM.CODE ANN. § 27.006(a), it is unclear

from the SSFCU affidavits’ how Rodriguez’s claim attempts to chill SSFCU’s right to free speech,

or how Rodriguez’s claim is based on SSFCU’s communications. Staudt’s affidavit details

SSFCU’s products and services, Rodriguez’s employment timeline with SSFCU, Rodriguez’s job

duties as Assistant Branch Manager, the events regarding the incident with the vault, and various

policies and procedures of SSFCU’s that Rodriguez allegedly violated. Staudt’s affidavit states

Rodriguez’s claim is “based on, related to, or in response to communications to and about

[Rodriguez], and among SSFCU personnel, regarding the decision to end her employment with

SSFCU[,]” but does not identified the purported communications or discuss the substance of

SSFCU’s alleged protected speech.




                                                 10
       Mondragon’s affidavit recites her conversation with Jesus Garcia, Rodriguez’s branch

manager, when he inquired about whether Rodriguez contacted Mondragon about how to fix the

vault as Rodriguez allegedly represented to him. Mondragon’s affidavit appears to be evidence

SSFCU offers in support of its defense of Rodriguez’s claims, rather than evidence tending to

prove application of the ACT.

       Additionally, SSFCU attached deposition transcripts of several SSFCU employees in

support of its motion. Jesus Garcia was the branch manager at the SSFCU location where

Rodriguez worked.     In his deposition, he describes an email he received from one of his

subordinates regarding Rodriguez leaving the vault unattended. He also describes conversations

he had with other SSFCU employees regarding the incident and how Rodriguez should be

disciplined. He further describes his conversation with Rodriguez when he confronted her about

the incident. He avers leaving the vault unattended was a risk to SSFCU employees and posed a

risk of loss for the cash itself. Garcia was also questioned about Rodriguez’s written termination

notice, which he prepared.

       At the time of the incident with Rodriguez and the vault, Derrick Aguilar was the Vice

President of Member Services in El Paso for SSFCU. Aguilar’s deposition covers much of the

same ground as Garcia, particularly related to the timeline of Rodriguez’s actions on the date of

the vault incident. Aguilar was also questioned regarding Rodriguez’s termination notice, which

he did not prepare.

       Kerry Comer is the HR business consultant for several SSFCU branches in Southern

Colorado and El Paso, Texas. Comer testified she verified the numbers in Rodriguez’s call log

made the afternoon of the vault incident. Comer stated Rodriguez’s behavior ultimately put

employees at risk, which formed part of the basis of Rodriguez’s termination. Comer testified



                                               11
regarding SSFCU’s position statement for the EEOC hearing for Rodriguez’s claim, which she

prepared.

         SSFCU never identifies with any specificity what communications Rodriguez’s claim is

purportedly based on or related to. Unfortunately, this leaves us in an awkward posture of having

to presume which communications SSFCU is basing its dismissal on. Based on the deposition

testimony provided by SSFCU, we speculate the “communications” upon which SSFCU is relying

on include the verbal discussions and written correspondence among SSFCU employees regarding

the vault incident and the termination notice prepared by Garcia that formally notified Rodriguez

of her termination. From this vantage point, it is conceivable Rodriguez’s claim could be related

to or in response to communications about her alleged violation of SSFCU’s policies, which

Rodriguez claims were applied less favorably to her than to younger employees. Using those

“communications,” we move to the second prong of our inquiry.

         Matter of Public Concern

         Under the Act, a matter of public concern “includes an issue related to:

         (A) health or safety;

         (B) environmental, economic, or community well-being;

         (C) the government;

         (D) a public official or public figure; or

         (E) a good, product, or service in the marketplace.”

