all right welcome to day two of the west coast court panel before we began i'm advised we have a guest in the courtroom the honorable justice greenwood to the office of the inspector general is protected by the texas whistleblower as a citizen of the state of texas jennifer captains letter to her elected representative making allegations of violations of law and mismanagement by d state agency is protected by the first amendment and a governmental employee may not fire an employee for doing either of those two things yet she were a reasonable jury could find that that is exactly what happened to miss grant on april first two thousand and sixteen a team of managers human resources and legal stuff not to discuss my client miscreant according to the contemporaneous meeting notes at record pages six seventy eight to six seventy nine during that meeting they discussed clinton's o i g complaint in her letters to her elected representatives after that discussion according to the decision maker sylvia rodriguez they decided to terminate ms clinton and you can find that it became page six fifteen when mr rodriguez was asked what information she considered in making the terminations decision she stated without qualification all information everything that's happened so far and that's a record page six sixteen essentially with that statement miss rodriguez was admitting the damage was terminated miss crampton because of her protected activity opposing counsel will not be able to point to this point any evidence in the record out to this court it conclusively negates a single fact that i just told you to be sure i expect opposing counsel to have a different interpretation of those facts and i ask this court to weigh the evidence differently for example i expect opposing counsel will argue or point out to this court that some of the attendees at that management meeting do not recall discussing clinton's protected activity or argue that when mr rodriguez said that she terminated came to because of everything that's happened so far what she really meant was everything that's legal to terminate an employee for what you're really arguing is that once that she's or permanently protected against getting fired because she engaged in protected activity no your honor i'm not arguing here that what why is that not what follows from what you're saying well because the evidence in this case shows that the decision makers considered her protected activity and then base the decision to terminate her on that protected activity taking this right he is the decision maker at her word when she says that she terminated clinton because of all of the information because of everything that's happened so far that mean includes mrs clinton's protected activity at a jury could find from that evidence that dad's terminated her because of her protected by tiffany and because the district court did not make that reasonable inference in favor of the scranton we're asking this court to reverse summary judgment on both causes of action that first i'd like to discuss ms clinton's texas whistleblower not claim in that i'd like to discuss her first amendment under the texas whistleblower that person must show that she is a public employee who reported a violation of law in good faith to an appropriate law enforcement authority and that caused an adverse action here the only element challenge by defendants the court of appeals for san antonio stated that some in judgment the but for standard requires conclusive proof that the report of a violation of law did not play a role however small in the defendant's decision he him for everything that's happened so far regarding temporal proximity there is a foundation for causation because for two reasons first under the cover under the texas whistleblower act there is a presumption of causation protected report occurred within ninety days here unlike the page eleven and it shows that mr clinton made a report of a violation of law to the office of the inspector general on march third on page eleven page eight twelve it shows that the to terminate her and again that is on page one page six fifty for the posing brief urges that there is a in the presumption you mention is you know everybody in this case by the listing of factors that they say identify that was going on at least contemporaneously with all of this conduct of your client you know various workplace  type matters whether discipline there or otherwise but they argue all of that was in the setting between during and overlapping in the same time period of your argument of the rebut the presumption that that you are if if so and in this case why not you know similar question i get shown a presumption but under the texas was above i'm just asking you know what quantity or quality of evidence if at all is available under the texas was a book in order to rebut that production or is it your argument that it's more than a presumption once your client establishes it that appeals can uphold according to the austin court of appeals a verdict from the tally of twenty discharge may be based upon the immediacy of suspension or terminations following a report that from the tom hasn't the oaks case out of the austin court of appeals in the petition to the texas insubordination included the alleged protected activity or refusing to care for patients who was sexually harassing the plaintiff here we have that same other things because here the reason given that silvio rodriguez the decision maker stated the reason given for terminations was all information everything that's happened so far and that necessarily includes if we take her at her work in take her statement as true that necessarily includes are protected activity under the texas supreme court held in the texas whistleblower case that the statement lucky to have a job after the peters incident was sufficient to sustain a jury voted for retaliatory discharge the peters incident was a reference to the protected activity in th reason for time attention was sufficient for a jury to infer causation in retaliation under the particular statute and so based on those four cases the evidence in this case creates a foundation just as a jury may infer fire from evidence of smoke or rain from a wet umbrella a jury may infer the reasons for terminations based on the topics discussed at the terminations needed and the testimony of the decision here again at the meeting where the decision to terminate ms clinton was made her oh i do complaint was explicitly discussed and that's on page six seventy eight of the record and sylvia rodriguez when asked why clinton was terminated what information she considered she said first a district court said that the speech was not precisely identified and second that reports of the violations of law and enough reasons that miss clinton made were not matters of public concern on appeal defendants also challenge the causation element in a certain amount of healthy affirmative defense they would've taken the same action regardless of the type that activity the district court erred in the first words and because