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(7).1 The communication need not be public in order

to be covered by the Act as a matter of public concern; private communications are also covered


1
 The Legislature recently amended the Act. See H.B. 2730, 86th Leg., R.S. (Tex. 2019). The Act now defines a
“[M]atter of public concern” as “an issue related to: (A) a public official, public figure, or other person who has drawn
substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter of political,


                                                          12
under the plain language of the statute. ExxonMobil Pipeline Co., 512 S.W.3d at 900. Further,

the communication(s) at issue need not have “more than a ‘tangential relationship’ to” the specified

matters of public concern. ExxonMobil Pipeline Co., 512 S.W.3d at 900. It is not required under

the statute that the communications upon which a legal action is based specifically discuss matters

of public concern. Id. However, the Act does not cover all communications of any kind and does

have limits. See In re IntelliCentrics, Inc., No. 02-18-00280-CV, 2018 WL 5289379, at *4

(Tex.App.—Fort Worth October 25, 2018, no pet.)(mem. op.)(acknowledging that the Act casts a

wide net but recognizing that the statute’s reach has limits); Erdner v. Highland Park Emergency

Center, LLC, 580 S.W.3d 269, 276 (Tex.App.—Dallas 2019, pet. filed). When the communication

involved does not itself relate to a matter of public concern, the assertion that the communication

could result in a matter of public concern is beyond the reach of the Act. See Erdner, 580 S.W.3d

at 276 (citing Nguyen v. Hoang, 318 F.Supp.3d 983, 1001 (S.D. Tex. 2018)).

        SSFCU alleges Rodriguez’s lawsuit is based on, related to, or in response to a

communication made in connection with health and safety; environmental, economic, or

community well-being; the government; and a good, product, or service in the marketplace. We

will examine each of these elements in turn.

            a. Health or Safety

        SSFCU asserts the communications at issue are related to health and safety because federal

regulations regarding mandatory security programs, which include proper vault security, help

protect credit unions from robbery, which the National Credit Union Association associates with

the potential for personal injury. SSFCU directs us to a few cases where courts have found a

communication made regarding health or safety and is covered under the Act. As we discussed


social, or other interest to the community; or (C) a subject of concern to the public.” TEX.CIV.PRAC.&REM.CODE
ANN. § 27.001(7). Because the amendments were not made retroactive, the older definition applies to this appeal.

                                                      13
previously, in Memorial Hermann Health System, 2017 WL 3389645, at *5-6, one of our sister

courts in Houston found a physician’s job performance, as it related to whether she was competent

to fulfill her duties as a doctor administering patient care, was a matter involving health or safety.

In its companion case in federal court, Khalil, 2017 WL 5068157, at *5-6, the Southern District of

Texas found the hospital-defendant met its burden in proving the Act applied to a physician’s state-

law age discrimination claim in federal court. The Southern District applied the identical analysis

used by the First District since both the state law tort claims and the discrimination claim in federal

court involved the same communications and subject matter. Id.

       The Court in Memorial Hermann substantively dissects Lippincott out of the Texas

Supreme Court. See Memorial Hermann Health System, 2017 WL 3389645, at *5 (citing

Lippincott v. Whisenhunt, 462 S.W.3d 507, 508-509 (Tex. 2015)). The facts in Lippincott closely

mirror Khalil, involving communications about Whisenhunt, a certified registered nurse

anesthetist, and concerns over his job performance. See Lippincott, 462 S.W.3d at 508-09.

Specifically, administrators of a surgical group authored several emails to various recipients

regarding reports Whisenhunt, among other things, was “endanger[ing] patients for his own

financial gain[.]” Id. The emails detailed allegations “that Whisenhunt ‘failed to provide adequate

coverage for pediatric cases,’ administered a ‘different narcotic than was ordered prior to pre-op

or patient consent being completed,’ falsified a scrub tech record on multiple occasions, and

violated the company’s sterile protocol policy.” Id. at 510. Whisenhunt sued the administrators

for defamation, tortious interference with existing and prospective business relations, and

conspiracy to interfere in business relations. Id. at 509. The Texas Supreme Court determined the

emails around which Whisenhunt’s claims were based implicated, among others, the “health or

safety” prong of the Act definition of “matter of public concern,” and reaffirmed its position that



                                                  14
“the provision of medical services by a health care professional constitutes a matter of public

concern.” Id. at 510 (citing Neely v. Wilson, 418 S.W.3d 52, 70 n.12, & 26 (Tex. 2013) and

TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(7)).

       In the cases cited by SSFCU, the communications around which the respective plaintiffs’

claims centered dealt with their provision of healthcare services to patients, which the Texas

Supreme Court explicitly considers matters of public concern due to the potential implications of

health and safety among the public. See, e.g., Lippincott, 462 S.W.3d at 509; Neely, 418 S.W.3d

at 70 n.12 & 26. Additionally, Texas courts acknowledge communications regarding the welfare

of children involve the “health or safety” prong of the public concern inquiry. See DeAngelis v.

Protective Parents Coalition, 556 S.W.3d 836, 852 (Tex.App.—Fort Worth 2018, no pet.)(citing

Watson v. Hardman, 497 S.W.3d 601, 607 (Tex.App.—Dallas 2016, no pet.)).

       We cannot draw such a conclusion to the facts of the case at hand. The communications

at issue involve Rodriguez allegedly leaving the vault unsecured for three to five hours and not

being forthcoming with her manager when confronted about the alleged lapse later.              The

“communications” offered by SSFCU evidence a discussion of SSFCU’s policy for securing the

cash vault and Rodriguez’s alleged failures in this regard. The deposition testimony and affidavits

also emphasize SSFCU’s policies regarding honesty in communication as an employee and

Rodriguez’s lack of transparency regarding the incident with the cash vault.

       Based on the evidence provided, two employees testified they believed Rodriguez’s actions

placed other branch employees at risk, and that risk formed the basis of the decision to terminate

her. Garcia testified he discussed the potential risk to the other employees with two subordinate

employees with whom he discussed the incident during his investigation. In examining the overall

tone of the communications, however, SSFCU’s concern centers on potential loss of cash from the



                                                15
cash vault and the overall breach of its security protocols, as well as its concerns regarding

Rodriguez’s veracity, but not on the potential risk posed to its employees. Further, there is nothing

in the record to indicate that anyone other than SSFCU’s employees knew the cash vault was

unsecured, or Rodriguez’s actions somehow created a greater probability an enterprising bank

robber would enter that particular SSFCU branch that day than if the vault had been properly

secured. The critical distinction between Khalil and Lippincott and the instant case is the

communications in those cases questioned a pattern of behavior of individuals whose professions

directly affect the health and safety of their patients. Here, even if SSFCU had been robbed while

the vault was unsecured, logically it may have subjected SSFCU to a greater financial loss, but we

cannot reasonably surmise the sole fact of the unsecured vault alone would have increased the risk

of violence to employees or customers. In looking at the evidence in the light most favorable to

the non-movant, the standard to which we are held, we do not find the “health or safety” prong of

the public concern inquiry satisfied under these facts.

           b. Environmental, Economic, or Community Well-Being

       “Community well-being” means those matters “affect[ing] the well-being of the

community at large or at least a subset of its residents.” Caliber Oil & Gas, LLC v. Midland

Visions 2000, 591 S.W.3d 226, 240 (Tex.App.—Eastland 2019, no pet.)(citing Schmidt v.

Crawford, 584 S.W.3d 640, 651 (Tex.App.—Houston [1st Dist.] 2019, no pet.)).                 Neither

environmental nor economic well-being are discussed by SSFCU as pertaining to the facts of this

case, we therefore do not include them in our analysis.

       SSFCU suggests the security protocols of credit unions as mandated by federal regulations

affects community well-being, and the communications at issue discuss those portions of SSFCU’s

policies Rodriguez allegedly violated on the afternoon of the vault incident. However, the record



                                                 16
does not demonstrate any communication regarding how the community, or SSFCU’s members,

or even the individuals who stepped into the branch while the vault was unsecured were in any

way affected by the incident in question. There are no communications regarding a recurrent

breach of protocol by Rodriguez that would imply a continued threat to the security of SSFCU, or

communications suggesting SSFCU’s security policies are not sound. Here, the communication

does not relate to a matter of public concern; rather, it is about an employee’s alleged failure to

abide by her employer’s security policies for cash security. As discussed previously, the assertion

the communication could result in a matter of public concern is beyond the reach of the Act. See

Erdner, 580 S.W.3d at 276 (citing Nguyen, 318 F.Supp.3d at 1001). We find the communications

at issue does not pertain to environmental, economic, or community well-being.

           c. The Government

       SSFCU asserts it is subject to a number of federal regulations pertaining to, among other

things, security on its physical premises. SSFCU explains it is also required to implement a

security program that satisfies a five-pronged test, to include the program must protect the physical

office from various forms of theft. SSFCU further discusses its own policies for employees

handling cash on its premises, which include proper securing or attending to vaults, securing locks

and doors, and securing devices when an employee is away from the area for an extended period

of time.