the speech has been for slicing identified under the very case of the court sides which is the foley case that case requires simply evidence one sixty seconds but the main issue here i think is whether or not this came from spoke on a matter of public concern when she wrote to her elected representatives in here the critical decision is judge stewart's opinion in monica's detail the taylor this court held that a letter to a state representative alleging violations of law mismanagement all seasons by a state agency was a matter of public consent and to reach that decision this court looked at the content form element of personal interest in this case in in the monica kids and bought a car the letter included allegations of violations of law as well as complaints that she was a victim of retaliation and discrimination and complains about internal policy decisions regarding things like baby showers on state property in that case this court held that that did not outweigh the allegations of violations of law here the content ways even more heavily in favor for any protection as defendant admits in their own brief on page six the packets of information the letters that clinton sent to her elected representatives did not include any allegations of retaliation or discrimination instead it says that she wanted to do this because she was worried that somebody was going to get hurt and she could no longer sit by and let this happen and again that's worth repeating one sixty six where she states exactly why she did it the form in modoc up this court held that a letter to a state representative because it was outside of the employment agency the agency that employed the plaintiff was militated in favor of protection here this is a letter to a state representative again outside of the particular agenc this country works for and so it also like the monica militates in favor of protection regarding contacts the court found that most of the letter in that case focused on the impact that the violations of the law and the mismanagement were going to have on the public and so the context here is the same for clinton her letter does not include allegations of retaliation or discrimination but instead focuses on the impact these violations of law on the impact she believes these violations of law will have on the public she believes that these violations of law will force citizens of texas to get that she believes that she can no longer sit idly by and watch these things go on and at the time that she looked this letter at the time she first started sending her packets of evidence to her elected officials she had not been formally disciplined but it doesn't in fact her job was not in jeopardy she had no reason to think that her job was in jeopardy and that doesn't state anywhere initial letter on pages one sixty six to sixty seven of the record that she was worried about her job or that she was motivated by a fear that her job was going to be taken away and because all three trying to implement contacts milita may please the court a public employee may not simply start making complaints to government officials as an insurance policy against losing her job for legitimate and nondiscriminatory reasons and then claim refuge under the first amendment in the texas whistleblower act the record in this case plainly shows that jennifer cramped and was a disruptive uncooperative employee and that's why she was terminated there are two main reasons they clamped and claims fail in the district court judgment should be upheld the first reason is that her speech was not a matter of public concern the context of her speech was a personal dispute with her employer and she admitted she spoke because she thought it would prevent the agency from terminating her the content of her speech was related to disputes over internal procedures and private matters not a violation of law the second reason is that clinton cannot establish causation because there is ample unrebutted evidence in the record justifying her terminations for disruptive and unprofessional behavior even if her speech played a role in the terminations which it did not frame this forest succinctly in this s the opposite argues in the brief in here that it's really happening is she does are protected speech all this other stuff comes up you know as a way to you know stick a pin in that b n read brief says you know all this other disciplinary stuff is going on and then she does this do it so you know it's like this  when so it's like which came first chicken or a you know in terms of sequence and so on and so forth and so all in a wreck and we got it sorted out so my question is in the last thing he said was well quote her job was not in jeopardy you know when all is transpired etc so my hopefully your question is just what's the framework on disciplinary action it said or the context why was there some kind of disciplinary procedure or whatever whatever in place going on when you know the letter story going out and so on and so forth or do we have just kind of what's in a record you know it's stuff that was going on but it wasn't formalized in any kind of kind of way you know sam saying not just on this date is habit just give us kind of a snapshot so we can understand the framework of the argument yes  actions and by disciplinary actions i mean also who counseling or coaching sessions where her supervisors supervisor setting her down and saying these incidents that you've taken or these incidents that have taken place are not acceptable in the workplace and you need to change this behavior so not necessarily formal disciplinary proceedings those began all the way back in april twenty fifth team with her original supervisor she was addressed twice by that supervisor in april she was address again in july twenty fifteen by her new supervisor because the behavior continued that behavior really started escalating in september two thousand and fifteen when she applied for a job and did not receive an interview eg really confronted three of her supervisors that month and there were six documented incidents of unprofessional behavior in october two thousand and fifteen including three on october sixteenth alone and then we know that in auto it was received on october twenty third her complaint to the governor's office and she testified that she believes she sent that complaint out first so in other words there was already a history of this unprofessional behavior starting before she sent a packet of information to the governor's office was that meeting scheduled before she sent the pack the second level reminder meeting was in nov twenty fifteen right at the beginning of november twenty fifteen i'm not sure if it's in the record when exactly that meeting was scheduled but the record does show that i'm up to her twentieth there had already been discussions between silvio rodriguez and some of the h r individuals as to what kind of action to take and then they decided on the second level reminder and then they had the meeting after that so the discussions that were going on regarding what to do about her behavior started before she sessions where someone spoke to her but the the earlier sessions were an attempt as more of an informal resolution to try to point out to her that this behavior was unacceptable and get her to change but because it kept occurring that's when they started the formal process and that would begin with the second level reminder in november twenty fifth scene and that actually is a sub process they sit down they have a letter that they discuss they go over with the employee and there is actually a notation placed in the file it's they they have like an action plan that results from that meeting and that's placed in the employee's file and over certain time period the employee is required to add here to the action plan you say sets forth texas in this in what case the texas supreme court held that it's not enough to satisfy the plaintiff's burden where evidence that in and edit it they held that evidence that an adverse employment action was preceded by a superiors negative attitude towards an employee's report of the legal conduct is not a love enough standing alone to cause to show a causal connection and then more recently the texas supreme court in alamo heights honesty versus clarke had a lengthy discussion of the but for causing standard which is what applies here and there the texas supreme court held that just questioning the credibility of the defendant which is essentially what the plaintiff has done here is not enough to create a fact issue on causation additionally the the tour as decisions articulation of the standard that the third the burden is to somehow exclude any other or any any potential role that the speech played that that's just inconsistent with the standard of proof whether you want to characterize it as an affirmative defense or not the causation element is still there and the plaintiff has the burden and the texas whistleblower act to prove that determination was the were the speech was the but for cause of the term a nation meaning that they would not have been terminated when they were if not for their protected speech if the defendant can come in and show that there were lots of other reasons why the employee was terminated the had nothing to do with the speech then any presumption that was established earlier because of temporal proximity or anything any other circumstantial evidence has been rebutted and the plaintiff has to show again and this is just all part of the but for causation stand of the plaintiff has to show that that speech was the cause of the terminations or that they wouldn't have been terminated if at the time if it hadn't been for the speech the plaintiff has not shown not in this case it was the case you're citing all the summary judgment been sent to the governor said for all it's happened for all the reasons things have happened before were terminator that would include sending out the letters wouldn't that could lead specially it could but that's a very vague statement too and really the inference could go either way i'm not i'm not sure it's very clear and in terms of how to interpret that statement there's something that's more clear in the record that i think the court should be aware of on at two seventy one the terminations matter sylvia reggie goes states i have considered all information available to me as a similar to what she said in the deposition i have considered all information available to me based on this information i ha decided your actions constitute grounds for disciplinary action under the human resources manual chapter eleven i'm sure first to refute repeated offenses regarding following instructions courtesy and respect failure to act in a way that doesn't interfere with the workplace so in the using the same language that she used in the termination letter the terminations letter clearly refers to her disciplinary history as all of the reasons that she is considering in making the termination so you know i guess you have to say there's no fact question here at all that her sending all these letters played no role in her firing and how could that be i mean if i was running their agency and i had an employee doing what she was doing talk about putting a knife between your shoulder blades that would be yet i mean how could you say that that didn't play any role in her termination s they are human beings that's gonna play a role yes to him there's there's no evidence in the record that it did play a role especially where the causation element is so undercut by the all of the extensive disciplinary record that crampton has meaning the idea that really when when the court looks out the hurtful history of disciplinary action and if the court reads the transcript of the decision making leave the meeting or listens to the audio  not recording lead can really hear her tone in the way she's speaking to people there really is no serious argument that they have no basis to terminate her based on margaret i mean i'm confident that's right i mean i'm confident there are multiple reasons in this record that they couldn't couldn't and i'm guardedly did have her terminating are the only question is did all her communiques to state agencies and officials was they had a problem did that play a  role it seems to me it must have there is no evidence in the record that it did your honor and even and even if it did as this court holding gerhart even if even if we assume that the exercise of protected activity played a substantial role in the decision to terminate the employee it's not unconstitutional if the employee would have been terminated anyway what about the texas w the texas whistleblower act it goes back to the issue of but for causing a sion and if the plaintiff has not proven that the terminations was due to the speech alone as the but for cause where he cannot separate where she cannot separate out these other potential causes for her terminations in here a bit the evidence of of legitimate reasons legitimate nondiscriminatory reasons for terminating home playmate is significant and more importantly unrebutted they have not rebutted any of this evidence here other than to show other than to say that silvio rodriguez was lying that's not enough to create a fact issue as i've mentioned already in a couple of cases the courts upheld that and even if we get an important even if we assume that rodriguez made up all of those things there is corroboration by others in the characterization of her behavior that we're not accused of retaliation in this case and he borland and robbie craig attended meetings with clamped and observed her negative behavior the governor's office wasn't involved in this at all independently observed her lived an aggressive manner yelling at people on the phone and demanding to speak to somebody with the governor's office immediately or she would personally come down there so this all supports the long history of the well documented history of these problems in the workplace and that was why this is closer whatever what do you do with it i mean and i'm not sure in all those other cases because and read them all i