       A communication is related to the ‘government’ when it is about governmental
       misconduct, Adams, 547 S.W.3d at 896; direct conduct by the government, such as
       purchasing property, Schimmel v. McGregor, 438 S.W.3d 847, 859 (Tex.App.—
       Houston [1st Dist.] 2014, pet. denied); or the operation of the government, In re
       Lipsky, 411 S.W.3d 530, 543 (Tex.App.—Fort Worth 2013, orig. proceeding),
       mandamus denied, 460 S.W.3d 579 (Tex. 2015).

Caliber Oil & Gas, LLC, 591 S.W.3d at 241. Although SSFCU is required to abide by federal

regulations regarding vault security, Rodriguez’s termination notice is not about governmental


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misconduct, direct conduct by the government, or the operation of government. We are not

persuaded the communications referenced by SSFCU interacts with “the government” in such a

way as to be considered a matter of public concern.

           d. A Good, Product, or Service in the Marketplace

       SSFCU also posits “a matter of public concern” is satisfied by the services it provides to

the El Paso community, including various loans, banking accounts, investment accounts, credit

accounts, “and other financial instruments and banking services.”           However, the SSFCU

communications surrounding Rodriguez’s termination do not mention those services, and only

highlight her alleged actions in leaving the cash vault unsecured and her failure to abide by

SSFCU’s communication and honesty policies. Additionally, the communications do not link

Rodriguez’s alleged actions leading to her termination to SSFCU’s services in the marketplace or

otherwise allude to them. “Construing the [Act] to denote that all private business discussions are

‘a matter of public concern’ if the business offers a good, service, or product in the marketplace or

is related to health or safety is a potentially absurd result that was not contemplated by the

Legislature.” Forget About It, Inc. v. BioTE Medical, LLC, 585 S.W.3d 59, 68 (Tex.App.—Dallas

2019, pet. denied)(quoting Erdner, 580 S.W.3d at 277); see also Creative Oil & Gas, LLC v. Lona

Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019). We do not find the communications at issue

relate to SSFCU’s services in the marketplace as contemplated by the Act.

       After a careful review of the record, we find the communications made by SSFCU

regarding Rodriguez’s dismissal are not related to any matter of public concern as defined by the

Legislature under the Act. We therefore hold SSFCU has not satisfied its burden of proving by a

preponderance of the evidence the claims asserted by Rodriguez are based on, related to, or in

response to its exercise of the right of free speech.



                                                  18
        Having determined SSFCU did not meet its burden, the burden does not shift to Rodriguez

to establish by clear and specific evidence a prima facie case for each essential element of her

claims. It is therefore unnecessary to decide SSFCU’s second and third issues and renders them

moot.

                                   Evidentiary Considerations

        In its fourth issue, SSFCU claims the trial court erred by not sustaining SSFCU’s objections

to Rodriguez’s evidence.

        Both parties lodged objections to the other side’s evidence that was never ruled upon by

the trial court. Accordingly, we have no indication whether the trial court considered some, all, or

none of the objected-to evidence. Because we are not deciding SSFCU’s second issue regarding

Rodriguez’s prima facie showing of her claim on discrimination, we need not consider the

evidence she submitted and whether it should have been admitted or excluded. We therefore

decline to address Appellant’s fourth issue.

        Assuming the trial court overruled all of Rodriguez’s lodged evidentiary objections and

error was preserved, there was no abuse of discretion in failing to exclude the evidence because,

having considered evidence submitted by SSFCU in our analysis, we still find the Act does not

apply. See TEX.R.APP.P. 61.1; Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220

(Tex. 2001).

                                         CONCLUSION

        While we acknowledge the Act’s breadth prior to its 2019 amendment, we cannot discount

the purpose of the statute, which we do not believe would be achieved by finding its application

to the facts of this case. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.002. Moreover, the very few

employment discrimination cases to which the Act has been applied are distinguishable from the

facts of the instant case.
                                                19
       We hold SSFCU did not meet its burden in proving by a preponderance of the evidence

Rodriguez’s lawsuit was based on, related to, or in response to its exercise of the right of free

speech. Therefore, we find SSFCU’s motion was properly denied.

       Having overruled Appellant’s first issue, which obviates the need to determine its

remaining three issues, we affirm.



April 24, 2020
                                             YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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