mean you know what to do it obviously rule fifty six is you can't just rest  fact you know at least on i think we've got we've got down up down i mean hung up but the fact issue is worrisome you know when the argument is that you're entitle a summary judgment as a matter of law obviously argues vigorously and some force that you know a minimum this kind of a mixed deal here sequin chile and what happens first in riga says well all of the fact that she doesn't say you know and on her free speech going which means you're saying tyler judgment is a matter of a lot of there's absolutely no fact no issues not take you to say she doesn't deny that disciplinary one you know there are jury how to sort all this out you know yes honorable and good her case the court said that even if we assume that the speech played a substantial role if the employee would have been terminated anyway and it's not unconstitutional but going back to their it there's a separate ground that the court could hold for the defendants in this case which is undoubtedly a question of law and that's whether or not her speech was in the public interest here we have an admission from the plaintive that the reason that she made her statements was quote to save her job in other words to prevent the defendants from terminating her this cannot be considered protected speech or it would allow employees to make complaints merely as an insurance policy for being fired for cause a very good argument i mean what you're saying is i'll go ahead and make all this protected speech and thereby inaccurate myself against getting fired and they have in that is a legitimate way i think to look at this case whether it's a winning way or not i don't know but it is certainly you know when you see th t the risk of getting fired then you engage in protected activity exam at least i've got it i've got a jury case here if you get a lawyer that's that's right your honor and even if  even if the even if she did you know maybe her she wasn't at the verge of terminations when she started making these complaints she could still see the writing on the wall she thought that her supervisor did not like her she felt like she was being picked on and singled out the evidence is full of this effort so and she admitted she did it to save her job so it doesn't matter that she was not on the verge of terminations when all of these complaints occurred and in looking at the context and the content of her speech the context of her speech again going through the timeline was made in the context of it dispute with her employer and also the content of the speech was relating to internal procedures that temporary suspension of requiring resumes from management chain hosts and the process for correcting data entry errors as the supreme court hadn't held in conic the first amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs so even the content of her speech itself is shows that it was made not not in with in the public interest as this court recognized in harris almost anything that happens in a public agency could conceivably be of interest to the public so instead of looking at whether the public has an interest in the employee statements the court examines whether the speaker's motivation was to speak primarily as it isn't or as an employee and again in this case clinton admitted her motivation here sherm mission was to save her job and prevent the agency from terminating her the district court's decision granting summary judgment to the defendants was correct crampton has not met her burden under either the first amendment or the texas whistleblower rocked and there's no genuine issue of material fact in either claim as the record shows she was terminated because she was a problematic employee district court judge and it should be affirmed thank you tha allegedly prior counseling that's actually a fact that she knew we would dispute whether or not she had been counseled prior to her letters of the e mails that they're referring to are not referred to as counselors at the time they were not formal discipline and in fact after the first two e mails of the reference as alleged counseling miss grass mike the supervisor at the time actually rated clinton commendable inserted specifically that she interacts with coworkers any positive declaration from this gusman are saying that she was a professional so i think at the very least that is a fact issue for the jury to the sun the second point i would like to make is  think your concerns are well taken that this is a summary judgment case where they have to conclusively show that no reasonable jury could find in their favor whether or not they have a plausible argument that a jury might  with is not really the issue here because all reasonable inferences must be made in favor of mr clinton and if you just look at the texas supreme court case in zim like that was a jew it was after a jury trial considered all information everything that's happened so far and i was listening to opposing counsel read the actual terminations notice and nothing in the later contradicts or at least conclusively negates mr obvious as testimony again she says i to do when they see violations of law she first went to her supervisor then her supervisor supervisor and only when they did nothing about these violations of law did she start writing to her elected representatives and report them to the office of the inspector general and there are these really violations that i didn't understood understand that it i thought that her i mean may have misunderstood him i thought her position was that it is not wise to change the application process the way you're doing it because you can't identify whether a key component that you should ha you hire somebody continues to exist i thought i didn't think it was a violation of law issues i thought it was just a matter of whether it was on why was she alleged conduct that she believed to be a violation of law she didn't believe this was on the wires she believed it violated the statutory requirement that doug's review qualifications for personnel changes at these home health care agencies and she actually states as much on record page one sixty nine where she writes in be this is where the staff has been told to break the law you can pull up the rug online and that if you go to recompete one seventy one she writes this is a direct order to not follow the law and that's also supported by testimony buried within here there's a some statement or something to the effect from your client knowledge of good living whatever that these efforts were to say is that you know there or what do you say about that or tallying against it she sent out two rounds basically of letters to two officials and the first round is what we're talking about now where it was sent in september and october and only after they started retaliat against her only after they had written or put her on formal discipline and basically showed that they were going to fire her for this activity did she start trying to save her job same what they are violating the law here and they're going